V402 – The Insurer “Shall” Pay Attendant Care Assessments
M.F. was injured as a result of a motor vehicle accident on January 29, 2015. A treatment plan requesting approval of an attendant care assessment was denied by her insurer on November 1, 2016. In issuing its denial, Allstate cited that it did “not have sufficient medical information indicating the requirement for personal care needs, that the injuries were essentially soft tissue in nature, and that the applicant’s return to work on a full time basis were inconsistent with a claim for attendant care”.
Sections 25 and 42 of the Statutory Accident Benefits Schedule speak to costs of assessments and attendant care benefits. These sections detail as follows:
– An insurer shall pay the reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under s. 42, including any assessment or examination necessary for that purpose, if incurred by or on behalf of an insured person.
– Insurers are only liable to pay attendant care benefits if the impairment is not a minor injury.
– Insurers may, but are not required to, pay an attendant care expense incurred before an assessment of attendant needs is submitted to the insurer.
17001328, M.F. and Allstate Insurance Company, is a simple, yet informative decision which contrasts conflicting interpretations of the relevant legislation. The insurer argued to the LAT that the requested assessment was not reasonable and not necessary and that the denial should thus be maintained. The applicant argued that the reasonable and necessary test was irrelevant, given the plain reading of “an insurer shall pay the reasonable fees charged” statement, and that the assessment should thus be paid.
Adjudicator Karina Kowal rejected the “reasonable and necessary test” and instead confirmed the insurer’s liability to pay attendant care assessments once incurred. In summarizing her findings, she provided our industry with the following helpful guidance:
“In summary, a s.25 (applicant) attendant care assessment and Form 1 are payable from the insured’s medical rehabilitation policy limits when the following criteria are met:
1. The applicant’s impairments are not within the Minor Injury Guideline,
2. An OCF-18 informing of an intent to perform an attendant care assessment and Form 1 are submitted to the insurer (compliant with s.32);
3. The attendant care assessment has been incurred (attended by the insured);
4. The attendant care assessment and Form 1 are completed by a registered nurse or occupational therapist; and
5. The fees are reasonable (s. 25.3 provides that the incurred expense/assessment is subject to the FSCO Superintendent’s contemporaneous Professional Services Fee Guidelines, and/ or pursuant to s. 25.5(a) under $2,000.00)
Official Decision:
17-001328, M.F. and Allstate Insurance Company
