V301 – Attendant Care: Qualifying Professional Providers

When people require assistance with their personal care, they sometimes turn to trusted family members or friends for help. In contrast, others prefer to have their needs met by way of hiring professional caregivers.

In the course of accident benefits claims, disputes often arise with respect to whether attendant care providers ought to be considered as non-professional or professional caregivers. The distinction is relevant given that insurers are only obligated to pay an attendant care benefit for non-professional service up to the amount of the caregiver’s lost income.

By limiting the attendant care claim to the amount of lost income, non-professional caregivers often end up being poorly compensated for the care that they provide. This is particularly true in the case of caregivers who were low income earners in past but who now provide constant care to their loved ones. In other cases, for those who were previously unemployed or for those who provide care only outside of their regular work hours, non-professional caregivers may receive no compensation whatsoever.

In considering these factors, there can be a significant advantage to having a caregiver qualified as being a professional for the purpose of the accident benefits claim. To do so allows the injured person the opportunity to access his or her full entitlement to attendant care benefit, as assessed by way of the Assessment of Attendant Care Needs (Form 1), and to pay the entitlement to their caregiver for the hours worked.

The Courts, FSCO and the LAT have weighed in on the qualification of professionals on several occasions. The decisions below highlight some key considerations that may be relevant when considering whether a person ought to be qualified as a professional. These considerations are as follows:

– Family members can be qualified as professional caregivers. When so qualified, they need not establish an income loss for the purpose of the claim.

– The individual’s profession should relate to the healthcare field.

– An individual’s profession is not necessarily dependent on whether or not they are employed. Consideration can be given to those who establish that they were seeking work in their field.

– Profession is dependent on whether or not the individual can do the job – ie. do they have the relevant training, competency, and any required professional / regulatory certifications.

– Professional qualification considers whether the attendant care services that are being provided are comparable to the services that are performed in the course of the caregiver’s employment, occupation or profession in which he or she is otherwise ordinarily engaged.

16-004363, A.P. and Coseco Insurance Company:

A.P. was injured in an accident in 2015. His mother, R.P., subsequently assumed the role of his attendant care provider. R.P. had earned her PSW certificate in 2013 but had not worked in the field before her son’s accident. The insurer did not accept R.P. as a professional given her lack of employment history.

In her decision, Adjudicator Truong commented: “An individual’s profession is not dependent on whether or not they are employed. It is dependent on whether or not the individual has the training, competency, any required professional / regulatory certification and whether or not they are actively trying to obtain employment in that profession. Practically speaking, can they do the job? Actively seeking employment is important, because if the individual stops seeking employment in their profession, they are no longer “ordinarily engaged in” that profession.”

Adjudicator Truong confirmed that family members can be classified as professional service providers. She accepted that R.P. was a trained and certified PSW who was indeed a professional given that she was actively seeking employment prior to her son’s accident. She concluded that R.P. was not required to prove an economic loss given that professional service providers are not required to sustain such loss in order to satisfy the definition of incurred expense.

FSCO A15-007448, Walsh and Economical:

In this decision, Mr. Walsh’s spouse was a trained PSW who worked with severely disabled children prior to the accident. Following the accident she took a leave of absence but eventually returned to work; she provided care to her spouse outside of her work hours. The insurer took the position that Mrs. Walsh worked evenings but cared for her husband during the day and that, as a result, she was not providing care in the course of her regular occupation. With this, the insurer rejected her professional status. The insurer also took the position that she suffered no economic loss after her return to work and that there was therefore no incurred expense.

In his decision, Arbitrator Drory confirmed that family members can be professional care providers. He confirmed that Mrs. Walsh was a professional and that there was no requirement for her to demonstrate an economic loss. He stated: “… if a family member is trained and/or working in the healthcare field, then the attendant care benefit ought to be payable for work they did for the Insured in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident…It would seem odd, as a matter of public policy, to mandate that insureds with trained professionals in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable…there is no restriction…that mandates a professional healthcare aide be arm’s length, nor do I find it appropriate to read one into it.”

Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014:

Justice Garson considered whether Ms Shawnoo’s mother, CB, was a professional caregiver in relation to the claim. CB was qualified as a PSW but had not worked in the field for at least two years before the accident. She was a recipient of Ontario Works and she was not actively seeking employment or likely to receive an offer for such employment. In considering these facts, Justice Garson concluded that CB was not a professional for the sake of the claim and that she was excluded from receiving SABS benefits without otherwise showing an economic loss.

Justice Garson also considered whether Ms Shawnoo’s roommate, CP, was a professional caregiver in relation to the claim. CP’s profession was that of a Child and Youth Worker. Justice Garson considered the employment tasks and skills of a CYW. He concluded that CP had no training, experience or history in healthcare and that the care CP provided to Ms Shawnoo was not provided in the course of the employment in which she would ordinarily have been engaged, but for the accident. CP was not found to have been a professional for the purpose of the claim.

16-001810, Y.D. and Aviva Insurance:

Amongst other issues, Adjudicator Paluch considered whether a physician is a professional for the purpose of the attendant care claim. The outcome was such that the physician was not accepted as a professional for the purpose of the claim. In the absence of professional status, and without an economic loss, the attendant care expense was not found to have been incurred.

In arriving at his conclusion, Adjudicator Palunch confirmed: “My decision turns on the need for the applicant’s husband to “ordinarily have been engaged” in providing her service “but for the accident”. In other words, the test is whether SD was providing services to his wife in the same manner as he was providing in his normal employment (not whether SD was qualified to provide the care). It was clear during his testimony that SD’s regular employment (working at Newlife Fertility Centre as a fertility specialist) he would not be involved in several of the tasks that were listed on the Form 1 (namely, hair washing, grooming, dress/undress, hygiene, bathing, exercise, prepare and feeding meals, assist in walking, get in and out of wheelchair). He was a specialist who was assisting people with fertility difficulties. The duties and tasks of that job, particularly, gynecologist and reproductive infertility specialist, was not a professional that predominantly provides for the activities and the three levels of care specified in the Form 1: routine personal care, basic supervisory functions, and complex health/care and hygiene functions.”

FSCO A13-005768, Josey and Primmum Insurance Company:

Following his accident, Mr. Josey received care from his spouse, Ms Ladd. His position was that his wife, who was the full-time care provider to their three children, ought to be recognized as a professional caregiver for the purpose of the claim. Arbitrator Fadel disagreed with this suggestion. He noted the definition of incurred expense to be clear in its intention that the service be provided by a professional in the health care industry. He rejected that a stay-at-home parent would be considered as someone providing attendant care services in the course of their employment, occupation or profession.

The attendant care benefit is often contentious; it is a difficult benefit to navigate at the best of times. Before initiating attendant care services, be it with professional or non-professional caregivers, we recommend discussion with adjusters to ensure a smooth claim experience. We can otherwise only expect further decisions and possible regulatory change to follow in the months and years to come.

Official Decisions:

16-004363, A.P. and Coseco Insurance Company

FSCO A15-007448, Walsh and Economical

Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014

16-001810, Y.D. and Aviva Insurance

FSCO A13-005768, Josey and Primmum Insurance Company

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