Decision erodes access to attendant care benefits

A recent arbitration decision could effectively deny accident victims access to attendant care, Ottawa personal injury lawyer Najma Rashid .

In the Licence Appeal Tribunal (LAT) case, the arbitrator ruled that an insurer only had to pay for care according to guideline hourly rates for professional services, some of which are below minimum wage.

Previously, most insurers covered care costs up to a monthly maximum level calculated using the guidelines, allowing accident victims to hire people at more realistic hourly rates for care, which can be as much as double Ontario’s minimum wage of $14 per hour.

Rashid, a partner with Howard Yegendorf & Associates, says the new approach adopted in the LAT case is “unrealistic and overly technical.”

“If you want to hire a personal support worker, a registered practical nurse or even a nursing student, you’re not going to be able to do that for minimum wage, let alone below minimum wage,” she says.

“Basically, it means you won’t be able to get attendant care,” Rashid adds.

The catastrophically impaired applicant in the LAT case sought accident care benefits to assist in his recovery from serious arm injuries suffered in a crash.

Although the man’s carer charged $35 per hour for her services, the arbitrator used rates stipulated by FSCO to calculate his entitlement.

For level 1 routine personal care, the maximum rate according to FSCO’s guidelines is $14.90, while level 2 care, which includes basic supervisory functions, is $11.40, well below minimum wage. Level 3 care, which includes complex health and hygiene functions, has a maximum level of just over $21 per hour.

Rashid says that the adoption of the hourly approach at the expense of the old monthly calculations is just the latest in a series of blows to injury victims with attendant care needs.

In the summer of 2016, amendments to the Statutory Accident Benefits Schedule resulted in a series of cuts, most significantly to catastrophically injured victims. They saw the combined limit for attendant care and medical rehabilitation services available for catastrophically injured victims halved to $1 million from the previous $2-million limit.

In addition, the combined attendant care and medical and rehabilitation services for non-catastrophically injured victims fell from $86,000 to $65,000, and the standard duration for medical and rehabilitation benefits was cut from 10 years to five, except for children.

“Over the years, accessibility to care has been slowly eroded by numerous changes to the legislation,” Rashid says. “This decision further diminishes an individual’s ability to purchase services in the community for attendant care.”