In S.K. vs. Aviva, the LAT provided important clarity regarding the application of hourly rates for attendant care services under Ontario’s auto insurance regime. The case revolves around the interpretation of the Financial Services Commission of Ontario (FSCO) Superintendent’s Guideline No. 01/18 and Bulletin A-03/18, which outline the rules for determining the maximum amounts payable for attendant care benefits. The LAT ruling reinforced that the hourly rates in the Form 1 should not be interpreted as a hard cap on the amount payable for such services.
Key Takeaway: FSCO’s Hourly Rate Guidance
The decision primarily confirms that while the FSCO’s Superintendent’s Guideline No. 01/18 and Bulletin A-03/18 set specific hourly rates for the purpose of calculating monthly entitlement to attendant care, these rates should not be seen as the strict maximum amount payable for attendant care services. This distinction is crucial for anyone involved in the auto insurance claims process.
The guideline and bulletin were initially introduced to provide clarity on how insurers should calculate the entitlement to attendant care benefits. The Form 1 is used by claimants to report their need for attendant care and is tied to a prescribed hourly rate. However, at paragraph 17 in this decision, the LAT emphasized that these rates are intended only for the purpose of calculating monthly entitlement and do not establish a maximum payable for the service itself.
What Does This Mean for Attendant Care Claims?
The LAT’s interpretation offers significant flexibility for both claimants and insurers in the assessment and payment of attendant care benefits. It clarifies that insurers cannot simply apply the hourly rates from the Form 1 as a strict cap on the amount they must pay. Instead, these rates should be viewed as guidelines for entitlement calculations, with additional factors influencing the final amount payable for attendant care services.
In essence, while the Form 1 rates provide a basis for determining monthly benefits, claimants may be entitled to higher amounts depending on the actual costs and circumstances of the care they require. This decision signals a more nuanced approach to determining attendant care entitlements, allowing for greater consideration of individual needs and care scenarios.
Practical Implications for Insurers and Claimants
For insurers, the ruling stresses the importance of understanding that the rates in the Form 1 are not to be applied rigidly as a ceiling for payments. While there are other LAT decisions that come to an alternative finding, S.K. emphasizes considering the actual costs of care, and ensures that claimants are not unfairly limited by the Form 1 hourly rates, which fall far below present day market rates.
For claimants, this decision is a positive development, and should be relied upon by lawyers representing claimants, as it provides for the provision of attendant care services beyond the maximum rates listed in the Form 1, which in many circumstances, cannot be secured in the high demand industry of nursing services. It underscores the importance of presenting a strong case for the need for attendant care services and ensuring that all factors—such as the severity of injuries and the complexity of the care required—are taken into account.
Conclusion
The Licence Appeal Tribunal’s decision clarifies a critical point regarding the payment of attendant care benefits in Ontario’s auto insurance system. By confirming that the maximum hourly rates in the Form 1 are only meant for calculating monthly entitlement, and not for strictly capping the payable amounts, the LAT has signalled its intention for insurers to take a more flexible and individualized approach to attendant care.
This decision reinforces the principle that the ultimate goal is to ensure injured claimants receive the appropriate care and support they need, rather than being limited by predefined rates that may not reflect the true costs of care. As the landscape of auto insurance benefits continues to evolve, decisions like this help to clarify the rules and ensure fairness in the claims process, and provide authority for counsel to rely on.