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The Attendant Care Needs Assessment (Form 1): It is what it is

In a recent Financial Services Commission of Ontario (FSCO) Arbitration ruling, Costel Sicoe and Jevco Insurance Company [FSCO A08-001173], Arbitrator Susan Sapin confirmed that the hourly rates indicated on the Attendant Care Needs Assessment (Form 1) are the rates which are to be used by insurers for paying the benefit. Mr. Sicoe was catastrophically injured in a motorcycle accident on June 15, 2006.  As a result of this accident he required round-the-clock attendant care.  Jevco paid the attendant care to the maximum of $6,000.00 per month. However, in February 2009 Mr. Sicoe moved to Romania.  Jevco reduced the monthly attendant care payments based on an argument that the basic supervisory care amount of $7.75 per hour is based on the minimum wage in Ontario at the time of the accident, but in Romania the minimum wage was $1.30 per hour.  Jevco paid $1.30 per hour for the basic supervisory services.  This resulted in Mr. Sicoe being paid less than the $6,000.00 per month that he was entitled to in accordance with the Form 1. Arbitrator Sapin confirmed the interpretation of an "incurred expense" from previous case law:

It is well-established that an applicant need not actually receive the items or services claimed in order to be entitled to an expense. To do otherwise would allow the insurer to set up the inability of an insured to pay for a benefit as a shield from its obligation under the policy of insurance. It is sufficient that the reasonableness and necessity of the service be established and that the amount of the expenditure can be established with certainty.

This decision further confirms that insurers are bound to pay attendant care benefits in accordance with the Form 1 and that they do not have the discretion to pay below the rate established by the Form 1.  To that end, Arbitrator Sapin stated the following:

I note that the most recent Attendant Care Hourly Rate Guideline, dated June 2010 and available on the Commission website, establishes the maximum expense that automobile insurers are liable to pay under the Schedule for attendant care services (for accidents after September 1, 2010). The Guideline also states that "Insurers are not prohibited from paying above the maximum hourly rates established in this Guideline." It does not say, however, that insurers can pay less.

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