When should Interest on past due Attendant Care Benefits be paid to claimants?

Thousands of individuals get hurt and injured every day in car accidents, an all too common occurrence in Ontario.

These incidents often result in injuries whose severity is such that victims experience a temporary loss in their ability to perform even the most basic daily tasks, such as, bathing, using the bathroom and getting dressed. Attendant Care Benefits exist for this very purpose.

These benefits are awarded to individuals who have sustained such significant injuries from a motor vehicle accident that they require assistance to perform everyday tasks. The benefits are provided in accordance with the Statutory Accident Benefits Schedule (SABS) and in order to apply, an official claim, called a Form 1 is required. This is prepared by a healthcare professional who assesses the accident victim to determine their attendant care needs.

The amount of monthly care benefit is calculated by evaluating how much time (per week) is needed to have assistance with feeding, dressing, laundry and other tasks, and this time value is multiplied by an hourly rate to perform this service. If the accident victim's insurer fails to provide benefit payments when they receive the application (Form 1), interest will begin to run on the claim, thus increasing the amount of benefits owed.

Sometimes the amount of attendant care needed by the insured (in the months and years following the accident) exceeds the amount originally calculated. In these instances, an accident victim may have their attendant care needs and expenses re-assessed by a healthcare provider. Subsequently, Form 1 is re-submitted to their insurance company, with the details of the retro-active attendant care assessment, requesting benefits over and above the original amount.

Case example

The 2015 trial of Angela Grigoroff v. Wawanesa Mutual Insurance Company addresses the issue of interest on Attendant Care Benefits and specifically, at which date a claim can be classified as overdue resulting in the accumulation of interest.

Angela Grigoroff was involved in a vehicular accident on December 7, 2001. As a consequence, Ms. Grigoroff retained an occupational therapist and case manager who conducted an assessment of her injuries and needs, in preparation of the Form 1 document necessary for her claim. Wawanesa Mutual Insurance Company, Ms. Grigoroff's insurance company, accepted this claim and paid her in full.

In 2009, Ms. Grigoroff retained an occupational therapist to perform a "retro-active attendant care assessment", to re-examine the previous assessment that had been made in 2001, particularly for the period of December 7, 2001 to July 27, 2003. At the conclusion, a retro-active Form 1 was submitted to Wawanesa by Ms. Grigoroff, on February 16, 2009. 

Wawanesa refused to pay the retro-active assessment amount and the issue was taken to court. At trial, the jury sided with Ms. Grigoroff and awarded her an amount exceeding what Wawanesa had already paid. Wawanesa paid the full amount, including interest that had incurred from February 16, 2009, when the retro-active Form 1 was submitted. Ms. Grigoroff argued that the interest should have started from the date when the jury decided the benefits were owing. Wawanesa disagreed and again the issue was taken to court.

On September 24, 2012, the judge ruled in favor of Ms. Grigoroff, applying the decision made in Attavar v. AllState Insurance Company of Canada as precedent, where it was ruled that just because an insurance company did not know the exact amount owing for attendant care benefits, did not mean that interest did not begin accruing 10 days after the date upon which the benefits amount was owing.

With regards to Grigoroff v Wawanesa, although Wawanesa disputed the retro-active Form 1 and was waiting for a trial decision on how much was actually owed, interest on the amount was nevertheless due from the beginning of the period being contested, which was December 7, 2001.

The trial judge also concluded that the rules for interest on accident care benefits are no different than those for interest owing on general damages. According to the Courts of Justice Act, an insurer must pay interest on general damages from the date of the accident, whether or not the exact amount of general damages is known. Wawanesa Mutual Insurance Company disagreed with the judge's ruling and filed an appeal.

The Divisional Court approved Wawanesa's appeal and ultimately ruled to amend the trial judge's decision, based on the following grounds. Under Section 46 of the SABS, interest is owed on any overdue payments and an amount is only overdue if the insurer fails to pay within the required time. Further, a claim must be made using the prescribed Form 1 and the insurer is required to pay within 10 days of receiving the Form (per Section 39, SABS). This means that a payment is not overdue until 10 business days after the application is received by the insurer.

Wawanesa did not receive the retro-active Form 1 until February 16, 2009 and thus interest on the attendant care benefits should be calculated from that date. Therefore, the Divisional Court amended the trial judge's judgement and held that Wawanesa did not owe any interest to Ms. Grigoroff prior to that date. The Court further held that Wawanesa is entitled to partial indemnity costs for the appeal, calculated as $9988.40 for fees and disbursements. Also of note in this trial is that the Divisional Court concluded that the legislation in the precedent case," Attavar vs. Allstate Insurance Company of Canada, was not relevant to this case.

In the Attavar v. AllState Insurance Company of Canada, Attavar, the insured, filed for loss of earning capacity benefits (LECB), which Allstate, the insurer, decided they were not entitled to. The insured underwent an assessment at the Designated Assessment Centre (DAC), where it was determined they were entitled to LECB benefits, but Allstate rejected this claim and filed for release of the original LECB claim. " 

At trial, the Court ruled in favor of Attavar because Allstate was required to pay the loss of earning benefits within 14 days of receiving the application. Once it was decided that the insured really was entitled to these benefits, the payments owing to them started from their initial application.

Therefore, in both actions, it was a matter of when the required application was actually received by the insurer, to determine when the payment was actually overdue, which was February 2009 in the Grigoroff v Wawanesa case.

Attendant Care Benefits are very important benefits that can provide significant financial assistance for an individual who has suffered severe injuries in a car accident. However, to receive the benefits one deserves, accident victims must understand the proper procedure and steps needed to make a successful claim.

At Gluckstein Personal Injury Lawyers, we can help make sure your claim is a successful one. If you or a loved one has been the victim of a car accident, do not hesitate to give us a call.