Q: If a certified PSW wasn’t working as one at the time of an accident, can they still be compensated for the value of their services?

The “incurred expense” definition under the SABS creates a high bar for reimbursement. Specifically, sections 19(4) and 3(7)(e)(iii) dictate that if a provider isn’t providing care in their ordinary course of employment, the benefit is limited to the provider’s economic loss while providing the care.

One way to find if the Tribunal has addressed this question is to look for cases that discuss both whether an attendant was working in the course of their employment and whether they sustained an economic loss.

Using inHEALTH’s LAT Compendium, combine our “Attendant Care-Service Provider” and “Attendant Care-Economic Loss” filters, using our Advanced Search.

TIP: Use the Advanced Search’s Primary and Secondary Criteria to combine filters from the start.

Sign up and Login to inHEALTH’s LAT Compendium:

1. Go to Advanced Search and select: Primary Criteria “Issues/Benefit in Dispute”: Attendant Care-Economic Loss
2. Select Secondary Criteria: “Issues/Benefit in Dispute”: Attendant Care-Service Provider
3. Results 9 decisions on inHEALTH’s LAT Compendium

16-004363 v Coseco: The Applicant’s mother, a certified PSW, was determined to be a professional service provider under the Schedule, as, although she was not employed in that capacity at the time of accident, she was actively seeking employment and subsequently found a position 10 months after the accident. In determining whether she qualified as a professional service provider, the Tribunal held that her relation to the Applicant was not a factor, and that being designated a professional is not dependent on employment, but on “training, competency, any required professional/regulatory certification” and whether the individual is “actively trying to obtain employment in the profession”. Having found that the Applicant’s mother was actively looking for employment at the time of the accident, she does not need to prove economic loss and can charge for her services at the professional rate.

17-000848 v Echelon: The Applicant is entitled to the claimed ACB expenses performed by Ms. Salazar. Although the Respondent claimed Ms. Salazar was not a professional service provider under the Schedule because she was not employed in that capacity at the time of the accident, the Tribunal concluded that the Schedule does not state that a provider must be exclusively employed as a health professional in order to be considered as such. As Ms. Salazar was certified as a PSW, last worked in the capacity in 2013, and subsequently found work as a PSW after aiding the Applicant, the Tribunal determined she was a professional service provider, and that her services were performed “in the course of the employment, occupation or profession in which they would ordinarily have been engaged, but for the accident”. Therefore, she did not need to demonstrate economic loss. 

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Q: What role has surveillance played in CAT determinations under Criterion 8 (Marked Impairment) over the past 2 years?

If you’re preparing a risk assessment for a particular matter or simply trying to understand how surveillance evidence is weighed in CAT decisions, inHEALTH’s LAT Compendium can help you locate the relevant cases quickly.

Using our Advanced Search’s “Primary” and “Secondary” Criteria, you can find all decisions where both Surveillance and CAT-Marked Impairment were considered as part of the determination.

To get just the decisions from the last two years, filter your results using the “Release Date” filter.

inHEALTH’s STAT report provides further analysis by summarizing how often surveillance was a decisive factor, as opposed to being noted but ultimately given limited weight.

TIP: Start broad with the Surveillance tag, then review outcomes before reading individual reasons. The “Favour of Decision” filter shows how the decisions are broken down.

Sign up and Login to inHEALTH’s LAT Compendium:

1. Go to Advanced Search and select: Primary Criteria “Issues/Benefit in Dispute”: Surveillance
Secondary Criteria Select “Issues/Benefit in Dispute”:  CAT Marked Impairment
2. Total Results 46 decisions on inHEALTH’s
3. Filter results by “Release Date”: February 10, 2024 to February 10, 2026
4. Total Results 27 decisions on inHEALTH’sLAT Compendium

5. Filter results by “Favour of Decision”:
Against  Applicant: 19 decisions
For Applicant: 2 decisions
Split: 6 decisions

For Applicant – 22-008237 v Economical: The Applicant was subject to 23 days of surveillance, yet the evidence captured demonstrates a low level of activity. On one occasion, the Applicant was observed to moving a mattress (with help from others) to his brother, who was terminally ill, on another occasion the Applicant was observed maneuvering a cargo trailer on a driveway, and on another occasion, he was observed moving/loading a dock at a vacation property with assistance from others. These observations are consistent with the Applicant’s reports that he can do occasional physical activity but is laid out thereafter. None of the surveillance footage shows the aftermath of the Applicant’s physical activity.

Against Applicant – 23-002146 v Wawanesa: Adjudicators Beauchesne and Yong placed weight on the Respondent’s 2019 surveillance evidence that tied together a five-year span of social functioning that did not support CAT impairment owing to a mental or behavioural disorder. The video evidence showed the Applicant engaged in a family dynamic that bore no hallmarks of impaired social functioning such as angry behaviour, frustration, altercations, or interpersonal difficulties.

Q: Are there any circumstances in which the Tribunal will allow an NEB claim for a period before an OCF 3 is submitted?

To advance a claim for specified benefits, a completed Disability Certificate (OCF-3) is required. Section 36(3) of the SABS does not provide an exception:

“An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.”

Use inHEALTH’s LAT Compendium’s SABS-specific filters to find cases interpreting section 36(3) and quickly see how the Tribunal has applied this requirement.

TIP: Reference Case/Legislation filters cases that involve interpretation of specific SABS references.

Sign up and Login to inHEALTH’s LAT Compendium:

1. Go to Advanced Search and select: Primary search – Reference Cases/Legislation- s36(3) with Secondary search – Issues/NEB
2. Total Results 46 decisions on inHEALTH’s
3. Filter results by “Favour of Decision”: For Applicant
4. Total Results 3 decisions on inHEALTH’s LAT Compendium

Clouthier v. Co-Operators: The Court found that the fact that s.36(3) does not provide for exceptions or make explicit reference to a specific period of time was not, by itself, evidence of a clear legislative intent to invoke an absolute and rigid prohibition of payment benefits before the submission of an OCF-3. It found that s.36(3) must be viewed along with s.34. Section 34 is a general provision that excuses compliance with “time limits,” and it explicitly applies to all provisions in Part VIII of the Schedule, including s.36. The Court found that s.34 explicitly provides the very type of remedy that is at stake in a situation like this (where an insured is incapacitated and cannot complete an OCF-3).

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