Hope you are enjoying the winter season!
In this edition of our newsletter, we will be discussing the court decision Thomas Andreas Klatt v. La Toc Holdings Limited, 2021 ONSC 2121 .
In particular, we will be examining the judge’s satisfaction and critique of the Life Care Planner’s (LCP) future care cost (FCC) report.
In this court case, Mr. Klatt and his family traveled from Toronto to the Sandals Regency La Toc Golf Resort & Spa in Saint Lucia on January 4, 2009. During the first two days of their holiday, Mr. Klatt slipped on the stairs on his way to the plunge pool and suffered a serious injury to his left leg. He was diagnosed with a left quadriceps rupture, requiring surgery.
Mr. Klatt relied on the expert evidence of a LCP, who was qualified to give expert evidence on the quantification of future care needs and costs.
The judge found the LCP’s FCC report to be of assistance because of two major factors:
First, the LCP used appropriate evidence to support the recommendations. The LCP’s analysis was clearly rooted in the range of medical reports provided.
The LCP report included Mr. Klatt’s information as well as the LCP’s own clinical observations and experience with life care plans. The recommendations were based on evidence the LCP had personally observed, such as the instability in Mr. Klatt’s knee.
The judge stated that the LCP provided medical justification and credible explanations for the recommendations made in the report. For instance, to justify Mr. Klatt’s need for attendant care and increased rehabilitative services in the future, the LCP explained by writing:
“Based on all available information, it is reasonable to expect that Mr. Klatt will ultimately require extra-ordinary assistance, and/or assistance at an earlier age, compared with had the SFA had not occurred…Further, in the event he does undergo a total knee replacement (TKR) surgery, he will require an extra-ordinary scope of assistance for [completing] personal care tasks including meal preparation, dressing/undressing, bathing/showering, bedroom and bathroom hygiene, grocery shopping, transfers and mobility (indoor/community) as he progresses from non-weight bearing to weight bearing, and gradually resumes independent mobility.”
The judge goes item by item to look for factual foundation and evidence to support the life care planner’s recommendations.
Hence, FCC reports should clearly explain the link between the evidence and recommendations to ensure credibility.
Moreover, the LCP reports focused on Mr. Klatt’s medical needs from his knee injury and not other pre-existing conditions.
In FCC reports, it is crucial for life care planners (LCPs) to put the plaintiff as nearly as possible in the position they would have been but for the injury.
The LCP clarified that her life care plan was only related to Mr. Klatt’s knee injury and not to other medical needs he experiences as a result of other conditions unrelated to the Saint Lucia accident (for instance, his history of cardiac issues).
While these positive points in the FCC report should be noted, there are also two areas of concern we should consider.
The judge accepted the defendant’s critique that the LCP tended to use high-end market ranges for required services.
To rectify this issue, the judge relied on an accountant who was qualified to give evidence in damage quantification. The accountant undertook calculations based on a lower market rate for a personal support worker, housekeeping, and handyman services.
It is recommended that LCPs avoid using high-end ranges in their recommendations. One thing LCPs can consider doing to achieve relatively realistic values for services, is to research three or more hourly rates for a particular service within the client’s region of residence and average them to determine the midpoint cost .
Another issue was that the LCP added additional services, such as future psychology, physiotherapy, massage therapy and chiropractic sessions, for which there is little evidence Mr. Klatt will be requiring at the forecast level of frequency.
The judge addressed this issue by discounting the future care costs by 15%.
It is important for LCPs to avoid adding additional services that were not recommended, were not used before or will not be used in the future. However, if a service is necessary, then the level of frequency should be adjusted using the support of medical evidence.
In conclusion, LCPs should provide sufficient evidence to justify their FCC recommendations using medical records, clinical observations, and recommendations by other healthcare professionals. LCPs should also address health conditions unrelated to the injury which can be a complicating feature in the FCC and avoid recommendations for unrelated issues.
At GLA Rehab, we have certified LCPs who are skilled in professional report writing and can give expert evidence on the quantification of future care needs and costs.
We are educating ourselves with recent case laws and adapting our recommendations as per recent decisions.
If you are in need of assistance, please contact us. We would love to help.
Best wishes for a productive winter season!
From all of us at GLA Rehab.
 Thomas Andreas Klatt v. La Toc Holdings Limited, 2021 ONSC 2121 (CanLII), <https://canlii.ca/t/jf46r>, retrieved on 2023-01-05
 Boone v. O’Kelly, 2021 ONSC 2308 (CanLII), <https://canlii.ca/t/jf56t>, retrieved on 2023-01-05