Neutral Citation: 1994 ONICDRG 64
File Nos. A-000175, A-000588, A-003502
ONTARIO INSURANCE COMMISSION
BETWEEN:
RICHARD MARK PLOWS
Applicant
and
JEVCO INSURANCE COMPANY
Insurer
DECISION
Issues:
This is the second arbitration hearing involving these parties. The Applicant, Richard Mark Plows, was catastrophically injured in a motorcycle accident on October 27, 1990. He fractured his spinal cord at the level of T-8, resulting in sensory-motor paraplegia from his waist downwards.
Mr. Plows was hospitalized following his accident. He was ready to be discharged from hospital in January 1991, but could not be discharged then because he lacked wheelchair accessible accommodation.
Mr. Plows and the Insurer disagreed about the nature and extent of the modifications required to Mr. Plows' family home, to make it wheelchair accessible. Mr. Plows applied for mediation on the issue of the home renovations.
Mr. Plows also claimed a modified motor vehicle was required for his rehabilitation. In a separate application, he applied for mediation with respect to the vehicle.
These issues were not resolved at mediation and were brought to arbitration. The parties reached an agreement about the home renovations prior to the arbitration hearing. An arbitration hearing was held which dealt with the issue of the motor vehicle, and I found that Mr. Plows was entitled to be provided with a modified motor vehicle, for his rehabilitation.
The parties, in their subsequent dealings, disagreed about certain aspects of the home renovation project and about certain expenses associated with the motor vehicle and Mr. Plows also claimed certain other out-of-pocket expenses as a result of the accident. He applied for further mediation on all these outstanding issues.
Mediation was again unsuccessful and a second hearing was held. The issues to be determined at the second arbitration hearing were:
Is the Insurer obliged to pay certain additional expenses associated with Mr. Plows's temporary accommodation, and also additional expenses in connection with the home renovations?
Are the additional expenses incurred by the Applicant with respect to his transportation requirements and to the modified motor vehicle payable by the Insurer as part of the Applicant's reasonable expenses resulting from the accident?
Is the Insurer obliged to pay for the other expenses claimed by the Applicant as a result of the accident?
Result:
- Mr. Plows is entitled to his expenses incurred for the following items, which I find are reasonable expenses resulting from the accident:
ITEM
AMOUNT
Window Blinds for Apartment
$ 45.96
Dining Chairs and Table
$413.94
Electric Kettle (receipt to be provided)
$ 37.94
Handheld Shower Attachment
$ 65.05
Window Blinds for the Annex
$162.10
Wire Basket Drawer System
$ 149.49
Mr. Plows is entitled to his expenses for car rental payments pending the delivery of his minivan. The Insurer shall pay 17 monthly payments at $367.98 per month.
The Insurer shall pay $88.75 for interior stain protection for the minivan.
Mr. Plows is entitled to the expenses that he has incurred in respect of this arbitration hearing, in accordance with Schedule 1 of Ontario Regulation 664, R.S.O. 1990.
Hearing:
A hearing was held at London, Ontario, on August 23 and 24, 1993, before me, Frederika M. Rotter, Senior Arbitrator.
Present at the hearing were:
Applicant:
Richard Mark Plows
Applicant's Representative:
Brian A. Foster, Barrister and Solicitor
Insurer's Representative:
John S. McNeil, Barrister and Solicitor
Insurer's Officer:
Anthony Costanzo
Witnesses:
Mrs. Angela Plows, Mr. Robert Plows, Christine Terashita, Mr. Donald Ross Perry
Exhibits:
Brief documenting out-of-pocket expenses
Documents regarding home renovations issues
Documents regarding minivan and leased auto
Fax and bills regarding changes to heating and cooling system in annex
Undated letter from Mr Robert Plows, regarding change order
Letter from Dr. Allatt, April 30, 1992
Evidence and Findings:
In my first decision respecting these parties, I observed that their relationship had become adversarial rather than co-operative -- thus impeding effective dispute resolution. Unfortunately, I find that this observation is still valid. The parties have remained entrenched in an adversarial relationship and, consequently, seem unable to reach a consensus about even relatively minor items -- necessitating further recourse to the dispute resolution system.
The background facts of this case are as follows:
The Applicant, Richard Mark Plows, is an engineering student at the University of Western Ontario. Prior to his accident, he lived with his parents in the family home in London, Ontario. As a result of the motorcycle accident on October 27, 1990, he was paralysed from the waist down, and confined to a wheelchair.
The family home required modifications to make it wheelchair accessible. Pending the home renovations, and after his discharge from hospital in April 1991, Mr. Plows rented a wheelchair accessible apartment. The Insurer paid the rent and some other expenses in connection with the apartment. Some of Mr. Plows's claims in the present hearing relate to additional expenses connected with the apartment rental.
Just prior to the first hearing (in September 1991), the parties agreed on a plan for the home renovation which involved building a wheelchair-accessible addition or annex to the home. The family home, where Mr. Plows lived with his parents prior to the accident, is a four-level side-split which was not wheelchair accessible.
In the course of the renovation work, some changes were made to the original plans, regarding the heating and air-conditioning system to be installed. Some other unforeseen expenses also arose. The Insurer refuses to pay for the expenses not agreed to in the original plans.
My decision ordering that Mr. Plows be provided with a suitably modified minivan was issued in January 1992. The Insurer appealed that decision and an appeal decision was issued on May 22, 1992, dismissing the appeal and confirming that the Insurer was obliged to provide Mr. Plows with a suitably modified motor vehicle.
In the interim, Mr. Plows and his father had leased a car. A minivan was finally ordered in November 1992, which was shipped to the United States for modifications. Mr. Plows took delivery of the minivan in February 1993. Some of the issues in this decision deal with Mr. Plows's interim transportation expenses (pending the delivery of the minivan) and certain costs in connection with the minivan.
Finally, Mr. Plows has claimed that certain miscellaneous "out-of-pocket" expenses that he incurred as a result of the accident should be paid by the Insurer.
Mr. Plows's claims are based on section 6 of the Statutory Accident Benefits Schedule - Accidents before January 1, 19941. The applicable subsections provide as follows:
6.--(1) The insurer will pay with respect to each insured person who sustains physical, psychological or mental injury as a result of an accident all reasonable expenses resulting from the accident within the benefit period set out in subsection (3) for,
(a) medical, psychological, surgical, dental, hospital, chiropractic, nursing and ambulance services and the services of physio-therapists;
(b) prostheses, dentures, prescription eyewear, hearing aids and other medical or dental devices;
(c) rehabilitation, life-skills training and occupational counselling and training;
(d) transportation for the person to and from treatment, counselling and training sessions, including transportation for an assistant;
(e) home renovations to accommodate the needs of the insured person;
(f) other goods and services, whether medical or non-medical in nature, which the insured person requires because of the accident.
(4) Subject to subsections (5) and (6), the insurer, before making a payment for an expense under subsection (1), may require the insured person to submit a statement signed by the insured person's qualified medical practitioner or psychological advisor stating that the expense is necessary for the insured person's treatment or rehabilitation.
The majority of Mr. Plows's claims, in the present hearing, fall within section 6(1)(f) of the Schedule. The home renovations dispute arises under section 6(1)(e) of the Schedule.
In my first decision dealing with these parties, I set out the criteria which must be met before an insurer can be found liable to pay for an item under subparagraph 6(1)(f) of the Schedule. They are the following:
(1) it must be a reasonable expense resulting from the accident;
(2) it must be required because of the accident; and
(3) a medical practitioner must provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation, if the insurer so requires.
These criteria were upheld on appeal by the Director's delegate and have subsequently been cited with approval in other arbitration decisions. I therefore adopt them as applicable in this case.
I have also previously made specific comments regarding the third criterion -- that a medical practitioner provide a signed statement that the expense is necessary for the insured's treatment or rehabilitation if the insurer so requires. In Amnon Ajzensztadt and CAA Insurance Company, February 6, 1992, OIC File No. A-000185 (upheld on appeal July 13, 1992, OIC File No. P-00185), I found that the requirement in subsection 4 of the Schedule reinforced the medical or rehabilitation nexus for expenses paid under section 6(1) of the Schedule. That is, the expense had to be an item about which a medical doctor might validly opine as to its necessity.
That view has also been upheld on appeal and in subsequent arbitration decisions, and I confirm that this continues to be my approach with respect to items claimed under section 6(1) of the Schedule.
Accordingly, in considering the items claimed in the present case, I will be applying the criteria set out above, where it is appropriate to do so.
1. Apartment Expenses
On April 26, 1991, Mr. Plows was discharged from hospital into a wheel-chair accessible apartment which he shared with his sister. He lived in the apartment until spring or summer 1992, when the renovations to the family home were completed. Exhibit 2 -- the Applicant's binder regarding the home renovations issues -- indicates (at Tab 4, page 16) that the home renovations were started on February 11, 1992 and completed August 13, 1992. I heard no direct evidence about when Mr. Plows moved back home.
Mr. Plows has claimed certain expenses in connection with furnishing the apartment in order to live and function in it adequately. The claims were for the following items:
(a) Window Blinds for Living Room and Dining Room
Four sets of mini-blinds to cover the living room and dining room windows of the apartment were purchased, costing $45.96. At the hearing, I heard evidence, that due to his condition of paraplegia, Mr. Plows's bodily temperature regulating function has been impaired. Mr. Plows testified that he is very sensitive to external temperature changes and tends to react extremely to variations in temperature -- shivering or sweating excessively.
Mrs. Angela Plows -- the Applicant's mother -- testified that the sun came in through the living and dining room windows of the apartment all day, and that some sort of window covering was required to protect the Applicant from the heat. I accept this evidence.
I find that the window coverings are required as part of Mr. Plows's ordinary and reasonable accommodation needs. Window coverings are required both for normal purposes of privacy and for temperature control. I find the expense of $45.96 reasonable in the circumstances. Therefore, I find that Jevco Insurance Company ("Jevco") is obliged to pay this expense.
(b) Dining Chairs and Table
A dinette set consisting of a table and four chairs was purchased for the use of Mr. Plows and his sister, in the apartment. Mrs. Angela Plows testified that the family did not have extra tables and chairs for Mr. Plows's use. Mrs. Plows also indicated that an important aspect of her son's rehabilitation was that he get used to eating at a table again.
I find it reasonable that a table and chairs be provided to Mr. Plows, as part of his temporary accommodation requirements. The dinette set cost $413.94, as documented at Exhibit 1, Tab 2. I do not find this expense unreasonable. Mr. Plows was forced to move out of his home into alternate accommodation as a result of the accident. I find that a table and chairs are basic items of furniture reasonably required for Mr. Plows's rehabilitation, as a result of the accident. Jevco is therefore obliged to pay this expense.
(c) Other Items for the Apartment
Mr. Plows also claimed the cost of other items required to furnish the apartment including:
ITEM
AMOUNT
- Electric Kettle
$ 37.94
- Handheld Shower Attachment
$ 65.05
- Vacuum for Apartment
$144.29
- Miscellaneous Kitchen Equipment
$144.25
- Foldaway Ironing Board
$ 69.00
Tab 2 of Exhibit 1 is a photocopy of the receipt for the purchase of a vacuum cleaner and vacuum bags. Photocopies of receipts for the other items claimed were not provided.
(1) I find an electric kettle for boiling water is an item required by Mr. Plows as a result of the accident.
Such a kettle is a reasonable and standard amenity of normal life. He was forced to purchase a new kettle as a result of his temporary move. I find that this is a reasonable expense which should be paid by the Insurer, provided that a receipt for the purchase is or has been submitted to Jevco.
(2) Mrs. Plows testified that her son needed a handheld shower attachment to use while in the shower, in the wheelchair -- he could not use a fixed showerhead, as a result of the accident. She testified that the handheld shower unit was purchased and moved from the apartment to the family home, after the renovations were completed.
I find that a handheld shower unit is required by Mr. Plows as a result of the accident. The Insurer is obliged to pay this reasonable expense, provided that the appropriate receipt is or has been submitted to Jevco.
I am not persuaded that the other items claimed are reasonable and required by Mr. Plows as a result of the accident.
(3) I heard no evidence that Mr. Plows used a vacuum cleaner or was required to do so for his rehabilitation or treatment. While it is reasonable to expect that the apartment be cleaned, I am not persuaded that a new vacuum was a reasonable or necessary purchase under the circumstances, where the apartment stay was clearly temporary. In the absence of any evidence that the expense was reasonable and required as a result of the accident, I am not prepared to allow it.
(4) The claim for "miscellaneous kitchen equipment" was not clearly documented or itemized, either through testimony or in the exhibits submitted. Mrs. Angela Plows testified that she purchased for her son certain kitchen utensils, such as a toaster, can opener, and cutlery. Without more specific evidence about what items were purchased, and at what cost, I am not persuaded that this expense was reasonable or required as a result of the accident, and I am not prepared to allow it.
(5) Mrs. Plows testified, when questioned, that she was not aware that a foldaway ironing board had been purchased, although this is one of the items claimed by the Applicant. As I have noted above, no receipt for this item was submitted in evidence. I heard no testimony about whether and when Mr. Plows ironed his clothes. In the absence of any evidence justifying this expense as reasonable and required as a result of the accident, I am not prepared to allow it.
2. Home Renovation Expenses
(a) Changes in Work Specified
Prior to the parties' first hearing, they reached an agreement about the home renovations required to suitably accommodate the Applicant in his family home. The parties' agreement included an understanding about the cost of the renovations, and a clause that provided that the Insurer had the right to take to arbitration any particular expenditure disputed (Exhibit 2, Tab 1). It was agreed that the renovations were to be performed according to specifications developed by Richardson Access and Mobility, set out in a report dated March 1991 (Exhibit 2 Tab 3). Winmar Industries Inc. ("Winmar") was awarded the contract for the home renovations. Winmar was to perform all the work called for in the job specifications for $74,586, as agreed by both parties.
The job specifications provided for certain renovations in the kitchen, including:
(a) modification of existing cabinets for a "roll under" sink;
(b) relocating the refrigerator;
(c) building new lowered cabinets for the microwave and preparation area; and
(d) installing a stainless steel swing gate at the top of the stairs leading to the basement.
Mr. Robert Plows, the Applicant's father, testified that none of the kitchen renovations were done. He testified that he and his wife felt that the modifications would make the existing kitchen cabinets look unattractive, and the resultant improvement would not be "that great". They also felt that the swing gate in the kitchen was unnecessary as the Applicant was very capable in handling his wheelchair.
Mr. Robert Plows stated that he was unaware whether any credit or adjustment was made to the contract price, to account for the fact that the kitchen work was not performed. He testified that all the work otherwise called for in the plans and specifications was performed to his satisfaction.
Mr. Donald Ross Perry, a contractor and the project manager for Winmar on the Plows renovations, testified that the plans for the kitchen were very vague. He, therefore, approached Mr. Robert Plows to discuss what should be done in the kitchen, some time after the work on the project had commenced. Robert Plows decided that nothing should be done.
Mr. Perry testified that he thought the contract price of approximately $74,600 did not include the cost for the work in the kitchen, and that any work done on the kitchen would involve an additional expense.
Robert Plows testified that he himself authorized certain changes to the specifications respecting the heating system to be installed in the annex. The specifications for the heating system included provision for an electric forced-air furnace hook up and a central air-conditioning hook-up.
Robert Plows testified that he was concerned about the cost of running an electric heating and air-conditioning system in the annex. He also testified that the remainder of the home was not air-conditioned. He reiterated the fact that his son's paraplegia created temperature regulation problems. He felt that without air-conditioning throughout the rest of the common living area, his son would not have full use of the home, and would in effect be confined to his own room.
Robert Plows testified that he spoke to the contractor, Ross Perry, and the plumber, Larry Sobelski, about extending the existing hot-water heating system into the annex. He was advised that the existing system could be extended, and a ductless air-conditioning system, operated by remote control, could be installed. Such a system could service the entire main floor of the home including the annex, and also the upper level of the home. Robert Plows testified that this appeared to him to be a better alternative, as the heating would be cheaper than with an electric system, and the multiple air-conditioning units would maintain a constant temperature throughout the home.
Mr. Plows testified that he signed a "change order" (Exhibit 2, Tab 4) authorizing the proposed changes on February 19, 1992 -- two weeks after the original agreement for the renovations was executed on February 5, 1992. The modified heating and air-conditioning system was installed during the construction of the annex. The additional expense associated with the change amounted to $6,090.97. The Applicant is claiming that Jevco should pay for two thirds of that expense - approximately $4,000 -- since it is conceded that one of the air-conditioning units services the upstairs bedroom area, to which the Applicant has no access.
Robert Plows testified he did not seek out tenders for the changed heating and air-conditioning system -- he felt Winmar should do the work since he had already signed a contract with that company. He testified that he did not consult Jevco prior to authorizing the changes. In fact, Jevco did not become aware of the changes until October 1992, when it received an invoice for the additional expense.
Counsel for Jevco submitted that the changes to the heating and air-conditioning system were not in accordance with the specifications for the renovations agreed to by the parties. He submitted that the parties' agreement called for the work to be tendered. Counsel further submitted that Jevco had not received a credit for the kitchen work specified, which was not done. Finally, it was submitted that the additional air-conditioning was not a reasonable expense and not required as a result of the accident.
I find that the Insurer is not liable to pay for the expense related to changes in the heating and cooling system, under section 6(1)(e) of the Schedule. Subsection (e) provides that the Insurer will pay all reasonable expenses resulting from the accident for home renovations to accommodate the needs of the insured person. I find that the changes to the heating and cooling system do not constitute a "reasonable expense", and are not required to accommodate the needs of Mr. Plows, for the reasons set out below.
The parties agreed, and I find, that the original specifications developed for the renovations adequately accommodated the needs of Mr. Plows. Accordingly, any additional expense is neither required, nor reasonable.
Mr. Robert Plows indicated that he authorized the modifications because of his concern about the higher cost of electric heating and his concern that the entire lower level of the home be accessible to his son. Also, he indicated that the ductless air-conditioning units installed were more convenient for the Applicant, because they could be operated and adjusted with a remote control. However, I do not consider that the installation of this system is warranted on the basis of its greater convenience or ease of operation.
Neither am I persuaded that it is reasonable to oblige Jevco to pay more to extend the existing heating system in the home, when the evidence is that an electric heating system for the annex would accommodate the Applicant's needs. I was not presented with any evidence to document the ultimate cost savings to the Applicant's family, to be achieved by the extension of the hot-water system. In the absence of such evidence, I find that the extra expense involved in extending the system is not reasonable.
Further, I do not believe the Insurer is obliged to pay for installing air-conditioning throughout the home. Air-conditioning throughout the home was not part of the original plans and specifications for renovations to accommodate the Applicant.
I find it reasonable and appropriate that air-conditioning be installed in Mr. Plows's annex, in light of his difficulties with temperature regulation. As I understand it, the annex was designed as a self-contained living area for Mr. Plows, with its own separate, wheelchair accessible entrance. He has his own bathroom, television and computer work area in the annex.
It is my experience that air-conditioning in Southern Ontario is generally required for a maximum of two months during the summer. Often weather conditions are such that air-conditioning is only required for brief periods. I find that air-conditioning in the annex, as originally specified, reasonably accommodates Mr. Plows' needs during the summer months.
Mr. Plows is not a young child who spends the majority of his time at home with his parents. As an active university student, he must spend considerable time away from home. At home, he will likely spend the majority of his days studying, working or otherwise occupied in his own room.
In the circumstances, I do not feel that the expense involved in installing air-conditioning throughout the main floor of the home is reasonable. I find that this expense would primarily benefit the rest of the family, and only incidentally benefit the Applicant, for a limited period during the summer. For the rest of the year, Mr. Plows's use of and access to the common areas of the home is unimpeded. Accordingly, I do not find that the expense involved in providing extended air-conditioning is either reasonable or required to accommodate Mr. Plows, and I do not allow this additional expense.
I would also comment that I find the conduct of Mr. Robert Plows troubling, in that he unilaterally authorized changes to the heating and cooling system of the annex, in contravention of the agreement between the parties, and without notifying or consulting the Insurer. Arbitrators have frequently repeated the view, enunciated by Arbitrator Palmer in Surbir Singh Gaba and Allstate Insurance Company, August 21, 1992, OIC File No. A-000624, that parties must work together co-operatively in order to best meet the rehabilitation requirements of the injured person. It is regrettable that in the present case, where Mr. Plows clearly has ongoing rehabilitation needs, the parties seem incapable of adopting a co-operative approach.
(b) Other Miscellaneous Expenses
(i) Blinds for the Annex
The Applicant claimed the cost of mini-blinds and vertical blinds for the home extension. The mini-blinds (costing $50.55) cover the bathroom window and a small bedroom window. The vertical blinds (costing $111.55) cover the French window leading from the extension. Mrs. Plows testified that vertical blinds were the cheapest way to properly cover the window. These expenses were documented in Exhibit 1, Tab 1.
I find, as outlined above, that window coverings are a reasonable expense, required to accommodate the Applicant's need for temperature regulation and privacy. Therefore, I allow this expense.
(ii) Wire Basket Drawer System
The Applicant claimed the cost of a wire basket drawer system. Mrs. Angela Plows testified that her son could not reach into the backs of drawers in an ordinary chest of drawers. A wire basket system was therefore purchased which was accessible to the Applicant, and installed in the renovated annex.
The system cost $149.49, as documented in Exhibit 1, Tab 1.
The Insurer did not dispute that a wire basket system was required by Mr. Plows as a result of the accident. I find that such a system was required, and that the expense incurred was reasonable. I therefore allow it.
(c) Landscaping Expenses
The Applicant claimed the cost of removing a tree root and stump from the family property, in order to build a wheelchair ramp to the front door. Robert Plows testified that the tree root ran across the path for the wheelchair ramp and had to be removed. Exhibit 1, Tab 2 documents the expense of $187.25 for removing the tree stump.
However, Donald Ross Perry in his cross-examination testified that as part of the work called for in the renovations plans, Winmar put in the front ramp and removed the tree stump. It is therefore not clear to me why an additional expense should be claimed.
The job specifications for the construction (Exhibit 2, Tab 3) clearly include the construction of a front ramp. I find that the tree root removal should have been included in the global price of the renovations. Therefore, I am not prepared to allow it as an additional expense -- particularly since the kitchen work originally called for in the job specifications was not completed without a reduction in the contract price.
Mr. Robert Plows also testified that as a result of the renovations, he was obliged to re-landscape his property. The family lost many small trees and shrubs in the garden in the renovation work. The expense of $75 for plants to re-landscape the grounds was claimed by the Applicant.
I do not consider that plants and landscaping are required either to accommodate the Applicant or for the purposes of his treatment and rehabilitation. I heard no evidence that they would directly or specifically benefit the Applicant. Plants and landscaping are discretionary items chosen according to personal and individual taste -- an expense dictated by preference and not by necessity. They are not required as a result of the accident. They are not the sorts of things about which a medical doctor might properly provide an opinion, and I do not allow them.
3. Transportation Issues
(a) Expense for Leased Vehicle
The Applicant claimed various items in connection with his transportation requirements and my previous order that he be provided with a suitably modified minivan.
He testified that he finally received the modified minivan on February 2, 1993. Before that, from July 22, 1991 onwards, he was driving a leased Nissan Maxima, a four door sedan which was equipped with hand-controls. Mr. Plows testified that he used this vehicle daily for his personal transportation, to and from university. The leasing agreement was arranged and signed by his father, although the Applicant's evidence is that he had exclusive use of the vehicle until he took delivery of the minivan.
After the minivan was delivered, Mr. Robert Plows, the Applicant's father, removed the hand controls and took over the use of the Maxima as the family car. The old family car was sold. Robert Plows testified that once his son had moved from the hospital to the apartment, it became imperative to provide him with a vehicle for his transportation. Robert Plows investigated various options and determined that a Nissan Maxima would be suitable for the Applicant's use, as an interim vehicle. He therefore leased a vehicle, for a 48 month term -- an arrangement which included a purchase option at the end of the term.
Robert Plows testified that he made an initial payment of $6,744.53 for the vehicle. This represented a $5,000 down payment, plus applicable taxes, licensing and administration expenses, a security deposit, and an initial monthly payment of $367.98.
Mr. Plows testified that he made the decision to purchase the vehicle abruptly -- he visited just one dealership and chose a car on the spot. He did not consult Jevco prior to leasing the vehicle. He testified that the terms of the leasing agreement and the size of the down payment were dictated by the family's financial situation at the time.
The Applicant is now claiming all the expenses associated with his use of the Nissan for 17 months, until he received the minivan. The total claim is for approximately $13,000, which includes the total initial payment ($6,744.53) plus 17 monthly payments of $367.98.
Counsel for the Insurer submitted that Jevco recognizes that it is liable to pay for the Applicant's reasonable transportation expenses, for the period before the minivan was purchased. However, he submitted that the expense being claimed here is not reasonable. Mr. Robert Plows committed himself to a long-term lease before consulting the Insurer, and without doing any comparison shopping. In effect, the Insurer was now being required to subsidize the purchase of Mr. Robert Plows's car.
I agree that the expense being claimed is not reasonable, for the reasons outlined above. In the circumstances of this case, I am prepared to allow the Applicant 17 monthly car lease payments at $367.98 per month. However, I do not allow the initial payment of $6,744.53 claimed.
(b) Hand Controls
The Applicant testified that the Nissan Maxima was equipped with CT 901 hand controls. He testified that he initially chose these hand controls because he thought they could be transferred from the Nissan into a new car. The controls were removed from the Nissan, but were not installed in the minivan. Instead, the minivan was equipped with new hand controls, made by a different company.
The Applicant testified that he replaced the CT hand controls because the company that made them -- Contact Technology -- had gone out of business. He believed that the controls were "flawed" and unsafe because the company had gone out of business. The control did not come with a warranty, and he was not sure whether they could be repaired if problems arose. Mr. Plows testified that the controls were working when they were removed from the Nissan. Doncaster Medical -- the retailer from whom he purchased them -- had adjusted or remounted the controls on one occasion. However, he was advised to buy a new set of controls for the minivan, and did so. The CT controls are now in storage.
Counsel for Jevco submitted that it is not reasonable to require the Insurer to purchase two sets of hand controls. I agree. The hand controls that were replaced were working, according to the Applicant's testimony. He used them for 17 months. I heard no evidence to suggest they were unsafe or dangerous, apart from the Applicant's concerns that the company had gone out of business.
I do not consider that a particular item is reasonably required to be replaced simply because the manufacturer has gone out of business. Instead, I would allow replacement on the basis of reliable and objective evidence that the item in question was damaged or unsafe, or for some other reason had reached the end of its serviceable life. Accordingly, I find that a second set of hand controls is not a reasonable expense resulting from the accident in the present case, nor is it required as a result of the accident. I do not allow the expense claimed.
(c) Additional Expenses Connected with the Minivan
As indicated above, the appeal decision confirming that the Applicant should be provided with a suitably modified minivan was issued in May 1992. The Applicant testified that the parties met to discuss the various design options for the modification in August 1992. A van was purchased in November 1992. It was shipped to the United States for modifications, and finally delivered to the Applicant in February 1993.
Jevco paid for the minivan. However, the Applicant is claiming certain additional expenses in connection with the vehicle. These are:
ITEM
AMOUNT
Rustproofing and Undercoating
$925.00
Exterior Paint Sealer
$396.75
Interior Protection (Stain Guard)
$ 88.75
Extended Warranty
$799.25
Premium Stereo
$554.00
The Applicant submits that all of the items claimed are reasonable expenses required to extend the serviceable life of the vehicle, with the exception of the premium stereo. He testified that the interior fabric protection was required in the car because, as a paraplegic, he has no control over his bowel and bladder functions, and sometimes has accidents. In light of this problem, I would allow the interior stain guard protection, which I find is a reasonable expense required as a result of the accident.
The Applicant testified that the minivan was selected and purchased in November 1992. He testified that when he attended at the dealership, there was only one vehicle for sale that included all the features which he required. Unfortunately, this vehicle, which was ultimately purchased, was equipped with a premium stereo system, which included extra speakers which had been installed and could not be removed.
The Applicant confirmed that the Insurer's adjuster, Christine Terashita, was present for the purchase of the vehicle and indicated that the Insurer was not willing to pay for a premium stereo. However, the Applicant testified that he wished to make the purchase that day, and the vehicle with the stereo was the only one available, because it was the end of the model-year. The Applicant testified that he did not choose to attend at any other dealership to verify whether other vehicles were available, "as we were looking at a purchase that day".
Christine Terashita, the adjuster who managed Mr. Plows's claims on behalf of Jevco, testified that she was present and involved in the purchase of the minivan. She confirmed that the purchase was made hastily because the Applicant wished to get the van as soon as possible. She testified that she told the Applicant that Jevco would probably not want to pay for the premium stereo.
The premium stereo system is not an expense which results from the accident, nor is it required because of the accident. The expense arose as a result of the manner and timing of the vehicle purchase. I find that no reasonable explanation was offered for the delay in making the purchase after the appeal decision was issued, nor for the urgency to purchase "that day". The Applicant testified that he could have continued and indeed did continue to drive the Nissan until the following February. In the circumstances, I do not allow the expense for the stereo system.
As for the other expenses claimed -- exterior rust proofing, paint sealer, and extended warranty, I agree with the submissions made on behalf of the Applicant, that these are reasonable expenditures made with a view to extending and enhancing the useful life of the vehicle. From a consumer viewpoint, they may be worthwhile and advantageous purchases. However, the items in question are all optional items and normally purchased at the choice and discretion of the consumer. The fact that the consumer has been injured in an accident does not in itself convert an optional item to a required item. I find that none of these items are required because of the accident, nor are they necessary within the context of a treatment or rehabilitation benefit scheme. Therefore, I allow none of the additional expenses claimed in connection with the minivan, with the exception of the interior stain-guard, as indicated above.
4. Additional Miscellaneous Claims
The following miscellaneous items were claimed:
(a) Dr. Scholl Footbath, $40.24
In her testimony, Mrs. Angela Plows indicated that this claim had been paid by the Insurer. Therefore, I make no additional comment or ruling respecting this item.
(b) High-top Boots and Shoes
The Applicant claimed the price of three pairs of high-top shoes and winter boots. Mrs. Plows testified that the Applicant was advised by his medical and rehabilitation advisors to purchase above-the-ankle-style shoes and boots, to prevent the possibility of foot-drop, and for better protection of the Applicant's feet and ankles. Accordingly, three pairs of footwear were purchased.
Both Mrs. Plows and the Applicant confirmed that the items purchased were normal footwear, such as "desert boots" and high top basketball shoes, and not specially purchased prescription items. Mr. Plows testified that prior to the accident he normally wore high top basketball shoes for sports and leisure activities, and cowboy boots when riding his motorcycle.
I do not allow the claim for high top shoes and boots. These are normal items of apparel, and I do not view them as expenditures resulting from the accident or required because of the accident. The style modification required as a result of the accident did not result in any significant extra expense - the Applicant indeed testified that he wore high-top athletic shoes before the accident, and wore the same style of shoes after the accident.
(c) Portable Telephone
The Applicant also claimed that he required a portable telephone to carry around the family home. This is in addition to the cellular phone installed in the minivan. He testified that he had his own separate telephone line in his room, with an answering machine; however the portable phone enabled him to answer his calls anywhere in the home. I find that this is not a reasonable expense required as a result of the accident, and I do not allow it.
(d) Membership in the Canadian Paraplegic Association
The Applicant claimed $20, the cost of two years membership in the Canadian Paraplegic Association. He explained that this is an organization of spinal cord injured individuals, which publishes a quarterly newsletter providing information and other benefits to its membership. The Applicant testified that he had become a member subsequent to his accident.
I have no doubt that membership in this organization is useful and beneficial to the Applicant. However, this membership is as a result of the voluntary choice of the Applicant, and is not an item required as a result of the accident. I do not allow this expense.
Expenses:
The Applicant is entitled to his expenses incurred in this arbitration hearing. The prescribed expenses and amounts are set out in Schedule 1 of the Dispute Resolution Practice Code and in Ontario Regulation 664, R.R.O. 1990.
In the event that the parties cannot agree about the total amount of expenses, I remain seized of this matter and a party may apply for assessment of the expenses before me.
Order:
- Mr. Plows is entitled to his expenses incurred for the following items, which I find are reasonable expenses resulting from the accident:
ITEM
AMOUNT
Window Blinds for Apartment
$ 45.96
Dining Chairs and Table
$413.94
Electric Kettle (receipt to be provided)
$ 37.94
Handheld Shower Attachment
$ 65.05
Window Blinds for the Annex
$162.10
Wire Basket Drawer System
$ 149.49
Mr. Plows is entitled to his expenses for the rental payment pending the delivery of his minivan. The Insurer shall pay 17 monthly payments at $367.98 per month.
The Insurer shall pay $88.75 for interior stain protection for the minivan.
Mr. Plows is entitled to the expenses that he has incurred in respect of this arbitration hearing, in accordance with Schedule 1 of Ontario Regulation 664, R.S.O. 1990.
July 25, 1994
Frederika Rotter Senior Arbitrator
Date