Financial Services Commission of Ontario
Neutral Citation: 2009 ONFSCDRS 167
FSCO A08-002244 FSCO A08-002229
BETWEEN:
ANGELINE BURLEIGH Applicant
and
ALLSTATE INSURANCE COMPANY OF CANADA Insurer
REASONS FOR DECISION
Before: Judith Killoran Heard: By telephone conference call on September 17, 2009
Appearances: Jennifer DeThomasis for Ms. Burleigh Ian D. Kirby for Allstate Insurance Company of Canada
Issues:
The Applicant, Angeline Burleigh, was injured in a motor vehicle accident on November 30, 2006. She applied for and received statutory accident benefits from Allstate Insurance Company of Canada (“Allstate”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and Ms. Burleigh applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issue in this hearing is:
- Is the cost of the Adapt-Able Design Group reports payable under section 15 or under section 24 of the Schedule?
Result:
- The cost of the Adapt-Able Design Group reports is payable under section 24 of the Schedule.
EVIDENCE AND ANALYSIS:
Agreed Statement of Facts
The parties filed the following agreed statement of facts:
The applicant is a 17 year old girl (d.o.b. April 24, 1992) who was injured as a result of a motor vehicle accident on November 30, 2006.
The applicant has sustained a “catastrophic impairment” within the definition of the Statutory Accident Benefits Schedule as a result of the said accident.
Adapt-Able Design Group was retained by Applicant’s counsel, with the agreement of the Insurer, to identify and quantify the reasonable and necessary expenses required to modify the applicant’s existing dwelling to accommodate the needs of the applicant.
Adapt-Able Design Group produced three reports dated July 24, August 7 and September 7, 2007 and an invoice dated August 8, 2007 in the amount of $8,489.38.
The applicant and the insurer cannot agree as to whether Adapt-Able Design Group’s invoice is payable pursuant to section 15 or 24 of the Statutory Accident Benefits Schedule.
Applicant’s Submissions
Ms. Burleigh was found to be catastrophically impaired as a result of a motor vehicle accident which occurred on November 30, 2006. The medical/rehabilitation costs available to her under section 15 of the Schedule are capped at $1 million. An OCF-22, which is entitled “Application for Approval of an Assessment or Examination”, was submitted on June 27, 2007 by Patricia Morand, an occupational therapist. A letter dated June 28, 2007 was attached to the OCF-22 explaining the rationale and description of the requested assessments.2
Section 5(a) of the OCF-22 which was devoted to concerns that need to be addressed was expanded upon in the letter with the following:
As a result of the motor vehicle accident on November 30, 2006 Ms. Burleigh suffered a catastrophic impairment, and has been diagnosed with a brain injury involving diffuse, axonal injury with a petechial hemorrahage on the right side of the putaman. She also sustained a right ankle fracture and laceration of the right hip, with a GCS of 3/15 at the scene of the accident. As a result she is wheel chair dependent.
As required by section 15.5(i), 15.7 and 15.8 of the current Statutory Accident Benefits Schedule, it is necessary to complete an assessment of Ms. Burleigh’s pre-accident home to determine what home modifications would make the home suitable for her needs. Therefore, the Adapt-Able Design Group has been requested to complete a Home Accessibility Report.
Section 5(b) of the OCF-22 which required a description of the assessment was supplemented with the following:
A Home Accessibility Report completed by the Adapt-Able Design Group determines what home modifications are required to accommodate a person in their home as a result of their functional limitations. Recommendations are based on the medical information provided from available sources to maintain objectivity. The report identifies accessibility/safety problems in the home that must be overcome along with the most appropriate design solution considering client’s needs, and architectural/structural possibilities, and zoning regulations.
The report includes photographs of the home along with architectural sketches and a description to help the reader understand what aspects of the home impede safety and accessibility. Solutions to resolve the client’s housing issues are provided, including architectural sketches and a brief description of the proposed changes to the affected areas. A cost summary provides an estimate of what the Adapt-Able Design Group believes the price range of the work will be once the job is tendered to local contractors. Also the report notes that the Adapt-Able Design Group has 19 years experience specializing in this type of assessment and is highly qualified to assist with a resolution to Ms. Burleigh’s housing needs.
On July 3, 2007, the OCF-22 was approved by Allstate.3
The Adapt-Able Design Group Report dated July 24, 20074 states:
This report is in accordance with subsections 15.5(i), 15.7, and 15.8 of the Statutory Accident Benefits Schedule (SABS) of the Ontario Automobile Insurance legislation. The SABS infer that there is an obligation to assess an injured individual’s pre-accident/existing accommodation with respect to the disability-specific