D. M. v. RBC General Insurance Company, 2016 CanLII 67138

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: September 30, 2016

Tribunal File Number: 16-000080/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits

Between:

D. M.

Applicant

and

RBC General Insurance Company

Respondent

DECISION

Adjudicator: Anna Truong

Appearances: Joseph Obagi, Counsel for the Applicant Robert Bowman, Counsel for the Respondent

Heard in writing on: July 29, 2016

OVERVIEW

1The Applicant was involved in an automobile accident on October 18, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The Applicant’s occupational therapist, Laurie Warren, completed an OCF-18 Treatment and Assessment Plan dated September 29, 2015, which outlined various medical and rehabilitation expenses that, in her opinion, were reasonable and necessary for the Applicant’s recovery. This treatment plan amounted to $4,644.17. The Respondent partially approved this treatment plan on December 16, 2015, in the amount of $2,737.42, based on the Section 44 Occupational Therapy In-home Assessment report of Sally Anne Nicholson, dated December 8, 2015. The items denied were expenses for cleaning and repairs of the Applicant’s home.

3The Applicant disagreed with this decision and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

1. Are the following disputed items, outlined in the Treatment and Assessment Plan dated September 29, 2015 (“the treatment plan”), completed by Ms. Warren in the amount of $1,620, payable under either section 16(3)(i) or section 16(3)(l) of the Schedule:

a) Two six hour sessions of extensive cleaning;

b) Repair of the second to last basement step;

c) Installation of a basement handrail;

d) Powder room toilet and vent fan repair; and

e) Repair of the loose parquet tiles in the living room?

2. Is the Applicant entitled to a rehabilitation benefit of $384.17, the difference between $711.90, the amount approved in the treatment plan and $1,096.07, the amount invoiced by the Applicant for an approved dishwasher?

3. Is the Applicant entitled to interest for any overdue payment of benefits?

4. Is either party entitled to costs of the proceeding?

RESULT

5Based on the totality of the evidence before me, I find that:

1. The following items are payable under section 16(3)(i) of the Schedule:

a) Repair of the second to last basement step;

b) Installation of a basement handrail; and

c) Repair of the loose parquet tiles in the living room.

The following items are not payable:

a) Two six hour sessions of extensive cleaning; and

b) Powder room toilet and vent fan repair.

2. The Applicant is not entitled to a rehabilitation benefit in the amount of $384.17, the difference between $1,096.07 and $711.90 for the dishwasher.

3. The Applicant is entitled to all applicable interest.

4. Neither party is entitled to costs of the proceeding.

ANALYSIS

The Applicant’s Impairments

6The only evidence submitted by the parties is documentary evidence and I have considered all of the documents submitted. The two key documents in this matter are the occupational therapy reports of Sally Anne Nicholson, submitted by the Respondent and Laurie Warren, submitted by the Applicant. Both experts agree that as a result of the accident, the Applicant suffers from several impairments. There is no dispute over whether the Applicant has sustained impairments and there is no dispute over the nature of those impairments. Therefore, I accept the evidence that the Applicant has sustained the following impairments relevant to the issues in dispute, as a result of the motor vehicle accident: significant mental and physical fatigue, balance issues as a result of dizziness, and visual impairments.

1. Disputed Items in the Treatment Plan

7At issue is the extent to which the items in dispute are rehabilitation expenses and which are housekeeping and home maintenance expenses. The Applicant submits that the disputed items in the treatment plan are “emergency home repairs”, which are rehabilitation expenses that fall under either section 16(3)(i), home modifications, or 16(3)(l), “other goods and services”, of the Schedule and therefore are payable.

8The Respondent argues that the disputed items are actually housekeeping and home maintenance expenses “dressed up” as rehabilitation expenses. Since the Applicant did not purchase the optional housekeeping and home maintenance coverage she is not entitled to payment of these expenses. The Respondent further argues that the disputed items are repairs not payable under section 16, and cannot be home modifications. In the Respondent’s submission, home modification implies that some sort of actual alteration to a home is completed.

9Section 16 of the Schedule provides for expenses that are reasonable and necessary, if the intended purpose is the reduction or elimination of the effects of any disability resulting from the impairment on the insured person, or to facilitate their reintegration into their family, the rest of society and the labour market. Within this section, various activities and measures are listed. The two subsections that are relevant to the issues in dispute are sections 16(3)(i) and 16(3)(l).

10Section 16(3)(i) provides for “home modifications and home devices, including communications aids, to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to purchase a new home to accommodate the needs of the insured person than to renovate his or her existing home”.

11Section 16(3)(l) provides for “other goods and services that the insured person requires”, but excludes services of a case manager, housekeeping and caregiving expenses, and “any other goods and services for which a benefit is otherwise provided in this Regulation”.

12The resolution of this matter depends on whether the Applicant’s home repairs can fall under Section 16 of the Schedule. The principles of statutory interpretation are well-established. The Legislation Act states at section 64(1):

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.¹

13The terms, “modification” and “repair”, are not defined under the Schedule. Therefore, I must look to the ordinary everyday meaning of these terms. Neither party has provided definition resources in their materials, so to assist in my analysis, I have used Merriam-Webster’s online dictionary (“MWD”) definition of these words. I chose MWD, because it is a recognized standard North American dictionary.

14MWD defines “repair” as:

1. To restore by replacing a part or putting together what is torn or broken;

2. To restore to a sound or healthy state.

15MWD’s definition of “modification” does not provide much assistance, as it is defined as “the act or process of changing parts of something” or “the act or process of modifying something”. Since “modifying” is used in the definition and the word “modification” comes from the word “modify”, I looked to the definition of “modify”. MWD had many definitions for “modify”. I chose the two most relevant to the facts of this case:

1. To make minor changes in;

2. To make basic or fundamental changes in often to give a new orientation or to serve a new end.

16The word “repair” can be encompassed by the former definition of “modify”, but it conflicts with the latter. The latter definition implies not simply “changing”, but changing something “to serve a new end”. This does not coincide with the definition of “repair”, which implies a return to an earlier state. The first definition supports the Applicant’s position, while the second supports the Respondent’s position.

17In order to choose between these competing definitions, I must look to the rest of the language in subsection 16(3)(i) and to the intent and purpose of section 16 and the legislative scheme as a whole. The Respondent submits that the legislative scheme is remedial and its provisions must be accorded a broad and liberal interpretation. Furthermore, the Respondent submits that access to necessary and effective rehabilitation without undue delay is a fundamental objective of the scheme. I accept that argument. The wording of subsection 16(3)(i) include the word “accommodate” and section 16’s purpose is to reduce or eliminate the effects of any disability resulting from the impairment on the insured person, or to facilitate their reintegration into their family, the rest of society and the labour market. Therefore, the provision is clear in its purpose of rehabilitation and integration.

18Reading the provision as a whole and taking into account the purpose of the section and the legislative scheme as a whole, I find the first definition of “modify”, which supports the Applicant’s position, as the more applicable one to the facts of this case.

19The Respondent submits that it would be “tortuous logic” to suggest that a repair could be a modification. I disagree. I have decided that “modify” simply means “to make minor changes in”, which has a fairly broad meaning. There is nothing else in section 16(3)(i)’s wording that limits the scope of the word “modification”. In fact, the word “renovate” is used in the section to describe modifications to a home. MWD defines “renovate” as “to make changes and repairs to (an old house, building, room, etc.) so that it is back in good condition”. In other words, “renovate” is a synonym of “repair”. Therefore, it would logically follow that “repair” would be included under “modifications” based on the plain meaning of the words used in section 16(3)(i).

20The Applicant submits that the word “renovate” is used in section 16(3)(i), which in its ordinary meaning can include repairs, so home repairs fall under home modifications. I agree. If the drafters of the Schedule did not intend for renovations or “repairs” to be part of section 16, they would have excluded it as they did with the other expenses, such as housekeeping and caregiving. Furthermore, they would not have used the word “renovate” under section 16(3)(i). I find that based on a plain language reading of section 16(3)(i), it could include reasonable and necessary home repairs to the insured’s home that meets the rehabilitative purpose outlined in section 16.

21Having found that home modifications in section 16(3)(i) could include reasonable and necessary home repairs, and having found that the Applicant suffers from accident related impairments, I must now consider if the individual disputed items in the treatment plan dated September 29, 2015 are payable under section 16 and if so, under which subsection. An item will only be payable if it meets the rehabilitative purpose of section 16, which is to help reduce or eliminate the effects of any disability resulting from the impairment on the insured person, or to facilitate their reintegration, and the item must also fall within one of the categories listed in section 16, specifically section 16(3)(i) or 16(3)(l).

a) Two six hour sessions of extensive cleaning

22Ms. Warren’s treatment plan included two six hour sessions of extensive cleaning, which amounts to $720. Both Ms. Warren and Ms. Nicholson agree that housecleaning services would be beneficial to the Applicant, because she is unable to complete her homemaking and home maintenance tasks due to her accident related impairments.

23Both Ms. Warren and Ms. Nicholson state in their respective reports that the Applicant does not have the optional housekeeping and home maintenance coverage as part of her policy. This did not factor into my decision as it is irrelevant to the issues in dispute.

24Ms. Nicholson further states in her report that although housecleaning would be of benefit to the Applicant, it is not payable, because of the Applicant’s lack of coverage. The Applicant submits that this opinion is beyond Ms. Nicholson’s scope of expertise and it was improper of her to comment on these matters. I agree that this comment was beyond Ms. Nicholson’s expertise. Ms. Nicholson is a medical expert, not a legal expert. Whether or not the item is payable under the Schedule is a legal question. Therefore, I gave no weight to Ms. Nicholson’s opinion that housecleaning is not payable due to the Applicant’s lack of coverage.

25Based on the evidence before me, I find that housecleaning services would be beneficial to the Applicant, because she is unable to clean her home, in its current state, as a result of her accident related impairments. Therefore, I find that there is a rehabilitative purpose to this item. I must now decide whether the expense would fall under section 16(3)(i) or section 16(3)(l).

26Housecleaning is not defined within the Schedule. However, housecleaning in its ordinary everyday use is encompassed by housekeeping. It is clear from a plain language approach that housecleaning is not a home modification. Housecleaning does not involve a repair or renovation or modification of the home. As a result, if the two sessions of cleaning proposed by Ms. Warren fall under section 16, they could only fall under section 16(3)(l). However, section 16(3)(l) explicitly excludes housekeeping expenses, and housecleaning is clearly a housekeeping expense. Therefore, I find that this item is not payable under section 16 of the Schedule.

b) Repair of the second to last basement step

27This item is a home repair. Based on my conclusion above that a home repair can be a home modification, I find that if this item is payable, it would fall under section 16(3)(i) of the Schedule. In order to be payable, it must meet the rehabilitative purpose of section 16.

28Both Ms. Warren and Ms. Nicholson agree that the Applicant’s second to last basement step is in such a state of disrepair that it is a hazard. Where they differ is that Ms. Nicholson is of the opinion that this step is a hazard to anyone living in the household and there is no increased risk to the Applicant as a result of her accident related impairments. While Ms. Warren is of the opinion that there is an increased risk to the Applicant due to her fatigue, visual disturbances and balance problems.

29Both experts agree that there is a hazard, so I accept the fact that the Applicant’s basement step is a hazard, having no evidence that indicates the contrary. However, I disagree with Ms. Nicholson’s opinion and prefer Ms. Warren’s opinion. If the step is a hazard to anyone living in the household, it would logically follow that someone with increased fatigue, visual disturbances and balance problems would have an increased vulnerability to this hazard. In fact, Ms. Warren’s report states that the Applicant has fallen twice as a result of this step.

30I find that the repair to the Applicant’s basement step is a reasonable and necessary home modification to reduce the effects of her impairment and to reintegrate her into her home. Thus, I find that this item is payable under section 16(3)(i) of the Schedule.

c) Installation of a basement handrail

31This item is a home repair. Based on my conclusion above that a home repair can be a home modification, I find that if this item is payable, it would fall under section 16(3)(i) of the Schedule. In order to be payable, it must meet the rehabilitative purpose of section 16.

32In this matter, I find that the handrail is necessary in order to reduce the Applicant’s increased risk of falling as a result of her accident related impairments. For the same reasons that I find the basement step repair is payable under section 16(3)(i) of the Schedule, I also find this item payable under the same section.

d) Powder room toilet and vent fan repair

33This item is a home repair. Based on my conclusion above that a home repair can be a home modification, I find that if this item is payable, it would fall under section 16(3)(i) of the Schedule. However, unlike the other disputed items in the treatment plan, this repair is not directly linked to the Applicant’s safety and increased risk of falling as a result of her accident related impairments. There was insufficient evidence before me to demonstrate that this repair was reasonable and necessary in order to reduce the effects of the Applicant’s impairments, or to reintegrate her. Therefore, I find that this item is not payable under the Schedule, because it does not meet the rehabilitative purpose of section 16.

e) Repair of the loose parquet tiles in the living room

34Both experts agree that loose parquet tiles are a tripping hazard in the Applicant’s house. However, Ms. Nicholson qualifies this by stating that there is no increased risk to the Applicant. I find that loose parquet tiles would present an increased tripping hazard for the Applicant as a result of her impairments. For the same reasons that I find the basement step repair is payable under section 16(3)(i) of the Schedule, I also find this item payable under the same section.

Amount Payable

35The Applicant’s submissions only include the total for all the disputed items that were listed in the treatment plan. There is not an itemized breakdown of the cost of each item. Since the total cost of all the disputed repairs is $900, it would logically follow that the total for the items I have ordered payable would be less than this amount. I also note that in the treatment plan, Ms. Warren listed $900 as an estimate and she notes that a comprehensive cost estimate is required. If the parties cannot agree on the amount, they may make further submissions to the Tribunal and I will make a decision. However, the amount in dispute is modest and it would be beneficial to both parties if they can mutually agree on an amount.

2. $384.17 Dishwasher Differential

36The Applicant claims $384.17, which is the difference between $711.90, the amount approved in the treatment plan dated September 29, 2015, and $1,096.07, the amount invoiced by the Applicant for the dishwasher she subsequently purchased. $711.90 was the amount submitted by the Applicant and approved by the Respondent. It was also the amount that the Respondent paid in full upon receiving the Applicant’s invoice for $1,096.07.

37The Applicant submits that she purchased the more expensive dishwasher because it was more reliable according to reviews and that “the stress of not having a reliable dishwasher would be worse than not having a dishwasher at all”. The Applicant did not submit any evidence that supports this claim. In her submissions, the Applicant noted that she could produce an affidavit that attests to this, but no affidavit was submitted. There is no evidence before me as to why it was reasonable and necessary for the Applicant to purchase the more expensive dishwasher. Both occupational therapists in this matter agree that the Applicant requires a dishwasher, but neither one stated that a specific brand of dishwasher is needed.

38$711.90 was approved and paid for the dishwasher and the Applicant has not provided sufficient evidence why it was reasonable and necessary to purchase the more expensive dishwasher. Therefore, I find that the $384.17 differential for the cost of the dishwasher is not payable under the Schedule.

3. Interest

39Since I found items to be payable, I find that the Applicant is entitled to all applicable interest.

4. Costs

40The Licence Appeal Tribunal Rules of Practice and Procedure (the “Rules”) include a provision in Rule 19.1 for parties to request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

41Both parties have asked for costs in this proceeding. However, neither party has alleged the other party’s conduct to be unreasonable, frivolous, vexatious, or in bad faith. Furthermore, neither party has set out the reasons for the request or the particulars of the other party’s conduct. Both parties have failed to meet the threshold and requirements for costs set out in Rule 19. There is insufficient evidence of conduct that is unreasonable, frivolous, vexatious, or in bad faith before me, so I cannot make an order for costs in this matter. Therefore, no costs will be awarded. Each party will bear their own cost of the proceeding.

CONCLUSION

42For the reasons outlined above, I find that:

1. The following items are payable under Section 16(3)(i) of the Schedule:

d) Repair of the second to last basement step;

e) Installation of a basement handrail; and

f) Repair of the loose parquet tiles in the living room.

The following items are not payable:

c) Two six hour sessions of extensive cleaning; and

d) Powder room toilet and vent fan repair.

2. The Applicant is not entitled to a rehabilitation benefit in the amount of $384.17, the difference between $1,096.07 and $711.90 for the dishwasher.

3. The Applicant is entitled to all applicable interest.

4. Neither party is entitled to costs of the proceeding.

Footnotes

1. 1Legislation Act, 2006, c. 21, Sched. F, s. 64 (1)