F.V. v. Wawanesa Mutual Insurance Company, 2017 CanLII 9817

Licence Appeal Tribunal

Tribunal File Number: 16-001811/AABS

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

Between:

F.V.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Chloe Lester

APPEARANCES:

Counsel for the Applicant: Eliane Lachaine

Counsel for the Respondent: James Brown

Heard in writing: January 4, 2017

Introduction:

1The applicant, F.V., was injured in a motor vehicle accident on October 25, 2010. Disputes arose between the applicant and the insurer, Wawanesa Mutual Insurance Company (“respondent”) concerning entitlement to accident benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹

2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

Issues:

3Is the applicant entitled to receive payment for a rehabilitation benefit in the amount of $2,019.59 for goods and services, recommended by Functionability Rehabilitation Services in a treatment plan dated September 3, 2015; denied by the Respondent on December 17, 2015?

4Is the Applicant entitled to receive payment for a rehabilitation benefit in the amount of $1,779.58 for goods and services, recommended by Functionability Rehabilitation Services in a treatment plan dated September 9, 2015; denied by the Respondent on December 17, 2015?

5Is the Applicant entitled to receive payment for a medical benefit in the amount of $890.64 for goods and services, recommended by Functionability Rehabilitation Services in a treatment plan dated November 3, 2015; denied by the Respondent on December 17, 2015?

6Is the Applicant entitled to interest on any overdue payment of benefits?

Result:

7The applicant is not entitled to receive payment for the rehabilitation benefits.

8The applicant is not entitled to interest.

Background:

9F.V. was injured in a motor vehicle accident on October 25, 2010. As a result of the injuries sustained during the accident F.V. was deemed catastrophically impaired.

10F.V. applied for rehabilitation benefits relating to expenses incurred during a trip to Florida and Disney Land with his daughter’s family and grandchildren. These expenses included, but are not limited to, flights, accommodations, meals for the attendant and medical supplies.

11The respondent denied the rehabilitation benefits on the basis that the expenses claimed did not fall within the scope of rehabilitation benefits and they were not reasonable and necessary.

12In the applicant’s submissions he claims he is entitled to the rehabilitation benefit as the trip was to “facilitate the person’s reintegration into his or her family”, as stated in section 16 of the Schedule and were reasonable and necessary in order to spend quality time with them.

13Prior to the accident, the applicant and his daughter had talked about taking a trip to Florida. The applicant submitted that this trip was identified as one of his rehabilitative long term goals as it was only possible to achieve 5 years after the accident. The costs were incurred to ensure the safety and well-being of the applicant. The applicant argued that this was possibly the only opportunity for him to enjoy a family vacation and to create these memories due to his declining health conditions.

Law:

14Section 16 of the Schedule states:

“16. (1) Subject to section 18, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) that are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. O. Reg. 34/10, s. 16 (1). …

(3) The activities and measures referred to in subsection (1) are,

(a) life skills training;

(b) family counselling;

(c) social rehabilitation counselling;

(d) financial counselling;

(e) employment counselling;

(f) vocational assessments;

(g) vocational or academic training;

(h) workplace modifications and workplace devices, including communications aids, to accommodate the needs of the insured person;

(i) 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;

(j) vehicle modifications to accommodate the needs of the insured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the insured person than to modify an existing vehicle;

(k) transportation for the insured person to and from counselling and training sessions, including transportation for an aide or attendant;

(l) other goods and services that the insured person requires, except,

(i) services provided by a case manager,

(ii) housekeeping and caregiver expenses, and

(iii) any goods or services for which a benefit is otherwise provided in this Regulation. O. Reg. 34/10, s. 16 (3). …”

Analysis and Decision:

15In order for a rehabilitation benefit to be payable under section 16 of the Schedule, the expenses must first fit within the definition of a rehabilitation benefit and secondly, be reasonable and necessary.

16Many of the describe activities and measures in subsection 3 refer to counselling, training, home, work or vehicle modifications or devices to assist the injured person to reduce or eliminate the effects of the disability or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.

17Although subsection 3(1)l states “other goods and services that the insured person requires”. It is not a “catch all” for any and all additional expenses that the insured person desires to be reimbursed for, but the expenses must relate to or fit within the scope of the activities and measures described in subsection 3. They must be provided for by a professional and require a treatment goal or be a modification or device that accommodates the needs of the insured person.

18The applicant submits that the expenses fit within section 16 as the trip facilitated a reintegration back into his family.

19The submissions provided for by the respondent indicate the applicant had reintegrated back into his family, maybe not in a full sense but as much as the disabilities may allow for. The applicant was placed in a nursing home closer to his daughter to allow for more frequent visits, and a rehabilitation assistant was provided by the respondent to facilitate visits to the family’s home for special occasions and on every Sunday.

20Although I am sympathetic to the applicant and the reasons for which he accompanied his family on the trip Florida, based on the evidence and facts, I cannot find that these expenses are a payable benefit under section 16 of the Schedule.

21I do not need to comment on whether the expenses were reasonable and necessary as the expenses cannot be classified as a rehabilitation benefit.

22The applicant is not entitled to receive payment for the rehabilitation benefits.

23The applicant is not entitled to interest.

Footnotes

1. 1The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.