M.B. v. Security National Insurance Company, 2019 CanLII 130379

Citation: M.B. vs. Security National Insurance Company, 2019 ONLAT 19-001480/AABS

Tribunal File Number: 19-001480/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:

M.B.

Applicant

and

Security National Insurance Company

Respondent

DECISION

PANEL:

Jesse A. Boyce, Adjudicator

APPEARANCES:

For the Applicant:

Michael L. Bennett

For the Respondent:

Joseph P. Hogan

HEARD

In Writing on: November 29, 2019

OVERVIEW

1On January 9, 2016, a few weeks before her 80th birthday, M.B. was injured as a pedestrian when she was struck by a vehicle. As a result of the accident, M.B. sustained numerous physical injuries, resulting in a full hip replacement, nasal bone stabilization and a zimmer splint due to a tibial fracture in her right leg. In addition to the physical injuries she sustained, M.B. suffered a traumatic brain injury that led to her being deemed catastrophically impaired. M.B. has applied for various medical and rehabilitation benefits that have been paid by the respondent, Security National.

2Here, the sole issue in dispute concerns a housing modification benefit in the amount of $158,476.89, inclusive of HST. The parties agree, generally, that M.B. is entitled to certain modifications and renovations as a result of the accident and to ensure she can maintain her independence at home. However, Security National only partially approved the modification benefit in the amount of $24,282.00, on the basis that many of the proposed modifications were not reasonable and necessary and not linked to the accident-related injuries. M.B. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUE TO BE DECIDED

3The sole issue in dispute, according to the Case Conference Order, is as follows:

(i) Is the applicant entitled to a rehabilitation benefit in the amount of $242,330.42 ($266,612.42 less approved $24,282.00) for home modifications and home devices recommended by Natalie Zaraska and John Groe in a treatment and assessment plan (OCF-18) submitted on June 13, 2017 and denied on August 28, 2017?

(ii) Is the applicant entitled to interest on any overdue payment of benefits?

4In submissions, the parties acknowledge that, following an addendum report, the amount listed in the original Case Conference Order is no longer applicable. The parties’ submissions address the home modification benefit in the updated amount of $158,476.89, inclusive of HST, less the partially approved amount of $24,282.00 by Security National.

RESULT

5I find, on a balance of probabilities, that the home modification treatment plan in dispute is partially reasonable and necessary. Specifically, I find the cost of the accessible kitchen package and closet organizers proposed by ADL to be reasonable and necessary.

ANALYSIS

Section 16

6Section 16 of the Schedule states that an insurer shall pay for all reasonable and necessary medical and rehabilitation benefits incurred by an insured for the purpose of reducing or eliminating the effects of any disability from an accident. Section 16(3)(i) further provides that home modifications and home devices to accommodate the insured are included within this definition. The underlying purpose of this section is to return the insured to their pre-accident level of functioning to the extent that is reasonably possible.

The competing recommendations

7The initial Home Accessibility Report and Addendum on which M.B. relies was prepared by John Groe of Accessible Daily Living (“ADL”). Ultimately, the report determined that M.B. required the following: a secondary egress/rear entrance at a cost of $5,200; two automatic door openers in the amount of $6,600; an accessible kitchen package and approved disability appliances totalling $32,000; closet organizers in the amount of $1,250; a modified bathroom, flooring, paving for the exterior entrance and general repairs in the amount of $57,449; and just over $20,000 for contingency, overhead, permits and project management fees, plus HST. These recommendations were made on the basis that M.B.’s self-reporting is unreliable due to her brain injury and that, in reality, she requires significant renovations and accommodations to her existing apartment in order to assist with her mobility, daily activities and safety.

8Meanwhile, Security National relies on the Independent Occupational Therapy Examination – Home Accessibility Assessment prepared by Starr Robinson and the Home Modifications Report prepared by David Borthwick of Accessible Solutions Inc. (“ASI”). The report from Ms. Robinson found that M.B. had limited pain, sufficient functional range of motion to navigate her home and that M.B. reported, and was observed to have, independence in the majority of her daily activities. Security National’s opinion is that the ADL report and recommendations do not establish a connection between the proposed renovations and M.B.’s accident-related impairments. Further, Security National argues that M.B.’s impairments are primarily balance issues that require the use of a walker or rollator, and a mild neurocognitive disorder causing impulsiveness. Its position is that the ADL report is excessive, more in line with an individual with severe physical disabilities, and thus constitutes a “windfall” for M.B.

What do the parties agree on?

9It is helpful to take a few items off the table in order to identify what really remains in dispute. I find the following modifications do not require analysis because the parties expressly agree that they are reasonable and necessary and can be attributed to M.B.’s accident-related impairments: levelling of M.B.’s patio pavement to remove trip hazards; the installation of a versa frame for the toilet; new flooring throughout the entire apartment to allow M.B. to move freely with her rollator; and, motion lighting on the patio to prevent M.B. from falling. Accordingly, I find these modifications, which were already approved by Security National, are reasonable, necessary and therefore, M.B. is entitled to payment for them.

What remaining renovations are reasonable and necessary?

10To begin, given M.B.’s age, the severity of her accident-related impairments, her well-documented struggle with balance and purportedly stubborn and independent nature, I do not find that the ADL proposal is an attempt, as Security National alleges, by M.B. to secure a “windfall”. As noted throughout the documentation, M.B.’s residence is a one bedroom, 600 square foot rental apartment in a government-subsidized senior living facility. On this basis, while I have significant reservations about the ADL proposal and question what modifications are even realistic, I find no ulterior motive on M.B.’s part where she, personally, could not possibly profit from claiming this type of benefit.

11However, with that, I find, overwhelmingly on the evidence, that the ADL proposal on which M.B. relies is largely unrealistic, excessive and, generally, not proportional to the evidence in the file. For the reasons that follow, I find M.B. is entitled to payment in the amount of $24,282.00, representing the cost of the ASI proposal which Security National has already approved. Further, I find two modifications from the ADL proposal—the kitchen accessibility package and closet organizers—to be reasonable and necessary to complement the ASI proposal.

The ASI proposal is proportional, reasonable, achievable and necessary

12I prefer the recommendations made in the ASI proposal over the ADL proposal, as I find they are reasonable, necessary and proportional to the impairments M.B. sustained as a result of the accident.

13First, the recommendations made by ASI are proportional to the injuries M.B. sustained as a result of the accident and her level of impairment. While I am alive to M.B.’s submission that her brain injury makes her self-reporting unreliable and that she is stubborn by nature, I find the various reports from the occupational therapists, combined with the medical documentation in evidence, suggests that, despite her injuries, M.B. is still rather independent in many of her daily activities and is provided supervision where needed. For example, while I find she has balance issues, difficulty reaching and pain in her right knee, by most accounts she is capable of showering on her own while the PSW is present in the apartment, capable of dressing under supervision, capable of making light meals and cleaning dishes, moving freely around her apartment and, for short periods of time, going out into the community with her rollator, completing light housekeeping tasks and is able to identify appropriate actions when presented with emergency scenarios. I find the ASI proposal takes all of these facts into consideration and presents a plan that addresses M.B.’s issues while allowing her to continue to live in comfort and with dignity and at a reasonable cost.

14In contrast, the ADL proposal seems excessive and unnecessary, as I agree with Security National that the modifications and renovations proposed in that report are much more in line with someone who suffers from extreme physical impairments. Further, it is unclear why the full-scale renovation—knocking down walls, redoing plumbing and wiring, adding a stand-up shower, reconfiguring the layout of the rental unit—is required, achievable or where Mr. Groe’s basis for same even came from. Indeed, I was not directed to any evidence of a complaint from a professional provider about the size or functionality of the bathroom or why the layout of the rental unit needed to be redesigned because it was preventing M.B. or her care providers from personal care or daily activities. While multiple reports do comment on the size of the unit, how cluttered the unit is and how this can impede M.B.’s ambulation with her rollator, I query why the solution here is to complete a major renovation to a rental apartment instead of simply decluttering.

Bathroom modifications, renovations, etc.

15Starting in the bathroom, Mr. Groe disagrees with the ASI proposal and Security National’s approval for a “cut-out entry with a slide door for the tub to increase ease and safety of access” on the basis that it may cause water damage and because the facility has “specific requirements and guidelines with respect to retrofits” and would not allow “such manipulation of an existing feature.” I find this rationale to be absurd and incredibly difficult to reconcile given his own proposal that a large-scale modification of the bathroom and adjoining living space is required instead to provide more room for ambulation around the rental unit and in the bathroom. ADL indicates that this proposal would entail a contracting crew knocking down an adjoining wall, redoing the plumbing, the flooring, re-building the entire layout of the rental unit, installing new insulation, electrical wiring, mudding and sanding of the new drywall, priming and painting, installing new ceramic tiles and a stand-up shower that will eliminate the need for transfer into a tub.

16Two issues are readily apparent. First, if the facility would seemingly not approve a simple cut-out entry and slide door for the existing tub (which could be installed in a matter of hours according to the brochure) as Mr. Groe suggests, I struggle to comprehend how the facility would then permit a $158,476.89 renovation on a rental unit that ADL estimates would take between 8 and 12 months to complete, would require a disposal bin on the rear patio, post-construction cleanup, $12,000 in construction drawings, over $20,000 in permitting and overhead allowances and, most importantly, a set-aside in order to revert the unit back to its original state once M.B. is no longer on the lease. Frankly, this is unreasonable.

17Second, these factors, of course, do not even consider the illogical part of the ADL proposal requiring M.B.—an 83-year-old woman with a brain injury—to relocate from the very apartment the proposal is supposedly attempting to make more comfortable for her to an unknown location for a period of 8-12 months. This aspect of the proposal indicates that due to the “size and magnitude” of the renovations and potential exposure to construction equipment, dust and debris that could adversely affect M.B.’s health, that she should not be allowed to stay in her unit during construction. While I am sure that the ADL proposal had good intentions for M.B. in this regard, I find the sheer disconnect between this suggestion and the realities of M.B.’s living situation, her age and impairments to be quite troubling.

Secondary egress/rear entrance patio, paving, lighting and storage

18The ADL report indicates that it is imperative to provide M.B. with a safe and accessible secondary egress to the patio area in the event of an emergency and due to her dependence on mobility devices. The report suggests removing the existing door and installing a larger-framed, 36-inch steel door with a low-profile threshold, automatic door openers and new cement patio with motion lighting for safety. An automatic door opener would also be installed on M.B.’s front door. The total cost for this, exclusive of overhead and set-offs, would be $11,800 plus $1,790 for motion lighting and an underdetermined amount for the paving and a storage shed. The ASI proposal agrees that modification of the patio is required, and that motion lighting would be beneficial to M.B. and approved same. While ASI does not provide a breakdown, the costs associated with these modifications—which also include all the bathroom modifications and new flooring—total $16,800 before tax.

19I find the ADL recommendations for the modifications to the existing door, the installation of automatic openers and the storage shed to be not reasonable and necessary on the evidence. While the parties agree that the patio stones require re-paving and that motion lighting would assist M.B. with safe ambulation from her unit to the patio she evidently enjoys, there was no indication in the documentation that M.B. struggles with entering and exiting the rear door with her rollator, that there is not adequate clearance already or that the current door setup presents a safety risk for her. While the installation of automatic doors may be a reasonable suggestion for every elderly living facility, I do not agree that it is necessary at the cost presented, that it is even justified given M.B.’s functionality or, ultimately, that it would be approved by the facility. In a similar vein, the connection between the proposed storage shed for M.B.’s outdoor furniture and her accident-related impairments is difficult to discern considering the reports of cluttering and over-accumulation of items were based on the inside of the unit, not the outside patio.

20Accordingly, I find M.B. enjoys her patio and is entitled to payment for the modifications to the exterior patio as proposed by ASI—including paving and exterior lighting—as they are reasonable and necessary. I do not find M.B. is entitled to the installation of a new frame and door, automatic door openers or storage shed as proposed by ADL, as none of these suggestions are reasonable and necessary.

Accessible kitchen package, pull-out cabinets and ADA appliances

21The ADL report recommends new countertops, new pull-out style storage cabinets, a full line of ADA-approved Whirlpool appliances for safety, new ceramic tiles and shelving to address the small kitchen layout, lack of storage options and unsafe conditions. Mr. Groe’s proposal, exclusive of overhead and set-off, is $20,000 for the accessible kitchen package and $12,000 for appliances. The ASI report does not find kitchen modifications are reasonable and necessary.

22I find M.B.’s struggles with reaching above her head, especially on her right side, as well as her balance issues, are well-documented throughout the file. Currently, M.B. either does not access her upper cabinets or uses a stool to stand and reach her upper cabinets, which presents a safety risk for her given her struggle with balance. The narrow kitchen layout makes it difficult for M.B. to bend and access the lower cabinets as well and, like the rest of the apartment, the space is cluttered as a result. I find that accessible cabinets and new shelving would be helpful to M.B. given her accident-related impairments and struggles with balance. Given that she continues to make her own meals and does spend some time in her kitchen, I find these items to be reasonable and necessary.

23In contrast, I do not find that the supply and installation of a full line of new ADA-approved appliances—specifically a new Whirlpool fridge, cooktop, wall oven and dishwasher—to be reasonable and necessary expenses. While I note that Meals on Wheels is available at the facility, it is agreed that M.B. does prepare many of her own meals, all of which are admittedly on the lighter side of things, like eggs or cereal and, typically, made using a pressure cooker. Mr. Groe argues that new ADA appliances are required to ensure M.B.’s safety while she is cooking, making a specific argument for an induction style cooktop due to high temperatures. However, there are no indications in the file to demonstrate how often M.B. even uses her existing appliances let alone evidence that she struggles to use these existing appliances or uses them in an unsafe manner. The report argues that the ADA appliances would be helpful to reduce repetitive movements. While reasonable, I do not find evidence that M.B. spends an exorbitant amount of time and energy in the kitchen preparing complex meals with repetitive movements, considering that M.B. lives alone and seemingly cooks very simple, light meals only. I do not agree that it is necessary to also outfit the kitchen with new appliances when there is no indication that M.B. struggles with the current ones.

24The ADL report indicates that the total cost for the accessible kitchen would be $20,000, which includes the supply and installation of lower and upper pull-out cabinets and shelving, new tiling, patching and the ADA appliances. However, the report then has a separate section below it that indicates that the appliances are an additional $12,000. I believe it is safe to assume that the $20,000 figure, while still high, does not also include that ADA appliances and that this was simply a clerical error. Accordingly, for clarity, I find M.B. is only entitled to the costs of the cabinets and shelving, any necessary tiling and patching and the costs associated with same, and assuming the facility permits such a renovation and it is incurred. For the reasons above, M.B. is not entitled to the appliances in the amount of $12,000, as they are not reasonable and necessary.

Closet organizers

25The ADL report recommends closet organizers at an appropriate height in M.B.’s main entry, bedroom and laundry room to prevent her from any unnecessary reaching over her head that may cause pain or balance issues. The total cost of these organizers, exclusive of overhead and set-off, is $1,250. The ASI report does not provide for closet organizers.

26As noted above, I find M.B.’s struggles with reaching above her head, especially on her right side, as well as her balance issues, are well-documented throughout the file. While the cost for these particular closet organizers seems somewhat on the high end, I find it to be a reasonable cost to assist M.B. from reaching over her head to access clothing, towels, sheets, etc., a movement which is, by all accounts, an accident-related impairment. In the grand scheme of the proposals, I find this to be a minor, reasonable and necessary expense to allow M.B. to continue with independence in her daily activities. Therefore, M.B. is entitled to payment for this expense once incurred and assuming facility approval.

Disbursements, general repairs, overhead, zoning, project management

27The remaining expenses in the ADL proposal can be lumped into largely administrative and incidental expenses: disposal fees for $3,500; post-construction cleanup totalling $600; $12,000 for engineering, architectural, electrical and mechanical shop drawings; permits totalling $2,000; 5% of total costs assigned to both general repairs ($5,319.45) and overhead ($6,383.34) and 6% for project management costs ($6,383.34). To its credit, the ASI report also identifies many of these administrative and incidental costs in its proposal but does not include it in the total, accounting for HST, permits, a 5% contingency, a reversionary set-off and a 6% project management fee at the end.

28Having adopted the entirety of the ASI report as reasonable and necessary, it follows that any of the expenses identified and incurred as a result of implementing the recommendations for those modifications are reasonable and necessary, namely: the fees for HST, drawings and specifications, permits, the 5% contingency, any set-off and the 6% project management fee. I recognize that these costs are necessary evils for any modifications and find that any costs associated with implementing the ASI proposal—and by extension payment to M.B.—should not exceed the amounts indicated by Mr. Borthwick.

29As I have found the majority of the ADL proposal to not be reasonable and necessary, it follows that the administrative and incidental expenses identified by Mr. Groe are also not reasonable and necessary as I find they are excessive and dictated by the inflated monetary figures in the ADL proposal. The obvious exception here is for any costs that pertain to or are associated with the supply and installation of the accessible kitchen cabinets, shelving and tiling and the closet organizers, the only aspects of the ADL proposal that I find to be reasonable and necessary.

CONCLUSION

30I find that M.B. is entitled to payment for the following home modifications once incurred as they are reasonable and necessary and can be linked to her accident-related impairments:

i. The entirety of the ASI proposal already approved by Security National, totalling $24,282.00 for drawings, specifications, exterior patio modifications, bathroom modifications and flooring throughout the unit, in addition to the incidentals and administrative costs associated with these modifications.

ii. The cost of the accessible kitchen package proposed by ADL for upper and lower pull-out cabinets, new shelving and tiling and the costs associated with same.

iii. The cost of the closet organizers proposed by ADL.

iv. Interest on any overdue amounts, pursuant to s. 51 of the Schedule.

31I find that M.B. is not entitled to payment for any of the remaining modifications outlined in the ADL proposal as they are not reasonable and necessary.

Released: December 5, 2019

___________________________

Jesse A. Boyce

Adjudicator