Licence Appeal Tribunal File Number: 20-008566/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:
Jacques Gosselin
Applicant
and
Travelers Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Brianna K. Johns, Counsel James C. Simmons, Counsel
For the Respondent: Jane Cvijan, Counsel
Court Reporter: Giles Tingey
HEARD: By videoconference and written submissions
OVERVIEW
1Jacques Gosselin, ("the Applicant"), was involved in an automobile accident on January 29, 2010, and sought benefits pursuant to the Statutory Accident Benefits Schedule Accidents on or after November 1, 1996. The Applicant was denied certain benefits by Travelers Insurance Company, ("the Respondent"), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").
2The original adjudicator who heard testimony in this matter is no longer with the Tribunal. As the original adjudicator is no longer with the Tribunal, I have been assigned to make the determination on the issues based on the transcript from May 10, 2021 and written submissions and evidence provided by the parties. To facilitate an efficient and timely resolution, and pursuant to rule 3.1 of the Common Rules of Practice & Procedure, determination was assigned to me based on the hearing record and the written submissions of the parties. I confirm that I have reviewed the transcript in its entirety and that the complete record is before me and can advise that the original adjudicator took no part in the deliberation or drafting of this decision.
ISSUES
3The issues to be decided in the hearing are:
What is the amount of attendant care benefits ("ACBs") owing, if any, for the period from June 13, 2019 to March 31, 2021?
Is the applicant entitled to ACBs of $4,507.14 per month for the period from April 1, 2021 to date and ongoing?
Is the applicant entitled to the medical benefits recommended by Source Rehabilitation, as follows:
(i) $9,070.00 for a hydraulic lift table and a whirlpool tub and related items proposed in a treatment plan dated August 20, 2019;
(ii) $5,428.00 for occupational therapy services, in a plan dated September 3, 2019?
(iii) $649.00 for a remote car starter recommended in a plan submitted on dated November 19, 2019;
(iv) $144.00 for life skills training, in a plan submitted on November 21, 2019, denied on December 3, 2019;
(v) $14,690.00 for an automatic generator recommended in a plan dated on March 20, 2020; and
(vi) $790.00 for other goods and services, in a plan submitted on April 23, 2020, denied on April 28, 2020?
Is the applicant entitled to $33,309.00 for home modifications, recommended by AdaptAble Design, in a treatment plan (OCF-18), dated June 18, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Entitlement to ACBs for the period from June 13, 2019 to March 31, 2021 was resolved prior to the hearing. The issue is not in dispute. In the Alternative, the Applicant has not met his burden to prove entitlement to past ACBs over and above what the Respondent has paid to-date.
5The Applicant is entitled to ACBs at the rate of $2,958.86 per month for the period from April 1, 2021 to-date and ongoing.
6The Applicant is entitled to the following goods and services, plus interest pursuant to section 51 of the Schedule, because the goods and services are reasonable and necessary as a result of the accident:
a. Hydraulic lift table, delivery, and installation as proposed in the treatment plan dated August 22, 2019;
b. Cognition and learning therapy proposed in the treatment plan dated September 3, 2019;
c. Remote car starter proposed in a treatment plan dated November 19, 2019; and
d. Printer, ink, and paper proposed in the treatment plan dated April 23, 2020.
7The Applicant is not entitled to the remaining benefits claimed because they are not reasonable and necessary as a result of the accident.
BACKGROUND
8The Applicant was involved in an accident when he was loading a snowmobile onto a trailer. The throttle on the machine became jammed during the loading process and the snowmobile struck the Applicant. The Applicant sustained multiple severe bilateral ankle and lower leg fractures in the accident. His fractures required multiple surgical interventions, and at one point, he was non-weight bearing for over a year. His injuries were deemed catastrophic on June 26, 2017.
9To-date, the Applicant continues to experience bilateral ankle impairments. He complains of stiffness in his ankle joints with constant pain and swelling that decreases his general tolerance for activity. He also complains of hip and back pain and weight gain. From a psychological perspective, the Applicant reports feelings of depression, decreased motivation, anxiety, and forgetfulness.
10To-date, the Applicant is disabled from working as a result of the accident. He has assistance with certain housekeeping and attendant care needs, provided primarily by his former common law partner, M. Gravell, and his son1. The Applicant claims payment for past and ongoing ACBs. The Respondent agrees that the Applicant is entitled to ACBs but disagrees on the amount he is entitled to.
11The Applicant also claims entitlement to the medical and rehabilitation benefits listed above. The Respondent believes that, in most part, they are excessive and not reasonable and necessary as a result of the accident.
ATTENDANT CARE BENEFITS ("ACBs")
Past ABCs
12The Applicant submits that he is owed $65,221.36 plus interest for past ACBs for the period from June 13, 2019 to March 31, 2021, based on the Form 1 completed by occupational therapist A. McAleese, submitted June 13, 2019. He submits a chart calculating what he believes to be a breakdown of the benefits owed but provides no reasons why he is entitled to ACBs above what has been paid to-date. The chart shows that the Applicant claims a monthly rate of $4,844.93 for most of the period. No receipts or invoices for ACBs were submitted.
13The Respondent submits that it paid ACBs at the rate of $4,844.93 per month for the period from June 13, 2019 to March 31, 2021 It directs me to two letters regarding the issue. One letter dated April 13, 2021 states that a payment of $58,859.35, for ACBs and interest for the period from August 2019 to March 31, 2021, is being sent under a separate cover. The other letter, dated May 26, 2021, says that it is providing another payment in the amount of $10,170.95, for ACBs and interest, for the period from June 13, 2010 to July 31, 2019, to be sent under a separate cover. Both letters refer to payment being made according to the McAleese Form 1 dated July 26, 20192.
14It appears that this issue was resolved prior to the hearing. The evidence shows Respondent paid ACBs in accordance with the McAleese Form 1, dated June 7, 2019, and that Form 1 is the prevailing opinion for the relevant period.
15If I am wrong, I find that the Applicant has not met his onus to prove entitlement to further ACBs for the period from June 13, 2019 to March 31, 2021. He provided no invoices or receipts to show that he incurred and submitted expense forms for amounts greater than what the Respondent has paid to-date.
ACBs from April 1, 2021 To-Date and Ongoing
16The Applicant submits that he requires ongoing attendant care according to a Form 1 by occupational therapist McQuillan, dated December 3, 2020 ("the McQuillan Form 1"), which suggests ACBs in the amount of $4,507.14 per month. He submits that the McQuillan Form 1 is reasonable and necessary and supported by his occupational therapists.
17The Respondent submits that the Form 1 by occupational therapist D. Beacock, dated March 1, 2021, ("the Beacock Form 1"), recommending ACBs in the monthly amount of $2,911.04, should be preferred.
18A determination on this issue requires an analysis of the McQuillan and Beacock Form 1s, as well as the testimony and other reports. I am not required to accept only one Form 1 and may make my determination based on evidence from both documents. My review of the evidence and submissions leads me to conclude that the Applicant is entitled to ACBs in the amount of $2,958.86 per month for the period from April 1, 2021 to-date and ongoing. My reasons are as follows.
Level 1 Attendant Care
19The McQuillan Form 1 allocates 70 minutes per day (35.12 hours per month) to help the Applicant dress and undress his lower body. Whereas the Beacock Form 1 allocates four minutes per day (2.01 hours per month). The McQuillan Form 1 provides ten minutes per week (.72 hours per month) for toenail grooming and the Beacock Form 1 allocates five (.36 hours per month).
20To me, the Beacock Form 1 is the most accurate reflection of the Applicant's attendant care needs for Level 1 Attendant Care, except for toenail care. The Beacock Form 1 recommends 218.14 minutes per day (67.22 hours per month) for level 1 Attendant Care. The Applicant's evidence was that he can dress himself independently and can don and doff his shoes and boots, which are often of the slip-on fashion, but requires help with socks because he has difficulty. He testified that his difficulty with socks is compounded when his feet have not yet absorbed the creams which he uses daily. He testifies that sock-donning aides are unhelpful and M. Gravell testified that the Applicant's swollen ankles make it difficult to use the sock-donning aide. To me, the evidence demonstrates that the Applicant has the functional ability to don and doff most of his lower body clothing, albeit with occasional difficulty. I find that the time proposed in the Beacock Form 1 is a reasonable reflection of the Applicant's needs due to occasional difficulties.
21I prefer the McQuillan Form 1 recommendation for toenail care. M. Gravelle's evidence was that she trims the Applicant's toenails 2-3 times per month, taking about 10-15 minutes each time, for a total of 20-45 minutes per month. The McQuillan Form 1 allocates 43 (0.72 hours) minutes per month for this task, whereas the Beacock Form 1 allocates 21.5 minutes (0.36 hours) per month. To me, the amount proposed in the McQuillan Form 1 is a more accurate reflection of the time spent on the task.
22In total, I find that the Applicant is entitled to 948 minutes per week (67.93 hours per month) of Level 1 Attendant Care, totalling a value of $762.85 per month.
Level 2 Attendant Care
23The McQuillan Form 1 allocates 5,180 minutes per week (371.23 hours per month) for Level 2 Attendant Care. It recommends hygiene care totaling 1820 minutes per week (130.43 hours per month) for tasks like cleaning the Applicant's tub, sink, and toilet after use, changing bedding and cleaning the bedroom, and ensuring comfort, safety, and security. The Beacock Form 1 allocates no time for these hygiene tasks. Both Form 1s allocate 3,360 minutes per week (240.80 hours per month) for basic supervisory care.
24The Applicant submits that he cannot bend, kneel, or squat and requires assistance cleaning up spills or hazards in the bathroom following use, that his pain impairs his ability to make the bed and change the sheets. He testified that he is able to tidy up minor hazards, like excess water on the counter. M. Gravelle testified that the Applicant spends more time in bed, requiring more frequent bedding changes and that his ability to transfer from the tub varies and that she must be there for the times were he is unable to do it on his own.
25The Respondent submits that the Applicant is independent with transfers, including in the bathroom and that some transfers can be facilitated with assistive devices. It submits that the Applicant can clean up after using the bathroom and that he requires no help ensuring comfort and safety.
26The Applicant testified that he accesses the bathroom independently and his accident-related injuries do not cause any additional cleaning needs in the bathroom. The Applicant further testified that he is independent with his personal hygiene and made no indication that he requires additional hygiene assistance in the bathroom. I agree with the Beacock Form 1 on this issue and allocate no time for bathroom hygiene tasks.
27Both the Applicant and M. Gravelle testified that the Applicant spends more time in bed following the accident. To them, the Applicant requires his bedding to be changed at a greater frequency because he is spending more time in bed. Though I recognize that the Applicant suffers from no incontinence issues, I nevertheless find the testimony persuasive and as a result, prefer the McQuillan Form 1 on this issue as it accounts time to change the Applicant's bedding. For this task, I find the 70 minutes per week (5.07 hours per month) to be reasonable and necessary for this task.
28I find that the Applicant requires no assistance with ensuring comfort and safety. There is no evidence showing he requires comforting or that comforting is required for his wellbeing. Thus, 1,680 minutes per week (120.40 hours per month) allocated by the McQuillan Form 1 are not reasonable and necessary.
29In total, I find that the Applicant is entitled to 3,430 minutes per week (245.82 hours per month) of Level 2 Attendant Care, totalling $2,150.91 per month
Level 3 Attendant Care
30The McQuillan Form 1 allocates 35 minutes per week (2.50 hours per month) for monitoring medication, whereas the Beacock Form 1 allocates the same amount of time for maintaining and controlling medication supply. To me, this is a dispute over semantics as they simply differ on what column to allocate similar tasks to and there is no need for me to chose one characterization of a task over the other.
31The only material difference in part three is that the McQuillan Form 1 provides 105 minutes per week (7.53 hours per month) for assistance with transferring to and from bed to the bathtub or shower and to bathe and dry the Applicant. The Beacock Form 1 allocated no time for these tasks.
32The Applicant testified that, though it can be difficult for him, he is able to shower independently, using assistive devices. He also said that he can get out of bed and go to the bathroom independently. The Applicant testified that he uses his tub each evening because it has water jets which give him therapeutic pain relief.
33M. Gravell testified that the Applicant navigates his home independently, mostly without the use of his cane, but has difficulty transferring in and out of his tub. She also confirmed that, though he has difficulties, the Applicant can independently get in and out of the tub and can use a separate shower stall, with assistive devices. Despite the Applicant's demonstrated ability, M. Gravell believes that it is unsafe for the Applicant to bathe when she is not around.
34Considering the evidence and testimony, I find that the time allocated for assistance with transferring to and from bed to the bathtub or shower and to bathe and dry the Applicant, as outlined in the McQuillan Form 1, is not reasonable and necessary. The Applicant can navigate his house independently and is independent with his bathing. Any assistance required to get into or out of his tub to engage in therapeutic pain relief is captured under Level 2 Attendant Care. As a result, I find that the Applicant is entitled to 35 minutes per week (2.51 hours per month) of Level 3 Attendant Care, totalling $45.10 per month in Level 3 Attendant Care.
35In total, I find that the Applicant is entitled to $2,958.86 per month for ACBs.
TREATMENT AND ASSESSMENT PLANS
$9,070.00: hydraulic lift table and whirlpool tub plan dated August 22, 2019
36This treatment plan proposed many assistive devices for the Applicant which included grab bars and handles, a bath seat, long handled reachers, and running boards for his pickup truck, all of which the Respondent approved funding for. The amount remaining in dispute relates to a hydraulic lift table for the Applicant's garage, a whirlpool tub, and the ancillary goods and services related to their installation. The goal of this treatment plan is to provide the Applicant with access to home safety and home exercise equipment and to help him return to activities of normal living.
37The Applicant submits that this treatment plan will promote independence and permit him to resume his pre-accident activities. To him, the hydraulic lift will allow him to continue to complete repair tasks on his property. The whirlpool tub is proposed for therapeutic purposes because the Applicant reports pain relief from using the water jets in his current tub. The Applicant testified that the jets on his current tub are not working properly and no longer provide the same pain relief as they did when they were functioning properly.
38The Respondent suggests that the replacement tub is an upgrade from an older device to a new one, which is inevitable for whirlpool tub owners. It submits that there is no rehabilitative benefit to the proposed goods.
39I find the hydraulic lift table to be reasonable and necessary as a result of the accident. The Respondent, in a letter dated June 30, 2020, said that it would be prepared to consider an adjustable work bench up to a cost of $398.00. To me, this shows that an adjustable workbench is a reasonable and necessary rehabilitation expense, but the parties simply disagree on the price of it. I agree that the adjustable workbench will permit the Applicant to reengage in his pre-accident hobbies. The Applicant submits a listing of a 1,000 lbs. capacity lift table from an online retailer, in the amount of $1,518.72 plus tax and $456.13 plus tax for standard shipping. On a balance of probabilities, I find that this is a reasonable cost for the item and delivery. The Applicant's price for a suitable workbench is provided by a large discount retailer, whereas the Respondent's suggestion that the Applicant can obtain a suitable adjustable workbench for $398.00 is without any basis.
40I find that the replacement whirlpool tub is not reasonable and necessary as a result of the accident. The Applicant currently has a tub with water jets that are functional. The Applicant complained that it was broken however he clarified that it was repaired, but says it is not working as it previously did. M. Gravell, testified that the Applicant has a bath in the tub daily, which to me, is indicative that the tub continues to provide therapeutic pain relief in its current condition. It would not be reasonable and necessary to replace the Applicant's current tub because it is currently functional for the purpose of relieving the Applicant's pain.
$5,428.00: cognition and learning therapy plan dated September 3, 2019
41This treatment plan proposes cognition and learning therapy with an occupational therapist assistant. The goal of the proposed plan is to provide the Applicant with occupational therapist assistant services and to facilitate increased independence with activities of daily living.
42The Applicant submits that this plan will help him manage forgetfulness, implement pacing and energy management, provide cueing regarding rest breaks, and help modify his activities to work towards reducing the need for support. He submits that the plan is reasonable and necessary because it aims to reduce pain and fatigue and allow him to function more independently. The Respondent submits that the Applicant has reintegrated into his family and society and resumed his pre-accident recreational activities. Notably, the Respondent directs me to no medical evidence on this issue.
43I find that this treatment and assessment plan is reasonable and necessary due to the Applicant's accident-related injuries. The various reports and testimony indicate that the Applicant's ankle swelling and pain increases with physical activity, such as outdoor home maintenance or prolonged walking or standing. The various records also show that the Applicant experiences bouts of forgetfulness and has trouble keeping himself organized. The pain assessment report by Dr. L. Marks de Chabris, pain management physician, dated April 6, 2020, finds that CBT, mindful meditation, and chronic disease self-management programs are all excellent at helping cope with pain problems such as the Applicant's. The December 9, 2020 occupational assessment report by S. McQuillan recommended education and training for things such as energy conservation techniques, external memory strategies, and strategies to increase engagement in activities of daily living. To me, developing various cognitive and learning strategies is reasonable and necessary to facilitate the Applicant's reintegration into his pre accident activities.
$790.19: headphones, printer and ink, and paper plan dated April 23, 2020
44The Applicant seeks funding for the unapproved items in this treatment and assessment plan. He claims entitlement to noise cancelling headphones ($399.99), a printer ($199.99) with ink and paper ($150.00), and delivery fees ($50.00, less $20.00 approved) in order to improve his independence.
45The Applicant submits that he currently relies on friends and family to print documents and the printer and accessories allow him to be more independent in this respect. He submits that the noise cancelling headphones are necessary to permit him to practice mindfulness and meditation techniques recommended by his healthcare providers, in light of his former partner, and her daughter, sharing the residence.
46The Respondent submits that it approved a more economical pair of noise cancelling headphones and submits that, despite this, the headphones are unnecessary given that they were initially recommended to facilitate virtual visits for the Applicant and his elderly mother, who has since passed away. It further submits the Applicant lives on a remote property and that his partner M Gravell goes to work during the day, negating the need to cancel out noise during the day.
47I find further funding for headphones to be not reasonable and necessary. There is no compelling medical reason why the Applicant requires noise cancelling headphones. The Applicant exhibits no noise sensitivity and none of the various in-home assessments address why he would require headphones to perform mindfulness activities.
48I find that the printer, ink, and paper, with a total cost of $349.99, is reasonable and necessary. The additional comments by occupational therapist McAleese in the treatment plan note that the Applicant has not had access to his own printer, and this has been a barrier in his ability to complete paperwork related to his insurance claims. He has relied on friends for printing and scanning needs however, he could no longer do so due to physical distancing requirements during the COVID-19 pandemic. To me, it is reasonable and necessary to provide the Applicant with the hardware required to complete the paperwork required for his various insurance claims.
$649.00: remote car starter plan dated November 19, 2019
49This plan requested funding for assistive devices like a raised toilet, cane and shoe grips, and a long-handled vehicle snow brush, which were approved by the Respondent. It also sought funding for a remote car starter, which the Respondent refused to pay for.
50The Applicant submits that the remote car starter has a therapeutic and safety benefit because it will help alleviate his pain and reduce his risk of falling. He submits that his pain is worse in the winter, exemplified by an increase in medication use, and that transferring through snow is a barrier for the Applicant.
51The Respondent submits that the Applicant can ambulate in the winter with winter grips and his cane. To the Respondent, a remote care starter is a non-rehabilitative convenience anyone living in a cold climate would want.
52I find a remote car starter is a reasonable and necessary expense for the Applicant as a result of the accident. The Applicant's testimony and medical records show that he has increased pain during the cold weather season, which I find can be reduced by warming his vehicle prior to driving. In addition to the therapeutic benefit of not having to endure the cold and pain, I agree with the Applicant that the remote car starter provides a safety benefit in that it reduces his exposure to slips or falls. I partly agree with the Respondent in that a remote car starter is a convenience to anyone living in a cold climate, but this is not the case for the Applicant who would receive both a therapeutic and safety benefit from the device.
$144.00: whiteboard, markers, "Access 2" card, and hockey and movie tickets
53This plan proposes a whiteboard and markers, an "Access 2 card", and hockey and movie tickets.
54The Applicant submits that the markers and whiteboard proposed are for necessary reminders, due to his forgetfulness. The Access 2 card and tickets are proposed to promote greater access to the community and socialization. He submits that S. David-Bailey, social worker, said that it was crucial for him to re-engage in past leisure activities and live a life that is meaningful and productive. To the Applicant, limited ability and decreased socialization contributes to his depression, rendering these items reasonable and necessary.
55The Respondent submits that these items are not reasonable and necessary. It submits that the whiteboard and markers are unnecessary to assist with the Applicant's memory because he has a tablet computer that he can use with the same effectiveness. It further suggests that the Access 2 card and movie and hockey tickets are for leisure activities, like travel, which it is not required to fund.
56I agree with the Respondent and find that it is not reasonable or necessary to buy a whiteboard and markers when the Applicant can use his tablet for the same purpose. Likewise, I agree that the tickets are leisure activities that are not medical in nature, nor are they required as a result of the accident. Though the Applicant may benefit from increased social activities, there is no compelling evidence showing that movie and hockey tickets are required or a reasonable and necessary component of the Applicant's reintegration into the community.
$14,690.00: automated generator plan dated March 31, 2020
57The Applicant claims entitlement to an automated generator and submits that it ensures his safety when the power goes out at his home. The automated generator was recommended in the Future Care Needs and Costs Analysis by occupational therapist B. Koreen, dated February 4, 2021. The Applicant believes that he frequently loses power and that it takes longer to restore power in his rural area. The Applicant submits that he used a portable generator prior to the accident but that he can no longer use it due to his mobility issues. According to the Applicant, his power can go out for a period of 4 to 5 hours, on average, and this most recently occurred sometime in 2018. He further testified that, since the accident, it is too difficult to move and set up the portable generator.
58The Respondent suggests that the generator has no rehabilitative purpose and are intended to convenience the Applicant. It submits that this is a regular transactional expense related to an old house in a remote area.
59I find that the Applicant has not met his burden to show that the cost of a replacement generator is not reasonable and necessary for his accident-related injuries. There is no objective evidence to support the Applicant's claims that he is subject to a higher rate of power outages or that power outages are prolonged for him due to his remote location. The Applicant testified that he deals with power outages with a portable generator, but it is stored in his garage, and he cannot manhandle it following the accident. Given that the generator is portable, I question why the device cannot be put in an place which makes it accessible for times when it is needed. In addition, there is no evidence to show that the Applicant relies on plug-in or permanently wired electronic devices as a result of his accident-related injuries. The Applicant does not have an elevator or similar lift device. The Applicant uses a CPAP machine infrequently, which he started using prior to the accident and continues to to-date, but he testified that it can be uncomfortable and that he regularly removes it during the night. To me, this is indicative that the Applicant is not dependent on the CPAP machine to the extent that he requires an automated generator for it, as a result of the accident.
$33,309.00: home modifications plan dated June 18, 2020
60This treatment plan proposes to complete architectural construction drawings, including allowances for consultation with engineers and other specialists, to tender to local contractors to receive construction bids. The goal of the plan is to provide the Applicant with a safe and functional home environment.
61From the evidence, it appears that the Respondent approved a previous assessment to determine what, if any, home modifications are required for the Applicant. Funding for that assessment was capped at $2,000.00, pursuant to section 25(5) of the Schedule. It appears that the Applicant used the funding to complete a feasibility study on home modifications and now relies on the opinion in that feasibility study to justify the treatment and assessment plan in dispute for this hearing.
62The Applicant claims entitlement to architectural construction drawings with allowances for consultations with surveyors, engineers and other experts. According to the treatment plan and the feasibility study, the Applicant's home does not accommodate his disability and the Applicant submits that home modifications are reasonable and necessary because his injuries cause him to struggle in his own home. He submits that these issues are identified in the McQuillan Form 1 and report, the Beacock Form 1 and report, and the report of B. Koreen, dated February 2, 2021. He submits that the occupational therapists recommend home modifications and that the treatment and assessment plan sets out the next steps in determining the home modification needs.
63The Respondent asserts that it must protect the Applicant's policy limit and that it has a statutory right to decide whether it is more reasonable to purchase a new home or renovate, pursuant to section 16(3)(i) of the Schedule. It submits that the Applicant must first identify the necessary modification needs by way of a single assessment under section 25 of the Schedule, followed by a single treatment and assessment plan outlining the full modification cost.
64I find that the Applicant has not met his burden to prove that this treatment and assessment plan is reasonable and necessary as a result of his accident-related injuries.
65Home modifications are a rehabilitation benefit pursuant to section 16. Pursuant to section 16(3)(i), home modifications are weighed against the cost of purchasing a new home to accommodate the needs of the Applicant. Pursuant to section 16(4)(a), the Respondent is not liable to pay for home modifications if the costs are above the Superintendent's Guideline 08/10.
66Ultimately, this is a dispute over the process for claiming home modification benefits. From my perspective, the Applicant sees the process for claiming home modifications as a multistep one where he can first see if home modifications are feasible under one assessment. Following the recommendations in the first assessment, he can obtain architectural drawings and seek bids on the cost of construction. Once that is done, the Applicant can proceed with the required construction.
67To him, the cost of the second step, to produce architectural drawings, is not an assessment or evaluation under section 25 of the Schedule because it relates to the costs of the Applicant's home modifications and not his health status and thus, is not subject to the $2,000.00 cap on assessments. In the alternative, he submits that the feasibility study and the architectural drawings are two separate assessments, entitling him to payment of up to $2,000.00 for each one.
68On the other hand, the Respondent submits that claiming home modification benefits is a two-step process whereby the Applicant must first identify the necessary modification needs by way of a single assessment, which is subject to the $2,000.00 cap on assessment fees. After that, if necessary, he may submit a second treatment and assessment plan which outlines the costs of the modifications identified in the initial assessment, which enables the Respondent to decide whether the purchase of a new home is more reasonable that funding home modifications.
69I agree with the Respondent and find that the home modification claim process is a two-step process. As a result, I find that this treatment and assessment plan is not reasonable and necessary because it does not include the complete costing of the home modifications proposed and deviates from the process for claiming benefits as outlined in the Schedule.
70First, I find that assessments relating to home modification plans are included in the cost of examinations under section 25 of the Schedule. I agree with the reasoning in previous Tribunal decisions on the issue which found that home modification assessments are an assessment of the Applicant's health status and subject to the provisions in section 253. Thus, they are subject to the $2,000.00 limit provided by section 25(5) of the Schedule.
71I agree with the Respondent's interpretation of the process outlined in the schedule. I find that the process for claiming home modification benefits begins with an assessment and, if necessary, is followed by a treatment plan with a full cost of the home modifications.
72As I understand it for this matter, the Respondent approved funding for a home modifications assessment. The Applicant incurred the assessment, but it focused on the feasibility of home modifications and not the cost of home modifications. Thus, the Applicant is in a position where he requires more funding in order to formulate a costed home modification treatment plan. However, I am not convinced that it is the Respondent's responsibility to remedy this by funding the architectural drawing and other services proposed in the treatment and assessment plan in dispute. Instead, I find that it is incumbent on the Applicant to seek an assessment that will provide a full costing of the home modifications so that the Respondent may weigh those costs against the cost to purchase a new home, which as the Respondent noted, is its statutory right. To me, the two-part process is in harmony with the Tribunal decisions on the issue, noted previously.
73In reply, the Applicant submits that he is permitted to break up the costs of his home modifications because the legislative intent would permit it in situations where home modifications may be required immediately, such as a stairlift. While this is a strong argument, it does not apply to the Applicant's situation as he has not established any immediate needs. I agree that certain aspects of the Applicant's home fail to accommodate his disability but, the Applicant has managed to reside there for years since his discharge from the hospital and he provides no reasons why any aspects of his proposed home modifications must be expedited. I find no reason to break up the cost of the proposed home modifications assessment into more than one single treatment and assessment plan.
74Considering the evidence and submissions, I find the home modifications treatment plan in the amount of $33,309.00 to be not reasonable and necessary because they fail to outline the full costs of the home modifications proposed and deprive the Respondent from its statutory right to weigh the cost of home modifications against the cost of purchasing a new home.
CONCLUSION
75The Applicant was involved in an accident which caused multiple fractures causing a catastrophic impairment. He requires ACBs as a result of his injuries. I have reviewed the submissions and evidence and find that his claims for past ACBs have been resolved prior to this hearing. In the alternative, he has not met his burden to prove entitlement to further ACBs prior to March 31, 2021.
76I find on the evidence that the Applicant requires $2,958.86 per month in ACBs for the period from April 1, 2021 to-date and ongoing.
77I find on the evidence that a hydraulic lift and delivery are reasonable and necessary rehabilitation benefit. The Applicant is entitled to incur this expense and the Respondent is liable to pay for it once properly invoiced. I find insufficient evidence to support the purchase of a new whirlpool tub and thus, find it not reasonable and necessary.
78I find that the cognition and learning therapy treatment plan dated September 3, 2019 is reasonable and necessary to facilitate the Applicant's reintegration into his pre accident activities. The Applicant may incur the costs associated with this treatment plan and the Respondent is liable to pay for same once properly invoiced.
79I find that the printer, ink, and paper are reasonable and necessary expenses for the Applicant to facilitate his independence and permit him to complete the required paperwork for his various insurance claims. The Applicant is entitled to incur this expense, if he has not already done so, the and the Respondent is liable to pay for it once properly invoiced.
80I find that the remote car starter is reasonable and necessary to limit the Applicant's increased pain and mobility issues during cold weather. The Applicant is entitled to incur this expense, if he has not already done so, the and the Respondent is liable to pay for it once properly invoiced.
81I find that the whiteboard and markers, "Access 2" card, and hockey and movie tickers are not reasonable and necessary because they are leisure activities that are not required for the Applicant's reintegration into the community.
82I find insufficient evidence to show that the automated generator is reasonable and necessary expense. The Applicant currently has a portable generator which could likely be moved to an accessible location if manhandling it is not possible.
83I find that the home modification plans proposed by the Applicant are not reasonable and necessary because they do not outline the full cost of the home modifications proposed. This is a requirement as the Respondent has a statutory right to weigh the cost of home modifications against the cost of purchasing a new home.
84It follows that interest is payable on any overdue payments, pursuant to section 51 of the Schedule.
Released: January 19, 2022
Brian Norris, Adjudicator
Footnotes
- The Applicant testified that his romantic relationship with M. Gravell ended but they continue to reside together.
- The actual date of the document is June 7, 2019. This discrepancy had no impact on the issue.
- For example: 17-006934 v. State Farm Insurance, 2019 CanLII 18340 (ONLAT), upheld on reconsideration in 17-006934 v. State Farm Insurance, 2019 CanLII 72227 (ON LAT), and R.J. v Certas Direct Insurance Company, 2020 CanLII 101804 (ONLAT)