Z.P. v. Certas Direct Insurance Company, 2020 CanLII 58836

Citation: Z.P. v. Certas Direct Insurance Company, 2020 CanLII 58836

Released: June 10, 2020

Tribunal File Number: 19-003226/AABS

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

Between:

Z.P.

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Applicant

Alex B. Tzaferis, Counsel

For the Respondent:

Lucie Pivrnec, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Z.P. (the “applicant”) was injured in an automobile accident on January 22, 2011 and sought benefits from Certas Direct Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (“Schedule”). The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service when the respondent denied her claim for benefits on the basis that the claimed treatment plans are neither reasonable nor necessary.

2The applicant was initially diagnosed with neck and back pain, concussion, severe headaches and problems with her balance in the first months after the accident. In 2012-2013, she was diagnosed with chronic pain, major depression and anxiety. In March 2017, after numerous examinations by a variety of medical professionals, the applicant was deemed to be catastrophically impaired. The benefits claimed in this matter relate to home modifications

ISSUES TO BE DECIDED

3The issues to be decided by me are as follows:

i. Is the applicant entitled to home modifications in the amount of $7,025 recommended by Arvinder Gaya, occupational therapist, in a treatment plan submitted on October 2, 2017 and denied on October 2, 2018?

ii. Is the applicant entitled to home modifications in the amount of $8,979.42 recommended by Arvinder Gaya in a treatment plan submitted on January 4, 2018 and denied on January 26, 2018?

iii. Is the applicant entitled to home modifications in the amount of $20,210 recommended by Arvinder Gaya in a treatment plan submitted on May 9, 2018 and denied on June 28, 2018?

iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4Based on the totality of the evidence before me, I find that the applicant has met her onus of proving that the home modifications in the amount of $8,979.42 (less $19.20, as explained below) recommended by Arvinder Gaya in a treatment plan submitted on January 4, 2018 are reasonable and necessary. Interest is payable on that benefit in accordance with s. 51 of the Schedule. The remainder of the claims are dismissed for the reasons that follow.

PRELIMINARY ISSUE

5In reply submissions, the applicant states that the respondent did not comply with the case conference order which stipulated that written submissions were to be 12 pages in length, double spaced. Counsel points out that the submissions are within the page limit, but are less than double spaced, hence are over the limit and should not be considered. Non compliance with page limitations cannot be condoned, but at the same time, I note that the case conference order also states that I may vary the requirements set out in the order. In the interest of reaching a determination of the issues in dispute with all of the relevant evidence before me, I am prepared to vary the order and will accept the respondent’s submissions. If the applicant had not had the opportunity to reply, I may well have decided otherwise.

ANALYSIS

6The applicant has suffered a myriad of documented health issues since the accident on January 22, 2011, and as a result, she was, as noted above, deemed to be catastrophically impaired. She has accessed a variety of medical and other benefits, including, for example, attendant care.² It is a well-established principle that an applicant has the onus of proving on a balance of probabilities that each of the disputed expenses and assessments are reasonable and necessary. The various claims now in dispute will be assessed through that lens.

ISSUE 1: Is the applicant entitled to home modifications in the amount of $7,025 recommended by Arvinder Gaya, occupational therapist, in a treatment plan submitted on October 2, 2017 and denied on October 2, 2018?

7The applicant submitted a treatment plan (OCF-18) requesting a housing assessment in the amount of $9,025.30. The services were to be provided by Adapt-Able Design Group. Services included document review, determination of housing features, site evaluation analysis and recommended modifications and architectural design.³ Recommendations would be based on medical information provided, meeting with the applicant, a site visit and consultation with treating rehabilitation professionals. The treatment plan was partially approved by the respondent by letter dated October 19, 2017, to a $2,000 maximum for the assessment. The respondent stated that the costs claimed exceeded what was allowable under s. 25 of the SABS.⁴

8I note here that the treatment plan itself was approved; the dispute relates to the amount payable in respect of it. Following that partial approval, the assessment was completed by Adapt-Able Design Group.⁵ Mr. Baum of Adapt-Able clearly states that as part of his assessment, he reviewed the medical information of others, in particular, Ms. Gaya’s reports. The focus of the report was an accessibility analysis - a determination of the home modifications required to accommodate the applicant’s functional needs safely.

9The parties have cited two cases in support of their respective positions. The applicant cites the recent decision of the Tribunal in S.M. v. Unica Insurance Inc.⁶ (S.M.) in which the Tribunal found that Unica should pay the balance of the cost of a housing analysis assessment (there too, the insurer argued that the maximum payable was $2,000 though testified at the hearing that it did not consider a housing analysis to be an appraisal of health status). The Tribunal stated as follows.

[53] It is not, as the Cost of Assessments and Examinations Guideline (“Guideline”) describes, a “clinical evaluation or an appraisal of health status.”²² It involves a review of comparable properties and prices in the real estate market. According to the treatment plan submitted, the tasks to be performed include determination of housing criteria; investigation of housing options to determine market cost for new home; and an analysis of homes found to determine approximate budget.

[54] While [S.M.]’s functional needs are considered by the housing analyst, the question behind this assessment is to address s.16(4)(c) of the Schedule, i.e., whether the value of an alternative property is lower than the value of proposed home modifications.

[55] In particular, s.16 of the Schedule refers to the “value” of modifications or purchase of a property and does not refer to an “assessment” or an “examination.”

10The treatment plan in that case was very clearly a housing market analysis for a specific benefit claimed. However, in the case before me, the functional needs of the applicant are very much a consideration of Adapt-Able. This is clear from reviewing their report. The respondent has cited R. G. v. State Farm Insurance⁷ (“R.G.”). In that case, the Tribunal also considered the argument that s. 25(5)(a) of the Schedule was limited in scope to only clinical evaluations or appraisals of a claimant’s health status as opposed to a home modification report which is neither. The Tribunal did not accept that submission. In that case, the Tribunal considered the rules of statutory interpretation and the plain meaning of the language and found the $2,000 cap applied.

11What is particularly persuasive in the context of the matter before me is that the assessment in issue in the R.G decision was also a report of Adapt-Able, and the treatment plan had been submitted by an occupational therapist recommending the services of Adapt-Able. At paragraph 24 of the decision, Member Paluch stated:

…it is clear that the tribunal also focused on the tasks undertaken by Adapt-Able in preparing the reports. For example, although the Tribunal did reference the treatment plans and acknowledged they were prepared by the applicant’s occupational therapist, this was just one part of its evaluation process with the main focus throughout being on the home accessibility and alternate housing reports themselves from Adapt-Able in determining whether they fell within the definition of “assessment” and “examination.” This was most evident in the Tribunal noting that Adapt-Able’s recommendation were based on, the medical information provided to it, a meeting with the applicant, a home visit, consultation with treating professions, and an investigation of zoning restrictions for the property. In effect, in noting all these tasks, the Tribunal looked at whether the assessment involved an appraisal of the applicant’s health status.

12The facts before me are on all fours with the facts in R.G. Unlike the market analysis which was in dispute in the S.M. decision, this treatment plan like that in R.G. relates to an assessment and appraisal of the applicant’s health issues. Therefore, I find that the respondent has paid the maximum allowable under the Schedule. No further amount is owing.

ISSUE 2: Is the applicant entitled to home modifications in the amount of $8,979.42 recommended by Arvinder Gaya in a treatment plan submitted on January 4, 2018 and denied on January 26, 2018?

13This treatment plan⁸ requested a variety of assistive devices: an adjustable shower chair with back ($93), a wheelchair with seating- six-month rental ($1,140), a lift and recline chair ($2,600 plus HST and $15 delivery), a king size mattress and pillow etc. ($3,406.13 plus HST) and a journal from Staples ($19.20). The respondent required that the applicant attend for an Insurer examination with Ranu Singh, an occupational therapist.⁹ Ms. Singh examined the applicant on January 4, 2018 and concluded that many of the applicant’s symptoms and complaints pre-dated the accident, based on her review of the medical records of the family doctor. She found that the applicant had sufficient range of motion and could physically ambulate transfers on and off various surfaces, despite her ‘pain behaviors”. Ms. Singh acknowledged that the applicant has extensive psychological problems and had been deemed catastrophically impaired, but concluded that the applicant was not presenting her true functional abilities and that the most effective rehabilitation was active participation in regular activities.

14In contrast to this, the applicant’s counsel submits that the medical evidence from the treating doctors (of which there are many) clearly demonstrates a long history of pain, dizziness, poor sleep and significant balance and mobility issues, therefore he submits, it is reasonable to conclude that the recommended devices would alleviate the applicant’s pain and limitations on a daily basis at home. The various reports submitted, both by the applicant and respondent, indicate that the applicant has had continuing issues with her gait, difficulty with stairs such that she requires assistance from another person or by holding the wall and or the railing. Dr. Al Hamami, her family doctor of many years, has noted that she would benefit from reasonable modifications that would help her integrate with her family and keep her safe when she is by herself at home as well as provide her with more independence. He has noted that she uses a walker for safety and is unable to climb stairs alone.¹⁰. Dr. Al Hamami’s assessment is particularly persuasive. It is based not on a single examination, but a long history with the applicant. It is reasonable conclude based on the various medical reports that the applicant’s issues flowing from the accident are complex, as noted by several of the occupational therapists including Ms. Singh.

15Improving the applicant’s ability to function at home, and to do so with more independence, is reasonable based on the evidence. It is also reasonable to provide the applicant with aids such as the wheelchair, adjustable shower chair and lift and recline chair, to alleviate pain and to reduce her limitations on her day to day living. In considering each of the assistive devices, I find them to be reasonable and necessary. With respect to the mattress, which is a significant portion of this claim, I note that Ms. Gaya, in the treatment plan, stated that the particular mattress would promote a good body alignment which would promote restorative sleep and assist with pain management. It is well settled that pain reduction is a legitimate goal of an assistive device like a mattress¹¹ – the ability to sleep comfortably improves daily function and will improve the applicant’s depressed state.

16A minor item within this claim is the notebook at a cost of $19.20. The rationale for this is ‘to record medical and rehabilitation appointments and details to assist memory.’ I agree with the respondent that there does not appear to be compelling evidence of a cognitive impairment. I do not disagree that the applicant may need, as anyone would, her various appointments with medical professionals; however, the question is whether this a reasonable and necessary as per the Schedule. I conclude that it is not; however, it being such a trivial amount in the context of the various benefits paid to the applicant, it may be a sum that the respondent would consider paying.

ISSUE 3: Is the applicant entitled to home modifications in the amount of $20,210 recommended by Arvinder Gaya in a treatment plan submitted on May 9, 2018 and denied on June 28, 2018?

17This treatment plan comprises a claimed amount of $14,000 for architectural working drawings, $800 in permit fees and $3,000 for engineering drawings. When Ms. Gaya submitted the OCF-18, she asked that the respondent refer to the Adapt-Able Home Accessibility Report¹² dated January 22, 2018 for more details. Adapt-Able concluded in their report that modifications to the applicant’s home were required and provided a projected budget of $279,556 for preliminary budget purposes. However, they stated that to calculate the definitive cost to complete the proposed construction, detailed architectural drawings and project specifications would be required for tendering would be required. The amounts set out for that purpose are those set out in this treatment plan.

18The respondent did not approve this treatment plan, stating ’There is no Treatment and Assessment plan (OCF-18) submitted that proposes home modifications to be completed and approved, and therefore fees associated with home modifications is not reasonable and necessary until further determination is made on an OCF-18 for home modifications”. ¹³ The applicant argues that this denial does not contain any medical reasoning or explanation as required by s. 38(8) of the Schedule. This was not a boiler plate denial as suggested by the applicant in submissions. While strictly speaking, no ‘medical’ reason was given, this was also not, strictly speaking, a claim for a medical benefit. More importantly, ‘other reasons’ were given for the denial which were understandable.

19Subsequently, the applicant did submit an OCF-18 on November 28, 2018. It was again submitted by Ms. Gaya and was a plan for construction and home modifications for a safe home in the amount of $280,562, with reference to the Adapt-Able Home Accessibility Report of June 28, 2018. It was noted on the OCF-18 that there were preliminary budget costs that require architectural working drawings to be completed to obtain actual quotes. The costs associated with those drawings are those contained in the OCF-18 in dispute in this matter.

20The treatment plan of November 28, 2018 was withdrawn by the applicant on December 5, 2018 and Ms. Gaya stated, on behalf of the applicant that no further action needed to be taken. A subsequent report by Ms. Gaya, sheds some light on this withdrawal.¹⁴ She states that the applicant’s husband, upon review of the Adapt-Able report, was not satisfied with the proposed plan and design. There was a concern about possible contingencies and other issues that could arise due to the proposed renovations that were not included in the preliminary budget. They therefore agreed that an OCF-18 would be submitted only for the architectural drawings, permits and engineering fees to determine actual cost after considering all possible contingencies. Ms. Gaya noted that an OCF-18 for the same had in fact been submitted, the one in dispute here, on June 14, 2018. Also in that report, Ms. Gaya wrote that the applicant and her husband felt that it may make more sense to move to an already renovated home, and noted that that possibility had not been investigated to date.

21I do not accept the respondent’s submission that the withdrawal of the treatment plan of November 18, 2018 constitutes a ‘deemed’ withdrawal of this treatment plan. But what the applicant is proposing as a reasonable and necessary benefit are architectural drawings in a vacuum. It is logical that architectural drawings be based on a treatment and assessment plan proposing home modifications. The proposal of Adapt-Able has been withdrawn. There is even, based on the applicant’s own evidence, a question as to whether the applicant wants to pursue home modifications. At this point, I cannot conclude that the disputed treatment plan is reasonable and necessary.

ISSUE 4: Is the applicant entitled to an award under Ontario Regulation 664

22In light of my findings on the issues, as set out above, I do not find that the respondent has unreasonably withheld payment of a benefit. This claim is dismissed.

ISSUE 5: Is the applicant entitled to interest on any overdue payment of benefits?

23Having decided that benefits of $8,979.42 (less $19.20) recommended by Arvinder Gaya in the treatment plan submitted on January 4, 2018 is reasonable and necessary, the applicant is entitled to interest on these medical benefits in accordance with the Schedule.

ORDER

24For the reasons outlined above, I find that the applicant is entitled to benefits totalling $8,979.42 (less $19.20) for assistive devices recommended by Arvinder Gaya in the treatment plan submitted on January 4 ,2018 plus interest pursuant to section 51 of the Schedule.

25The applicant is not entitled to any other benefits claimed and is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant’s submissions: medical evidence: paragraphs 3-38
3. 3Applicant’s Submissions, Tab 2
4. 4Respondent’s submissions, paragraph 9
5. 5Respondent’s document brief, Tab 4
6. 6S.M. v. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT)
7. 7R.G. v. State Farm Insurance, 2019 CanLII 72227 (ONLAT) – Reconsideration Decision
8. 8Applicant’s Submissions, Tab 3
9. 9Respondent’s Document Brief, Tab 2
10. 10Applicant’s submissions, T.54, letter from Dr. Al Hamami dated January 14, 2020.
11. 11R.F. v. Unifund Assurance Company 2019 CanLII 101512 (ONLAT)
12. 12Applicant’s Submissions, Tab 48: the Adapt-Able report
13. 13Applicant’s Submissions, Tab 6
14. 14Applicant’s submission, Tab 51