Mirzaie v. Wawanesa Mutual Insurance Company, 2021 CanLII 104417

Citation: Mirzaie v. Wawanesa Mutual Insurance Company, 2021 ONLAT 19-009605/AABS - A

Released Date: 10/22/2021

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:

Davood Mirzaie

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Paul Gosio

APPEARANCES:

For the Applicant: Davood Mirzaie, Applicant Manreet Pabla, Counsel

For the Respondent: Catherine Korte, Counsel

Heard by Videoconference: October 19, 20, 21, 22, 2021 2020, January 4 and 19, 2021

OVERVIEW

1The applicant seeks a determination that he is entitled to a rehabilitation benefit in the amount of $1,277,130.00 for alternative housing, interest on all overdue payments, and an award pursuant to section 10 of Ontario Regulation 664.

2The applicant was injured in a motor vehicle accident (“MVA”) on September 14, 2011, wherein he sustained significant physical, psychological and cognitive injuries and impairments. The respondent found the applicant to be catastrophically impaired pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”) due to mental and behavioural issues on November 9, 2016.

3The applicant, based on the Housing Accessibility Report by Jeffrey Baum dated April 17, 2017, then applied for a rehabilitation benefit in the amount of $1,277,130.00 for the purchase of a new home. The respondent denied the benefit claiming that the rehabilitation benefit is not reasonable and/or necessary. The applicant disagreed with the respondent’s decision and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for dispute resolution. The parties could not resolve the issues in dispute, so the matter proceeded to a hearing.

ISSUES IN DISPUTE

4The issues in dispute were identified as follows:

i. Is the applicant entitled to a medical and rehabilitation benefit to the maximum amount remaining under the Schedule for the purchase of alternate housing consistent with his needs recommended by MedEx Health Services on behalf of Adapt-Able Design in a treatment plan (OCF-18) submitted on November 13, 2019?

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

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

RESULT

5Based on the evidence before me, I find that the applicant is not entitled to the rehabilitation benefit as sought, and as such, is not entitled to interest or an award.

ANALYSIS

The Recommendation for a New Home

6The applicant seeks a rehabilitation benefit in the amount of $1,277,130.00 for the purchase of a new home.

7The applicant submits that as a result of the MVA, he sustained the following injuries/diagnosis: "hemodynamic instability, bilateral rib fractures, bilateral pneumothoraxes, pulmonary contusions, pulmonary lacerations, descending thoracic aortic injury, liver laceration, mesenteric laceration, devascularization of the right kidney, pelvic fracture, right iliac wind fracture, right mid-calf ulna fracture, wound infection, post-traumatic stress disorder, and chronic adjustment disorder with mixed anxious and depressed mood."¹

8Mr. Tamir, occupational therapist, opined that based on the applicant’s psychological and cognitive issues and functional abilities, his current living arrangement (a one-bedroom rental apartment in a condominium) was not appropriate, and that a more suitable home was required in order to facilitate his safety and independence. Mr. Tamir recommended that the applicant reside in a single-level detached home so that he can have a pet (a therapy dog to help with the applicant’s psycho-emotional difficulties), a backyard, natural sunlight and open space.

9Mr. Baum then authored a Housing Accessibility Report dated April 17, 2017, in order to investigate housing options that would fulfill the applicant’s housing-related needs as recommended by Mr. Tamir. Mr. Baum found the applicant’s housing needs to include: an accessible dwelling, accessible emergency exit, no stairs, accessible kitchen (sit-under sink, counters and appliances), accessible bathroom (grab bars, sit-under vanity, therapeutic bathtub, walk-in shower and bench), accessible laundry, and safe access to backyard with fencing for a dog (due to the applicant’s limited physical tolerances to take the dog out for a walk/outside in the yard).

10Mr. Baum did not conduct a fulsome assessment as to whether the applicant’s needs could be accommodated by modifying his rental apartment. In this regard, Mr. Baum noted that even if the home modifications were implemented at the applicant’s current rental apartment, it would not resolve the recommendation that the applicant should not reside in a high-rise building. As a result, Mr. Baum investigated two more housing options.

11Option #1 includes the rental of a detached home with the necessary home modifications being made in order to meet the applicant’s needs. Option #1 budgets $15,600.00 to $22,800.00 for additional annual rent above the $900.00 monthly rent the applicant indicated he is currently paying. The necessary housing modifications are budgeted to cost between $233,580.00 to $278,780.00 excluding additional costs (such as a reversionary cost of approximately $60,000.00 to restore the rental home back into its original form at the end of a lease).

12Mr. Baum did not recommend this option given the expected difficulties of modifying a rental property, and given that the limited length of the lease would not provide a long-term housing solution for the applicant. As a result, Option #2, the purchase and modification of a suitable house, was investigated and recommended. The budget cost to purchase a resale home and complete the anticipated modifications and other applicable expenses and taxes were expected to range between $1,012,580.00 and $1,276,780.00.

13On November 13, 2019, a Treatment and Assessment Plan (“OCF-18”) was submitted by Sharat Chawla requesting approval of goods and services totaling $1,277,130.00. Under Additional Comments, Ms. Chawla stated that "this treatment plan is being submitted in light of the recommendations from AdaptAble Design Group. As per SABS Section 16.1(1), 16.4(b) and 16.4(c) allows the housing benefit required at the existing home to be redirected to a new home. Housing market requires quick decisions so as not to frustrate a real estate offer. Funds need to be readily available."

Position of the Parties

14The applicant submits that the evidence before me confirms that his current living conditions are not conducive to the disabilities he experiences as a result of the MVA.

15The applicant submits that his increasing emotional difficulties living in a dark and closed-off apartment, the lack of easy access to the community and/or outdoors (for himself and a therapy dog), the ongoing conflict due to his medical marijuana use, and the lack of a safe emergency exit, residing in a high-rise building continues to exacerbate rather than reduce his disabilities.

16As a result, the applicant takes the position that Option #2 as recommended by Mr. Baum in his Housing Accessibility Report is reasonable and necessary because it would reduce or eliminate the disabilities the applicant faces on a daily basis in his current residence. The applicant further submits that an accessible, single-level dwelling would provide him with a conducive residence to reduce his psycho-emotional deficits, access to areas of the home that are needed for ordinary living, and attempt to restore some level of independence in completing his basic activities of daily living.

17The applicant acknowledges that the insurer is not obligated to pay the cost of the purchase of a new home in excess of the cost of renovating his existing home in order to accommodate his needs. However, the applicant submits that due to the near impossibility and absurd costs of renovating the applicant’s current high-rise building into a single-level detached home, the value of such renovations cannot reasonably be obtained. Nonetheless, Mr. Baum explained that if such renovations were to be made, the cost of these renovations would be outrageous and in the multi-million-dollar range. The applicant takes the position that given the costs associated with renovating his current high-rise building into a single-level home, it would be more reasonable and practical to purchase and renovate a new home in order to accommodate his long-term housing needs.

18The respondent takes the position that the housing benefit sought is simply not reasonable and necessary given that it is twice the cost of the remaining medical and rehabilitation limits remaining, and would thereby leave the applicant with no moneys for his ongoing treatment. The respondent also argues that the housing benefit sought is not reasonable and necessary as Mr. Baum failed to consider the option of a ground floor apartment, and because Mr. Baum unreasonably dismissed the option of modifying the applicant’s current rental apartment.

Discussion

19Section 16 of the Schedule sets out the regulatory framework with respect to the disputed benefit. Pursuant to section 16(1) of the Schedule:

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....

20Section 16(3)(i) of the Schedule lists the activities and measures referred to in subsection (1):

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;

21The applicant bears the onus of establishing, on a balance of probabilities, that the disputed rehabilitation benefit is reasonable and necessary. In this case, the applicant has failed to meet his onus.

22The applicant seeks funding in the amount of $1,277,130.00 for the purchase and modification of a single-level dwelling and relies, in part, on the strength of Mr. Baum’s Housing Accessibility Report. Mr. Baum bases his housing report on Mr. Tamir's recommendation that the applicant should reside in a single-level detached home so he can have: a pet, a backyard, sunlight and open space.

23The major issue I find with Mr. Baum’s Housing Accessibility Report is that it fails to comment on possible modifications to the applicant’s existing apartment, and furthermore, no consideration was given to a ground floor apartment that may provide access to a backyard and/or open space. Instead, the Housing Accessibility Report only looks at detached homes that would cost more than double of the applicant’s remaining medical and rehabilitation limits before considering the cost of modifications. I do not find this to be reasonable.

24There needs to be a connection between the proposed modifications and the applicant’s accident-related impairments. Mr. Tamir’s recommendation that the applicant reside in single-level detached home was made, in part, because he found that the applicant required 24-hour care. Attendant care is not at issue at this hearing. It was at issue in DM and Wawanesa Mutual Insurance Company, 2019 CanLII 43877 (ON LAT) (Reconsideration dismissed in [The Applicant] v. Wawanesa Mutual Insurance Company, 2019 CanLII 101644 (ON LAT). In that case, Adjudicator Hines at paragraph 18 found that the applicant did not require 24-hour care nor emergency supervision as he did not present with a risk for self-harm/suicide. Given this finding, it would have been reasonable for Mr. Baum to assess and comment on possible modifications to the applicant’s existing apartment and/or to a ground floor apartment that may provide access to a backyard and/or open space.

25Furthermore, the parties agree that insurer is not obligated to pay the cost of the purchase of a new home in excess of the cost of renovating the applicant’s existing home. As a result, one must determine what it will cost to modify or renovate the applicant’s current premises even though that premises may never actually be modified or renovated.²

26In this case, that was not properly done. Again, Mr. Baum did not conduct a fulsome assessment as to whether the applicant’s needs could be accommodated by modifying his rental apartment, as it would not resolve Mr. Tamir’s recommendation that the applicant should not reside in a high-rise building. In this regard, Mr. Baum noted:

“Even if given access into his pre-accident unit was available, given that it was a high rise building, and given Mr. Tamir’s recommendations, changes to make this high-rise unit into a single level house would have been impossible as transforming a multi-unit apartment building into Mr. Mirzaie’s private house could not be done. Changing a multi-unit apartment into a single level house would have resulted in all of the tenants being evicted, changes to zoning and millions of dollars incurred. Thus given Mr. Tamir’s recommendations, an assessment of Mr. Mirzaie’s pre-accident unit was not completed.”

27I do not find Mr. Baum’s explanation to be reasonable. As a result, the insurer’s cost obligations with respect to the purchase of a new home cannot be determined given that Mr. Baum failed to assess the cost of renovating the applicant’s existing home.

28As Arbitrator Makepeace held:

The underlying purpose of section 6 [as it was in the previous version of the Schedule] is to return the applicant to his or her pre-accident level of function, to the extent that is reasonably possible. Mr. MacMaster is not entitled to receive a ‘windfall’ as a result of his accident. He is not entitled to hold out for a house and accept nothing less. He must be reasonable in working with the insurer to reach a solution which, while it may not be ideal, is workable and reasonable. Nor is he required to accept a standard of living he would not have accepted before the accident.³

29Though I am not bound by Arbitrator Makepeace’s decision, I find his reasoning persuasive and adopt it here.

CONCLUSION

30For the reasons outlined above, I find that the applicant is not entitled to the rehabilitation benefit as claimed. As such, the applicant is not entitled to interest or an award claim.

Footnotes

1. 1As documented on page 1 of the Home Accessibility Report of Jeffery Baum.
2. 2DKM v. MVACF, 2017 CanLII 82020 (ON LAT), Wynne v. Belair Direct [2003] O.J. No 3531 at para. 66, J.S. and Guarantee Company of North America (FSCO A09-000442, August 25, 2010) at pg. 6-7, J.S. and Guarantee Company of North America (FSCO P10-00016, August 25, 2011).
3. 3MacMaster v Dominion of Canada General Insurance Co, [1994] OICD No 122, 1994 CarswellOnt 4976 at para 77 as incorporated by RT v. Economical 2019 CanLII 43901 (ON LAT) at para 14