Kupernik v. Aviva Insurance Company, 2021 CanLII 11857

Citation: Kupernik vs. Aviva Insurance Company, 2021 ONLAT 19-009730/AABS

Released Date: 01/19/2021

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:

Yousef Kupernik

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Alex Rozine, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on September 5, 2015, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). On January 24, 2019, Aviva accepted that the applicant was catastrophically impaired (“CAT”) and has approved attendant care and housekeeping benefits to date. Aviva denied the benefits in dispute on the basis that they are not reasonable and necessary.

ISSUES IN DISPUTE

2According to the Case Conference Order and the parties’ submissions, the following issues are all that remain in dispute:

(i) Is the applicant entitled to $542.50 for a home alarm monitoring system ($45/month), as recommended by Occupational Therapist (“OT”) Ms. Labuschagne in a treatment plan (OCF-18) dated May 10, 2019 and denied by the insurer on July 17, 2019?

(ii) Is the applicant entitled to $3,399.97 for a dishwasher and washer/dryer combination, as recommended by his OT in a treatment plan (OCF-18) dated May 24, 2019 and denied by the insurer on July 17, 2019?

(iii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is entitled to the incurred cost for the dishwasher not to exceed the amount of $999.99, plus applicable interest, as it is reasonable and necessary. The applicant’s remaining claims are dismissed.

ANALYSIS

Are the remaining items reasonable and necessary?[^2]

Alarm Service Subscription

4In May 2019, the applicant’s OT’s submitted a treatment plan recommending a safety alarm system due to the applicant’s risk of falling, his wife’s disability and mobility issues and concerns that the applicant would be unable to safely respond in an emergency situation due to his impairments and the fact that he resides on the fifth floor of his apartment building. The alarm system recommended happened to be the same alarm system that the applicant previously purchased in 2017 and requires a $45 per month subscription.

5Aviva denied the claim on the basis of a s. 44 report and paper review completed by Mr. Pritchett. The applicant submits that the s. 44 report is incomplete, as it did not undertake a safety assessment nor speak with the applicant’s spouse. Further, he asserts that the report did not consider the applicant’s subjective physical complaints, the opinions of six other practitioners, and that the denial was inconsistent with Aviva’s own determination that attendant care, including basic supervisory care, was reasonable and necessary. To this end, the applicant submits that a modification with a backup battery to assist him in an emergency is needed, which is echoed in his affidavit and cross-examination.

6In response, Aviva maintains that the alarm monitoring system is not reasonable and necessary, submitting that the alarm system that the applicant installed in 2017 is not a personal medical emergency alarm and does not provide the same level of mobile emergency medical assistance as the medical alert system recommended by his own OTs. Further, the alarm monitoring service was contracted by the applicant well in advance of the OCF-18 being submitted for consideration and therefore, Aviva is not liable for payment of the incurred expenses pursuant to s. 38(2) of the Schedule.

7I agree with Aviva that the rationale supporting the need for the alarm monitoring system, as outlined in the comments section of the OCF-18, does not align with the specifications of the actual alarm system that the applicant had installed in 2017. I agree that the OCF-18 states that the applicant had the alarm system installed due to a “previous incident” and in order “to have access to 24 hour emergency care services that can provide assistance when needed”, and that the alarm system monitoring was recommended “to ensure his safety in case of an emergency”. The previous incident was not explained, but in 2017 the applicant installed the system which included: door contacts, a motion detector, control panel with keyboard, GSM module, battery, transformer and an indoor siren.

8As Aviva submits, the alarm system chosen and installed by the applicant in 2017 prior to the submission of the OCF-18 is not intended to provide emergency medical assistance—like a personal medical alert system or wearable alert technology would—and is instead a standard residential alarm system designed primarily to alert the applicant of any attempted break and enter into his apartment. It points to the Service Agreement, which states, “It is understood and agreed that dispatch, whether by Police Department or other emergency services agency, is not guaranteed nor is the response time. Unless there is evidence of a break in, Royal Alarms Ltd. reserves the right not to dispatch.” While the applicant asserted that “medical alarm” is also one of the services provided, I query how effective a seemingly discretional dispatch feature is in meeting the goals of responding to a medical emergency, or why an emergency medical alarm would require features like a motion detector or indoor siren at all. Further, while I agree that the remote control is helpful, it is not akin to a wearable medical bracelet or necklace, as it would not be useful in the event of a fall if it was not within arm’s reach of the applicant or his spouse.

9In any case, since the applicant has been paying for the monthly service for several years, I find limited basis to support his position that it is now reasonable and necessary for Aviva to begin funding this expense where both the model he elected to install prior to submitting an OCF-18, and the monthly service that accompanies that model, do not squarely address the recommendations in the OCF-18. Accordingly, I do not find that the applicant is entitled to payment for the monthly service fee as it is not reasonable and necessary.

Dishwasher and Washer/Dryer Combination

10Here, the applicant seeks $3,399.97 for a dishwasher ($999.99) and washer/dryer combination ($2,199.98), and presumably delivery/installation ($200), as recommended in an OCF-18 prepared by his OT. First, he submits that the appliances will help him as much as possible return to his pre-accident housekeeping activities and help him reintegrate into his family, as his inability to do so post-accident has been a source of frustration and anxiety for him. Second, he submits that the appliances will allow his housekeeping providers to accomplish more of the housekeeping tasks that Aviva already deemed reasonable and necessary because they will spend less time washing dishes by hand and having to go to the apartment’s facility to perform laundry.

11In response, Aviva submits that the applicant is currently receiving $5,071.59 per month in attendant care and $100.00 per week in housekeeping assistance, which includes assistance with laundry and dishes and that the OCF-18 does not recommend the purchase of the washer/dryer and dishwasher for the use of the attendant care and housekeeping providers or for the purpose of maximizing the housekeeping benefit already being paid at the maximum rate. Further, Aviva submits that the appliances selected by the applicant are all front-loading, floor-level models, so it would be impossible for the applicant to utilize these devices as part of his rehabilitation without having to bend, which he conceded would prevent him from using such appliances. Finally, it is Aviva’s understanding that the applicant’s rental apartment does not currently contain the plumbing, venting or under-mount space that would be required in order to install the appliances, and therefore, it is prejudicial to ask the Tribunal to consider whether the disputed appliances are reasonable and necessary without a clear understanding of the reasonableness of any additional cost consequences that may result.

12I find the appliances are partially reasonable and necessary. I am persuaded by the applicant’s submissions that a dishwasher would be a reasonable and necessary expense to allow the applicant to perform some housekeeping activities independently while also freeing up his attendant care and housekeeping providers to attend to other, more pressing needs than washing dishes by hand. The applicant asserts that he has received confirmation from his superintendent that the appliance can be installed, and I note that the OCF-18 accounts for the costs associated with delivery and installation.

13While I query the necessity of procuring a high-end appliance from Bosch where dishes have been previously washed by hand, I find the overall cost is generally reasonable to achieve the stated goals of allowing the applicant to have some independence in filling the top rack of the dishwasher and freeing up his attendant care providers’ time to perform other care activities instead of washing dishes by hand. Aviva’s submissions do not challenge the cost of the appliance and the payment of this cost will be dependent on the applicant being able to install the appliance as claimed and incurring the cost anyways. Depending on the specifications of the kitchen and the plumbing, the applicant may have to settle for a different, smaller or even cheaper counter-top model. In any case, I find a dishwasher not exceeding the amount of $999.99 in the OCF-18 to be reasonable and necessary and payable once incurred and installed.

14However, I am not persuaded that a floor-level, front-loading washer/dryer combo from Bosch at a cost of $2,199.98 is a reasonable and necessary expense for the applicant, given his issues with bending and reaching. Unlike access to a dishwasher, it is undisputed that the applicant and his attendant care providers have always had access to several washer and dryer machines to perform laundry in the building. While I am alive to the applicant’s submissions that it takes extra time to travel to the building’s basement on the elevator and that sometimes the machines are all in use, I disagree that this makes the items reasonable and necessary, as there would be no appreciable difference in the time it would take to complete the laundry if the applicant or his providers had access to a washer and dryer in his apartment. I am also not persuaded by the applicant’s insistence that the goals of installing the appliances are reasonable because he can meaningfully participate in laundry through the use of a reaching tool to load the washing machine. I agree with Aviva that where laundry facilities are available, the proposed cost is not proportional to the benefit derived. Accordingly, I do not find that the applicant is entitled to payment for the washer and dryer combo, as it is not reasonable and necessary.

Award under s. 10

15The applicant also claims an award under s. 10 of O. Reg. 664 due to Aviva’s unreasonable withholding and delaying of the payment of the security alarm and appliances. Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payments.

16I find an award is not appropriate. On the evidence, I find that Aviva has rather consistently approved or re-evaluated the payment of medical and housekeeping benefits, including significant sums of attendant care, all of which it continues to pay for to date. While the applicant takes issue with Aviva’s reliance on the s. 44 report of Mr. Pritchett in denying the benefits in dispute, I do not find that this is a situation where Aviva has consistently or unreasonably challenged reasonable benefit claims from the applicant. Indeed, I find there was a genuine disagreement over whether the benefits in dispute here were reasonable and necessary and, on balance, I have found Aviva’s decisions to be reasonable and supported by the evidence. Even though I have found the dishwasher to be reasonable and necessary, I do not agree that Aviva’s determination not to provide funding for the remaining items was an unreasonably withholding of benefits that would trigger an award, as alleged. Section 10 is not meant to be punishment for when an insurer gets a determination wrong or when there is a genuine debate over entitlement, but rather for deterrence against unreasonable or bad faith conduct. On the facts, I find no evidence to support an award.

ORDER

17The applicant is entitled to the incurred cost for the dishwasher not to exceed the amount of $999.99, plus applicable interest, as it is reasonable and necessary. The applicant’s remaining claims are dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2The applicant has the onus of demonstrating entitlement under ss. 14-16 of the Schedule.