Freda Drosos v. TTC Insurance Company Limited, 2022 CanLII 117092

Citation: Drosos v. TTC Insurance Company Limited, 2022 ONLAT 21-005025/AABS

Licence Appeal Tribunal File Number: 21-005025/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:

Freda Drosos (By her litigation guardian, Maria Drosos)

Applicant

and

TTC Insurance Company Limited

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Sherilyn Pickering, Counsel

For the Respondent: Andrew Davidson, Counsel

HEARD: By Way of Written Submission

DECISION

BACKGROUND

1The applicant was involved in an accident on June 26, 2019. The applicant sought and received partial benefits from TTC Insurance Company Limited (“respondent”) pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2020 (including amendments effective June 1, 2016)¹ (“Schedule”).

ISSUES IN DISPUTE

2The following issues are to be decided:

a. Is the applicant entitled to $6,644.45 ($8,904.45 less $2,260.00 approved) for a home modification assessment recommended by Adapt-Able Design Group, in an OCF-18 dated February 10, 2021?

b. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

c. Is the applicant entitled to interest on any overdue payment of benefit?

RESULT

3I find that:

a. The applicant is not entitled to the unapproved portion of the OCF-18 in the amount of $6,644.45;

b. The respondent is not liable to pay an award under s. 10 of Regulation 664; and

c. The applicant is not entitled to interest.

POSITIONS

4The applicant submitted a treatment plan (“OCF-18”) for a home modification assessment, dated February 10, 2021, in the amount of $8,904.45.

5The respondent partially approved the OCF-18 in the amount of $2,260.00, resulting in an unapproved balance of $6,644.45.²

6The applicant takes the position that the OCF-18 is reasonable and necessary and that the respondent has the discretion to pay above the $2,000.00 assessment cap.

ANALYSIS

Home Modifications

7Section 25(5)(a) of the Schedule is clear in its language. Despite any other provision in the Schedule, an insurer shall not pay more than a total of $2,000.00 plus applicable harmonized sales tax (“HST”) in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.

8The Tribunal has previously considered whether home modification assessments are subject to the $2,000.00 cap under s. 25(5)(a) of the Schedule.

9The parties agree that s. 25 governs the costs of the assessments and examinations, further the parties agree that s. 25 must be read in conjunction with Superintendent’s Guideline 08/10 entitled “Cost of Assessments and Examinations Guideline” (“Guideline”).

10The Guideline sets out provisions with respect to the $2,000.00 cap placed on assessments and examinations under s. 25 of the Schedule. The Guideline defines the terms “assessment” and “examination” as follows:

“Assessment” and “examination” have the same meaning under the [Schedule]. An assessment or examination is a clinical evaluation or appraisal of a claimant’s health status.

11The Guideline also provides that fees and expenses for conducting any one assessment includes all costs, fees, etc. incurred by or on behalf of the health care provider who conducted the assessment or examination.

12The applicant submits that home modification analysis as sought in the OCF-18 is not an assessment or an appraisal of health status. Rather, the purpose of the home modification analysis is to assess the home and the modifications needed to ensure that it is suitable for the functional needs of the applicant.³

13The applicant relies on S.M. v. Unica Insurance Inc.⁴ where the adjudicator found that the insurance company should pay the balance of the cost of the housing analysis assessment, as it was not a clinical evaluation or an appraisal of health status. This type of assessment in the view of the adjudicator is not an assessment or examination as referred to in s. 25 of the Schedule.

14As such, the applicant submits that the disputed OCF-18 is not subject to the $2,000.00 cap placed on assessments and examinations under s. 25.

15The respondent interprets s. 25 of the Schedule as providing $2,000.00 for each assessment, which covers all aspects of an assessment. The respondent highlights that the language used by the assessor on the OCF-18 refers to it as an assessment.⁵ The respondent submits that just because the applicant refers to the home modification assessment as a home modification analysis, it does not change it from being an assessment and is therefore subject to the $2,000.00 funding limit.

16The respondent argues that by calling something by one word rather than another does not make it what one wants it to be. It is what it is, in the context of principles of statutory interpretation.

17The respondent relies on R.G. v. State Farm Insurance,⁶ R.J. v. Certas Direct Insurance Company,⁷ and Verschuren v. The Personal Insurance Company.⁸ In all these cases the Tribunal determined that the $2,000.00 cap applies to home modification assessments.

18In the additional comments section of the disputed OCF-18, Ana Gollega, occupational therapist mentions home modifications that would be necessary to accommodate the applicant as a result of her functional limitations. The OCF-18 states that the recommendation would be based on the medication information provided, a meeting with the applicant, a home site visit, a consultation with her treating rehabilitation professionals, and an investigation of zoning restrictions for the property.

19I find the OCF-18 provides an assessment of the applicant’s impairments and functional limitations, which falls within s. 25 of the Schedule.

20While I am not bound by the decisions of my colleagues, I find the R.G. decision persuasive and see no reason to depart from its finding. Adjudicator Gosio was clear in his interpretation of s. 25(5)(a) of the Schedule, providing at paragraph 17 that, “it places a $2,000.00 cap on the fees and expenses charged for conducting any one assessment or examination.”

21Further at paragraph 18, the R.G. decision states that a housing assessment “by its very nature, involves an appraisal of the applicant’s health status.”

22I disagree with the applicant’s submissions that a home modification analysis is not an assessment, and therefore the funding the cap should not apply. I find that the evidence demonstrates that the OCF-18 provides for an assessment of the applicant’s impairments and functional limitations at her home, and therefore she cannot avoid the cap imposed by s. 25 of the Schedule by defining her assessment as a different word than that which should apply.

23As for the preparation of reports in connection with the disputed OCF-18, I am not persuaded by the matter of S.M. v Unica Insurance⁹ and find that it is not binding on me. In any event, this case is distinguishable, as the issue there concerned a housing market analysis and the assessment in this case considers the needs of the applicant in her own home.

24Therefore, I find the disputed OCF-18 is subject to the $2,000.00 limit placed on any assessment and examination pursuant to section 25(5)(a) of the Schedule.

Interest and award

25Given that the applicant is not entitled to the treatment plans, there is no basis to order an award or the payment of interest.

CONCLUSION AND ORDER

26The applicant is not entitled to a benefit in the amount of $6,644.45 ($8,904.45 less $2,260.00 approved) for a home modification assessment.

27The applicant is not entitled to an award.

28The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Letter to the applicant dated March 15, 2021.
3. 3OCF-18 dated February 10, 2021.
4. 4S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) (This reference is to the Reconsideration Decision which overturns the decision granting the balance of the cost of housing analysis assessment – that decision is 2020 CanLII 12718).
5. 5OCF-18 dated February 10, 2021. “the Adapt-Able Group has over 30 years’ experience specializing in this type of assessment and is highly qualified to assist with a resolution to Ms. Drosos’ housing needs.”
6. 62019 CanLII 18340 (ON LAT) (“R.G.”) upheld on reconsideration 2019 CanLII 72227.
7. 72020 CanLII 101804 (ON LAT).
8. 82021 ONLAT 11880 (ON LAT).
9. 92020 CanLII 61460 (ON LAT) see note by footnote 4.