Licence Appeal Tribunal File Number: 19-001148/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:
[J. T.]
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: [J. T.], Applicant David S. Wilson, Counsel Adam Wilson, Co-Counsel
For the Respondent: Judith Matani, Adjuster Jonathan Schrieder, Counsel Zach Berg, Student at Law
Interpreter: Several Tamil Interpreters1
Court Reporter: Denise Gerginova
Heard by Videoconference: December 20, 21, and 22, 2021 with closing submissions ending March 28, 2022
BACKGROUND
1[J. T.], (the “applicant”) was involved in an automobile accident on September 18, 2013, and sought benefits from Certas Home and Auto Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were not able to resolve the issues in dispute. The matter proceeded to a videoconference hearing on December 20, 21 and 22, 2022 where I heard the testimony of the applicant, [R.J.], the applicant’s wife, and [G. J.], the applicant’s daughter. The hearing of this matter was delayed as a result of difficulties with language interpretation. To ensure procedural fairness, I permitted the parties to make closing submissions in writing. However, I did direct the parties that if they referred to other records in their closing submissions (not already admitted as an exhibit) to specifically indicate the relevance of each document. Of significance, the applicant did not follow my instructions in his closing submissions and explain the relevance of each document. Where he failed to do so, I gave those records little or no weight.
ISSUES
3I have been asked to decide the following issues:
Is the applicant entitled to $166,437.70 ($175,377.30 original amount of OCF-18) for home modifications, recommended by FunctionAbility Rehabilitation Services (“FunctionAbility”) in a treatment plan (OCF-18) submitted February 16, 2017?
Is the applicant entitled to $839,104.50 for a new home, recommended by FunctionAbility, in an OCF-18, dated November 20, 2020, denied on December 8, 2020?
Is the applicant entitled to housekeeping and home maintenance benefits of $100 per week from June 7, 2016 to date and ongoing?
Is the applicant entitled to $6,975.00 for ayurvedic treatments other goods and services of a medical nature, recommended by Ayurvedic Medicine, India, in a treatment plan (OCF-18), submitted on May 16, 2018, denied on May 19, 2018?2
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Whether, by May 7, 2021, the respondent had overpaid income replacement benefits (“IRBs”) by the sum of $8,747.42, and, if so, whether the respondent is entitled to reduce the applicant’s ongoing IRBs by 20%, pursuant to ss. 52(1) and (2) of the Schedule?
RESULT
4After considering the parties submissions and all of the evidence, I find that:
The OCF-18 in the amount of $166,437.70 for home modifications recommended by FunctionAbility is deemed incurred pursuant to s.3(8) of the Schedule. The applicant is entitled to interest pursuant to s. 51 of the Schedule.
The applicant is entitled to housekeeping and home maintenance benefits in the amount of $100 per week from February 28, 2019 to date and ongoing, plus interest.
The applicant is entitled to an award on the OCF-18 for home modifications ($166,437.70) in the amount of 25%. The applicant is not entitled to an award on the housekeeping issue.
The applicant is not entitled to the OCF-18 in the amount of $839,104.50 for a new home, recommended by FunctionAbility.
The respondent overpaid the applicant’s income replacement benefits in the amount of $8,747.42. It is entitled to repayment, and may reduce the applicant’s ongoing income replacement benefit by 20%, pursuant to ss. 52(1) and (2) of the Schedule?
PRELIMINARY ISSUES
Applicant’s Request to Amend Issue #1
5At the outset of the hearing, the applicant requested to amend the amount of issue #1 from the amount of $166,437.70 to $228,015.92, which represents that cost of inflation for home modification expenses as of August 2021. The respondent opposed the applicant’s request and submits that it would be procedurally unfair to allow this amendment. The respondent asserts that the amendment represents a 20% increase to the original amount of the OCF-18. Further, it has not had the opportunity to investigate the increased amount or compile evidence to refute it for the purpose of this hearing.
6The applicant argues that the production deadline provided for in the Tribunal’s case conference report and order was August 24, 2021. Further, he served the respondent with the updated housing report on August 18, 2021, which set out the increased cost of real estate. The same report also noted the increase in cost to complete the home modifications in the amount of $228,015.92. As a result, the respondent had ample opportunity to respond to it. I agree with the respondent and decline the applicant’s request to amend issue #1. As a starting point, I agree with the respondent that it would be procedurally unfair to the respondent to amend this issue on the first day of the hearing as it was not provided with advanced notice of the applicant’s intention of making this request. The increase in the value of the OCF-18 is substantial and the respondent would be prejudiced by not having the opportunity to investigate and compile evidence to defend the case against it. Finally, as per my analysis later on in this decision, the respondent ended up approving the OCF-18 for home modifications in the amount of $166,437.70 on April 20, 2020. Therefore, this is a non-issue as the applicant had the opportunity to incur the OCF-18 for home modifications between this time and the date of the hearing.
Applicant’s Request to Exclude Investigation Brief
7The applicant opposed the respondent’s late production of its investigation brief as it was served in non-compliance with the deadline provided for in the Tribunal’s case conference report and order. The applicant submits that because the respondent did not serve its investigation brief in time, it should not be permitted to rely on it. The respondent confirmed that it does not intend to rely upon documentation in its investigation brief. Consequently, this issue is moot and I need not make a determination on this issue.
Applicant’s Request to Exclude Google Maps
8The applicant also opposed the respondent’s late production of some Google Maps in relation to the housing issue as the respondent served these maps on the applicant one day prior to the hearing. I admit the maps, however, I gave them little weight as they had no relevance in my determination of the issue in dispute. As a result, I need not address this issue further.
BACKGROUND
9On September 18, 2013, the applicant was involved in a horrific automobile accident where he was a passenger on a two-tiered bus which collided with a Via train. Tragically, there were multiple casualties, and the applicant witnessed the deaths of the bus driver and several passengers including his bus mate.
10The respondent has accepted that the applicant is catastrophically impaired under both Criteria 7 and 8 due to both physical and psychological impairments.
ANALYSIS
Is the applicant entitled to $166,437.70 for home modifications recommended in an OCF-18 by FunctionAbility?
11Section 16 (1) provides that the insurer shall pay for rehabilitation benefits for all reasonable and necessary expenses for the purpose of reducing or eliminating the effects of any disability resulting from an impairment. Section 16 (3) (i) states that the insurer shall pay for home modifications, 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.
12At the time of the accident, the applicant lived with his wife, daughter and two grandchildren in a two-storey home. His house was a short distance from the train tracks. The medical evidence supports that following the accident he started having panic attacks when he would hear the sound of the train whistle from both inside and outside of his home. According to the applicant and medical assessors these panic attacks occurred frequently and could last up to fifteen minutes. He also had significant mobility issues as a result of his physical impairments which interfered with his ability to safely access his home. There seems to be little disagreement between the parties with respect to the applicant’s impairments, so I am not going to elaborate on them further.
13On April 18, 2021, the respondent approved the OCF-18 for home modifications in the amount of $166,437.70 recommended by FunctionAbility. Therefore, it is not necessary for me to determine whether the OCF-18 is reasonable and necessary. However, this case has a long and complicated history. The chronology of events is relevant to whether the OCF-18 should be deemed incurred pursuant to s.3(8) of the Schedule, and the applicant’s entitlement to an award. The proceeding paragraphs summarize the evidence on the home modification issue.
14The applicant relies on the reports of Scott Puddicombe, accessibility consultant and Dr. Trisha Morrison, occupational therapist (“OT”). Mr. Puddicombe authored an initial report dated October 26, 2016 that recommended home modifications in the amount of $175,377.30.3 He recommended various modifications to the applicant’s home, which included renovations to the primary entrance to make it level and accessible; renovating the secondary entry for safety, and construction of a deck so the applicant could access his back yard; enlarging the bathroom to make it accessible for the applicant and his attendant care provider; installation of stair lifts so that the applicant could safely access the different levels of his home; and installing sound insulation to all of the rear windows of the home to reduce the sound of the train whistle. Subsequently, an OCF-18 dated February 16, 2017, for home modifications in the amount of $175,377.30 prepared by Dr. Morrison was submitted to the respondent. The applicant’s treatment team all agreed with the recommendations made by Mr. Puddicombe and issued reports opining on same.4
15On February 24, 2017, the respondent issued an explanation of benefits (EOB) denying the OCF-18. In the EOB, the adjuster highlighted various medical records, which in their view conflicted with the recommendations made in Mr. Puddicombe’s report. For example, the adjuster states the applicant can ambulate with a cane, therefore, he does not require stair lifts. Further, a report of Dr. Simard notes that the applicant exhibited symptoms of pain magnification and had no functional limitations. The respondent then requested further documentation from the applicant pursuant to s. 33 of the Schedule.
16Based on the evidence before me, it is unclear what transpired between the date of the initial EOB (February 24, 2017) to when the respondent completed its insurer examination (IEs) addressing the OCF-18. The respondent did not call an adjuster to testify to explain. The respondent relied on the IE reports of Sherry Mosher Taillefer, OT; Dr. Ritter, orthopaedic surgeon; and Randy Sora, design/management consultant. These IEs were completed on June 1, 2017 and the reports were not issued until November 9, 2017 (a five-month gap in time).
17The respondent’s IE assessors agreed with some of the home modifications recommended by Mr. Puddicombe. However, they disagreed on the extent of the bathroom renovations, levelling certain exterior foundations of the applicant’s home, construction of the deck, cost of the stair lifts and the extent of sound insulation required for the rear windows of the home.
18As already noted above, Mr. Puddicombe recommended sound insulation to all of the rear windows in the applicant’s home to reduce the noise of the train whistle in order to reduce the applicant’s panic attacks. Ms. Mosher Taillefer’s report notes that the noise from the train and grandchildren keep the applicant awake at night. The applicant also reported to her that he does not like to go outside because he finds it too noisy so she determined that he did not require a deck to access his backyard. Ms. Mosher Taillefer and Mr. Sora recommended that the applicant be relocated from his bedroom on the main floor to the master bedroom and that only the master bedroom windows required sound insulation. Ms. Mosher Taillefer’s report notes by insulating the windows in the master bedroom only, the applicant will be provided with an area in which to separate himself for relaxation or to sleep without disturbance. No further explanation is provided for why it is not reasonable and necessary to insulate the remaining windows. The respondent’s assessors determined that home modifications in the amount of $80,700.00 were reasonable and necessary. However, based on the evidence before me, it does not appear that the respondent issued an EOB advising the applicant that this amount was being approved.
19On December 20, 2017, Mr. Puddicombe issued a rebuttal report responding to the alternative recommendations made by the respondent’s assessors. Mr. Puddicombe’s report notes that the IE assessor’s recommendations would not meet the applicant’s safety and accessibility needs and that the applicant would be forced to accept compromises in function, lifestyle and safety. The report indicated that the applicant wants to go outdoors and that he had recently obtained noise cancelling headphones that provided some relief when he is outdoors. Further, by relocating the applicant to his master bedroom and only providing noise insulation to that room it would restrict his access to the rest of his home and hinder his socialization with his family. Dr. Morrison also issued a rebuttal report dated December 22, 2017, which noted the importance of the applicant being able to access his backyard and she also raised concerns with only providing sound insulation to the applicant’s master bedroom and why it was not feasible for the applicant to relocate to it.
20In response, Ms. Mosher Taillefer and Mr. Sora completed home modification addendum reports dated December 17, 2018 responding to the rebuttal report of Mr. Puddicombe. No explanation was provided by the respondent for the year delay in preparing these addendum reports or what happened in-between. Ms. Mosher-Talliefer agreed with Mr. Puddicombe’s recommendation not to relocate the applicant to the master bedroom and retracted the need to insulate the master bedroom windows. She also agreed with the proposed bathroom renovations and construction of the deck so that the applicant could access his backyard. Regarding sound insulation, the OT indicated that the applicant now has noise cancelling headphones and she states “if he were to use these when the train comes by he could then go to any room in the home. I called Via rail to see how often they blow whistles and they told me they do not blow whistles in this area. CN rail confirmed they do not use these tracks. Thus, the need to soundproof due to the train whistle is mute (sic).” No evidence was submitted to confirm Ms. Mosher-Taillefer’s discussions with either Via Rail or CN Rail.
21On February 22, 2019, the respondent issued an EOB agreeing to fund the OCF-18 in the amount of $110,329.00 as per Ms. Mosher Taillefer and Mr. Sora’s recommendations.
22On October 17, 2019, Mr. Puddicombe issued an updated home modification pricing report to keep in line with inflation which now valued the total cost of the home modifications at $166,437.70. As already highlighted above, the respondent finally approved the OCF-18 six months later.
23There was a significant lapse in time from when the applicant submitted the initial OCF-18 for home modifications to when it was finally approved. By November 2020, the applicant decided not to incur the OCF-18 for home modifications as he had concerns about the long-term use and maintenance of the stair lifts. In addition, sound proofing the rear windows of his home would not completely eliminate the sound of the train whistle and he could not enjoy his backyard or be mobile within his neighbourhood. Dr. Ricci, his treating psychologist recommended that the applicant move into a bungalow in a quieter location away from the train tracks. An alternate housing report was completed and on November 20, 2020 an OCF-18 was submitted in the amount of $656,915.00 (which has been revised to the amount of $839,104.50) recommending the purchase of a new home.
24This matter is further complicated by the fact that the applicant sold his existing home in the Spring of 2021, and he and his wife moved into a home bought by his daughter in 2018. The applicant, his wife and daughter testified that this arrangement was meant to be temporary until the applicant could find a new home that would accommodate his special needs. The respondent argues that because the applicant co-signed for the mortgage of his daughter’s home, he is a co-owner of the property. Therefore, he no longer requires the home modifications to accommodate his disability. I find the fact that the original home which the OCF-18 was meant to address no longer belongs to the applicant raises the question of whether the applicant is still entitled to it. The answer is yes, as I deem the OCF-18 incurred pursuant to s. 3(8) of the Schedule. I find the evidence supports that the respondent unreasonably withheld the benefit, which I will address now.
Should the OCF-18 for home modifications in the amount of $166,437.70 for home modifications recommended by FunctionAbility be deemed incurred pursuant to s. 3(8) of the Schedule?
25It is undisputed that the applicant did not incur the expense of home modifications proposed in this OCF-18. As indicated, I find this OCF-18 to be reasonable and necessary and, here, I deem the OCF-18 incurred pursuant to s. 3(8) of the Schedule as I find the respondent unreasonably withheld or delayed payment of the benefit.
26Section 3(8) provides that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the Tribunal may deem the expense to have been incurred.
27I find the OCF-18 for the home modifications recommended by Dr. Morrison was reasonable and necessary at the time it was submitted. As a starting point, I find the tone of the respondent’s initial EOB dated February 24, 2017 puzzling. On the one hand, the respondent had accepted that the applicant sustained a catastrophic impairment as a result of both physical and psychological impairments that were a consequence of the accident. However, the EOB seemed to challenge that the applicant had any functional limitations as a result. For example, the EOB references the report of Dr. Simard already referenced above and other records challenging whether the applicant has any functional impairments. I find the adjuster’s perspective wholly inconsistent.
28In addition, I find the report and recommendations made by Ms. Mosher Taillefer in relation to the sound insulation to the windows of the applicant’s home to be unreasonable. I agree with Mr. Puddicombe that Ms. Mosher Taillefer’s recommendations would restrict the applicant’s ability to access his home and would result in social isolation. Furthermore, I find the respondent failed in its obligation to fairly adjust the applicant’s claim by relying on this flawed opinion based on all of the medical documentation in its possession. As indicated earlier, the respondent did not call an adjuster to testify to justify their rationale for why they accepted Ms. Mosher Taillefer’s report when there were more practical, medically sound opinions to refute it.
29Much was made by the respondent about the fact that the applicant received some relief from noise cancelling headphones while enjoying his backyard. In my view, to expect the applicant to wear noise cancelling headphones within his home to avoid panic attacks when he hears the train whistle is a completely unreasonable position. I also find Ms. Mosher Taillefer’s reference in her addendum paper review to the Via train not blowing whistles and CN trains not using the tracks close to the applicant’s house unsupported by any evidence. I find the fact that the adjuster relied on these opinions in denying or partially approving the benefit unreasonable.
30I find that the respondent failed in its duty to review all of the medical documentation available to it in adjusting this benefit. In my view, the respondent did not fulfill its responsibility to review its assessments with a critical eye to ensure that they were medically sound. No evidence was presented as to why the adjuster preferred the reports of its own IE assessors over those of the applicant or why it did not consider other medical documentation in making its decision to not approve this benefit.
31I also find that there was a significant delay in the respondent’s handling of this OCF-18. As already noted above, there was a nine-month delay from the respondent’s first EOB and the completion of its initial IE reports. There were also year gaps in time between assessments with no communication from the respondent about what was actually being approved. No explanation was provided by the respondent during the course of the hearing to explain these significant gaps. Consequently, I find both the respondent’s denial and delay in its handling of this OCF-18 unreasonable and deem the OCF-18 incurred.
32For all of the above-reasons, pursuant to s. 3(8) of the Schedule, the OCF-18 in the amount of $166,437.70 for home modifications recommended by FunctionAbility is deemed incurred.
Is the applicant entitled to $839,104.50 for a new home, recommended by FunctionAbility in an OCF-18 dated November 20, 2020?
33I do not find the OCF-18 in the amount of $839,104.50 recommended by FunctionAbility for the purchase of a new home to be reasonable and necessary.
34Section 16 (4) (c) of the Schedule provides that an insurer is not liable to pay rehabilitation benefits for the purchase of a new home in excess of the value of the renovations to the insured person’s existing home that would be required to accommodate the needs of the insured person.
35The OCF-18 authored by Shelley Stephenson recommended that the applicant move to an alternative home and neighbourhood in order to support safety, mobility and reduce emotional response to triggers related to the train whistle. The initial OCF-18 was in the amount of $656,915.00 (has since been revised to $839,104.50). The OCF-18 referenced the report of Mr. Puddicombe dated October 12, 2020, which noted the difference between the sale value of the applicant’s pre-accident home, less the purchase price of the alternative home plus renovations and other real estate costs. Mr. Puddicombe estimated the cost differential at $124,715.00. I find the recommendations made in this assessment reasonable and necessary. However, this is not what the applicant is now asking me to decide.
36The applicant argues that the OCF-18 in the revised amount of $839,104.50 for the purchase of a new home is reasonable and necessary as there are no renovations to the former home he lived in at the time of the accident that will accommodate his disability. As a result, he submits that he is exempt from being limited to the value of the home modifications pursuant to s.16(4) (c) of the Schedule. He maintains that stairlifts, noise cancelling headphones and insulated windows are not going to solve his problems. Therefore, the insurer is liable to fund the OCF-18 for the purchase of a new home. The applicant contends that he is under no obligation to contribute the sale price of his existing home to the rehabilitation benefit. Moreover, whether this creates a windfall for him is irrelevant. In addition, to limit his claim to home renovations is untenable in an unstable, competitive real estate market.
37The respondent argues that the OCF-18 recommending the purchase of a new home is not reasonable and necessary as it would result in a windfall for the applicant. To make such a ruling would be unprecedented and it is not supported by the provisions of the Schedule or any case law. It submits that there are less costly measures to accommodate the applicant’s needs. I agree with the respondent for the following reasons.
38I find section 16 (4)(c) of the Schedule is clear that the value of the purchase of a new home may not exceed the value of the home modifications that is considered to be reasonable and necessary to accommodate an insured’s disability. The proposed OCF-18 for the purchase of a new home is clearly above the amount of the home renovations that have been recommended. While I agree with the applicant that it would be more practical for him to move to a home which is accessible and away from the train whistle, I do not find his request for the respondent to fund the entire amount without a reduction of the value of his existing home or proposed renovations reasonable.
39I also agree with the respondent that Mr. Puddicombe’s report dated October 12, 2020, is more consistent with the language in s. 16 (4) (c) of the Schedule. I also agree with the respondent that the applicant’s argument that he should not have to allocate any of the proceeds of the sale of his former home towards the purchase of a new home is an unreasonable position and it is not supported by the Schedule or any case law.
40I did not find the case law relied upon by the applicant helpful in supporting his interpretation of the Schedule on this issue. He relies on the Divisional Court’s decision in Aviva Insurance Company of Canada v. Suarez5. In that decision, the court upheld a Tribunal decision which determined that treatment plans for chiropractic treatment did not have to be incurred in order to be payable. I do not find this decision relevant to the benefit in dispute or the interpretation of s. 16 of the Schedule. The applicant also relies on the court’s decision in Wynn v. Belair.6 In this decision, the Superior Court determined that it was more reasonable to purchase a new home designed to accommodate the insured’s needs rather than to renovate her existing home because she rented an apartment. I find this decision distinguishable from the present case, as the insured lived in a rental unit which was not possible to renovate.
41I find the Tribunal’s decision in Mirzaie v. Wawanesa7 relied upon by the respondent much more persuasive. This decision dealt with a similar request for funding for the purchase of a new home. The adjudicator highlights that an insurer is only required to pay the value of home modifications needed to accommodate an insured’s disability towards the purchase of a new home. This decision also discusses the well-established jurisprudence, that an insured is not entitled to a “windfall” as a result of accident benefits. The adjudicator notes that the purpose of accident benefits is to return an insured to their pre-accident level of function to the extent that is reasonably possible. I agree with the respondent that this is not a new concept in law. Further, I do not find the applicant’s argument challenging this principle compelling.
42The applicant has not met his onus in proving on a balance of probabilities that the OCF-18 in the amount of $839,104.50 for the purchase of a new home recommended by FunctionAbility is reasonable and necessary.
Is the applicant entitled to housekeeping and home maintenance benefits of $100 per week from July 7, 2016 to date and ongoing?
43I find the applicant is entitled to a housekeeping and home maintenance benefit in the amount of $100.00 per week from February 28, 2019 to date and ongoing.
44Section 23 of the Schedule states that an insurer shall pay up to $100 per week for reasonable and necessary additional expenses incurred by or on behalf of an insured person as a result of an accident for housekeeping and home maintenance services if, as a result of the accident, the insured person sustains a catastrophic impairment that results in a substantial inability to perform the housekeeping and home maintenance services that he or she normally performed before the accident.
45As already noted above, the respondent agrees that the applicant meets the disability test for entitlement to the benefit. The medical assessors have consistently agreed that the applicant cannot carry out any housekeeping and home maintenance tasks post-accident as a result of his impairments.
46However, there was some disagreement regarding what the applicant’s pre-accident housekeeping tasks were and the number of hours the applicant spent completing same. In addition, the respondent disputes that the applicant has incurred the expense as required by s.3(7) (e) of the Schedule, which I will address later.
Applicant’s Pre-accident Housekeeping Duties
47I find the evidence pertaining to the applicant’s pre-accident housekeeping duties between July 7, 2016 and February 28, 2019 to be vague and lacking in detail. The applicant relies on a series of correspondence (attaching expense forms) between his counsel and the adjuster between June 2016 to February 27, 2017. Attached to this correspondence were statements signed by the applicant in which he outlines his pre-accident housekeeping and home maintenance tasks which he asserts was more than 10 hours per week. I agree with the respondent that the statements submitted by the applicant were vague and lacking in detail. Therefore, I do not fault the respondent for requesting further information as the applicant’s statement conflicted with the recommendations made by Suzanne Goure, occupational therapist who completed a s.25 attendant assessment report dated June 24, 2014. In that report, Ms. Goure indicated that the applicant required 5 hours per week of assistance for housekeeping and home maintenance tasks. Of significance, this report was meant to assess the applicant’s entitlement to attendant care. I agree with the applicant that little attention was given to the housekeeping issue by Ms. Goure.
48Consequently, the respondent proceeded to request further information about the applicant’s pre-accident housekeeping and home maintenance tasks. In particular it wanted a breakdown of the housekeeping tasks the applicant performed pre-accident and the amount of time it took him to complete the tasks. The applicant submits that the respondent had this information as it was detailed in the s.44 an occupational therapy report. I did not find this report helpful as far as setting out the applicant’s pre-accident housekeeping tasks along with the hours to complete. The respondent also requested information about the service provider currently providing services (of which it was already aware), with a detailed breakdown of tasks provided on which dates and the amount charged. I agree with the applicant that a logbook detailing the dates and times and housekeeping services is not required. The applicant did not cooperate with the respondent’s repeated requests for this information. As a result, the respondent held him in non-compliance pursuant to s. 33 of the Schedule for a period of time.
49Based on the evidence before me, the applicant did not comply with the respondent’s request for more information about his pre-accident housekeeping tasks until February 28, 2019, which is the date of Shelley Stephenson’s OT report. However, I find that as of February 28, 2019, the respondent had enough information regarding the applicant’s pre-accident housekeeping tasks in order to determine what additional services his wife was completing post-accident.
50Ms. Stephenson opined that the applicant required 8 hours per week of housekeeping and home maintenance services, in addition to snow removal and lawn care. In my view, $100 per week would easily be incurred with the number of hours Ms. Stephenson allotted if a professional service provider was hired to complete the services. I find Ms. Stephenson’s report provided a practical breakdown for the housekeeping tasks the applicant was responsible for pre-accident. I also find that Ms. Stephenson excluded certain tasks that overlapped with attendant care services.
51The applicant also relied on the written statements of himself, his wife and his daughter dated June 6, 2020. The applicant’s written statement notes that pre-accident he was responsible for most of the outdoor housekeeping and home maintenance tasks such as lawn care, snow removal, washing exterior windows, home repairs and taking out the garbage. He was also responsible for interior repairs and shared equally in the indoor housekeeping tasks and was responsible for grocery shopping. His daughter also contributed to housekeeping tasks but she was primarily responsible for tidying up after herself and her two children.
52The applicant’s written statement provided a breakdown of annual/monthly/weekly hours of housekeeping and home maintenance tasks he was responsible for pre-accident. With the exception of the hours allotted for grocery shopping and heavy cleaning, I find the tasks and time estimates outlined in the applicant’s statement to be realistic. When broken down into weekly tasks he was responsible for approximately 12 to 13 hours per week. In my view, the applicant should have submitted this type of statement to the respondent in July 2016, and he would have satisfied his burden to respond under s. 33. Now, I will address whether the services were incurred pursuant to s. 3 (8) of the Schedule.
53To meet the definition of “incurred” the applicant must satisfy the following three criteria:
i. The applicant received the service to which the expense relates;
ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense;
iii. The person who provided the service did so
a) in the course of her employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or
b) sustained an economic loss as a result of providing the goods or services to the insured person.
54The applicant argues that he has been receiving the service to which the expense relates as his wife has been completing housekeeping services since the accident, so criterion i) is satisfied. He also asserts that criterion ii) has been met as he has either paid or promised to pay his wife for these expenses. Finally, the applicant submits that the issue of whether his wife sustained an economic loss has already been dealt with in a previous arbitration before the FSCO. Therefore, the applicant maintains that criterion iii. b) has been satisfied.
55The respondent submits that the legislature’s intent of adding the word “additional” to section 23 of the Schedule had a special meaning and purpose. The respondent argues that the applicant’s wife could not have completed any “additional” housekeeping services because she was already providing 24-7 attendant care. Therefore, there would be no time left in her day to carry out “additional” housekeeping services. In addition, it maintains that the financial documentation relied on by the applicant supporting that the benefit has been incurred should be given little weight. Finally, it contends that she already sustained an economic loss in relation to the attendant care benefit, therefore, she cannot be compensated for both. Neither party submitted case law addressing the incurred issue.
56For the following reasons, I find that the applicant has met his evidentiary burden in satisfying that the housekeeping benefit has been incurred.
Criteria I – Did the Applicant Receive the Services to which the Expense Relates?
57I do not find the respondent’s argument that the applicant’s wife cannot provide “additional” housekeeping services, while at the same time providing 24-7 supervisory attendant care persuasive. In my view, one can supervise a person and ensure that their basic needs are met while at the same time completing housekeeping tasks. In addition, there is no provision in the Schedule that says that an insured cannot use the same service provider to provide attendant care and housekeeping and home maintenance tasks.
58The applicant and his wife testified that post-accident, his wife has carried out all of the “additional” housekeeping tasks which he was responsible for pre-accident. I find the applicant and his wife to be credible witnesses and I have no reason not to believe their testimony. Therefore, I find that the applicant received the service to which the expense relates and thus criterion i) is satisfied.
Criteria II – Applicant Paid or Promised to Pay for Services Rendered
59The applicant submits that he promised to pay or paid his wife for completing the additional housekeeping and home maintenance tasks. The applicant submitted copies of two cheques he provided to his wife in 2021 to support that he has paid his wife for these services. The respondent argues that evidence supporting payment amongst family members should be given little weight. I disagree with the respondent on this point as the applicant and his wife have given me little reason to doubt their credibility. Therefore, I find that the applicant has proven criteria ii).
Criteria III – B Economic Loss
60I agree with the applicant that the applicant’s wife has already proven that she has sustained an economic loss in relation to the attendant care issue. The applicant submitted the FSCO decision of arbitrator Schnapp dated June 12, 2017, which determined that the applicant sustained an economic loss to provide the applicant with 24-7 attendant care services.8
61The applicant submits that there is no reason in law why the same economic loss proven in relation to the attendant care issue is not applicable to the economic loss sustained in relation to the housekeeping benefit. I agree with the applicant that it does not need to be proven twice. Therefore, I find that the applicant’s wife has sustained an economic loss for the purpose of criterion iii b), and therefore the criteria for proving the benefit has been incurred has been met.
62For the above reasons, I find the applicant has met his onus in proving on a balance of probabilities that the housekeeping and home maintenance has been incurred pursuant to s. 3(8) of the Schedule. Consequently, he is entitled to payment of same in the amount of $100.00 per week, February 28, 2019 less any amounts paid by the respondent for snow removal and lawn care.
Should the housekeeping benefit be deemed incurred pursuant to s.3(8) of the Schedule?
63I do not find that the respondent unreasonably withheld the housekeeping benefit as the applicant did not comply with the respondent’s request for additional information pursuant to s. 33 of the Schedule from 2016 to the date of Ms. Stephenson’s assessment. The information initially provided by the applicant in relation to his pre-accident housekeeping tasks was vague and lacking in detail. Furthermore, the respondent had a s.25 report which contained inconsistent information. Despite the fact that I have determined that a logbook outlining specific tasks was not required, I find the respondent was within its right to request more information in 2016. For these reasons, I decline the applicant’s request to deem this benefit incurred pursuant to s. 3(8) of the Schedule.
Is the applicant entitled to interest on any overdue payment of benefits?
64The applicant is entitled to interest on the OCF-18 for home modifications in the amount of $166,437.70 as well as the housekeeping and home maintenance benefit.
65Section 51 (1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. Since I have deemed the OCF-18 for home modifications in the amount of $166,437.70 incurred interest is payable. The applicant is also entitled to interest on the housekeeping benefit.
Whether, by May 7, 2021, the respondent had overpaid income replacement benefits by the sum of $8,747.42, and, if so, whether the respondent is entitled to reduce the applicant’s ongoing income replacement benefit by 20%, pursuant to ss. 52(1) and (2) of the Schedule?
66I find the respondent is entitled to repayment in the amount of $8,747.42, less any amounts already repaid.
67Section 52 (1) of the Schedule requires a person to repay the insurer any benefit paid to the person as a result of an error on the part of the insurer, the insured person, or any other person, or as a result of wilful misrepresentation or fraud. Section 52 (2) provides that the insurer must give the insured person notice of the amount that is to be repaid and may reduce weekly payments of an IRB up to 20%. Section 52(3) provides where an insurer fails to give notice within 12 months after the overpayment has been made the insured person is not liable to pay it back.
68The respondent submits that it is entitled to repayment from the applicant in the amount of $8,747.42, because it erroneously overpaid the applicant an IRB. Specifically, it did not recalculate the applicant’s weekly IRB on October 21, 2020, when he turned 65, as permitted by s. 8 of the Schedule. It continued to pay the applicant $400.00 per week until April 17, 2021.
69On May 7, 2021, the respondent notified the applicant that it had overpaid his IRBs, it explained the error in calculation and indicated that it would be reducing his weekly IRB payments by 20%.
70The applicant submits that the respondent is not entitled to repayment because he did not contribute to the error resulting in the overpayment. Further, he submits that the respondent has not proven that it made an error by continuing to pay the benefit in the full amount. He maintains that I should draw an adverse inference by the fact that the respondent did not call its adjuster to testify and explain that this was in fact an error. For the following reasons, I agree with the respondent.
71I find the wording of s. 52 of the Schedule clear as the language specifically provides that an insurer is entitled to repayment if the error was made “on the part of the insurer.” The applicant relies on the decision of the Financial Services Commission of Ontario (FSCO) in Trottier and Royal Sunalliance.9 I am not bound by FSCO decisions but they can be persuasive. I do not find this decision helpful to the applicant’s position as the scenario in Trottier dealt with an overpayment made beyond the 12-month period. Further, the applicant also relies on the Divisional Court’s decision in State Farm v. Kong,10 which dealt with an older version of the Schedule which applied a narrower interpretation of error. The pre-1996 Schedule only allowed for repayment where there was a fraud or misrepresentation by the insured. That is not the case here.
72In this case, the respondent continued to pay the applicant the maximum amount of IRBs when the Schedule permits it to reduce the benefit upon the applicant turning age 65 on October 21, 2020. Further it notified the applicant of its miscalculation on May 21, 2021, (exactly seven months) which was within the 12-month period to provide notice of its error. The respondent is therefore entitled to repayment in the amount of $8,747.42.
Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
OCF-18 for Home Modifications
73I find that the applicant is entitled to an award in the amount of 25% for the respondent’s handling of his claim for the OCF-18 for home modifications.
74Section 10 of Ontario Regulation 664, R.R.O. 1990 (O. Reg. 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest (including unpaid interest) at a rate of 2% per month, compounded monthly from the time the benefits first became due under the Schedule.
75As already determined above, I find the respondent unreasonably withheld payment for the OCF-18 for home modifications in the amount of $166,437.70 and I have already provided my rationale for determining same in my analysis on whether the benefit should be deemed incurred. The applicant submits that I should award 25% for the respondent’s handling of this OCF-18. Neither party made submissions regarding the factors I should take into consideration in determining the quantum of the award. Further, the respondent made no submissions on the award at all.
The Amount of the Award
76Based on the facts in this case I find an award of 25% is appropriate. The applicant has been deemed catastrophically impaired and I consider him to be an extremely vulnerable member of society. Therefore, based on the applicant’s condition, the amount of time which transpired from when the OCF-18 was submitted to when it was finally approved, and the unreasonable basis for the respondent’s delay, I award the applicant 25% of the amount to which he was entitled.
77Since I do not have the specific information necessary to calculate the precise amounts of the award, I leave it to the parties to calculate it. Any disagreements between the parties may be referred to me.
78For the reasons already highlighted above, I do not find that an award is payable for the respondent’s handling of the housekeeping benefit as I do not find that it was unreasonably withheld.
ORDER
79For all of the above-noted reasons, I order as follows:
The applicant is entitled to the OCF-18 in the amount of $166,437.70 for home modifications recommended by FunctionAbility is deemed incurred pursuant to s.3(8) of the Schedule. The applicant is entitled to interest pursuant to s. 51 of the Schedule.
The applicant is entitled to housekeeping and home maintenance benefits in the amount of $100 per week from February 28, 2019 to date and ongoing, plus interest.
The applicant is entitled to an award on the OCF-18 for home modifications ($166,437.70) in the amount of 25%. The applicant is not entitled to an award on the housekeeping issue.
The applicant is not entitled to the OCF-18 in the amount of $839,104.50 for a new home, recommended by FunctionAbility.
The respondent overpaid the applicant’s income replacement benefits in the amount of $8,747.42. It is entitled to repayment, and may reduce the applicant’s ongoing income replacement benefit by 20%, pursuant to ss. 52(1) and (2) of the Schedule?
Released: June 3, 2022
__________________________
Rebecca Hines
Adjudicator
Footnotes
- Naga Ramalingam; Anjeline Thisairajah; Padmavathi Devi Kanagarjamuthaly; Thayani Gunanathan; Shuba Vijendran and Kandiah Pathmanathan
- The applicant withdrew this issue in his closing submissions.
- Mr. Puddicombe later acknowledged that there was a calculation error in his report so the amount was amended to $152,516.10.
- Report of R. Anwar dated August 8, 2017; Addendum report of Dr. Karabatsos dated August 29, 2019; and the report of Dr. Ricci, applicant’s treating psychologist dated October 12, 2017.
- Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200
- Wynn v. Belair, 2002 CanLII 79683 (ON SC), [2002] O.J. No.4180 (SCJ).
- Mirzaie v. Wawanesa Mutual Insurance Company, 2021 CanLII 104417 (ON LAT)
- Jeyanathan Tahngarajah v. State Farm Mutual Automobile Insurance Company, FSCO A14-009855, June 12, 2017
- Trottier and Royal Sunalliance Insurance Company of Canada, 2003, (FSCO Appeal P03-00019).
- State Farm Mutual Automobile Insurance Company v. Kong, [1996] O.J. No. 2321 (Gen. Div.).