Licence Appeal Tribunal File Number: 20-002110/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:
Valerie Hathaway-Warner
Applicant
And
TD General Insurance Company
Respondent
DECISION
PANEL:
APPEARANCES:
Brian Norris, Member
Taivi Lobu, Member
For the Applicant:
Mark Elkin, Counsel
Mehak Verma, Counsel
Stacey Kavaratzis, Paralegal
Brittany Stewart, Paralegal
For the Respondent:
Jennifer McGlashan, Counsel
Glen Bushi, Counsel
Michelle Bi-Ling Qiu, Counsel
Jasmini Mehta, Law Clerk
Court Reporter:
Trina Wannamaker, Victory Verbatim
HEARD:
Videoconference: June 20, 21, 22, 23 & 24, 2022
Followed by Written Submissions
OVERVIEW
1Valerie Hathaway-Warner (“the Applicant”) was involved in an automobile accident on July 14, 2010, and sought benefits from TD General Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule. The Applicant claimed entitlement to attendant care benefits, (“ACBs”), and certain home modifications, which the Respondent denied. The Applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service, (“Tribunal”), for resolution of the dispute.
2The accident occurred just prior to the change to the current Statutory Accident Benefits Schedule. Accordingly, two versions of the Schedule apply to the Applicant’s claim: Accidents on or after November 1, 1996, (O. Reg 403/96, the “1996 Schedule”) and the Schedule Effective September 1, 2010, (O. Reg 35/10, the “2010 Schedule”). As confirmed by the Divisional Court in Morrissey v. Wawanesa Insurance Company, 2022 ONSC 4398, in such cases, claimants receive the benefits available under Part V of the 1996 Schedule (and in the amounts available under the 1996 Schedule) but are governed by the procedures of the 2010 Schedule.
ISSUES
3The issues in dispute at the hearing are as follows:
a. Is the Applicant entitled to ACBs, in the amount of $6,000 per month for the period from July 12, 2019 to date and ongoing?
b. Is the Applicant entitled to a rehabilitation benefit in the amount of $399,763.00, for home modifications recommended by Adapt-Able Design Group in a treatment plan (OCF-18) submitted on January 30, 2020?
c. Is the Applicant entitled to a rehabilitation benefit in the amount of $931,000.00, for alternative housing recommended by Adapt-Able Design Group in an OCF-18 submitted on April 8, 2020?
d. Is the Applicant entitled to a cost of examination expense in the amount of $5,002.50, for home modifications and home devices assessment recommended by Adapt-Able Design Group in an OCF-18 submitted on January 9, 2020?
e. Is the Respondent liable to pay an award because it unreasonably withheld or delayed payments to the Applicant?
f. Is the Applicant entitled to interest on any overdue payment of benefits?
g. Is either party entitled to costs?
RESULT
4The Panel finds the following:
a. The Applicant is entitled to ACBs up to $3,589.07 per month for the period from July 12, 2019 to date.
b. The Applicant is not entitled to the home modifications claimed.
c. The Applicant is not entitled to the alternative housing claimed.
d. The home modifications and home devices assessment is subject to the $2,000.00 funding limit provided by section 25 of the 2010 Schedule.
e. As there is no overdue payment of benefits, no interest is payable.
f. As there is no overdue payment of benefits, an award is not payable.
g. The Applicant is entitled to costs in the amount of $1,000.00.
PROCEDURAL ISSUE – Exceeding the Page Limit on submissions
5At the close of the videoconference hearing the panel ordered written submissions, with the Applicant’s submissions to be followed by the Respondent’s submissions, and a reply, if any, by the Applicant. The maximum page limits ordered were specified as 15, 15 and 10 pages, respectively.
6In her reply submissions, the Applicant objected to the fact that the Respondent’s written submissions were 20 and not 15 pages, as ordered. The Applicant submitted that she was limited in her ability to provide a fulsome reply, as her reply was limited to only 10 pages. The Applicant asked that the Panel not read the five pages over the limit or that costs be awarded against the Respondent for failing to respect the page limits.
7The Panel has accepted the written submissions as filed, but it does not condone the Respondent’s breach of the Tribunal’s Order. Instead of running the risk of having the submissions excluded for non-compliance, pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, October 2, 2017 (“the Rules”), parties should file a timely Notice of Motion if they seek to vary the page limits of written submissions.
8Here there is no indication that the Applicant was unable to address the relevant issues in her reply submissions within the ten page limit ordered. While the Applicant could have brought a motion to amend the order to increase the page limit for her reply, she did not do so.
Background
9The Applicant sustained serious mental and behavioural impairments as a result of the subject accident, resulting in a finding of catastrophic impairment. The determination of catastrophic impairment was made by a panel of this Tribunal in a decision dated April 12, 2019. That decision found that the Applicant sustained a mental and behavioural disorder at the Marked level of impairment (Class 4) in three of four domains: Activities of Daily Living; Concentration Persistence and Pace; and Adaptation.
10A catastrophic determination report completed at the request of the Applicant showed that the Applicant’s physical impairment rating was at 0% Whole Person Impairment; however when mental and behavioural impairment ratings were considered, the Applicant was at 49% Whole Person Impairment (0+49). Upon considering psychological and other evidence relating to the Applicant’s challenges with focus, hygiene, myofascial pain, overwhelm with daily activity, emotional deterioration, and becoming bedbound with functional decompensation, the 2019 Panel determined that the Applicant’s pain, fatigue, lower energy and mood changes contributed to marked impairments in three of four domains of functioning (Activities of Daily Living; Concentration Persistence and Pace; and Adaptation).
11The Applicant was residing in her parents’ home with her two children at the time of the 2010 accident and has continued to live at that residence. It is a two-story suburban house, with the Applicant’s bedroom and washroom on the second floor.
12The Applicant seeks entitlement to ACBs up to the $6,000.00 monthly maximum, based on the assessment and Form 1 which she had arranged to have completed by an occupational therapist. The Respondent approved an entitlement to ACBs up to $2,652.91 per month, based on the recommendation from another occupational therapist in an insurer’s examination (“IE”) report dated September 22, 2021.
13The Applicant also seeks modifications to her home or, in the alternative, funding for the purchase of a new home to accommodate her disability. The Respondent denied funding for the home modifications and purchase of a new home on the grounds on the basis that they are not reasonable and necessary as a result of the accident.
ANALYSIS
14The Applicant has the onus of demonstrating on a balance of probabilities that the ACBs and rehabilitation benefits claimed (namely home modifications or alternative housing) are reasonable and necessary.
ISSUE I: Attendant Care Benefits
15ACBs shall pay for all reasonable and necessary expenses that are incurred by the Applicant for services provided by an aide or attendant as a result of accident-related impairments. The maximum ACBs allowed for a person who has been catastrophically impaired is $6,000.00 per month, plus HST. The onus is on the Applicant to prove entitlement to ACBs in the amount claimed, which is $6,000.00 per month.
16Given that the accident in question occurred in July 2010, pursuant to section 16(2) of the 1996 Schedule, the calculation of quantum of ACBs is in accordance with the Form 1. The rates of the Form 1 for accidents occurring between March 31, 2008 and August 31, 2010 are as follows: $11.23 for Part 1 care; $8.75 for Part 2 care and $17.98 for Part 3 care.
17The Panel finds that the Applicant is entitled to incurred ACBs up to the maximum amount of $3,589.07 per month for the period from July 12, 2019 to date. However, the Applicant has not demonstrated that she has incurred ACBs expenses during the period in question.
Comparative Attendant Care Needs Assessments - General
18The amount of a monthly ACB is determined in accordance with the Assessment of Attendant Care Needs form, (“Form 1”). The Applicant claims that she requires ACBs in excess of the $6,000.00 funding limit and is therefore entitled to receive $6,000.00 per month in ACBs. She relies on the Form 1 dated June 13, 2019, (“the Caskie Form 1”), and the Attendant Care Needs Report, by occupational therapist, D. Caskie, dated July 12, 2019, (“the Caskie AC Needs Report”).
19The Respondent contends that the Applicant’s needs are less than what she claims and that she is only entitled to ACBs up to $2,6852.61 per month according to the Form 1 by A. Sasani, occupational therapist, dated September 8, 2019, (“the Sasani Form 1”), and In-Home Assessment Report by Mr. Sasani, dated September 22, 2019, (“the Sasani In-Home Report”). The Respondent further submits that the Applicant has not incurred ACBs pursuant to section 3 of the 2010 Schedule and is therefore not entitled to any payment.
20Unless otherwise noted, the Panel prefers the Caskie assessment of the Applicant’s attendant care needs over that of the Sasani assessment for the reasons that follow.
21The Caskie assessment was carried out over two days. Ms. Caskie had been the Applicant’s treating occupational therapist for about four years prior to the assessment, and had seen the Applicant in various circumstances and timeframes. She provided occupational therapy services to the Applicant at the house until the March 2020 onset of the pandemic, after which time Ms. Caskie continued to provide OT services to the Applicant virtually and offsite at the Ontario Musicians Co-operative Inc. (OMCI). The Applicant has volunteered at the OMCI, and the location has also served as a site for her to meet with care providers when outside visitors could not come to her home because of her parents’ pandemic-related health concerns.
22The Caskie Form 1 shows an awareness of the Applicant’s needs and daily circumstances, including the fluctuating nature and psycho-emotional dimensions of the Applicant’s impairment, that is generally consistent with the preponderance of other evidence before the Panel.
23In contrast, Mr. Sasani has met the Applicant once, for 1.5 hours. He relied on the Applicant’s presentation in that one-time meeting as the basis for his assessment together with documentation provided to him by the Respondent. The documentation provided to Mr. Sasani by the Respondent did not include the Tribunal’s 2019 decision which determined that the Applicant was catastrophically impaired because of mental/psychological impairments.
24Mr. Sasani also had erroneous recollections of key features of the Applicant’s living circumstances. For example, Mr. Sasani stated in his report and confirmed in his testimony that all bedrooms and bathrooms in the house were on the main floor, including the Applicant’s bedroom and bathroom. It was evident from all other witnesses that the Applicant’s bedroom and bathroom were on the second floor of a house with a curved staircase. He also indicated that the house was fairly organized and that he observed “no problem with the house.” This was contrary to the evidence of significant clutter and disorganization from every other witness who had attended the home in recent years. Ms. Macrae, another occupational therapist who attended the home on behalf of the Respondent, described the home as “dangerously cluttered.”
25The Panel finds that Ms. Caskie was better informed about the salient aspects of the Applicant’s circumstances and overall, accepts her assessment as a more informed basis for determining the Applicant’s attendant care needs.
Comparative Attendant Care Assessment – Level 1 Care
26The competing Form 1s proposed Level 1 Care as follows:
Level 1 Care – Caskie Form 1
Total Minutes per week: 1076.50
$866.39
(1076.50 x 4.3 at $11.23 hourly rate for July 2010 accident)
Level 1 Care – Sasani Form 1
Total Minutes per week: 420
$338.02
(420 minutes x 4.3 at $11.23 hourly rate for July 2010 accident)
Dressing and Undressing: 140
Dressing & Undressing: 0
Grooming
Face washing, Shaving, Cosmetics: 89
Hair care (shampoos, dry, style): 67.5
Fingernail & toenail care: 10
Grooming
Face washing, Shaving, Cosmetics: 0
Hair care (shampoos, dry, style): 0
Fingernail & toenail care: 0
Feeding
Preparing Applicant for meals (including transfer to appropriate location): 105
Assistance preparing & serving meals: 525
Feeding
Preparing Applicant for meals (including transfer to appropriate location): 0
Assistance preparing & serving meals: 420
27The Level 1 Care assessment in the Caskie Form 1 takes into account the Applicant’s marked mental/behavioural impairments as well as pain-related components, with fluctuating abilities on a day-to-day basis. Ms. Caskie’s assessment considered that the Applicant had unpredictable needs which warranted heightened assistance on days of increased symptoms. Ms. Caskie also recognized differences between the Applicant’s reporting and her actual practice (i.e., nailcare) and recommended assistance based on actual practice.
28The Caskie Form 1 is substantially consistent with the testimony of the Applicant, the Applicant’s daughter, and others. For example, the Applicant testified that without PSW support she would forget to eat and go for days without a balanced meal; that she bathed once every few months; that she washed her hair every couple of months; and that it was too overwhelming for her to change her clothes or bedding. Similarly, the Applicant’s daughter testified that when she moved back home in late 2020, her mother did not have PSW support and was withdrawing, not getting out of bed, unable to maintain a routine, and had declined in her hygiene. Her daughter also testified of instances when her mother would push beyond her limits and then take weeks to recover. She stated that although limited in the support they could provide, she and her grandparents sought to assist as they could, such as providing the Applicant at least one meal a day and encouraging her to get up in the morning, change clothes, eat and carry out basic hygiene.
29Such testimony was also in accord with the observations of the Applicant’s current occupational therapist, Arvinder Gaya, who spoke about the Applicant’s hygiene and clothing, and challenges in daily living. Ms. Gaya testified that the Applicant was very fragile, unable to initiate or follow through on tasks, and constantly overwhelmed, with mental health being a large part of the applicant’s reduced tolerances and challenges.
30In contrast, occupational therapist Sasani’s determination of the Applicant’s attendant care needs made some assumptions which were inconsistent with the Applicant’s condition. While Mr. Sasani’s assessment touched on cognition and psycho-social factors, his understanding of how these factored into the Applicant’s ongoing ability to carry out actions was limited. He did not have the benefit of observing the Applicant's actual ability to carry out and follow-through on activities of daily living on an ongoing basis, and was not alert to the scope of the Applicant’s needs for cueing, follow-up and encouragement to carry out tasks.
31Mr. Sasani assessed the Applicant as independent in all of the Level 1 self-care tasks other than meal preparation. He testified that he was unaware that the Applicant did not change her clothes or that her hair was unwashed for weeks at a time.
32In contrast, the Caskie assessment reported that the Applicant required having meals brought to her, cueing to eat, follow-up to ensure she had eaten and clearing of dishes after use.
33Ms. Caskie’s recommendations with respect to grooming, dressing and meals was consistent with multiple witness observations of the Applicant’s hygiene, needs for cueing and follow-up, and selfcare.
Attendant Care Assessment – Level 2 Care
34The competing Form 1s proposed Level 2 Care as follows:
Level 2 Care – Caskie Form 1
Total Minutes per week: 8423.52
$5,282.25
(8423.52 minutes x 4.3 at $8.75 hourly rate for July 2010 accident)
Level 2 Care – Sasani Form 1
Total Minutes per week: 3110
$1,950.23
(3110 minutes x 4.3 at $8.75 hourly rate for July 2010 accident)
Hygiene
Bathroom: cleans fixtures after use: 35
Bedroom: bedding, cleans etc: 45
ensures comfort, safety and security in this environment: 4106.76
Clothing Care: daily wearing apparel: 35
Hangs/sorts clothes: 35
Hygiene
Bathroom: cleans fixtures after use: 35
Bedroom: bedding, cleans etc: 35
ensures comfort, safety and security in this environment: 420
Clothing Care: daily wearing apparel: 35
Hangs/sorts clothes: 35
Basic Supervisory Care
Ability to respond to emergency: 4106.76
Basic Supervisory Care
Ability to respond to emergency: 2520
Coordination of Attendant Care: 60
Coordination of Attendant Care: 30
35With regard to “ensuring comfort, safety and security in the environment,” Ms Caskie allocated 4,106.76 minutes per week and the same amount of time for “basic supervisory care”, for a total of 8,213.52 minutes per week. Mr. Sasani assessed a need for 420 minutes and 2,520 minutes of attendant care respectively, for a total of 2,940 minutes per week.
36The basis for Ms. Caskie’s request included that the Applicant was at increased risk of falls and would have significant difficulty getting up by herself without external supports for assistance. She also referenced a need for daytime emotional support. In assessing needs under these categories Mr. Sasani identified concerns with regard to the Applicant’s cognitive and executive functioning issues and dizziness.
37The Panel is not persuaded that in addition to other attendant care identified in her assessment, the Applicant requires supervisory care at the level identified by Ms. Caskie. For example, while the evidence showed that the Applicant spent substantial time at the OMCI, there was no suggestion that other people were expected to be at the site during the times the Applicant was there. The preponderance of the evidence does not demonstrate that the Applicant requires near constant supervision. While Ms. Caskie’s report identifies concerns of the Applicant being alone and experiencing a fall, she has also identified alternatives – such as medical alert systems. The testimonial and documentary evidence does not show that the Applicant’s impairment is at a level where she would allow herself to be imperiled in an emergency.
38With regard to the coordination of attendant care, Ms. Caskie estimated 60 minutes per week as compared to Mr. Sasani’s estimate of 30 minutes per week. Both accepted that the Applicant demonstrated difficulty with coordinating her attendant care independently. The Panel finds that Ms. Caskie’s familiarity with the fluctuations in the Applicant’s condition and her psycho/emotional impairments (i.e. frustration, irritability, feeling overwhelmed, emotional distress) is a better foundation for assessing the time required to co-ordinate the Applicant’s attendant care. Accordingly, the Panel prefers Ms. Caskie’s 60-minute over Mr. Sasani’s 30-minute allocation of time in this area.
Attendant Care Assessment – Level 3 Care
39The competing Form 1s proposed Level 3 Care as follows;
Level 3 Care – Caskie Form 1
Total Minutes per week: 580
$747.37
(580 minutes x 4.3 at $17.98 hourly rate for July 2010 accident)
Level 3 Care – Sasani Form 1
Total Minutes per week: 283
$364.66
(283 minutes x 4.3 at $17.98 hourly rate for July 2010 accident)
Exercise
Assists with prescribed exercise/stretching program: 420
Exercise
Assists with prescribed exercise/stretching program: 210
Medication
Monitors medication intake and effect:14
Medication
Monitors medication intake and effect: 14
Bathing
Bathtub/shower -
Transfer to bathtub/shower: 8
Bathes & dries: 60
Oral Hygiene -
Brushes & flosses: 70
Bathing
Bathtub/shower -
Transfer to bathtub/shower: 14
Bathes & dries: 45
Oral Hygiene -
Brushes & flosses: 0
Maintenance of Supplies & Equipment
Ensures assistive devices safe & secure: 8
Maintenance of Supplies & Equipment
Ensures assistive devices safe & secure: 0
40For prescribed exercise/stretching, both identified 30 minutes per day for exercise. However, Ms. Caskie identified a further 30 minutes per day for lower extremity massage on the basis of the Applicant’s reports that she sleeps better when swelling in her legs was managed, and her mother had assisted by massaging her legs before bed. This was also addressed in other testimony before the Panel. There is no indication that Mr. Sasani was alert to such needs. Accordingly, the Panel will accept Ms. Caskie’s estimate of 60 minutes per day.
41For bathtub/shower activity, Ms. Caskie allocated 8 minutes per week under “Transfer to bathtub/shower” and 8 minutes for securing and removing the shower chair under “Ensures assistive devices safe & secure.” Mr. Sasani had allocated a total of 14 minutes and 0 minutes respectively for these tasks. The Panel prefers Ms. Caskie’s allocations as more accurately reflecting what was expected for attendant care in this regard.
42Ms. Caskie’s assessment is preferred in respect of oral hygiene. Ms. Caskie noted that the Applicant reported that she often forgets to brush her teeth or does not get it done due to her inability to prioritize tasks. As noted by Ms. Caskie, neglect of oral care could lead to further complications. Accordingly, the Panel finds this attendant care recommendation reasonable and necessary.
Calculation of Attendant Care Benefits
43Based on the above review and employing the hourly rates for a July 2010 accident, the Panel finds that the applicant is entitled to $3,589.07 per month for ACB, as follows:
Level 1 Care: Total Minutes per week: 1076.50 – Monthly Benefit: $866.39
(1076.50 x 4.3 at $11.23 hourly rate for July 2010 accident)
Dressing and Undressing: 140
Grooming
Face washing, Shaving, Cosmetics: 89
Hair care (shampoos, dry, style): 67.5
Fingernail & toenail care: 10
Feeding
Preparing Applicant for meals (including transfer to appropriate location): 105
Assistance preparing & serving meals: 525
Level 2 Care – Total Minutes per week: 3150 – Monthly Benefit: $1975.31
(8423.52 minutes x 4.3 at $8.75 hourly rate for July 2010 accident)
Hygiene
Bathroom: cleans fixtures after use: 35
Bedroom: bedding, cleans etc: 45
ensures comfort, safety and security in this environment: 420
Clothing Care: daily wearing apparel: 35
Hangs/sorts clothes: 35
Basic Supervisory Care
Ability to respond to emergency: 2520
Coordination of Attendant Care: 60
Level 3 Care - Total Minutes per week: 580 - Monthly Benefit: $747.37
(580 minutes x 4.3 at $17.98 hourly rate for July 2010 accident)
Exercise
Assists with prescribed exercise/stretching program: 420
Medication
Monitors medication intake and effect: 14
Bathing
Bathtub/shower
Transfer to bathtub/shower; 8
Bathes & dries: 60
Oral Hygiene
Brushes & flosses: 70
Maintenance of Supplies & Equipments
Ensures assistive devices safe & secure: 8
What ACBs are payable?
44While the Panel finds that the Applicant is entitled to $3,589.07 per month for ACB, the Panel has no evidence of any incurred ACBs by the Applicant during the period in question.
45The Applicant submits that because this is a July 2010 accident, she has no obligation to prove that an ACB expense was incurred or in the alternative, she would have been deemed to have incurred the ACB.
46The Divisional Court in Morrissey v. Wawanesa Insurance Company addressed whether an applicant involved in an accident before September 2010 accident, was required to prove that an ACB expense had actually been incurred. It confirmed that the requirement that benefits be “incurred” before being payable by the insurer is essentially procedural in nature. Accordingly, the Court reasoned that even if there were a distinction between the definition of incurred between the 1996 and 2010 Schedules, the definition of “incurred” under the 2010 Schedule applies. The Panel finds that the Applicant’s ACBs must be incurred in order to be payable.
47The Applicant testified that she was unaware or uncertain that she was entitled to ACBs. This was not addressed further by either party in questioning or other evidence. Under section 3(8) of the 2010 Schedule, the Tribunal can deem an expense to be incurred if the insurer unreasonably withheld or delayed payment of a benefit. The evidence before the Panel falls short of showing that the Applicant’s apparent unawareness of her entitlement to ACBs was caused by such conduct on the part of the Respondent. Accordingly, the Panel is unable to make a finding that ACBs be deemed incurred under section 3(8).
48The Panel finds that the Applicant is entitled to ACBs actually incurred up to $3,589.07 per month from July 12, 2019 and ongoing. As there is no evidence of any unpaid ACB expenses prior to the hearing, no order for payment is made.
Home Modifications & Alternative Housing
ISSUE 2: Is the Applicant entitled to $399,763.00 for home modifications?
ISSUE 3: Is the Applicant entitled to $931,000.00 for alternative housing?
49The Panel finds that the Applicant has not met her onus to demonstrate that the home modifications or alternate housing are a reasonable and necessary expense to reduce or eliminate the effects of her impairments as a result of the accident.
50Under section 15(2) of the Schedule, rehabilitation benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person which are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. Section 15(5)(i) clarifies that such activities and measures include home modifications and home devices to accommodate the needs of the insured person or, the purchase of a new home if this a more reasonable method for accommodating the needs of the insured person.
51The home modifications are based on a Home Accessibility Report authored by David Wallace. The Report outlined disability-specific modifications/renovations to the Applicant’s pre-accident home which the Applicant shared with her parents. The modifications proposed included:
a. construction of a second-floor addition with interior changes including bedroom, bathroom, a sound-attenuated multi-purpose room, kitchen, home office, living room, and lighting;
b. Exterior modifications including garage addition, wood landing, staircase, and rear wood deck and staircase
c. Three-stop dumbwaiter (including hoist way and electrical)
d. Vertical platform lift (including electrical)
e. Two curved stair lifts (including electrical)
f. Accessible kitchen appliances (allowance)
g. Intercom and security system
h. Walk-in bathtub / shower
i. Automatic back-up generator
j. Two stove guards
52The Panel finds that there is no compelling evidence to suggest that the home modifications or alternative housing proposed will reduce the effects of the Applicant’s accident-related impairments which are predominately mental and behavioural with a pain disorder/chronic myofascial pain. The overarching concern by the healthcare providers at the hearing was that the Applicant’s residence is disorganized and cluttered. The causal connection between this prevalent aspect of the Applicant’s home environment and her challenges in motivation, focus and functioning was clear in much of the evidence. The home modifications proposed are a peripheral response to the disorganization and clutter compounding the Applicant’s mental and behavioural challenges.
53There is no compelling evidence which suggests that the home modifications or alternative housing will provide long-term or lasting relief or benefit for the Applicant as it pertains to the organization of her living space. In time, the Panel suspects, the Applicant’s disorganization and clutter will eventually overtake any new space. The potential for further disorganization was noted by occupational therapist Gaya during testimony. She stated that the Applicant needs constant support in to remain organized, such as requiring the help of a cleaner and personal support worker.
54The Respondent has approved funding for a personal organizer, which is a more efficient way to reduce the main barriers faced by the Applicant. Occupational therapist Gaya testified that the COVID-19 pandemic impacted her ability to bring the personal organizer into the Applicant’s residence. However, the Applicant has used such services and Ms. Gaya felt such support was helpful in managing the Applicant’s day-to-day living and facilitating her ability to complete essential activities of daily living.
55The Applicant’s physical impairments do not rise to a level warranting the proposed home modifications or alternative housing. While the Applicant may be challenged, the preponderance of the evidence shows that she remains independent with her mobility. The Applicant’s chiropractor, Dr. R. Statton, testified that the Applicant had used a cane around the time she first attended for his care in 2011, however there is no suggestion that she has been relying on a gait aid or mobility device in recent years. In fact, the catastrophic determination report which the Applicant had relied upon for the 2019 determination of catastrophic status documented the Applicant’s physically-based “whole person impairment” as being assessed by physiatrist Dr. L. Becker at 0%. There was no updated medical evidence to counter this assessment of the Applicant’s physical disability.
56While the Applicant’s balance is often cited as a reason for certain modifications, there is no compelling evidence of such physical instability. Occupational therapist Caskie in the July 12, 2019 report, stated that the Applicant has stability issues which increase her chances of falls, warranting many of the home modifications proposed. However, Ms. Caskie testified that she never witnessed the Applicant fall during their time together and never conducted any objective testing to assess her balance and/or mobility. In contrast, surveillance evidence presented by the Respondent captured the Applicant navigating exterior stairs at the OMCI site. The surveillance video shows the Applicant using stairs on more than one occasion, and in one instance, carrying coffee with both hands and not using handrails.
57The Applicant has a limp and reports difficulty walking after sitting for prolonged periods; however the Panel finds that the totality of evidence relating to her mobility does not justify the home modifications or alternative housing sought. The home accessibility report by Mr. Wallace, dated December 31, 2019, refers to the Applicant ambulating with a significant limp. However, the surveillance video captured over many days failed to demonstrate a distinct limp that impacts the Applicant’s mobility. Further, the Wallace report states that the Applicant experienced numerous near falls but makes no reference to evidence of it. Similarly, the report refers to the Applicant falling in the past due to slippery or uneven terrain, but there is no reference to any specific incident. While the report states that the pathways at the Applicant’s residence are uneven and unsafe, it appears that the Applicant navigates them without mobility aides. The Panel concludes that Mr. Wallace’s recommendations are unpersuasive considering that they are broadly based on a belief that the Applicant’s movement is restricted by significant physical limitations.
58With respect to the proposed home modifications and alternative housing, the Panel prefers the report by occupational therapist S. Macrae, dated February 10, 2022. That report notes that, during examination, the Applicant ambulated independently, transferred independently, and no significant balance concerns were identified. Of note, Ms. Macrae reported that she observed some inconsistencies between formal and casual observation, suggesting that the Applicant was limiting her behaviour due to fear of pain. Objective testing conducted by Ms. Macrae revealed that the Applicant’s range of motion was within functional limits throughout her body, exhibited normal strength throughout during manual muscle testing, and scored a 52 out of 56 on Berg Balance testing – which indicates that she is at a low risk of falling and no significant balance issues were identified.
59The Applicant has not established that she requires a trolley or a different device to carry items which would necessitate the installation of a dumbwaiter or a vertical lift. Occupational therapist Caskie testified that she recommends the Applicant use a trolley to move items throughout her home and into her vehicle, but there is no evidence indicating the Applicant is unable to carry items or requires assistance carrying items. Ms. Caskie was also concerned about the Applicant’s ability to exit the second floor in the event of an emergency but does not point to any evidence to suggest the Applicant would be unable to use the stairs. None of the Applicant’s healthcare providers have conducted objective testing that suggests the Applicant is unable to lift and carry or to traverse stairs. In contrast, the surveillance video depicts the Applicant dealing with items independently (for example, carrying some groceries, arranging building supplies for the OMCI, and wearing and playing a djembe (drum) when presenting a festival workshop). In addition, Ms. Macrae assessed the Applicant’s ability to lift and carry and concluded that she was independent in doing so, despite her complaints of pain and reluctance to engage in heavy lifting or raise her arms above shoulder level.
60The home modifications recommend the construction of a sound-attenuated multi-purpose room to enable the Applicant to focus without being distracted by other sounds in the house. The Applicant’s daughter spoke of her mother being unable to remain at a pop concert even with the use of headphones. The Panel was also presented with evidence of the Applicant’s difficulties with concentration and focus in completing an online education program. While the Applicant may have sound sensitivity, the Panel is not persuaded that a sound-attenuated room in her parents’ home is warranted to address her accident-related challenges. The Applicant testified that a sound-attenuated room was proposed to reduce the noise for people around her like her neighbours. The need to reduce noise carryover to the neighbours is not accident-related and is not to be considered for the purpose of assessing whether the home modifications are reasonable and necessary.
61As noted earlier, the catastrophic impairment determination found that the Applicant’s limitations in daily living were primarily mental and behavioural. She requires cueing and emotional support to complete her activities of daily living, help in organizing, and assistance with her housekeeping and home maintenance. The home modifications proposed will not improve her organization or provide cueing and other emotional or behavioural supports.
62The evidence does not demonstrate that the Applicant suffers from a physical disability to the extent that she requires the home modifications proposed or that the proposed modifications would eliminate or significantly reduce her limitations. The occupational therapy assessments by Ms. Caskie and Mr. Sasani found that the Applicant’s range of movement throughout her body was within functional limits. While the Applicant is prone to bouts of fatigue, she remains physically able to carry out daily activities such as using stairs, as demonstrated in the surveillance evidence.
63Having determined that the home modifications proposed are not reasonable or necessary to reduce or eliminate the effects of the Applicant’s disability resulting from her impairments, it follows that she is not entitled to alternative housing as claimed. As previously stated, the Applicant’s primary issues are centered around mental and behavioural impairments which are best addressed through the employment of a personal organizer and personal support workers. Alternative housing will not eliminate or significantly reduce the Applicant’s accident-related barriers and thus is not reasonable and necessary.
ISSUE IV: Cost of Examination – Alternative Housing Assessment
64The Panel finds that the alternative housing assessment from Adapt-Able Design Group in a treatment plan dated January 9, 2020 is subject to the $2,000.00 funding limit on assessments pursuant to section 25 of the 2010 Schedule.
65Assessments are not included as Part V benefits in the 1996 Schedule. Both parties accepted that the 2010 Schedule applied to the assessments.
66The cost of an alternative housing assessment was submitted to the Respondent on an OCF-18 Form dated January 9, 2020, by Ms. Caskie and Mr. Wallace. The proposed report was to determine housing search criteria, investigate housing options to determine market cost for a new home (as applicable), analyze homes found to determine appropriate budget, and prepare a report. The cost claimed was $5,002.50. The cost of this assessment was denied by the Respondent on January 23, 2020.
67Section 25(5)(a) of the 2010 Schedule states that “(d)espite any other provision of this Regulation an insurer shall not pay, more than a total of $2,000.00 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.” The Superintendent’s Guideline No. 08/10 defines the terms “assessment” and “examination” as a clinical evaluation or appraisal of a claimant’s health status.
68Housing assessments, including an alternative housing assessment, are a clinical evaluation or appraisal of the Applicant’s health status and are included in the cost of examinations under section 25 of the 2010 Schedule. As determined in previous Tribunal decisions, such as 17-006934 v. State Farm Insurance, 2019 CanLII 18340 (ONLAT), upheld on reconsideration in 17-006934 v. State Farm Insurance, 2019 CanLII 72227 (ON LAT) and R.J. v Certas Direct Insurance Company, 2020 CanLII 101804(ONLAT), a housing assessment involves recommendations based on medical information, a site visit to assess the living space and meet the Applicant, and consultation with rehabilitation professionals. These are hallmarks of an assessment of the Applicant’s health status which causes the assessment to be subject to the $2,000.00 limit provided by section 25(5) of the 2010 Schedule.
69Further, section 25 of the 2010 Schedule provides a funding limit for “any” one assessment or examination. The use of the term “any” suggests that the legislative intention was to limit any or all assessments to the $2,000.00 cap. If the intention of the legislation was to exclude home modification or alternative housing assessments from section 25 of the 2010 Schedule, it would say so.
70The Panel rejects the Applicant’s claim that the alternative housing assessment is not subject to the $2,000.00 funding limit because it is a real estate assessment. The Applicant’s position fails to appreciate that the real estate assessment is dependent on identifying her impairments and determining the best way to eliminate or reduce the burden of those impairments. Here, the Applicant seeks an alternative housing assessment to determine the cost of a new residence to accommodate her accident-related impairments. The Panel concludes that this is a clinical evaluation of the Applicant’s impairments and how to eliminate or reduce the burden of those impairments. Thus, the funding limit applies.
ISSUE V – Award
71The Panel finds that the Applicant is not entitled to an award because the Respondent has not unreasonably withheld or delayed the payment of benefits.
72Pursuant to section 10 of Regulation 664, the Applicant may be entitled to an award of up to 50% of the amount withheld if she can demonstrate that the Respondent unreasonably withheld or delayed the payment of benefits. The Respondent is not held to a standard of perfection. However, the Respondent must not be immoderate, imprudent, inflexible, or excessive in its approach while adjusting the Applicant’s claim.
73With regard to the ACBs, the evidence does not demonstrate that the Respondent unreasonably withheld the benefit. While the IE report assessing attendant care needs failed to appreciate that the Applicant’s need for ACBs stemmed from her mental and behavioural impairment, it was rooted in an examination of the Applicant’s ability to complete her activities of daily living. In addition, the evidence does not show that any amount of the ACB was withheld, as no amount of ACB had been claimed by the Applicant after July 12, 2019. The Applicant’s failure to incur ACBs might in part have been caused by a failure in the Respondent’s communication, but this was not established.
74Having found that the Applicant is not entitled to the home modifications or alternative housing, it follows that she is not entitled to an award as it pertains to these issues.
ISSUE VI – Interest
75Interest is payable on the overdue payment of benefits in accordance with section 51 of the 2010 Schedule on any overdue payment of benefits. As there is no evidence of overdue payments, no interest is ordered.
ISSUE VII – Costs
76The Panel finds that the Applicant is entitled to costs in the amount of $1,000.00. No costs are payable to the Respondent.
77Pursuant to Rule 19.1, costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 gives the Panel the authority to deny or grant the request for costs or award a different amount. Pursuant to Rule 19.6, the amount of costs shall not exceed $1,000.00 for each full day of attendance at a motion, case conference, or hearing. Both parties sought costs in this matter.
78The Respondent asked that costs be awarded in the sum of $5,000.00. It submits the Applicant’s conduct was unreasonable and in bad faith, primarily because she never provided a list of witnesses prior to the first scheduled start date of the hearing (which was subsequently adjourned to this hearing date). It further submits that, when it received the witness list, it contained additional witnesses who were not anticipated. The Respondent submits that its witnesses were ready and available to testify at the initial hearing and that it experienced difficulties and additional costs in scheduling the witnesses again for the new hearing date. The Respondent also alleged that it was misled when it was advised by counsel for the Applicant that his schedule was dependent on the outcome of another matter, unrelated to this one.
79The Tribunal is not persuaded that the Respondent was prejudiced by the adjournment of this hearing. The Respondent submitted that it incurred expenses related to the scheduling and re-scheduling of expert witnesses. However, litigation expenses, such as the cost of expert witnesses, are anticipated when proceeding to a hearing and parties at the Tribunal are expected to pay their own litigation expenses, including the cost to schedule and reschedule expert witnesses. The Respondent submitted that two of its witnesses were out of the country for the rescheduled hearing however, it did not request the Panel make any arrangements for their videoconference participation in the five-day hearing.
80In any event, the Respondent also requested an adjournment of the initial hearing date and never provided its availability for new hearing dates. The Adjournment Order dated April 19, 2022 states that both parties requested an adjournment of the initial hearing dates. Thus, the Respondent is also responsible for the adjournment. Moreover, the Tribunal requested the parties provide their availability for rescheduled hearing dates, but only the Applicant provided her availability within the date range provided. Costs are not warranted in a situation like this, where the Respondent has failed to comply with Tribunal Orders pertaining to the adjournment.
81The Applicant requested costs in the amount of $10,000.00. She submits that costs are payable because the Respondent made serious and unsubstantiated allegations about the Applicant and her counsel in closing submissions; because evidence had been misstated; because the Respondent had not abided by page limits in its closing submissions; and because the Respondent had received a copy of the transcript of the hearing without providing the Applicant with a copy. The Respondent did not provide any supplemental submissions in reply to the Applicant’s request.
82The Panel finds that the Applicant is entitled to costs because the Respondent acted improperly in not providing a timely copy of the hearing transcript to the Applicant. The Respondent’s conduct is contrary to Rule 13.3.
83Rule 13.3 states that “A party who makes a recording must provide a copy to all other parties and, upon request, to the Tribunal.”
84The Panel considers the written transcript to be a recording of a proceeding within the meaning of Rule 13.3. Under this Rule, the Respondent was required to provide the Applicant with a full copy of the transcript it obtained but did not do so. This has prejudiced the Applicant by forcing her to rely on excerpts of the transcript that were cherry-picked by the Respondent.
85Rule 13.3 is clear that “A party who makes a recording must provide a copy to all other parties, and upon request, to the Tribunal.” The Rule does not suggest that the other parties must first request the recording – the onus is on the party with the recording. The Panel finds the Respondent’s conduct of obtaining the transcript of the proceedings, without providing a timely copy to the Applicant, to be contrary to the requirements of Rule 13.3, and principles of fairness and openness set out in Rule 3. Such a practice is serious and if condoned, can have systemic impact on fairness between parties beyond just this case.
86Under Rule 19 parties may request costs up to a maximum of $1,000.00 for each full day of attendance in a proceeding if they believe the other party has acted unreasonably, frivolously, vexatiously, or in bad faith.
87As stated by Vice Chair Johal in 16-000075 v Wawanesa Mutual Insurance Company, 2017 CanLII 35323 (ON LAT), “costs are to deter conduct that threatens the orderly and civil resolution of an application, and to ensure that the Tribunal’s process and the other participants are respected.”
88The Panel finds that the Respondent’s conduct in failing to provide the Applicant with a timely copy of the transcript and, as discussed at the outset of this decision, in exceeding the ordered page limits of submissions, to be unreasonable and within the scope of Rule 19. Such conduct is subject to costs: it undermines systemic principles of fairness and the orderly and respectful conduct expected of parties coming before the Tribunal.
89Costs in the amount of $1,000.00 are ordered against the Respondent for its conduct in not abiding by the page limits for submissions agreed to by the parties and ordered by the Tribunal and in obtaining a recording of the hearing without providing a timely copy to the Applicant as required under Rule 13.3.
90The Panel finds that a cost award in the amount of $1,000.00 is reflective of the seriousness of the Respondent’s conduct and serves as an effective deterrent for such behaviour by any party during a future hearing at the Tribunal.
ORDER
91The Panel finds that:
a. The Applicant is entitled to incurred ACBs up to $3,589.07 per month for the period from July 12, 2019 to-date.
b. The Applicant is not entitled to the home modifications claimed.
c. The Applicant is not entitled to the alternative housing claimed.
d. The home modifications and home devices assessment is subject to the $2,000.00 funding limit provided by section 25 of the 2010 Schedule.
e. No interest is payable.
f. No award is payable.
g. The Applicant is entitled to costs in the amount of $1,000.00.
Released: March 22, 2023
Taivi Lobu
Adjudicator
Brian Norris
Adjudicator