Licence Appeal Tribunal File Number: 22-008559/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:
Thelma Schmolinski
Applicant
and
CAA Insurance Company
Respondent
DECISION
VICE-CHAIR:
Jeremy A. Roberts
APPEARANCES:
For the Applicant:
Thelma Schmolinski, Applicant
Megan Armstrong, Counsel
For the Respondent:
Nestor E. Kosyniuk, Counsel
Heard by Videoconference:
November 27 to 29, 2023
OVERVIEW
1Thelma Schmolinski, the applicant, was involved in an automobile accident on March 2, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, CAA Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
The request for a one-day adjournment was granted
2At the beginning of the hearing a paralegal at the firm representing the applicant joined the call and advised me that the applicant’s representative had suffered a medical emergency that morning and was hospitalized. The applicant was therefore requesting a one-day adjournment to facilitate the representative’s participation. While the respondent did raise concerns regarding the applicant’s non-attendance, he did not object to the adjournment request given the circumstances.
3I granted the applicant a one-day adjournment pursuant to Rule 16 of the Licence Appeal Tribunal Rules, 2023. This medical emergency is a compelling reason for being unable to proceed.
ISSUES
4The issue in dispute is:
i. Is the applicant entitled to $405,713.12 ($431,513.12 less $25,800.00 approved) for home modification design and build services, proposed by FunctionAbility Services in a treatment plan/OCF-18 dated January 26, 2022?
RESULT
5I find that the applicant is partially entitled to the treatment plan in dispute up to a maximum of $28,900.00 in order to fund the creation of a functional kitchen space. The applicant is not entitled to the remaining proposals for home modifications.
ANALYSIS
Background
6The applicant was involved in a motor vehicle accident on March 2, 2018 and was subsequently deemed catastrophically impaired as a result of a traumatic brain injury. On January 26, 2022, an OCF-18 was submitted by occupational therapist (OT) Alicia Kralt which recommended $431,713.12 of home modifications for the applicant in order to make her home more accessible. Following an insurer’s examination (IE) report, an applicant’s rebuttal report, and an addendum to the IE report, the OCF-18 was partially approved at $25,800.00. Per the report of OT Kralt, the outstanding items on the plan are as follows:
i. Level entry to the home via the current attached garage
ii. Levelling of all floors and removal of flooring transitions
iii. Widening of doorways as needed in the home to allow for walker access
iv. Installation of a stairlift to access the lower levels of the home
v. Creation of a master bedroom with accessible ensuite bathroom and accessible closet space on the main level of the home
vi. Moving of laundry facilities to the main level of the home
vii. Creation of a functional kitchen space
7In order to prove that she is entitled to the proposed home modifications the applicant must demonstrate on a balance of probabilities that the changes are reasonable and necessary.
The request for home modifications is partially approved
8I find that the request for the creation of a functional kitchen space is reasonable and necessary given that the space is not conducive to the applicant’s current mobility concerns. I find that the remaining proposed items in the home modification proposal are not reasonable and necessary given that the applicant either failed to demonstrate their need or alternative options existed.
i. Level entry to the home via the current attached garage
9The request for level entry to the home via the current attached garage is denied based on the fact that the applicant does not wish for this change to proceed.
10The applicant argued that she did not wish for this change to proceed and made no submissions on its reasonableness or necessity.
11The respondent argued that given the applicant’s desire not to have an entryway created to the garage and given that it already approved a secondary exit out of the back of the house, the applicant should not be entitled to a level entry to the home via the current attached garage.
12With the applicant and respondent both in agreement that this is not necessary, I see no reason to grant entitlement to this modification.
ii. Levelling of all floors and removal of flooring transitions
13The request for levelling of all floors and removal of flooring transitions is denied because the applicant did not provide sufficient evidence to demonstrate that this change was reasonable and necessary.
14The applicant argued that levelling floor transitions is essential to address mobility issues as she ambulates around her home. This need is based on the applicant’s decreased mobility and safety concerns, as she testified that she has suffered several falls. It was supported by the reports and testimonies of OTs Evans and Kralt, who both highlighted the applicant’s use of furniture and wall balancing while walking indoors and raised concerns about fall risks.
15The respondent disputes the necessity of levelling floor transitions, contending that there is no evidence to support the applicant’s need for these modifications. It argued that the clutter and disorganization in the home are the primary risk factors to the applicant’s safety as opposed to flooring transitions. Moreover, it argued that there is no objective evidence of falls from any of the OTs and that the one fall reported to OT Evans was a result of a rug laid down by the applicant’s husband, not something that was part of the floor itself.
16I find that the applicant has not met her onus in demonstrating that the levelling of all floors and removal of flooring transitions is reasonable and necessary. The applicant failed to point me to where specifically there were difficult or dangerous transitions. Moreover, when I questioned OT Evans on whether there was a transition into the family room (one of the rooms the applicant uses most frequently) he could not recall despite attending the home for bi-weekly visits. Moreover, the only reported incident of a fall appears to have been the result of a rug the applicant’s husband laid down and not a structural flooring transition. The respondent has already approved funding for a level exit out the back door. Without clear evidence of what flooring transitions need to be addressed I find that the applicant has not established entitlement.
iii. Widening of doorways as needed in the home to allow for walker access
17The request for widening of doorways as needed in the home to allow for walker access is denied because the applicant did not provide sufficient evidence to suggest that this change was reasonable and necessary.
18The applicant argued that widening doorways in the home was needed in order to better facilitate walker access and reduce safety concerns. In her testimony, the applicant spoke about her use of a rollator walker and her difficulties with ambulation around the home. OT Evans strongly recommended the use of a walker or cane at all times in the home, arguing that using furniture and walls for balance was not safe. Widening of the doorways would ensure that the walker was able to maneuver safely throughout the home.
19The respondent agued that the widening of doorways was not necessary because the primary safety concerns in the home are the clutter and disorganization present throughout. It argued that the applicant had not provided sufficient evidence to support the claim that widened doorways are essential.
20I agree with the respondent. The applicant did not speak about specific instances where the size of doorways was an impediment to safe ambulation throughout her home. In fact, the specific instances of challenges with ambulation appear to be more related to clutter in the home as opposed to the size of the doorways. Without clear evidence of how and why this change is necessary, I find that the applicant is not entitled to this modification.
iv. Installation of a stairlift to access lower levels of the home
21I find that the installation of a stairlift to access the lower levels is not reasonable and necessary at this time given the limited evidence provided by the applicant to support this modification.
22The applicant argued that the installation of a stairlift to the lower level would allow her safe access to the laundry facilities. While the applicant would prefer a laundry on the upper level and did not strongly advocate for a downstairs stairlift in her testimony, OT Evans argued that a stairlift to the basement could allow her to use the laundry facilities while mitigating the fall risks associated with using the stairs. OT Evans argued that this would allow the applicant to maintain a certain degree of independence in her activities of daily living.
23While the respondent did approve a stairlift to the upper level (which has been installed already), it did not approve a stairlift to the basement as at the time of the OCF-18, the basement was unusable as a result of a flood. It argued that it would be unreasonable to approve a stairlift to the basement while the space is not in use.
24I find that the applicant has provided insufficient evidence to prove that a stairlift to access the lower levels is a reasonable and necessary modification. Firstly, the applicant made limited submissions in support of this modification, weakening her case. Secondly, the case for a stairlift to the basement is severely weakened by the fact that the primary use of the basement – per the applicant’s own testimony – is for access to the laundry facilities. Given that the applicant testified that she cannot carry heavy loads while operating her existing second level stairlift, it makes little sense to install one to the lower level when she may not even be able to carry laundry up or down while operating the stairlift. As such, I am not satisfied this stairlift is reasonable or necessary.
v. Creation of a master bedroom with accessible ensuite bathroom and accessible closet space on the main level of the home
25The request to create a master bedroom with accessible ensuite bathroom and accessible closet space on the main level of the home is denied as a result of it not being reasonable and necessary due to the installation of the stairlift and the availability of other unused spaces.
26The applicant argued that a main floor bedroom and accessible bathroom would improve her quality of life and reduce safety concerns by ensuring that all of her activities of daily living were kept to a single floor. The applicant testified that she struggles to climb the stairs on foot and finds the stairlift cumbersome. At night, she struggles to sleep and often wishes she could relocate from her bed to the couch so as not to disturb her husband, but is unwilling to attempt the stairs alone at night. She also argues that the bathroom facilities on the upper level are not conducive to her mobility needs. An accessible washroom on the main floor with a large walk-in shower would make her bathing routine easier. The applicant was supported by the testimony of OT Evans, who highlighted her mobility challenges climbing the stairs and suggested that this posed a safety risk for the applicant in the event of an emergency (even with a stairlift present).
27The respondent argued that the proposed changes were unreasonable and unnecessary given that suitable alternatives existed that would not require an addition to be built onto the existing structure (as proposed in order to make this change). Specifically, it argued that the applicant currently has safe access to the upper level via the use of her stairlift. Secondly, it argued that the applicant has three unused bedrooms on the upper level which could be used as alternative sleeping quarters in the event the applicant cannot sleep and does not want to bother her husband. Their use is currently limited not by mobility concerns, but by clutter. Thirdly, it also argued that there are two spaces on the main level (the living room and the dining room) which are unused at present due to clutter and could be reasonably used as a main floor bedroom if needed. It argues that all of these alternatives represent reasonable alternatives to a large-scale structural change to the home.
28I agree with the respondent. I find that the applicant has not satisfied her burden in demonstrating that this modification is reasonable and necessary given the installation of a stairlift which allows her to access the second level of the home. I reject the applicant’s argument that a main floor bedroom would allow her to change sleeping locations more easily without disturbing her husband because the applicant has access to multiple other bedrooms on the second level which remain unused due to clutter, which is in the applicant’s control to remedy. I also reject the argument that her current bathroom facilities on the upper level are inadequate given that she has access to two separate bathrooms on the upper level and is able to use one of them at present per her own testimony. A more reasonable remedy would be to propose alterations to her existing two bathrooms rather than building an entirely new one at excessive cost. Lastly, I reject the argument that the stairlift poses a safety evacuation risk for the applicant. By this logic, stairlifts should never be installed, which I find to be an absurd conclusion. Overall, I find that the applicant’s challenges are adequately met by the existing modifications or could be met by more reasonable modifications.
vi. Moving of laundry facilities to the main level of the home
29I find that the applicant is not entitled to the cost to move laundry facilities to a new addition to the main level of the home as a result of the applicant not demonstrating why reasonable alternatives could not better address the problem.
30The applicant argued that to better allow her to complete activities of daily living she required her laundry facility to be moved from the basement to the main level in a newly created addition. She argued that prior to the accident she was able to do laundry in the basement but that since the accident she has relied on her husband and daughter to assist with this household activity. She argued that she currently does not feel it is safe to travel to the basement and that with a laundry facility on the main floor she could complete this task without assistance.
31The respondent argued that there were reasonable alternatives available to move the laundry room from the basement which would not require its inclusion in a new and expensive addition. For example, it argued that the laundry facilities could be moved to an existing unused bedroom on the second level (there are three unused bedrooms at present) or to one of the unused spaces on the main level. It argued that these spaces are currently unused not because of their potential functionality but because of clutter which is in the applicant’s control.
32I agree with the respondent. I find that the applicant is not entitled to move laundry facilities to a new addition to the main level because she has not adequately explored less expensive and more reasonable alternatives. I accept the respondent’s argument that existing facilities could and should be considered as alternatives, which the applicant never addressed.
vii. Creation of a functional kitchen space
33The request for the creation of a functional kitchen space is approved as a result of a need to make the kitchen more accessible for the applicant. The applicant is entitled up to a maximum of $28,900.00 for this modification.
34The applicant argued that the creation of a functional kitchen space was reasonable and necessary as a result of: (1) the current kitchen space being too small for easy manoeuverability with a walker; (2) the need for lower cabinetry and seat-height counter space in order to reduce pain; and (3) the need to ensure sufficient space to allow both the applicant and her husband to use the space together. The applicant’s position was supported by her own testimony, during which she spoke about her love for cooking and her challenges with accessing the current space due to her pain and mobility issues, as well as by the report of OT Evans, her treating OT, who observed the applicant experiencing pain symptoms while reaching for high cupboards and accessing the counter. OT Evans also argued that a continued treatment goal for the applicant is to allow her to re-engage in cooking in order to improve her mood and functional capabilities. A revamped kitchen space could allow the applicant to better access this area of her home by reducing barriers and increasing safety.
35The respondent argued that the proposed modifications were unnecessary because the applicant appears to be able to use the kitchen safely at present. Moreover, it argues that the kitchen is currently a reasonable size (measuring approximately 17’ x 9’) and an expansion is an unnecessary expense. It relies on the IE report of OT Stanulis-Duz which documented that the applicant indicated that she was able to access cupboards and was able to use the kitchen to some degree.
36I agree with the applicant and find that a home modification to create a more functional kitchen space is reasonable and necessary in order to address a key functional impairment and improve the applicant’s ability to engage in activities of daily living. It is clear that the applicant spends the majority of her time during the day on the main floor, which includes the kitchen. Prior to the accident, the applicant enjoyed cooking and, based on her testimony, she is now limited in the kitchen due in part to its functionality. I accept the applicant’s testimony, supported by the documented evidence of OT Evans, that the applicant experiences pain while accessing the kitchen and I find that there are no other alternatives which could equally address these concerns. The recommendations by OT Kralt, namely to increase space for manoeuvring (including with a walker), lower cupboards, and make the counter seat-level, are all reasonable proposals which would greatly improve the applicant’s ability to engage in this activity of daily living, which could also improve her mood.
37In determining a reasonable cost for this portion of the proposed modification, I look to the Home Assessment Report, prepared by Ability Design Build. In the report, under “Costing (by area)”, it is noted that the proposed cost to make modifications to the kitchen would be $28,900.00. I find this to be a reasonable amount, given the scope of the proposed project and the fact that an addition is not necessary in order to complete this work. I find that this modification can be reasonably completed within the existing footprint of the home within this budget.
38As such, I find that the applicant is entitled to a maximum of $28,900.00 for the creation of a functional kitchen space which would make the kitchen more manoeuvrable to account for the use of a walker and the presence of two people, lower the cabinetry, and bring the counters to seat height.
ORDER
39I order the following:
i. The proposed home modification treatment plan is partially approved up to a maximum of $28,900.00 to fund the creation of a functional kitchen space which would make the kitchen more manoeuvrable to account for the use of a walker and the presence of two people, lower the cabinetry, and bring the counters to seat height.
Released: February 6, 2024
Jeremy A. Roberts
Vice-Chair