Sorrentino v. Certas Home and Auto Insurance Company, 2024 CanLII 123326

Citation and Parties

Citation: Sorrentino v. Certas Home and Auto Insurance Company, 2024 CanLII 123326 Licence Appeal Tribunal File Number: 23-010269/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:

Ersilia Sorrentino

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Mary Henein Thorn

APPEARANCES:

For the Applicant: Jane Conte, Counsel Robert Verta, Counsel

For the Respondent: Bruce Chambers, Counsel

Court Reporters: Chris Delic Jennifer Weller

Interpreter: Carmelina Ramundo (Italian)

HEARD: by Videoconference: September 9, 10, 11 and 12, 2024

OVERVIEW

1Ersilia Sorrentino, the applicant, was involved in an automobile accident on April 26, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by Certas Home and Auto Insurance Company the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant was 83 years old at the time of the accident and sustained the following injuries: several fractures, multiple orthopaedic surgeries, leg, hip, neck pain, anxiety, depression, headaches, cognitive issues and has been deemed catastrophic. At the time of the accident, she was living in her home (an apartment/condominium or "unit") independently. Post accident she continues to live in her unit on her own with the assistance of attendant care services, however, both parties agree in order to accommodate her injuries and provide her with a safe living environment, home modifications need to be completed.

3The disagreement between the parties arises from the applicant's request to have her daughter's home modified with the intention of the applicant moving in and having her daughter act as the caregiver. She submits the respondent cannot bring her unit up to a safe level even with the majority of the proposed modifications. She submits that it has limitations as she lives in a building which would require the permission of the property management company to proceed with any modifications and not all recommended modifications suggested can be done.

4The respondent has approved $22,835.53 for home modifications to her current unit and has agreed that she can take that amount and use it towards the modification of her daughter's home if she so chooses, however they have denied her request for $388,082.53 to modify her daughter's home. It is their opinion that the in-home assessment they have conducted supports their position that she can safely stay in her home with the proposed modifications in the assessment.

ISSUES

5The issues in dispute are:

i. Is the applicant entitled to $365,257.00 ($388,082.53 less $22,825.53 approved) for home modification proposed by Accessible Daily Living in a plan dated April 28, 2023?

ii. Is the applicant entitled to $4,165.51 ($6,651.51 less $2,486.00 approved) for a Home Modification Assessment, proposed by Accessible Daily Living in a treatment plan dated September 13, 2021?

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

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

RESULT

6The applicant is not entitled to home modifications to her daughter's home, the above guideline amount for the in-home assessment, an award or interest.

ANALYSIS

The applicant is not entitled to the additional amount of $365,257.00 for home modifications.

7Although the applicant has been living alone it is her submission that it is not safe for her to live alone in her unit due to her injuries, even with the respondent's proposed modifications and the attendant care she is receiving. It is her position that she is best suited to live with her daughter who can provide around the clock care and a safe living environment in her home.

8The applicant had an in-home assessment of her current dwelling conducted by Mr. John Groe of Accessible Daily Living Corporation with the assistance of Occupational Therapist Ms. Emilia Radovini on November 12, 2021. Together they provided a variety of different recommendations which amounted to $316,393.18. An OCF-18 was submitted to the insurer in that amount, but it was later withdrawn.

9She also had a Home Accessibility Response Report, or a rebuttal report dated February 21, 2023, conducted by Mr. Groe in response to Mr. Ronny Wiskin's report dated February 7, 2024.

10The applicant believes that it is better and safer for her to live at her daughter's house in a modified basement which is better suited to accommodate her injuries and her need for care. The applicant does not believe the recommendations made to her unit by the respondent are sufficient enough to ensure safety and the care she needs. To support her position, an Alternative Living Assessment Report dated March 12, 2022, was conducted by Mr. Groe with the assistance of Ms. Radovini which provided in home modifications recommendations to the applicant's daughters house in the amount of $388,082.52.

11The applicant raises the issue that the respondent has limitations in its ability to fully adapt the proposed safety measures to her home as she is only able to make changes to the interior of the unit without permission from the property management company. Anything that is contractually deemed to be outside of the parameters of the interior of the condo requires permission and no authority has been given by the property management company. Therefore, not all proposed modifications by the section 44 assessors are possible or probable which brings into question the safety of her home.

12The respondent takes the position that the Schedule does not obligate the respondent to pay for home modifications if modifications can be made to the place she was residing at the time of the accident. It relies on its assessor opinion that modifications can be made to keep the applicant safely in her home.

13In support of its position, it had an in-home assessment conducted on July 4, 2023, by Mr. Wiskin in conjunction with Occupational Therapist Ms. Kim Teggelove for her opinion and made recommendations that modifications to the applicant's unit would total $22,825.52 which was approved.

14The applicant's assessment of home modifications at her daughter's house amounts to $388,082.53. The respondent chose not to conduct an alternative home assessment for the daughter's home. Instead, the respondent is agreeable to providing the applicant with the approved amount of $22,825.53 to modify her unit or put it towards the modification of the daughter's house.

15The respondent submits the modifications requested must be reasonable and necessary to address her ongoing disabilities due to injures from the accident.

16Section 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.

17I find the applicant has failed to meet her onus that either plan is reasonable or necessary.

18Before considering the proposition that it is reasonable and necessary for the applicant to move to the daughter's house, I must determine that due to the injuries sustained in the accident, her current residence cannot be modified enough to ensure her safety and that it is reasonable to review an alternative location.

19The applicant has provided me with two in home assessments, one for her current unit and another for her daughter's house, however where she has failed to meet her burden is by providing me with a list of approved or disapproved modifications to her current unit by someone in authority, namely the owner/landlord or property management company.

20Mr. Groe, the applicant's expert witness, testified at the hearing that he spoke with "a maintenance person" and he said the company likely would not approve the modifications. The applicant did not submit into evidence that a formal proposal was provided to the condo management company with the assessor's recommendations, and subsequently denied by a person of authority responsible for her building. When asked on that point, Mr. Groe also confirmed that no such formal request was submitted and denied by the management company.

21Mr. Wiskin testified that the likelihood the property management company would approve the modifications is high because they are obligated to accommodate those with disabilities. I cannot accept his opinion as fact as he has not presented to me an agreement or authority to speak for the management company.

22The onus is on the applicant to prove that the disputed OCF-18 for home modifications to her daughter's home is reasonable and necessary. It is not the respondent's burden to prove otherwise. She has not met her burden and I therefore find she is not entitled to the disputed amount for this treatment plan.

Home Modification Assessment

23The applicant claims the balance of a treatment plan prepared by Mr. Groe for an assessment of housing features, architectural design, etc. dated September 13, 2021, totalling $6,651.51.

24The language of s. 25(5)(a) of the Schedule is clear: despite any other provision in the Schedule", an insurer shall not pay more than a total of $2,000.00 plus applicable harmonized sales tax ("HST") in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.

25Section 25 must be read in conjunction with the Superintendent's Guideline 08/10 "Cost of Assessments and Examination Guideline" ("Guideline"). The Guideline defines the terms "assessment" and "examination" as follows:

"Assessment" and "examination" have the same meaning under the SABS. An assessment or examination is a clinical evaluation or appraisal of a claimant's health status.

26The Guideline also notes that fees and expenses for conducting any one assessment include all costs, fees, etc. incurred by or on behalf of the health care provider who conducted the assessment or examination.

27The burden lies with the applicant to prove her entitlement. The applicant has not provided me with any submissions about the increased cost of the treatment plan.

28Therefore, I find the treatment plan proposing a home modification assessment" is subject to the $2,000.00 maximum payable for assessments pursuant to s. 25(5)(a) of the Schedule" and find that she is not entitled to the disputed amount for this treatment plan.

Interest

29There are no outstanding amounts owed, and therefore no interest is payable.

Award

30The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

31The applicant claims an award on the basis that the respondent unreasonably withheld the benefits to which entitlement is claimed without having sufficient and/or any evidence for doing so. Since I found nothing payable, the respondent cannot have unreasonably withheld or delayed payments. As such, no such award will be granted.

ORDER

32The applicant is not entitled to any of the disputed amounts, interest, or an award. The application is dismissed.