Licence Appeal Tribunal File Number: 22-011982/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:
Alcinda Douglas
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Jacob Aitcheson, Counsel
For the Respondent:
Catherine Korte, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Alcinda Douglas, (the “applicant”), was involved in an automobile accident on August 11, 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 Wawanesa Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant suffered significant injuries as a result of the accident and the respondent has accepted that the applicant was catastrophically impaired, approved post-104 Income Replacement Benefits, and paid $343,740.88 in medical and rehabilitation benefits.
ISSUES
3The issues in dispute are:
a) Is the applicant entitled to receive a rehabilitation benefit in the amount of $334,363.41($579,163.41 less $244,800.00 approved) for home modifications and devices proposed by Rehability Occupational Therapy Inc., on April 25, 2022?
b) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
a) The applicant is entitled to the proposed treatment plan in part. More specifically, I find that the rehabilitation benefits with respect to the relocation of the fridge is reasonable and necessary. The applicant is also entitled to interest pursuant to s. 51.
b) The applicant is not entitled to the remaining rehabilitation benefits as outlined in the OCF-18.
ANALYSIS
Home Modifications and Devices
5Section 16 of the Schedule sets out the regulatory framework with respect to the disputed benefits. In order to determine if the applicant is entitled to the disputed benefits, pursuant to section 16(1), I considered whether the rehabilitation benefits were reasonable and necessary for the purpose of:
a) Reducing or eliminating the effects of any disability resulting from the impairment; or,
b) To facilitate the person’s reintegration into her family, society, and the labour market.
6Section 16(3) states that such activities or measures include home modifications and home devices, including communications aids, 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 than to renovate the existing home.
7Ms. Lindsay Blackwell, treating occupational therapist (“OT”) submitted the disputed treatment plan, proposing the following housing modifications, based on a report prepared by Mr. Steve Thomas of In-Trend Home Solutions Inc.:
a) Line 1: Form Completion: $200.00
b) Line 2: Modifications at foyer: $2,418.00
c) Line 3: Full kitchen renovation: $37,837.00
d) Line Four: Modifications to front office: $5,196.00
e) Line Five: Modifications to existing laundry room: $3,222.00
f) Line Six: Modifications to master bedroom/new craft room: $5,558.00
g) Line Seven: New hallway to garage: $6,785.00
h) Line Eight: Existing craft room/ new master bedroom: $10,903.00
i) Line Nine: Modifications to living room and back hall: $17,349.00
j) Line Ten: Bathroom: $35,351.00
k) Line 11: Modifications to the basement: $23,715.00
l) Line 12: Exterior modifications: $15,845.00
m) Line 13: Garage: $88,625.00
n) Line 14: Addition: $170,521.00
o) Line 15: General Costs: $85,532.00
p) Line 16: Allowance for septic system review: $3,500.00
q) Tax: $66,606.41
r) Total proposed: $579,163.41
8Mr. Dan Gauthier (OT), Mr. David Borthwick (construction engineering technologist) and Mr. Wayne Parson (architect) prepared home modification reports on behalf of the respondent, dated November 22, 2022, and in which they determined that the disputed plan was partially reasonable and necessary as follows:
a) General requirements: $16,500.00
b) Sheltered Primary Entryway: $86,400.00
c) Modifications to new entry hallway, home office, kitchen, bathroom, residential stair lift and basement: $101,800.00
d) Additional egress: $13,900.00
e) Exterior modifications: $26,200.00
f) Total approved: $244,800.00
9The parties agree that the following issues remain in dispute:
a) Installation of new flooring, drywall, and rewiring for the foyer, kitchen, office, master bedroom, laundry room, craft room, living room and back hall to ensure it is one consistent level of flooring.
b) Construction of an addition at the rear of the home to be used as a therapy room and to house the furnace and water heater.
c) Whether the kitchen should be fully renovated as opposed to installing pull down and pull up shelving units in the existing cabinetry. Also, there is a dispute over whether the fridge should be relocated so the fuse panel can be accessed.
d) Whether the garage should be built at the rear of the property or the front.
e) Installation of a hardwired alarm system.
The installation of new flooring is not reasonable and necessary
10I find that the applicant has not demonstrated that the installation of new flooring at the foyer, office, kitchen, laundry room, master bedroom, craft room, living room, and back hall, is reasonable and necessary.
11The applicant argues that she sustained catastrophic right leg compound fractures, with muscle, nerve, fat, and bone exposure, which required three surgeries. As a result of this, the applicant requires a use of a quad cane in her home and a rollator walker outside her home. The applicant further argues that the eight rooms at the main level contain several types of uneven different flooring, which increases her risk of tripping and falling because of her gait impairment. Primarily, she relies upon the Occupational Therapy Progress Report of Ms. Blackwell, dated December 20, 2021, the Estimate completed by Mr. Thomas, dated April 20, 2022, and the Occupational Therapy Reassessment of Attendant Care Needs, completed by Ms. Blackwell, dated May 19, 2022.
12Ms. Blackwell recommended that the flooring in the applicant’s foyer, kitchen, front office, laundry room, master bedroom, craft room, living room and back hall be changed to one consistent flooring.
13In order to complete the Accessibility Home Assessment and Estimate, Mr. Thomas visited the applicant’s home and noted that the eight rooms on the main floor had uneven flooring. In particular, Mr. Thomas noted that the flooring in the bathroom and foyer of the house had very slippery tiles on the floor and that the applicant had fallen on them in the past. Mr. Thomas further noted uncapped loose wires, and that the outlets were not working. As a result, Mr. Thomas recommended that new flooring be installed for each room and that the existing plaster on the walls in each room be removed so the home could be rewired.
14The respondent relies on the report of Mr. Gauthier who opined that the applicant had functional mobility to travel through the foyer, kitchen, office, master bedroom, craft room, living room and back hall with support of her cane. The respondent also relies on Mr. Borthwick’s report arguing that he has already recommended installation of non-slip ceramic tile flooring for the foyer and bathroom. As a result, it argues that the proposed flooring modifications to these rooms are not reasonable and necessary.
15I find that the applicant has not demonstrated the need for new flooring because she has not demonstrated on a balance of probabilities that the current flooring poses a tripping/falling hazard. Rather, I find that the slippery tiles in the bathroom and foyer posed a safety concern (which the respondent has already approved installation of non-slip ceramic tile flooring).
16In reaching this conclusion, I note that the applicant did not advise Ms. Blackwell on December 20, 2021 and May 19, 2022, that she has fallen due to uneven flooring but rather because of the outdoor ramp (which is not in dispute). Ms. Blackwell also did not provide a compelling rationale on how the uneven flooring throughout the main floor increased her chances of falling and tripping. For example, Ms. Blackwell opined that the uneven flooring increased the applicant’s risk and that one type of flooring throughout the home would be beneficial to improve her safety, but she provided no specifics between the connection of the applicant’s impairments, the uneven flooring, and the increased risk. Further, while I acknowledge that Ms. Blackwell noted that the applicant uses a quad cane indoors and was limping through her right leg, she provided no explanation on how the quad cane/limping with uneven flooring increased her risks of falling or tripping.
17Moreover, neither Ms. Blackwell nor Mr. Thomas have addressed how uneven the flooring is or whether they observed the applicant has increased safety issues as result of the flooring. Indeed, Ms. Blackwell observed the applicant walking with the quad cane indoors while limping through her right leg, however there is no mention of the applicant tripping/falling or having difficulties navigating because of the uneven flooring.
18In a similar vein, Mr. Thomas noted in his report that there was uneven flooring, but he provided no particulars on how uneven the floor was, or whether it increased the applicant’s risk of falling or tripping. Instead, Mr. Thomas noted that the bathroom and foyer had very slippery tiles on the floor that were hazardous to the applicant. In this regard, I find it to be significant that, the applicant reported that she had fallen due to the slippery tiles and that the respondent has already approved non-slip ceramic tile flooring for the bathroom and foyer.
19While I acknowledge the applicant’s submissions that the installation of level flooring is required in emergency situations because she would be required to quickly exit the home which would be prevented with the uneven flooring, she has not referred me to evidence to support this. As noted above, Ms. Blackwell opined that the uneven flooring increased her risks of tripping and falling, however she provided no opinion on whether the applicant was impeded from exiting in case of an emergency situation.
20I also place significant weight on Mr. Gauthier’s opinion that the applicant has functional mobility to travel through the foyer, kitchen, office, master bedroom, craft room, living room and back hall. This is because Mr. Gauthier’s opinion is supported by his observations of the applicant walking throughout her home with a quad cane indoors at a moderate pace with a right-sided limp.
21I further acknowledge the applicant’s position that Mr. Gauthier’s opinion should be given less weight because he opined that the applicant’s lawn and basement should be modified to create a level surface, but not the main floor of her home. I disagree. The question of the unrolled lawn and a deteriorated basement floor is a separate consideration, and there is no suggestion that the surfaces are the same as in the main floor of the home. In my view, the non-slip ceramic tile flooring recommended by Mr. Borthwick and approved by the respondent for the bathroom and foyer will address the applicant’s risk of falling in the foyer and bathroom.
22Therefore, I find that the installation of new flooring throughout the main level of the home is not reasonable and necessary.
The proposed request to re-wire and replace the drywall is not reasonable and necessary
23Based on the evidence before me, I find that the applicant has not demonstrated that re-wiring and replacing the drywall in the foyer, kitchen, office, laundry room, master bedroom, craft room, living room and back hall is reasonable and necessary.
24The applicant relies on the fact that Mr. Thomas observed uncapped loose wires and inoperable outlets throughout her home and only one entrance/exit. Mr. Thomas concluded that there is a significant risk to the applicant in case of a fire because of there being only one entrance/exit.
25The respondent argues that the applicant’s home was improperly electrically wired prior to the accident and that the proposal to remove the existing plaster on the walls of each room of the entire house to rewire and install ductwork is excessive and not as a result of the accident. It relies upon the report of Mr. Gauthier to support its position.
26The applicant has not referred me to evidence that supports the connection between the proposed recommendations (re-wiring/drywalling her home) with her accident-related impairments. Indeed, Mr. Thomas in his report noted that the applicant’s home was built in 1904, and that the house’s wiring was a concern because there were uncapped loose wires, outlets that were not working and junction boxes not used in the ceiling lighting. However, Mr. Thomas’s report is silent on the connection between the wiring/drywalling and the subject accident. Notably, in his report, Mr. Thomas did not address whether the uncapped loose wires, and other issues posed a tripping hazard or a heightened risk due to the applicant’s accident-related mobility limitations. Significantly, Mr. Thomas also did not provide an opinion of how the proposed recommendations are required as a result of any accident-related impairment. Nor, did the applicant in her submissions, provide a connection between her accident-related impairments and the proposal to re-wire and drywall her home. I have no reason to disagree with Mr. Gauthier’s opinion that the requested work is not as a result of accident-related impairments because the applicant has not referred me to evidence to support such a proposition.
27The applicant also argues that Mr. Thomas observed uncapped loose wires and inoperable outlets throughout her home, and that there was only one entrance/exit to the home, which posed a significant risk to her in case of a fire. From these submissions, it appears that she is arguing that the proposed re-wiring and drywalling is reasonable and necessary because in case of a fire, there is only one entrance and exit. However, the respondent has also approved an additional egress, so that there can be two exits in the applicant’s home in case of an emergency. Mr. Gauthier also opined that the applicant’s ability to exit her home in an emergency was limited by accident-related mobility impairments and therefore recommended an additional egress in case of an emergency, which the respondent approved. Therefore, it is unclear how the proposed wiring and drywall costs are reasonable and necessary when the applicant has not established a connection between this work and her impairments, and the respondent has approved an additional egress in case of an emergency.
28For all these reasons, I find that the proposed re-wiring and drywalling of the applicant’s home is not reasonable and necessary.
Addition of therapy room and moving the furnace/water heater is not reasonable and necessary
29On the balance of probabilities, I find that the applicant has not met her onus to establish that the construction of an addition to be used as a therapy room and moving the furnace/water heater is reasonable and necessary.
30The applicant relies upon the report of Ms. Blackwell where she noted that the applicant lived in a rural location and was limited in her ability to access community facilities. The applicant further argues that Ms. Blackwell noted that the applicant had a recumbent bike which is set up in the middle of the living room, which is not an acceptable long-term solution and recommended the addition of a therapy room.
31The respondent argues that the proposed costs of adding an addition is $170,000.00 and this is excessive to move a therapy bike from the living room to an addition. It argues that the applicant has five rooms (primary bedroom, a secondary bedroom, an office, an open concept living room and dining room) that can be used instead.
32I find that the addition of the therapy room is excessive and not reasonable and necessary for the following reasons.
33First, Ms. Blackwell’s recommendation for an addition was not solely based on having a space to set up a home gym, it was also based on the addition being used to have a swim spa area for fitness and water therapy exercises. However, as noted in Mr. Gauthier’s report, In-Trend Solutions sent an updated quote which abandoned the idea of adding a swim spa to the addition, and instead requested that the furnace and water heater be relocated from the basement to the addition. Moreover, neither the applicant nor Mr. Thomas have identified what other type of gym equipment will be installed in this addition, other than the one therapy bike. Consequently, I find that the proposed $170,000.00 is excessive to construct an addition that will be used to store one therapy bike.
34Second, the applicant has not referred me to evidence that supports her position that her office is not large enough to house the bike. Neither Mr. Thomas nor Ms. Blackwell have addressed whether there is an alternative room that can be used to house the bike. Rather, Ms. Blackwell noted that the applicant was using the bike in a spare bedroom but this had been converted to a craft room, however Ms. Blackwell did not address whether the remaining rooms had sufficient space to store the bike. Meanwhile, Mr. Thomas noted in his report that the addition would be built to be used as an exercise room and new laundry room. Again, Mr. Thomas’s report is silent as to whether he considered the alternative of using the remaining rooms.
35Third, I find that Ms. Blackwell provided insufficient rationale for why having the bike in the middle of the living room is not an appropriate location or a acceptable long term solution. In her report, Ms. Blackwell noted that the applicant did not have an appropriate location to set up and use the equipment long term and that using the living room was not an acceptable long term solution, but she provided no explanation on why.
36I am alive to the applicant’s position that Mr. Gauthier did not provide a medical or other explanation on why the addition is not reasonable and necessary. However, as noted above, it is the applicant’s onus and I find the applicant’s evidence lacking to support that the addition of a therapy room is reasonable and necessary.
37The applicant relies upon a previous Tribunal decision of S.M. vs. Unica Insurance Inc., 2020 CanLII 12718 (ON LAT) (“S.M.”), at para 44 where it was held that a therapy room would afford the applicant space and ability to engage in exercises in the convenience of her home. I am not bound by previous Tribunal decisions and I find the evidence lacking here because the proposed addition is excessive to store one exercise bike and the applicant has not addressed whether there is an existing location that can be used instead.
38I also find that the proposed recommendation to relocate the furnace and water heater is not reasonable and necessary. As noted above the addition was initially to be used as a therapy room and swim spa area, however the concept of a swim spa was replaced with the proposal of relocating the furnace and water heater from the basement to the addition.
39Mr. Thomas did not recommend that the water heater and furnace be relocated from the basement to the addition in his initial report. I acknowledge the applicant’s argument that Mr. Thomas made this proposal in his initial assessment but this is incorrect. Rather, Mr. Thomas recommended an addition be built to house an exercise area and a new laundry room, and he recommended a stair lift (which the respondent approved) so the applicant could access the basement. However the idea of using the addition to store a new laundry room or swim spa area were abandoned when In-Trend sent an updated quote to relocate the furnace and water heater from the basement to the addition as indicated in Mr. Gauthier’s report. I have not been provided with a copy of the email or quote and therefore it is unclear to me why this change was made.
40The applicant’s argument on why the relocation of the furnace and water heater is reasonable and necessary appears to be premised on the s. 25 report of Ms. Blackwell and the s. 44 report of Mr. Gauthier. She argues that Ms. Blackwell in her report recommended relocating the furnace/water heater to a more accessible area of the home so the applicant could monitor them independently. She further argues that Mr. Gauthier in his report concluded that the applicant was not able to safely access her basement and therefore it would be reasonable and necessary to relocate the furnace and water heater from the basement to allow her access. However, Mr. Gauthier (based on Mr. Thomas’s suggestion of installing a stair lift to the basement) opined that it is reasonable, and since a stair lift was being installed there was no need for the relocation.
41I find Mr. Gauthier’s opinion to be logical because if a stair lift is being installed to allow access of the basement to the applicant, why would a relocation of the water heater/furnace be required. In short, if a stair lift has been approved by the respondent which will allow the applicant access to the furnace and water heater, then there is no need for the relocation. In a similar vein, while Ms. Blackwell noted that the applicant was not able to access her basement due to the old set of stairs, her report did not address the issue of a stair lift, and why the relocation is reasonable and necessary, when a stair lift has been approved, which will allow access to the basement.
42Finally, the applicant has not established that the proposed stair lift is non-compliant with the Ontario Building Code 2012 (“Code”), because of the narrow width of the stairs. The applicant argues that there is no evidence that the stair lift can be installed in compliance with the Code and relies upon the decision of S.M. However in that decision there was evidence of non-compliance with the Code before the Tribunal. Here, the applicant has not referred me to any evidence to support this proposition but rather an expert retained by the applicant (Mr. Thomas) recommended the stair lift first.
43In any event, as argued by the respondent, Article 9.8.2.1 of the Code notes that the width of the stair serving a single dwelling home should have a width of not less than 860 mm (which the respondent argues amounts to 33.86 inches). Here, Mr. Borthwick measured the width of the stairs to be 46 inches, which appears to be compliant with the Code. Further, Article 9.9.5.1 of the Code indicates that obstruction on-stairs do not apply within a dwelling unit or a single dwelling unit.
44For all these reasons, I find that the applicant has not met her onus to establish that either the addition of a therapy room or the relocation of the furnace/water heater is reasonable and necessary.
The renovation of the kitchen is partially reasonable and necessary
45I find that the applicant has demonstrated that the relocation of the fridge is reasonable and necessary. However, the remaining costs with respect to the kitchen renovation are not reasonable and necessary.
46The applicant concedes that Mr. Gauthier’s recommendation of installing pulldown/pull-out shelving in the cabinetry would improve accessibility, however she argues this would not resolve the issue relating to the fuse panel. She argues that the fuse panel is inaccessible due to it being buried beside the fridge and she does not have the strength to pull out the fridge in order to access the panel. As a result, she argues that the fridge has to be relocated and the kitchen needs to be reconfigured/reconstructed. To support her position, she relies upon the report of Mr. Thomas and Ms. Blackwell.
47The respondent argues that the fuse panel needs to be replaced because it is without breakers and is a fire hazard, which is not as a result of the accident. It argues that Mr. Gauthier determined that replacing the fuse panel was not related to the accident. It further argues that In-Trend Solutions did not consider the less excessive and more reasonable alternative of turning the fuse panel around to open to the living room/dining room.
48I agree with the applicant that the costs associated with relocating the fridge are reasonable and necessary because she is unable to access the fuse panel. I am alive to the respondent’s argument that the fuse panel needs to be replaced because Mr. Thomas noted that it was without breakers and a fire hazard, and this is not related to the accident. However, Ms. Blackwell noted in her report that the applicant was unable to use a push mower, therefore it is unclear to me how the applicant would be expected to move the fridge to access the fuse panel, so that it can be replaced. As noted by Mr. Thomas, there is blocked access to the fuse panel because of the fridge and the electrical panel needs to be relocated so it can be easily accessed by the applicant.
49I further acknowledge the respondent’s argument that In-Trend Solutions did not consider whether the fuse panel can be turned around to open in the living room/dining room, however neither Mr. Thomas, Mr. Gauthier, nor Mr. Borthwick have considered this alternative. It is unclear to me how the respondent arrived at this alternative solution when three assessors have not. Thus, I find that the applicant has established the costs associated with moving the fridge is reasonable and necessary because she is unable to access the fuse panel because of her accident-related impairments.
50With respect to the remaining renovation cost, which include: installation of new drywall, new flooring, installation of a range hood, a cabinet around the electrical (fuse) panel, double kitchen sink and kitchen island, I find that the applicant has not demonstrated these renovations are reasonable and necessary. The applicant provided no submissions on why these renovations are reasonable and necessary. Further, the applicant has not demonstrated that the installation of a cabinet around the electrical panel is related to the accident. Mr. Thomas determined that the fuse panel was without breakers and therefore a fire hazard, however he provided no explanation on how this is related to the accident. Therefore, I find that the applicant has not met her onus to establish the remaining cost of the kitchen renovations are reasonable and necessary.
The applicant has not established that constructing the garage at the rear of the property is reasonable and necessary
51I find that the applicant has not established on a balance of probabilities that the construction of the garage at the rear of the property is reasonable and necessary.
52The applicant argues that the parties agree that a garage needs to be constructed and the respondent agrees, however the dispute arises over where it should be built. The applicant argues that Mr. Borthwick’s recommendation of building the garage at the front of the home will encroach upon municipal property. Instead, she argues that Mr. Thomas appreciated the layout of the property and that is why he recommended that the garage be constructed at the rear of the property, so it would be away from the municipal boundary.
53The respondent argues that Mr. Thomas did not address whether there was a municipal property that would affect the ability of the garage to be constructed at the front of the property.
54I find that the applicant has not demonstrated that it is reasonable and necessary for the garage to be built at the rear of her home as result of accident-related impairments. I acknowledge the parties’ extensive submissions with respect to whether the building of the garage at the front of the home will encroach the municipal property. However, I have no jurisdiction under s. 280 of the Insurance Act, RSO 1990, c I.8, to determine this issue. Instead, as mandated under s. 280, I have to determine whether the proposed building of the garage at the rear of the property is reasonable and necessary based on the applicant’s accident-related impairments. The applicant made no specific submissions on why the garage has to be built in the rear of the home due to her accident-related impairments. While Mr. Thomas indicated that the garage should be built towards the rear of the property, his report was silent on the basis of doing so. Thus, I find that the applicant has not demonstrated that the placement of the garage at the rear of the property is reasonable and necessary.
Installation of hardwired alarm system is not reasonable and necessary
55The applicant argues that the installation of a hardwired alarm system would provide her with a reliable, prompt warning in the event of an emergency, which due to her mobility issues will give her additional time to exit the home. The applicant did not refer me to evidence to support these submissions, as such it follows that she has not met her onus. Moreover, the applicant did not identify what hardwired alarm system was being proposed, and how it would give her additional time to exit her home. Thus, I find that the proposed installation of a hardwired alarm system is not reasonable and necessary.
Interest
56I find that the applicant is entitled to interest in accordance with the Schedule, with respect to the rehabilitation benefits that are reasonable and necessary, which is the relocation of the fridge.
ORDER
57For the reasons outlined above, I find that:
a) The applicant is entitled to the proposed treatment plan in part. More specifically, I find that the rehabilitation benefits with respect to the relocation of the fridge is reasonable and necessary. The applicant is also entitled to interest pursuant to s. 51.
b) The applicant is not entitled to the remaining rehabilitation benefits as outlined in the OCF-18.
Released: January 20, 2025
Tanjoyt Deol
Adjudicator