Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006894/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:
Jakeb Parr
Applicant
and
TD Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Darcy R. Merkur, Counsel
For the Respondent: Matthew Wasserman, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jakeb Parr, the applicant, was involved in an automobile accident on June 7, 2022, 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, TD Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $777,467.00 for home modifications and home devices as proposed by Kaitlyn Wainio-Smit, OT, of Spark Rehabilitation Inc., in a treatment plan dated February 14, 2023?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
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?
RESULT
3I find that the applicant is not entitled to the home modifications and home devices proposed in the treatment plan dated February 14, 2023, interest, or an award.
ANALYSIS
Background
4On June 7, 2022, the applicant was involved in the subject accident and suffered injuries to his spinal cord.
5At the time of the accident, the applicant resided in a multiple-storey home in the City of Sault Ste Marie (the “pre-accident home”).
6On August 7, 2022, the applicant’s parents signed an agreement of purchase and sale for a new bungalow home (the “bungalow”) in the amount of $305,000.00. On August 31, 2022, the applicant’s parents sold their pre-accident home in the amount of $380,000.00. On October 7, 2022, the applicant got possession of the bungalow and on October 20, 2022, the applicant moved into the bungalow.
7On October 14, 2022, Adapt-Able Design Group (“Adapt-Able”), conducted a site visit at the pre-accident home and prepared a Home Accessibility Report, dated February 10, 2023 (the “Housing Report”). The Housing Report concluded that renovations to the pre-accident home would cost $777,267.00.
8On March 3, 2023, a treatment plan dated February 14, 2023, prepared by Spark Rehabilitation Inc., was submitted to the respondent for $777,467.00 which was the value of the renovations to the pre-accident home in addition to a $200.00 documentation fee. The treatment plan was denied by the respondent on March 13, 2023.
9By letter dated May 16, 2023, the respondent advised the applicant that the treatment plan was denied, stating that “there is no medical evidence to support that the proposed goods and services are essential to [Jakeb’s] ongoing treatment/rehabilitation.”
Law
10Section 16 of the Schedule sets out the regulatory framework with respect to the disputed benefit. In order to determine if the applicant is entitled to the disputed benefit, pursuant to section 16(1) of the Schedule, the rehabilitation benefit must be considered 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 his family, society, and the labour market.
11Section 16(3)(i) of the Schedule allows for home modifications and home devices 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. This is to be read in conjunction with sections 16(4)(b) and (c), which provide that an insurer is not liable to pay home renovation expenses incurred to provide the insured person with access to areas of the home not needed for ordinary living, or for the purchase of a new home in excess of the value of the renovations that would be required to accommodate the needs of the insured person in the existing home.
12Section 3(8) of the Schedule provides that where the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may, for the purposes of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
Applicant’s Position
13The applicant submits that he is entitled to the treatment plan for home modifications, dated February 14, 2023, because it was reasonable and necessary at the time that it was submitted, given his accident-related injuries and mobility issues.
14The applicant submits that as a result of his spinal cord injury and diminished lower body muscle function, he had considerable difficulty utilizing stairs which prevented him from accessing living areas outside of the main floor of the pre-accident home. In addition, the applicant required greater open space, including in the bathroom, to accommodate his mobility aids.
15The applicant submits that on October 7, 2022, having regard to the challenges renovating the pre-accident home in a cost effective and timely way, the applicant and his family took possession of a bungalow. He argues that based on the time and cost of the expected renovations, it was more reasonable and practical to purchase the new bungalow. The applicant submits that the cost of the bungalow was more than the cost of the modifications to the pre-accident home sought herein.
16On October 14, 2022, Adapt-Able conducted a site visit at the pre-accident home and prepared the Housing Report, dated February 10, 2023. The Housing Report concluded that in order to accommodate the applicant’s disability, modifications to the pre-accident home would cost at least $777,267.00. On March 3, 2023, a treatment plan was submitted by Spark Rehabilitation for the housing modifications.
17The applicant submits that the extensive and expensive home modifications to the pre-accident home could not have been done in a way that addressed his needs in a timely way. The applicant argues that absent cooperation from the respondent to approve the modifications and agree to fund it forthwith, the applicant and his family chose to find a new home. The applicant therefore submits that the cost of the needed home modifications should be approved and applied towards the purchase of the new home in accordance with s. 3(8) of the Schedule. He relies on the decision in J.T. v. Certas Home and Auto Insurance Company, 2022 CanLII 49934 (ON LAT) (“J.T.”), where the Tribunal awarded the applicant the value of renovations that were never incurred on the pre-accident home, pursuant to s. 3(8) of the Schedule.
18The applicant submits that whether his mobility has improved since the treatment plan was submitted is irrelevant, as he suffers from a life-changing spinal cord injury and continues to face challenges with mobility, challenges that will fluctuate over time depending on his progress. He argues that the analysis is whether the plan was reasonable and necessary at the time it was submitted.
19The applicant further submits that the respondent should be procedurally barred from now determining whether the home modifications are reasonable and necessary, given that the respondent relied on the incorrect legal test in its denial. In its denial letter dated May 16, 2023, the respondent stated: “…there is no medical evidence to support that the proposed goods and services are essential to [Jakeb’s] ongoing treatment and rehabilitation.” The applicant submits that the respondent never considered whether the home modifications were reasonable and necessary and elected not to schedule an Insurer’s Examination (“IE”). The applicant argues that the respondent has no IE opinion suggesting that the home modifications are not reasonable or necessary.
Respondent’s position
20With respect to the applicant’s allegation that the wrong test for determining entitlement was referenced in its denial letter, the respondent argues that the test for entitlement is whether the treatment plan is reasonable and necessary. The respondent submits that the applicant has not met his onus of proving on a balance of probabilities that the treatment plan in dispute is reasonable and necessary. It relies on the decision in Vaillancourt v. The Guarantee Company of North America, 2023 CanLII 9261 (ON LAT), to support its position that to demonstrate that the medical and rehabilitation benefits sought are reasonable and necessary, an applicant must establish on a balance of probabilities that:
(a) the identified treatment goals are reasonable;
(b) the goals are being met to a reasonable degree;
(c) the overall costs of achieving those goals is reasonable taking into consideration both the degrees of success and availability of other treatment.
21The respondent submits that the applicant has not included any medical evidence in his submissions, besides the Housing Report, to justify his need for the home modifications at the time the treatment plan was submitted. The respondent submits that the applicant’s recovery from his injuries has been substantial, and his ambulation has improved since his involvement in the accident. It argues that the applicant has been able to return to employment and many other of his activities of daily living. The respondent in its submissions sets out the medical history of the applicant following the motor vehicle accident, relying on multiple medical documentation. The respondent further relies on various surveillance reports provided by Intrepid Surveillance dated November 1, 2023, and December 20, 2023, as evidence of the applicant’s functional abilities.
22The respondent submits that the applicant’s parents signed an agreement of purchase and sale on August 7, 2022, for the purchase of the bungalow in the amount of $305,000.00, with a closing date of October 7, 2022. The respondent further submits that the pre-accident home sold for $380,000.00 on August 31, 2022, with a closing date of October 21, 2022. The applicant and his family moved into the bungalow on October 20, 2022.
23The respondent submits that the Housing Report was done improperly by Mr. Wallace, the applicant’s home modification expert. It argues that the report was based on an Occupational Therapy Report, dated August 26, 2022, that was over six months old; a site visit to the applicant’s prior home on October 12, 2022, four months prior to the submission of the treatment plan; and a subsequent phone call on February 7, 2023. The respondent submits that Mr. Wallace did not review the medical documentation, including the hospital, specialists and family doctor records and he did not perform a functional abilities assessment himself.
24The respondent further submits that Mr. Wallace did not perform an assessment of the needs of the bungalow in comparison to the pre-accident home and that he stated in the report, that it was not practical to modify the applicant’s pre-accident home as he no longer resides there. However, Mr. Wallace did not provide any other recommendations other than renovating the pre-accident home in his report. The respondent submits that no analysis was done of the modification requirements to the bungalow. The respondent also argues that there are deficiencies in the report with respect to the applicant’s ability to navigate stairs and the recommendations for installation of a dumbwaiter, a dedicated room for therapy, a hot tub, a lift for the family’s pool and a garage with a heated workshop.
25The respondent submits that there has been no home modification report submitted for the bungalow, despite the applicant’s allegations of deficiencies in the new home. In addition, no alternative living arrangements were proposed including temporarily living in a ground floor apartment.
26The respondent relies upon the decision in Trottier-Plante v. Economical Insurance, 2023 CanLII 65749 (ON LAT) (“Trottier”), where the Tribunal found that the applicant was not entitled to home modifications to a property that the applicant formerly resided in. The Tribunal stated:
I am also persuaded by the fact that the proposed home modifications were to a property that the applicant formerly resided in. She is seeking home modifications to a property in which she no longer resides or has access to. Furthermore, there were no expenses incurred and no modifications to the home were made. The applicant moved from the Pinerest Residence to a hotel because the property was condemned, and she was evicted. That was the reason she could no longer live there. The applicant would have to propose a new accessibility plan for a new property.
27The respondent further submits that the treatment plan recommending home modifications to the pre-accident home, would result in a windfall for the applicant. The respondent further submits that the applicant must put the proceeds of the sale of his pre-accident home toward the cost of the bungalow. The respondent relies upon the decision in J.T. and Mirzaie v. Wawanesa Mutual Insurance Company, 2021 CanLII 104417 (ON LAT) (“Mirzaie”).
Applicant’s Reply Submissions:
28The applicant submits that this is a simple dispute. The applicant with a spinal cord injury asked the respondent to fund home renovations, to allow him the dignity of living in a suitable home. The applicant submits that the housing plan was submitted, the applicant had mobility limitations such that the plan, designed to provide him with a suitable home, was reasonable and necessary.
29The applicant submits that whether he profited from the sale of the pre-accident home is irrelevant to the issues in dispute. He argues that the legislation does not allow the respondent to get a credit for any profit made after the sale of the pre-accident home and the purchase of the new home if the new home is cheaper than the pre-accident home. The applicant submits that the insured is entitled to receive up to the value of the modifications that would have been completed on the pre-accident home towards the purchase of the new home.
The applicant is not entitled to the treatment plan recommending home modifications
30I find that the applicant has not met his onus of proving on a balance of probabilities that the treatment plan recommending home modifications is reasonable and necessary.
31I agree with both parties that the analysis of this treatment plan should be based on the date in which the treatment plan was prepared, which was February 14, 2023.
32I find based on the submissions of the respondent, that the applicant’s parents signed an agreement of purchase and sale on August 7, 2022, in the amount of $305,000.00. The applicant’s parents then sold their pre-accident home on August 31, 2022, in the amount of $380,000.00. The applicant moved into the bungalow on October 20, 2022. I find that the applicant’s submission that the “cost of the bungalow was more than the cost of the renovations to the pre-accident home” is incorrect. Rather, the cost of the bungalow was $380,000.00 and the proposed modifications were $777,267.00.
33I find that the wording of section 16(3)(i) of the Schedule allows for either home modifications and home devices 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. The applicant has only provided submissions on his right to home modifications. I find that there are no submissions made by the applicant about the respondent purchasing him a new home as an alternative. I find that it is clear from the evidence that the cost of the bungalow was half of the cost of the proposed modifications to the pre-accident home and pursuant to s. 16(3)(i), the purchase of a new home would be considered more reasonable. However, this alternative was never raised by the applicant.
34I find that Adapt-Able conducted a site visit of the pre-accident home on October 14, 2022, two months after the purchase of the bungalow on August 7, 2022. The report with the housing modification recommendations and costs was prepared on February 10, 2023. Upon review of the Housing Report, I note that the report states that, “The purpose of this report is to provide a realistic budget to quantify funds for the existing home that can be redirected to create an alternative, more practical housing solution at a new home.” The report further stated that it was not practical to modify the applicant’s pre-accident home as he no longer resides there. I find based on this description that the purpose of the report was to quantify funds for the pre-accident home and to use those funds to improve the new home. The applicant has not made any submissions on whether the bungalow required any home modifications, and no assessment was ever made of the bungalow.
35I find that the applicant’s submission that his family decided to find a new home due to the respondent’s lack of co-operation and agreement to fund the renovations is not supported by any evidence. It is clear from the timing of the purchase of the bungalow, that the decision to move was made well in advance of the recommendation for any housing modifications or the denial of the treatment plan in dispute. I find that the applicant has not provided any evidence to support that an estimate or an assessment of the needed renovations was provided prior to the decision to move or that the cost of the said renovations was a factor in the decision process.
36I find the decision relied on by the respondent in Trottier persuasive, where the Tribunal found that the applicant was not entitled to home modifications to a property that the applicant formerly resided in. The Tribunal ordered that the applicant would have to propose a new accessibility plan for a new property. While the fact scenario in Trottier differs from the present matter because the applicant was evicted from her home in Trottier, I find that the facts are similar in that the applicant is also seeking home modifications to a property in which he no longer resides. In addition, there have been no expenses incurred and no modifications to the home. I therefore find that the applicant has not proven that having an assessment on the pre-accident home that he no longer lived in was reasonable or necessary. By the time of the site visit, the applicant had already made the decision to move, and he was not in need of any modifications to his pre-accident home. As found in Trottier, the applicant was required to propose an accessibility plan for his new home, not a home that he formerly resided in.
37I find the decisions cited by the respondent in J.T. and Mirzaie, persuasive for the principle that the applicant is not entitled to a “windfall”. While the facts in J.T. differ in that the cost of the new home exceeded the cost of the proposed modifications, the principle applied is the same. I find that the applicant is not entitled to the cost of the home modifications which are in excess of the actual cost of the bungalow. If the applicant were to be paid the cost of the modifications that were never incurred, this would result in a “windfall” to the applicant. Similarly, in Mirzaie, the Tribunal stated that an insurer is only required to pay the value of the home modifications needed to accommodate an insured’s disability towards the purchase of a new home. I find that in this matter, the applicant purchased the bungalow and did not provide any submissions that the bungalow needed home modifications to accommodate his needs and is therefore not entitled to receive payment for home modifications that will never be incurred.
38Although the applicant has submitted a copy of the Housing Report, dated February 10, 2023, he has not provided the Tribunal with any medical documentation to support the injuries and limitations experienced by the applicant at the time the Housing Report was submitted. While the respondent has made submissions about the improvement in the applicant’s medical condition over time to support that the treatment plan is not reasonable and necessary, the applicant has not provided sufficient medical documentation to support that the home modifications were reasonable and necessary at the time the treatment plan was submitted due to his ongoing functional impairment.
39I agree with the respondent’s submission that the scope of the Tribunal’s authority to determine entitlement is not ground in or limited by the respondent’s reasons for having denied the benefit. While the applicant submits that the respondent applied the wrong test in determining his entitlement to the treatment plan in dispute, the respondent’s submissions in this matter are not limited by the reasons for having denied the benefit. The respondent is entitled to make submissions to this Tribunal in reference to the substantive requirements of the Schedule and therefore to make submissions on the reasonableness and necessity of the treatment plan in dispute.
40I further find that an insurer is not required to seek an IE opinion in respect to a treatment plan in dispute. The burden is on the applicant to prove that the treatment plan in dispute is reasonable and necessary.
41It is undisputed that the applicant did not incur the expense of home modifications proposed in the treatment plan in dispute. The applicant submits that the treatment plan should be deemed incurred pursuant to s. 3(8) of the Schedule. As I have found that the treatment plan in dispute was not reasonable and necessary at the time it was submitted, and there is no evidence that the respondent unreasonably withheld or delayed payment of the benefit, I do not deem the treatment plan incurred.
42For the reasons set out above, I find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to the treatment plan for home modifications.
Interest
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to the disputed treatment plan, no payment is overdue, and thus no interest is payable.
Award
44The 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. As no benefits were unreasonably withheld or delayed, I find that the respondent is not required to pay an award under s. 10 of Reg. 664.
ORDER
45For the reasons outlined above, I find that the applicant is not entitled to the home modifications and home devices proposed in the treatment plan dated February 14, 2023, interest, or an award. The application is dismissed.
Released: May 1, 2025
Melanie Malach
Adjudicator