German v. Intact Insurance Company, 2026 CanLII 37001

Citation: German v. Intact Insurance Company, 2026 ONLAT 24-011779/AABS

Licence Appeal Tribunal File Number: 24-011779/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:

Lauren German

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Joe Gaynor, Counsel

For the Respondent: Tracy Brooks, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lauren German, the applicant, was involved in a snowmobile accident on January 15, 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, Intact 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:

a) Is the applicant entitled to the outstanding balance of $97,736.00 for home modifications/devices, proposed by Injury Management Services in a treatment plan submitted April 27, 2022 and denied September 27, 2022?

b) Is the applicant entitled to the outstanding balance of $1,036.39 for a neuropsychological assessment, proposed by Dr. Peter Gaskovski in a treatment plan submitted October 3, 2023 and denied October 18, 2023?

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

d) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

a) The applicant is not entitled to the denied balance of the treatment plan for home modifications;

b) The applicant is not entitled to the denied balance of the treatment plan for a neuropsychological assessment;

c) As no benefits are overdue, no interest is payable; and

d) The respondent is not liable to pay an award.

ANALYSIS

Background

4On January 15, 2022, the applicant was a rear passenger on a snowmobile and was involved in an accident, suffering serious injuries including brain and spinal cord injuries. On February 25, 2022, the applicant was accepted by the respondent to have suffered catastrophic impairment as a result of the accident.

5At the time of the accident, the applicant was living with her parents at their home in Clifton, Ontario. Her parents owned the home.

6On April 27, 2022, the applicant submitted an OCF-18 in support of home modifications to the Clifton property. In support of the treatment plan, the applicant relied on a Home Accessibility Report by Jeffrey Baum dated April 27, 2022. This report proposed home modifications in the amount of $586,500.00.

7The respondent conducted its own Home Accessibility Report on June 16, 2022 prepared by Wayne Parsons and David Bothwick, and an in-home OT assessment by Shaynee Mehta on July 16, 2022, with a report dated September 8, 2022. These reports noted that the applicant’s parents had sold the Clifton property, purchased a plot of land, and were waiting for permits to build. The applicant intended to move in with her parents into the newly constructed home. In the meantime, the applicant and her parents would be living in a short-term property rental.

8In anticipation of this, the applicant submitted an OCF-18 for payment of short-term rental accommodations, which the respondent approved on May 18, 2022 in the amount of $12,000. On September 27, 2022, the OCF-18 for the home modifications was partially approved in the amount of $422,800 plus appliances, other construction related expenses and HST, subject to demonstrating that the expenses had been incurred.

Law

9Section 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 their family, society, and the labour market.

10Section 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.

11Section 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.

Parties’ positions

12The applicant submits that there is no dispute that the home modifications proposed in the April 27, 2022 treatment plan and her Home Accessibility Report are reasonable and necessary. Given her post-accident disability, she argues that significant home modifications were required including: a wheelchair accessible primary entrance, a safer secondary emergency exit, an elevator as an alternative to negotiating stairs, interior and exterior modifications, accessible kitchen appliances, etc. Mr. Baum found that the total cost of these modifications, including HST and construction related costs was $586,300.

13However, despite the fact that the respondent’s experts agreed with the reasonableness and necessity of the modifications in the treatment plan, the applicant argues that it only partially approved the treatment plan, without justifying the partial denial. She submits that the respondent did not challenge the necessity or reasonableness of any of the specific recommendations of Mr. Baum, but only approved $422,800 plus HST and some additional costs. The applicant argues that she is entitled to the remaining $97,736.00.

14The respondent submits that the difference in the cost of home modification it had approved is actually not significantly different than what had been proposed in the treatment plan and by the applicant’s expert, Mr. Baum. It argues that in its September 27, 2022 letter, the respondent had approved not only the $422,800 total sum but also a number of additional costs. The respondent argues that many of these costs had been built into the applicant’s $585,300 total, such that the actual difference between what was requested and what was approved, is only $7,200.00

15The respondent further argues that regardless of the differences between the reports, since the submission of the OCF-18, it has paid for all land, construction and building expenses that the applicant has incurred and submitted. The respondent argues that this has totalled $522,760.68, in addition to temporary short term rental payments of $22,500.00. It submits that it has not denied any expense that was submitted by the applicant, and that s. 16(4)(b) does not mandate that the applicant is entitled to any amount that is found reasonable and necessary. Rather, like other rehabilitation benefits, benefits for home builds must be demonstrated to be incurred. The respondent submits that it has worked cooperatively with the applicant to address her housing needs, and that approving the remaining difference between the expert reports would amount to a “windfall” to the applicant, as no new housing, building or disability expenses had been submitted for her new home.

16In reply, the applicant argues that the outstanding amount should be deemed incurred pursuant to s. 3(8) of the Schedule. She submits that an insured must only demonstrate that a reasonable and necessary treatment plan for home modifications was submitted, and that the OCF-18 in question did not propose a new build, but modifications to the existing home. The applicant argues that the only consideration for the Tribunal is whether the home modifications proposed in the OCF-18 were reasonable and necessary at the date of submission, and that the respondent must establish why the partially denied portion was not reasonable and necessary.

17I find that the applicant has not established entitlement to the denied portion of the treatment plan.

18Firstly, although the applicant identifies the denied portion of the OCF-18 as $97,736.00, she has not established that this is in fact the denied amount. The applicant’s expert Home Modification Report and OCF-18 include a number of costs within its $586,300 cumulative budget sum, including: HST, building permit fees, professional fees, contingency fees, and project management fees. However, in its Explanation of Benefits (“EOB”) dated September 27, 2022, the respondent approved $422,800 plus a number of additional costs on top of this amount, which included the items that had been built into the applicant’s cumulative sum.

19In addition to the $422,800 estimated cost amount, the respondent also approved: HST, building permit fees, professional fees, kitchen appliances, a maintenance contract for the elevator, contingency fees, project management fees, and increased costs for utilities, taxes and insurance, which could not yet be estimated. All of these amounts were in addition to the $422,800 estimate. Accordingly, I agree with the respondent that when these additional costs are taken into account, the difference between the applicant’s final cost estimate and the amount approved by the respondent, decreases significantly. In its submissions, the respondent identifies the difference between the parties’ estimates as being $7,200 rather than $97,736.00. The applicant did not address this cost discrepancy in her reply submissions.

20While the exact discrepancy between the applicant’s and the respondent’s total cost amount is difficult to quantify given that some amounts in the respondent’s approved budget are open-ended (for example, the ongoing elevator maintenance contract and the increased cost of utilities, taxes and insurance), I agree with the respondent that the actual denied sum is significantly less than the $97,736.00 claimed by the applicant. Accordingly, I find that the applicant has not established what the outstanding amount of the treatment plan is still in dispute.

21Further, I do not agree with the applicant that the only relevant consideration for this treatment plan is whether the proposed home modifications, to the then existing home, were reasonable and necessary at the time of form submission. The applicant argues that there is no question that both experts agreed that the proposed home modifications were needed, therefore, there is no justification for the respondent withholding the remaining amount. However, both experts in their reports noted that the applicant would not be staying in this pre-accident home.

22In the respondent’s June 16, 2022 Home Accessibility Report, Mr. Parsons noted that at the time of the accident, the applicant was living with her parents at the Clifton property, but that the property had recently been sold and that she intended to move into a newly constructed bungalow home once it was completed. Similarly, in the applicant’s April 27, 2022 Home Accessibility Report, Mr. Braum noted the family’s intention to move to a more accessible house and stated that the final cost amount was a “preliminary budget cost summary”. Accordingly, I find that both assessors acknowledged that the specific home modifications addressed in their respective reports, may not be applicable if the applicant moved to a newly built more accessible home.

23Given the applicant’s stated intention to both assessors that she intended to move to a new home, and that the Clifton property was subsequently sold and a new home was built, I agree with the respondent that an analysis cannot be limited to only the April 27, 2022 OCF-18 and the Home Accessibility Reports considering the Clifton property. Rather, it is appropriate to consider the actual home building costs, which would be evidenced by the incurred expenses the applicant has submitted. To the extent that the cost to build a new home was less than the $586,300 amount of the OCF-18, then a lesser amount would be payable. However, to the extent that the cost to build was more than the amount stated in the OCF-18, then subject to reasonableness and necessity, a higher amount than $586,300 could be payable by the respondent.

24In the present case, in addition to the submission of the April 27, 2022 OCF-18, the applicant submitted the following treatment plans and expense forms, which the respondent approved and paid:

a) On April 16, 2022 an OCF-18 for $12,000 for a short-term rental property while the accessible home was being built, and $2,800 for the cost of a ramp to enable wheelchair access to the rental property;

b) On October 7, 2022 an OCF-6 for reimbursement of 50% of (the applicant’s share of) the lot purchase price, land transfer taxes, legal fees and municipality permits in the amount of $122,454.47;

c) On November 23, 2022 an OCF-6 for reimbursement of design, construction and building related expenses in the amount of $54,208.97;

d) On January 16, 2023, an OCF-6 for reimbursement of construction, building and design related expenses in the amount of $128,206.86;

e) On April 10, 2023 an OCF-6 for reimbursement of construction and building expenses in the amount of $146,301.80;

f) On June 20, 2023 an OCF-6 for reimbursement of construction and building expenses and appliances in the amount of $35,081.45;

g) On January 27, 2023 an OCF-18 for the cost of an incline platform and lift with installation totalling $24,505.20;

25The respondent submits that to date, it has paid $486,981.07 in land, construction and building expenses plus $35,779.61 in HST, totalling $522,760.68. In addition, its submits that all of the applicant’s short term rental payments were reimbursed, totalling $22,500.00.

26In her submissions, the applicant did not dispute these payments, and she is not arguing that any additional housing, construction or building expenses are required, or that she had submitted additional expense forms that had been denied by the respondent. Rather, the applicant appears to be arguing that the difference between the parties’ original estimates in their Home Modification Reports, regardless what expenses have been paid to date, should be deemed incurred under s. 3(8) of the Schedule.

27I 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. However, the applicant in this case appears to be arguing that she is entitled to both options. She is arguing that she is entitled to the full amount under a treatment plan for home modification of an existing home, despite the fact that very early in the process, she chose the alternative route of purchasing a new home and submitted, and was reimbursed for, all of the expenses relating to this new purchase and construction. I find that the applicant has not established that she is entitled to the outstanding balance of the April 27, 2022 OCF-18.

28I further am not persuaded by the applicant’s argument that the outstanding balance of the treatment plan should be deemed incurred. In order to establish that an expense should be deemed incurred, the applicant must establish that the respondent unreasonably withheld or delayed payment of a benefit in respect of the expense. However, the applicant has not directed me to any evidence that any payments under s. 16(3)(i) have been unreasonably withheld or delayed. On the contrary, the respondent has appeared to have approved and reimbursed payment for all of the land, housing and building costs, including short term rental costs, that the applicant had submitted. The applicant has also not specified what the outstanding balance of the treatment plan would be applied towards, in terms of specific home modifications or building expenses.

29I further find that the decision relied upon by the applicant, J.T. v Certas Home and Auto Insurance Company, 2022 CanLII 49934 (ON LAT), is distinguishable from the present case. In J.T. v Certas, the Tribunal deemed an OCF-18 for home modifications in the amount of $166,437.70 to be incurred, due to the insurer’s unreasonable withholding or delayed payment of benefits. However, in that case, it does not appear that any payments had been made by the insurer for building or modification expenses, and the Tribunal found that there were “year gaps in time between assessments with no communication from the respondent about what was actually being approved”. The gap from when the first OCF-18 for home modification was submitted, to the date that the insurer approved an updated OCF-18 was two years, with no payments being made by the insurer in the meantime. This can be contrasted with the present case, where the respondent has paid for all housing, land and building expenses as they have been submitted.

30Accordingly, I find that the applicant has not established entitlement to the remaining portion of the treatment plan for home modification. I do not find that the outstanding portion of the treatment plan should be deemed incurred pursuant to s. 3(8) of the Schedule.

31I find that the applicant has not established entitlement to the outstanding balance of $1,036.39 for a neuropsychological assessment, proposed in the treatment plan submitted October 3, 2023.

32The treatment plan proposed a neuropsychological assessment in the amount of $3,498.99. The line items were broken down as $2,000.00 for “test, brain”; $200.00 for “documentation, support activity”, and $896.45 for “comprehensive file review”. The respondent approved the neuropsychological assessment, but denied the comprehensive file review amount of $896.00 plus tax, totalling $1,015.68. The respondent cited s. 25(5) of the Schedule to argue that a file review is included as part of an assessment.

33The applicant submits that no neuropsychological assessment has been completed to date and that it is essential to determine what supports the applicant requires. The applicant further argues that the “comprehensive file review” should be considered a separate assessment and therefore it is not encompassed by the language of s. 25(5) of the Schedule. Rather, a file review is required to understand the complexity of the applicant’s entire medical picture.

34I find that the applicant has not established entitlement to the $1,036.39 for a comprehensive file review.

35The applicant has not cited any Tribunal caselaw to support her argument that a file review should be considered a separate assessment. However, the respondent has cited Tribunal decisions, Banh v. Aviva Insurance Company 2022 CanLII 78907 (ON LAT) and Coto v. Intact Insurance 2023 CanLII 81840 (ONLAT) in support of its position that a separate file review cost is not payable under the Schedule.

36I find the decisions cited by the respondent to be persuasive in their findings that a file review is a necessary and inherent component of an assessment and as such would be subject to the $2,000.00 payment limit stipulated by s.25(5). I further find that this is consistent with the language of s. 25(5) of the Schedule, which clearly states that an insurer is not obligated to pay more than a total of $2,000.00 plus HST in respect of “fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it”. The applicant has not directed me to evidence or caselaw to support the position that a file review should be considered a separate assessment.

37Accordingly, I find that the applicant is not entitled to the outstanding balance of the treatment plan for a neuropsychological assessment.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

39The 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

40I find that:

a) The applicant is not entitled to the outstanding balance of the treatment plan for home modifications;

b) The applicant is not entitled to the denied balance of the treatment plan for a neuropsychological assessment;

c) As no benefits are overdue, no interest is payable; and

d) The respondent is not liable to pay an award.

41The application is dismissed.