Category: Home Modification

Hathaway-Warner v. TD General Insurance Company (2024 ONSC 2511)

The claimant appealed the Tribunal’s decision relating to proper hourly rate for ACBs, whether she had incurred attendant care services, whether she required supervisory care, whether she required home modifications, and the cost of a home modification assessment. The Court upheld the Tribunal’s decision on all points. The claimant’s accident occurred on July 14, 2010. The claimant argued that the most recent hourly rates and Guidelines for attendant care services should apply. The insurer argued that the rates in place in 2010 applied. The Court upheld the Tribunal’s decision that the 2010 rates applied based on the language of the transitional provisions in the SABS. The Court upheld the Tribunal’s decision finding that the insurer’s Form 1 related to supervisory care was based on the evidence before the Tribunal, which showed that the claimant would be self-sufficient in an emergency. The Court upheld the Tribunal’s decision that the claimant’s psychological impairments did not support the need for home modifications. Finally, the Court rejected the claimant’s Charter arguments that the Tribunal’s differential treatment of psychological and physical injuries breached her rights, finding that the very nature of the SABS requires that such distinctions must be made when considering entitlement to benefits.

Hathaway-Warner v. TD General Insurance Company (20-002110)

The claimant, who had previously been deemed CAT pursuant to Criteria 8, sought entitlement to attendant care benefits up to the $6,000 monthly maximum. The respondent had approved entitlement to ACBs up to $2,642.91 per month. The claimant also sought modifications to her home (totaling $399,763) or, in the alternative, funding for the purchase of a new home to accommodate her disability (totaling $931,000). With respect to ACBs, Adjudicator Norris found that the claimant was entitled to ACBs up to $3,589.07 per month. While the Adjudicator preferred the claimant’s assessment over the respondent’s IE report, the calculation of quantum of ACBs had to be done in accordance with the Form 1 rates at the time of the accident in 2010. As such, the claimant’s maximum monthly entitlement to ACBs was $3,589.07. However, Adjudicator Norris went on to find that ACBS were not payable because there was no evidence of any incurred ACBs for the period in question. With respect to the proposed home modifications or alternative housing, Adjudicator Norris found that the claimant had not met her onus of demonstrating that the requested expenses were reasonable or necessary to eliminate the effects of her impairments as a result of the accident. The claimant’s limitations in daily living were primarily mental and behavioural. The overarching concern by the healthcare providers at the hearing was that the claimant’s home was disorganized and cluttered. The home modifications proposed were only a peripheral response to the disorganization and clutter compounding the claimant’s mental and behavioural challenges. Adjudicator Norris noted that the respondent had approved funding for a personal organizer, which was a more efficient way to reduce the main barriers faced by the claimant. Costs in the amount of $1,000 were ordered against the respondent for its conduct in not abiding by the page limits for submissions as ordered by the Tribunal and in obtaining a recording of the hearing without providing a timely copy to the claimant as required under the Rules.

Vaillancourt v. The Guarantee Company of North America (21-008125)

The claimant was previously deemed catastrophically impaired. He applied to the LAT to resolve a dispute concerning the quantum of certain benefits, including attendant care and home modifications. Prior to the accident, the claimant managed his own consulting company, was quite active, and regularly enjoyed doing housework. The insurer denied much of the claimant’s attendant care claim on the basis that the surveillance it collected and the assessments it conducted revealed that the claimant could perform such tasks without supervision and that his post-accident impairments were overstated. Adjudicator Lundy disagreed, preferring the claimant’s framework which focused on the claimant’s functional ability to perform predictably, consistently and reliably. Adjudicator Lundy emphasized that the insurer failed to account for these principles by concluding that the snippets of surveillance it collected showing the claimant performing housework and manual labour indicated that his condition was overstated, when, in reality, the surveillance and assessments undertaken by the insurer failed to account for the fact that the claimant struggled to perform these tasks and that his condition differed on a day-to-day basis. As a result, Adjudicator Lundy found that the claimant was entitled to attendant care benefits in the amount of $6,000.00 per month. The insurer denied the claimant’s proposed home modifications on the basis that his medical/rehabilitation funds were nearly exhausted. Despite eventually designating the claimant CAT, the insurer stood firm in its denial of the proposed home modifications. Adjudicator Lundy found that the claimant fulfilled his evidentiary burden of demonstrating that the home modification assessment and all but two of the proposed home modifications (valued at $87,809.00) fit the criteria of being necessary and reasonable. Despite the insurer’s refusal to pay for the proposed attendant care and home modifications, Adjudicator Lundy found that the claimant was not entitled to a special award. The insurer had triable concerns regarding whether many of the claimant’s proposed plans were necessary and agreed that the claimant was eligible for attendant care and some home modifications, albeit not to the valuations sought by the claimant.

J.T. v. Certas Home and Auto Insurance Company (19-001148)

The claimant was injured in an accident in which a bus was struck by a train, and he was found to suffer a catastrophic impairment. He applied to the LAT claiming $166,437 in home modifications, $839,104 for the cost of a new home, weekly housekeeping expenses, and a special award. The insurer sought repayment of $8,747.42 in IRBs related to its error in not reducing IRBs at the claimant’s 65th birthday. Adjudicator Hines found that the home modifications were deemed incurred and ordered the insurer to pay same, even though the claimant had since moved. She found that the insurer had sufficient information from medical records and its own IE reports to support the need for the proposed modifications. The claimed cost of a new home was denied. The SABS is clear that the value of a new home cannot exceed the value of home modifications that are reasonable and necessary to accommodate a person’s disability. The proposed home cost was far in excess of the modifications found reasonable by the Tribunal. Adjudicator Hines also rejected the notion that the claimant should not have to allocate any proceeds from his original home to purchase a new home; that argument was unreasonable and not supported by the SABS or case law. Housekeeping expenses of $100 per week were awarded, as the claimant was found to need assistance of 12 to 13 per week. The service provider was the claimant’s wife, who was found to suffer an economic loss in relation to attendant care in an earlier FSCO decision. The insurer argued that the service provider could not “double dip” on the economic loss, and that time spent providing 24/7 supervision (which was being paid as ACBs), could not be used to count towards housekeeping services. Adjudicator Hines rejected this argument, holding that the SABS does not bar an insured from using the same service provider for housekeeping and attendant care, nor was a separate economic loss required to be proven. A special award of 25 percent was granted on the withheld home modifications, given that the insurer had already been found to have unreasonably withheld approval and payment of same. Finally, Adjudicator Hines granted the insurer’s repayment request of $8,747.42 in IRBs. The insurer mistakenly paid the claimant $400.00 per week after his 65th birthday and did not reduce the amount per the SABS until eight months later. The repayment request was made within 12 months, and complied with section 52. The insurer was permitted to reduce ongoing IRB payments by 20 percent until the repayment was complete

Joseph v. ACE INA Insurance (19-010124)

The claimant was involved in a motor vehicle accident in 2018. He was later determined to be catastrophically impaired as a result of the accident. The claimant applied to the LAT seeking entitlement to numerous medical and rehabilitation benefits, including the cost of cancellation fees, home modifications totaling $262,619.50, the cost of a trip to Haiti, and provider travel time for a psychologist. The majority of the treatment plans in dispute had been partially approved. Both parties claimed costs of the hearing in relation to allegations of conduct resulting in a delayed and unnecessarily lengthy hearing. The insurer also sought judgment in relation to unspecified costs previously awarded in relation to two motions. Adjudicator Grieves found that the claimant was entitled to partial payment of the proposed cost of a trip to Haiti for therapeutic purposes (the claimant was from Haiti; the insurer had previously approved two trips and denied the third proposed trip; and in Haiti, the claimant reportedly participated in “family cultural practices and received alternative therapies.”) The claimant was not entitled to the remaining issues in dispute. The travel time of the psychologist was considered not reasonable and necessary because the claimant had access to approved transportation expenses and on several occasions had indicated a preference for receiving treatment at the therapist’s office. The insurer had previously approved home modifications in the amount of $30,670.75. Adjudicator Grieves found that the disputed amount was not payable because the modifications proposed in the claimant’s report were largely to address speculative future needs, not to address the claimant’s current disability. Neither party was awarded costs of the hearing. Adjudicator Grieves held that the standard for ordering costs was very high and found that both parties contributed to the delay and inefficiency of the hearing. The insurer was awarded $350 in costs in relation to two prior motions. Costs were awarded because the claimant’s “conduct interfered with the Tribunal’s ability to conduct a fair, efficient and effective process, and resulted in wasted resources and prejudice to the respondent.” In addition, Adjudicator Grieves found that the claimant’s “misconduct was serious in that it resulted in delay of the start of the hearing and wasted time for the parties in preparing and responding to a motion that the applicant succeeded on and then essentially requested to ‘undo’.”

J.D. v. Intact Insurance Company (19-002767)

The claimant was involved in a motor vehicle accident in 2018. As a result of the accident, his leg was amputated. His injuries were deemed catastrophic by the insurer. The claimant applied to the LAT seeking entitlement to attendant care benefits in the amount of $6,000 per month, housekeeping expenses, and numerous medical and rehabilitation benefits (including the cost of a home modification assessment in the amount of $8,858.78, the cost of alternative accessible housing in the amount of $1,126,560, and the cost of alternative short-term housing in the amount of $19,200). The proposed attendant care services included 24-hour supervision, which was recommended by an OT who opined that due to the acute nature of the applicant’s injuries he was incapable of responding to an emergency and thus required care of 24 hours per day. Adjudicator Manigat found that the claimant was entitled to attendant care benefits in the amount of $3,000.00 per month. Adjudicator Manigat was not persuaded that the claimant required 24-hour care, as he had been able to stay at a house alone and travel out of the country twice without attendant care services or supervision. Adjudicator Manigat found that the claimant required assistance with some but not all housekeeping tasks and was entitled to $50 per week for housekeeping benefits, rather than $100 per week. The claimant was found entitled to the majority of the disputed medical and rehabilitation benefits, including provider mileage costs, parking costs, case management services, medical marijuana, an iPhone, and $8,858.78 for the Adapt-Able Design housing assessment. The claimant was not entitled to social work services that duplicated approved psychotherapy services and was not entitled to further psychological services as he failed to attend previously approved treatment sessions. The claimant was not entitled to the cost of alternative accessible housing in the amount of $1,126,560. Adjudicator Manigat found that while the claimant did require alternative housing to meet his disability needs, the report recommending alternative accessible housing failed to take into consideration a home that the claimant already co-owned with his siblings, which was a “potential, legitimate option.” The claimant was found entitled to a treatment plan proposing alternative short-term housing in the amount of $19,200.

Mirzaie v. Wawanesa Mutual Insurance Company (19-009605)

The claimant suffered a catastrophic impairment. He sought the purchase of a home for $1.277 million as a rehabilitation benefit. The insurer argued that the claimant failed to prove that a new home was reasonable and necessary, and that the claimant failed to consider the value of modifications to his existing home. Adjudicator Gosio agreed with the insurer and dismissed the claim. He found that the claimant’s expert failed to comment on possible existing modifications to the claimant’s current apartment and gave no consideration to alternatives, such as a ground floor apartment, as opposed to purchasing a new home. Adjudicator Gosio also wrote that the claimant’s remaining rehabilitation limits were only half the amount of the claimed home, and that it would be unreasonable for the claimant to receive half the value of a home and then be left with no rehabilitation benefits and no new home. Adjudicator Gosio also rejected some of the premises of the claimant’s arguments. In particular, he noted that an earlier LAT decision found that the claimant did not require 24 hour care, and yet the claimant’s housing expert assumed that 24 hour was required.

Verschuren v. the Personal Insurance Company (20-003677)

The claimant was involved in a serios motorcycle accident and was determined to be catastrophically impaired by the insurer. The claimant submitted a treatment plan for a home modification assessment by Adapt-Able Design in the amount of $9,217.40. The insurer partially approved the assessment in the amount of $2,200. The claimant applied to the LAT seeking entitlement to the denied portion of the treatment plan. Adjudicator Boyce was persuaded by the reasoning in previous LAT decisions with similar facts, and found that the insurer was not obligated to pay more than $2,000 for the proposed assessment, pursuant to section 25(5)(a). The claimant was not entitled to the unapproved portion of the treatment plan.

M.R. v. Allstate Insurance Company of Canada (18-012729)

The claimant was involved in multiple accidents between 1991 and 2003. A preliminary hearing was held in relation to benefits claimed following a September 1996 accident and whether certain disputed benefits were captured by various releases signed by the claimant. The claimant sought entitlement to ACBs, HK expenses, transportation expenses, and home modifications. In addition to the settlement issue, the insurer argued that the claimant was time-barred from pursuing the home modifications. Adjudicator Kowal held that the releases signed by the claimant covered all ACBs and HK expenses, and all transportation expenses up to 2016. The home modification was not captured by the release because it was considered a rehabilitation benefit, which was not covered by any of the releases. The limitation period did not apply to the claim for home modification. The insurer denied one submission for home modification in 2010, but the denial was unclear as the insurer included a list of things it would pay for, but did not state which modifications were denied. Further, the claimant submitted a new proposal for home modification in October 2017, which was considered a new application for the benefit. The insurer initially agreed to pay for the entire treatment plan, and then retracted the approval. While the insurer’s response was not clear and unequivocal, the claimant applied to the LAT less than two years after submission of the treatment plan, so the limitation period did not apply regardless.

M.C. and M.C. v. Pembridge Insurance Company (18-006473 and 18-006682)

The husband and wife claimants were involved in a motorcycle accident and required amputation of their right legs. Both claimants were entitled to catastrophic impairment level benefits. Because the cost of both the claimant’s and insurer’s plan outpaced the cost of building a new home, neither plan was carried out. Instead, a new home was constructed. However, the amount the insurer was required to pay was limited to the value of renovations to the existing house. The claimants and insurer initially disagreed on approximately $70,000 in costs. During the hearing the insurer made certain concessions that led to the difference between the parties to be $17,000. Adjudicator Mazerolle preferred the renovation plan proposed by the claimant’s expert over that of the insurer’s expert. He accepted that the claimant’s layout that allowed for better access to amenities and was preferred by the claimants was reasonable, as it allowed the claimants to seek to maintain their pre-accident lifestyle. Adjudicator Mazerolle rejected the insurer’s argument that there were no amounts overdue under section 38 because neither housing renovation would ever be completed. Adjudicator Mazerolle granted a 25 percent special award related to the denial of a back-up generator. The adjudicator accepted that the claimants were at risk of being stuck in parts of their home if the power went out (which happened occasionally in the area).