Accident Benefit Reporter - Volume 10, Issue 1
- “Moving Expenses” May Be Recoverable Under Section 15
- Slaying The Section 42 Dragon
- The Role of the Litigation Guardian
“Moving Expenses” May Be Recoverable Under Section 15
By: David Neill
When an accident victim’s mobility is affected by injuries sustained in a motor vehicle accident, there is usually a need to assess the injured person’s living accommodation to determine whether home modifications are required.
The Statutory Accident Benefit Schedule (schedule), provides in section 15(5)(i), that a rehabilitation benefit is available to pay all reasonable and necessary expenses incurred by the insured person for home modifications to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to do so. When reviewing section 15(5)(i), it should be remembered that the dominant purpose of the rehabilitation benefit is stated in section 15(2):
“The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.”
It is with this purpose in mind that the expenses incurred by or on behalf of the insured person under section 15(5) should be considered.
It should also be remembered that there are limitations imposed on the home modification benefit as set out in section 15(7) and 15(8).
Section 15(7) provides that the expenses incurred to renovate the insured person’s home shall be deemed not to be reasonable and necessary, if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living.
Section 15(8) provides that the cost to purchase a new home shall not exceed the value of the renovations to the insured’s existing home that would have been required to accommodate the need of the injured person.
The issues arise when considering these sections can be troublesome and time consuming to resolve. What is reasonable? What is necessary? How do the suggested renovations seek to promote the stated purpose of section 15(2).
The reasonableness and necessity of any benefit will necessarily be fact specific. This is particularly true in cases involving the need for home modifications. An assessment of these needs must be undertaken by an occupational therapist, or other qualified health professional. The report or opinion prepared should spell out in detail why a particular modification is required having regard to the impairments of the individual.
The modifications which are identified by the occupational therapist, for example, should be reviewed by the insured person’s physician or perhaps a physiatrist, who has also assessed the insured, so that a medical opinion can be provided which supports the assessed needs having regard to the impairments which have been identified.
It is worth remembering that the purpose of the rehab benefit is to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.
Once the needs of the injured accident victim have been determined it will be necessary to retain an expert with experience in designing accommodation for mobility impaired individuals. Usually, this will be an architect with the appropriate training and experience, who can review the opinions obtained concerning the insured’s impairment and then assess the present living arrangements to provide an opinion with respect to what modifications are reasonable and necessary and at what cost.
As noted above, section 15(5)(i), also provides for the purchase of a new home, if it is more reasonable to do so rather than renovate. It may be more reasonable to purchase a new home if the injured person’s accommodation is not amenable to renovation. For example, spinal cord injuries sustained by a person living in a multi level townhouse at the time of the accident presents serious challenges with respect to the cost of renovations. Perhaps the injured victim resides in a rental property and the landlord is not willing to dramatically change the design without some assurance that the property will be restored to its original unmodified design when it is no longer required by the insured person so that the marketability of the home can be maintained.
Moreover, there is the very serious limitation provided in section 15(8), which mandates that the rehabilitation benefit for the purchase of a new home shall not exceed the value of renovations to the insured’s existing home that would have been required to accommodate the needs of the insured person.
Notwithstanding section 15(8), it may be reasonable in some cases for the insured to purchase a new home and to then seek the additional cost involved in doing so, even though extensive renovations are not required.
This issue, among others, was considered by Arbitrator John Wilson, in Hill v. Coseco (2006) FSCO-A04-001991, in which Ms. Hill claimed reimbursement of approximately $60,000.00 in moving expenses incurred when she moved to a bungalow loft style home from her five storey townhouse.
Ms. Hill was injured in a car accident in 2000. The accident caused significant injuries and left her with mobility challenges and in particular difficulty climbing stairs. She could slowly climb stairs using the wall and railing for support and facing sideways to limit ankle flexion. Her mobility had been compromised to a significant degree in terms of her living accommodation but she was not restricted to a wheelchair.
Two expert reports were filed with FSCO with respect to the proposed renovations to Ms. Hill’s home at the time the accident happened.
The issue to be decided was whether the costs of the move were payable as reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment.
In order to gauge the reasonableness of the insured’s claim, Arbitrator Wilson, considered the cost of renovations to the existing home. The insurer’s contractor estimated the cost at approximately $30,000.00, in contrast to the insured’s experts who estimated the cost to renovate the existing home at approximately $198,000.00. Arbitrator Wilson preferred the detailed report of the insured’s experts and stated at page 11 of his reasons:
“While the $198,200 price tag for the renovations recommended by Adapt-Able may seem steep at first glance, the report provides solid support for most of its recommendations. It considers the challenging architecture of the house before deciding on a plan that juggles the usage of space and provides for a small addition to make an interior elevator a successful key to access to the principal rooms.”
Arbitrator Wilson determined that the cost estimate submitted by the insured was reasonable in all of the circumstances and should be the standard by which the compensable cost of moving into a new house should be measured pursuant to section 15(7) and (8) of the schedule.
At page 14, Arbitrator Wilson stated:
“…Consequently, I find the purchase of a bungalow-style home to address mobility issues to be reasonable in the circumstances. I also find that it is a cost-effective alternative to renovation, both in initial capital cost, and ongoing maintenance…”
The appeal from Arbitrator Wilson’s order was dismissed and his decision confirmed on October 17, 2007.
This case underlines the importance of obtaining detailed expert opinions with respect to the mobility needs of the insured and the extent of the renovations that are required. Even though the costs of renovation of the existing home are significant, it may well be that these costs can serve an appropriate standard against which to compare the cost of moving. It is also important to keep in mind that significant home modifications may be necessary even for those injured victims who are not confined to wheelchairs but nevertheless have serious mobility issues.
In cases where the purchase of a new home outright may well exceed the cost of home renovations, injured accident victims should not completely dismiss the idea of moving into another home. The moving costs associated with this (as in Ms. Hill’s case), may be less than the costs of renovation to original home and if these costs are reasonable they should be recoverable under section 15 of the schedule.
By: David Payne and Deanna Gilbert
How to Restrict Endless Insurer Examinations. H. T. v. Security National Insurance Company [2009] F.S.C.O. Decision A08-002642
With the abolition of the Designated Assessment Centres (DAC) came the entitlement of the insurer to request section 42 medical examinations for each benefit applied for.
Since the demise of the DAC system, the insurers have argued that they have an unfettered right to as many examinations as they deem fit by as many different experts as they deem fit for any and all requests for benefits and treatment.
If an insured refuses to attend any requested examinations, the insurer typically cites the section of the accident benefits schedule that states the insurer does not have to pay for the requested benefit if the insured refuses to attend the examination.
The insurer’s right to these examinations is limited such that they can only be requested by the insurer “as is reasonably necessary”. [see section 42(1) of the Schedule]. Unfortunately, the insurers usually state that all of their requests are reasonably necessary and if the insured does not attend the examination, then a denial is forthcoming for failure to attend. Prior to the decision is H. T. v. Security, there was no proper legal interpretation of “reasonably necessary”.
In a recently argued interim benefit motion at the Financial Services Commission, the parameters of an insurer’s power to conduct unfettered, unlimited examinations was challenged.
In this case, our client applied to her insurer for a declaration that she was catastrophically impaired arising from a psychiatric/psychological condition. The insurer, as is normally done, immediately gave notice that they required our client to be examined by four different specialists over many days. We refused on the basis of evidence from her treating psychologist that repeated section 42 examinations were harming the insured and placing her at risk.
The Arbitrator ordered that if the insurer wished to maintain its denial, the insurer must proceed to arbitration without any section 42 examinations whatsoever.
The facts of this case were rather unique. However, the Arbitrator declared some very important and fundamental principles applicable to all claims for benefits limiting the rights of the insurer to Section 42 examinations. They are as follows:
- Upon receipt of a request for a benefit, the insurer is prohibited from immediately initiating a full blown assessment and a multiple examination process without first considering if a less invasive or demanding process is available to the insured to determine the entitlement to the benefit.
- An insurer is prohibited from delegating the determination of entitlement to a third party assessment centre. While there is nothing wrong with delegating the conduct of assessments to experts, the experts do not make the determination as to entitlement, the insurer must.
- It is improper for an insurer, having received section 42 examination reports supporting the insured’s disability and need for past benefits, to choose an entirely different team of assessors when they receive another treatment plan. The Arbitrator stated:
It is clear also that in the choice of such an independent expert, one party’s strategic interest does not trump issues of fairness. Given the first party relationship in accident benefit matters, the responsibility of experts chosen to assist in the determination of benefit entitlement should be no less than for unrelated parties in an adversarial situation. In this matter, it is not enough for Security to have an unexplained preference for a new and different psychiatrist, when such an abrupt change in assessors can lead to an inference of expert shopping for a more favourable report.
- An insurer cannot automatically choose to conduct a myriad of in-person examinations without first considering from available medical records and past insurer assessments if the benefit is payable. The failure of the insurer to consult with the experts of its own choosing who have already examined the insured without the need for further in-person examinations was described by the arbitrator as the “assessment equivalent of round-up the usual suspects”.
This arbitration commenced when the insurer refused to even consider its insured’s application for a declaration of catastrophic status without numerous new examinations from a whole new team of examiners. It refused to simply ask previous assessors who had already examined its insured. The insurer stated the insured’s refusal to attend the requested examinations allowed them to refuse the application for catastrophic status. Successfully challenging this position involved extensive time, effort and monies but we needed to do it to protect our client from this abuse.
If an insurer is proposing a “new team” and in effect “expert shopping” every time a benefit is applied for, we at Thomson, Rogers urge treating physicians, psychologists and healthcare providers to insist the insured do what is necessary to stop this potential abuse. Endless section 42 examinations can be stopped.
The Role of the Litigation Guardian
By: Jill K. Van Vugt
Ontario’s legal system contains many safeguards to protect the rights of children and mentally incapable persons who start a lawsuit.
In legal terms, a person under the age of 18, or an adult who lacks the mental capacity to make certain decisions, is a “party under disability”. Persons under disability must be represented by a Litigation Guardian before commencing an action for damages. A Litigation Guardian is someone over the age of 18 who has authority to instruct counsel throughout the litigation. The Litigation Guardian is presumed to make decisions in the best interests of the person under disability.
Before you agree to be a Litigation Guardian, you should be aware of the particular rights and responsibilities you will assume for the benefit of the person under disability. The comments and opinions expressed below refer only to the requirements of Litigation Guardians for plaintiffs, or those who start a lawsuit against one or more persons or corporations. Different rules apply when a minor or mentally incapable person is named as a defendant in a lawsuit.
A Litigation Guardian is the legal representative of the person under disability and is required to make a wide range of decisions that will impact the outcome of the person’s lawsuit. According to the Rules of Civil Procedure, the litigation guardian “shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests.” Examples of such steps include: retaining a lawyer; pursuing all claims and avenues of compensation; accepting or rejecting the advice of counsel and providing instructions to counsel on the general conduct of the litigation. Perhaps the most important instructions the Litigation Guardian will give to a lawyer involve whether to settle or discontinue the case. The Court’s scrutiny over some of these decisions will be discussed below.
The law of Ontario stipulates that a person under disability may not start a lawsuit unless he is represented by a Litigation Guardian. There is no requirement that the Litigation Guardian be a relative or spouse of the person under disability, although this is usually the case. If no one is willing and able to act as Litigation Guardian, the Court may appoint the Children’s Lawyer or the Public Guardian and Trustee. The law further mandates that a person under disability must be represented by a lawyer.
The proposed Litigation Guardian must swear an Affidavit which is filed at the Court, stating the following:
- s/he consents to act as litigation guardian;
- s/he has given written authority to a named lawyer to act in the lawsuit;
- a statement providing details of the party’s disability (i.e.: either a minor under the age of 18 or reasons why a party is mentally incapable)
- in the case of a minor, the minor’s birth date;
- whether the proposed litigation guardian and party under disability are residents of Ontario;
- details of the relationship between the proposed litigation guardian and party under disability;
- that the proposed litigation guardian has no interest in the lawsuit that may be adverse to the party under disability; and
- that the proposed litigation guardian has been advised of his/her duty to personally pay costs if costs are awarded against the party under disability or against him/ her personally.
Most of these requirements are self evident, however the last two requirements require further explanation.
Adverse in Interest
The legal term “adverse in interest” refers to a number of circumstances in which the Litigation Guardian may be forced to choose between his or her own interests and those of the person under disability. If you are named as a defendant in a lawsuit in which the person under disability is a plaintiff, you are prohibited from acting as the person’s Litigation Guardian. Under these circumstances, a Litigation Guardian cannot be presumed to act in the best interests of the person under disability. This is because any advantage gained by the person under disability is detrimental to the defendants’ case and vice versa – this would place a Litigation Guardian, who is also a defendant, in a conflict of interest.
Costs
People who commence litigation always run the risk that they may be unsuccessful in obtaining a settlement or Judgment against a defendant. In some cases, an unsuccessful plaintiff may be ordered to pay “costs”, or a portion of the successful defendant’s legal bill. A person under a disability is no different except that the person responsible for paying costs is the Litigation Guardian. Almost invariably, a diligent lawyer will advise the Litigation Guardian if prospects for success have diminished to the point where a defendant may be entitled to costs. In this event, the lawyer should advise the Litigation Guardian that if he or she instructs the lawyer to press on with the litigation, the Litigation Guardian may be held accountable to pay a portion of the defendant’s legal bill. In rare cases, the person under disability may be required to pay back the Litigation Guardian for costs incurred on the person’s behalf.
What a Litigation Guardian Is Not
Despite the numerous legal responsibilities and duties imposed on a Litigation Guardian, it is important to differentiate between “Litigation Guardian” and another type of guardian – “Guardian of Property and/or Person”. A Litigation Guardian does not have the authority to dispose of or otherwise manage a person under disability’s property. Likewise, a Litigation Guardian cannot make decisions affecting the person under disability’s health and well-being simply by being a Litigation Guardian. In fact, the term “Litigation Guardian” adequately prescribes the Litigation Guardian’s scope of authority to issues arising from the litigation. To become a Guardian of Property and/or Person, an individual must make an Application before a Judge under the Substitute Decisions Act, 2002. The Applicant must satisfy rigorous requirements before the Court will grant him or her rights over the property and person of the person under disability.
Directing the Litigation – Settlement and Discontinuance
Perhaps the most important role of the Litigation Guardian is the authority to settle the person under disability’s case. The law in Ontario mandates that all settlements of the claims of persons under disability be reviewed by a Judge. As part of this review process, the Litigation Guardian must swear another Affidavit attesting to the relevant facts of the litigation, the components of the settlement (including payment of lawyers’ fees and the amounts attributed to Family Law Act claims) and the reasons why the Litigation Guardian supports the proposed settlement.
The Court will closely examine the facts underpinning each settlement in Ontario involving a person under disability. The goal of such oversight is to determine whether the settlement is in the best interests of the person under disability. This unique function of the Court illustrates the great lengths taken to protect the interests of children and mentally incapable persons involved in litigation.
The Court also oversees the discontinuance of lawsuits involving persons under disability. In addition to the Court’s oversight, the Children’s Lawyer or Public Guardian may be called upon to comment on the decision to discontinue the person under a disability’s claim. If the Children’s Lawyer or Public Guardian argues that the claim has merit, the Court may refuse the Litigation Guardian’s request to end the lawsuit.
In either the event of settlement or discontinuance, the conduct of a Litigation Guardian throughout the course of litigation will be examined by a Judge. A Litigation Guardian is not held to the standard of perfection, but that of a reasonable person acting in the best interests of the person under disability. Potential Litigation Guardians and the public should take comfort in the fact that many safeguards exist within our legal system to vigorously protect the rights of persons under disability.
Minimum Wage (Level 2 rate) increase from $8.00 to $8.75 began March 31, 2008
If you have any questions regarding the above or would like to make a comment that can be considered for further articles, please contact me at rehabplan@rogers.com.
The material in this newsletter is provided for the information of our readers and is not intended nor should it be considered legal advice. For additional copies or information about “Accident Benefit Reporter”, please contact Thomson, Rogers.
If you have any questions regarding the articles in this issue of the Accident Benefit Reporter, please contact the following authors:
David R. Neill
dneill@thomsonrogers.com
David A. Payne
dpayne@thomsonrogers.com
Deanna S. Gilbert
dgilbert@thomsonrogers.com
“Accident Benefit Reporter” is a publication of Thomson, Rogers, Barristers and Solicitors
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Posted: May 1, 2009
