Volume. 6 Issue. 8 – March 2, 2022
Home modification issues take center stage this week. The first case considers a fundamentally flawed alternative housing assessment, as the assessor was for whatever reason unaware that the Applicant already had what seemed to be a ready made alternative housing option.
The second case confirms that presenting claims for home modification is a two step process, with assessments capped at $2,000, which the first case seems to have opted not to follow.
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Home Modification Expert Unaware Applicant Already had Viable Option
Wait – You Already Own a House? – The Applicant, J.D., rendered CAT in an August 2018 accident sought entitlement to 22 discrete denied or partially denied medical and rehabilitation benefits in J.D. v Intact (19-002767). Included were the costs for alternative housing, an assessment regarding same and Attendant Care.
Regarding alternative housing, JD’s expert prepared a treatment plan with various recommendations ranging from $357,000 to $1.1M. However, fatal to JD’s claim was the fact that the expert was somehow unaware that JD had access to his late father’s home … which he inherited jointly with his siblings in June of 2017. In fact, following the accident, JD spent considerable time post accident at this property, including staying alone overnight on several occasions.
The fact that the expert was not aware as to the existence of this property was found to be “problematic”. The expert himself confirmed that had he been aware of the residence he would have inspected same to determine if it was a reasonable option. As a result, the Tribunal found that while the alternative housing assessment was “reasonable”, given the severity of the injuries involved, it was not “necessary”, as a potential legitimate option was not considered.
Related, the Tribunal did however find that JD was entitled to the full cost of the initial housing assessment, indicating there to be “no legitimate reason for denying this treatment plan partially, and therefore award the remaining $8,858.78 to be paid.” This would appear to be contrary to Tribunal jurisprudence regarding the $2,000 cap on assessments of any kind, as confirmed and followed by the 2nd case considered this week.
The Applicant also sought ACB at the CAT maximum of $6,000 per month. The Tribunal accepted that JD required assistance for certain daily activities however, was not persuaded that JD required service 24/7. Without providing any rationale or breakdown of the ACB requirements, the Tribunal found it “reasonable to award the applicant $3,000.00 per month for attendant care services. The applicant may require less attendant care services in the future as his condition continues to improve.”
Claiming Home Modification a Two Step Process
No “Feasibility Studies” Allowed – Gosselin deemed CAT in 2017 following a 2010 accident sought numerous benefits amongst them being a treatment plan for home modifications, in Gosselin v Travelers (20-008566). The treatment plan for home modifications for $33,309 proposed to complete architectural construction drawings, including allowances for consultation with engineers and other specialists, to tender to local contractors to receive construction bids, with the goal of providing Gosselin with a safe and functional home environment.
The evidence reflected that Travelers had previously approved a home modification assessment that was capped at the maximum of $2,000 as per s.25(2) of the Schedule. The Tribunal noted that this assessment was apparently used to fund a “feasibility study”, and now relies upon that study to justify the proposed home modification assessment.
Travelers asserted that Gosselin “must first identify the necessary modification needs by way of a single assessment under section 25 of the Schedule, followed by a single treatment and assessment plan outlining the full modification cost.”
The Tribunal noted that Gosselin saw the process for claiming home modification to be a multistep one, and that the item proposed was not under s.25 of the Schedule, as it relates to home modifications, not health status. The Tribunal agreed with Travelers that in fact it is a two stage process, and further that said assessment would be held to the $2,000 cap as per s.25, being “an assessment of the Applicant’s health status”. The “process for claiming home modification benefits begins with an assessment and, if necessary, is followed by a treatment plan with a full cost of the home modifications.”
Concluding, the Tribunal found it “incumbent on the Applicant to seek an assessment that will provide a full costing of the home modifications so that the Respondent may weigh those costs against the cost to purchase a new home, which as the Respondent noted, is its statutory right. To me, the two-part process is in harmony with the Tribunal decisions on the issue.”
Therefore, the proposed treatment plan was found not to be reasonable and necessary, as it fails to “outline the full costs of the home modifications proposed and deprive the Respondent from its statutory right to weigh the cost of home modifications against the cost of purchasing a new home.”
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