Accessibility and Design Report Under Cost of Examinations

Burleigh and Allstate – COST OF REPORT - Cost of accessibility and design report should be paid under s.24 (Cost of Examinations) and not s.15 (Rehabilitation Benefit).

February 20, 2010, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator: Judith Killoran
Decision Date: December 4, 2009

Ms. Burleigh was injured in a motor vehicle accident on November 30, 2006. She applied for and received statutory accident benefits from Allstate Insurance. The issue in the hearing was to determine if the cost of the Adapt-Able Design Group reports were payable under section 15 or under section 24 of the Schedule.

Agreed Statement of Facts

The parties filed the following agreed statement of facts:

1. Ms. Burleigh was a 17 years old girl (d.o.b. April 24, 1992) who was injured as a result of a motor vehicle accident on November 30, 2006.

2. The applicant had sustained a "catastrophic impairment" within the definition of the Statutory Accident Benefits Schedule as a result of the said accident.

3. Adapt-Able Design Group was retained by Ms. Burleigh’s counsel, with the agreement of Allstate, to identify and quantify the reasonable and necessary expenses required to modify the Ms. Burleigh's existing dwelling to accommodate the needs of the applicant.

4. Adapt-Able Design Group produced three reports dated July 24, August 7 and September 7, 2007 and an invoice dated August 8, 2007 in the amount of $8,489.38.

5. Ms. Burleigh and the insurer could not agree as to whether Adapt-Able Design Group's invoice was payable pursuant to section 15 or 24 of the Statutory Accident Benefits Schedule.

Conclusion

The preparation of accessibility and design reports is necessary to comply with the requirements found in section 15 of the Schedule. That is, for the payment of all reasonable and necessary expenses incurred by the insured person for home modifications and home devices to accommodate their needs and achieve the twin goals 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." The arbitrator interpreted the references to section 15 in the Adapt-Able reports as providing the context for the reports rather than interpreting them as relying on section 15 as a source for payment of the reports.

The arbitrator did not agree with Allstate's argument that because accessibility and design reports are required for this purpose that the payment of these reports is a benefit under section 15. Rather, the reports are required to allow the Applicant access to the benefit, in the same way that reports which are compensated under section 24 are needed to allow the Applicant access to other benefits.

Accessibility and design reports are more properly compensated under section 24 of the Schedule. If the intention of the legislation was to omit coverage of these particular reports from section 24, that could have been accomplished in the same fashion as it was done for vocational assessments in subsection 24(5) which states: “Vocational assessments referred to in clause 15(5)(f) are not assessments for the purposes of this section.”

The accessibility and design reports in the case of Ms. Burleigh were prepared in consultation with health professionals who offered input and expertise needed to properly determine the needs of Ms. Burleigh. The applications for approval of an assessment or examination were submitted by Adapt-Able Design Group and approved by Allstate's Rehabilitation Service Provider. The forms and process for approval were the same as for any section 24 expense. An OCF-21, an Automobile Insurance Standard Invoice, which is the form required for medical and rehabilitation services that are payable by an insurer under the Schedule, was not submitted. At all times, both Allstate and Ms. Burleigh treated the reports prepared by Adapt-Able as section 24 expenses. Under Part 3 of the application which requires the signature of a regulated health professional or social worker as required by section 24 an occupational therapist had signed.

Adapt-Able Design Group had been compensated for its reports by Allstate. That compensation was paid as a result of Allstate's approval of Adapt-Able's applications for approval of an assessment or examination. The OCF-22 which was submitted specified that the form had to be used to request prior approval for payment of an assessment or examination.

The arbitrator found that Allstate was prevented from arguing, at the time of the hearing, that the expenses for the Adapt-Able's reports should have been subtracted from Ms. Burleigh's global entitlement to rehabilitation benefits. There was an issue of detrimental reliance as the process engaged in between Ms. Burleigh and Allstate for payment of the reports had contributed to a belief on Ms. Burleigh's part that the reports would not erode her entitlement to rehabilitation benefits. The arbitrator found that it would not have been within the accident benefits legislation to require that the reports - which were required to grant access for Ms. Burleigh to a rehabilitation benefit and assess the quantity of that benefit - be used to decrease the amount of her entitlement to other rehabilitation benefits.

About Paquette Travers & Deutschmann

Paquette Travers & Deutschmann serve South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann and Doug O’Toole focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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