January 13, 2020, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Malitskiy and Unica - LAT 18-010164/AABS
Date of Decision: January 2, 2020
Heard Before: Adjudicator Nidhi Punyarthi
ACBs: expert reports not considered by insurer; insurer imprudent; special award and interest awarded; insurer to pay more than $2000 for assessment
Mr. Malitskiy, was involved in a car accident on March 16, 2014. He claimed benefits pursuant to the SABs. When Unica denied claims for benefits Mr. Malitskiy applied to the LAT for an adjudication of the issues in dispute.
ISSUES IN DISPUTE
a. Is Mr. Malitskiy entitled to an attendant care benefit (ACB) in the amount of $6,000 per month recommended by CaringforU the period from October 13, 2017 to date and ongoing?
b. Is Mr. Malitskiy entitled to a rehabilitation benefit in the amount of $344,864 for home modifications as recommended by Adaptable Designs in a treatment plan dated October 19, 2018 and denied on November 20, 2018?
c. Is Mr. Malitskiy entitled to a cost of examination in the amount of $1,559.06 for an assessment of attendant care needs completed by Katrina Chalova dated October 23, 2017 and denied on December 1, 2017?
d. Is Mr. Malitskiy entitled to a cost of examination in the amount of $4,952.50 (less the partially approved amount of $2,000) for a housing analysis assessment recommended by Functionability Rehabilitation Services in a treatment plan dated May 16, 2018, and denied on June 6, 2018?
e. Is Mr. Malitskiy entitled to an award under Section 10 of Regulation 664 on the basis that Unica unreasonably withheld or delayed the payment of benefits to him?
Mr. Malitskiy is entitled to receive:
a. ACBs from October 13, 2017 to date and ongoing in the amounts that are incurred but not exceeding $6,000 per month, less amounts already paid by Unica.
b. A rehabilitation benefit for home modifications up to $344,864.
c. The balance of the cost of examination for the housing analysis assessment for alternative housing, in the amount of $2,952.50.
d. An award under Section 10 of Regulation 664, amounting to 25% of the partially denied amounts of the attendant care benefits and the home modifications benefit.
e. Interest in accordance with the Schedule for any overdue benefits listed above as well as the award.
f. Mr. Malitskiy is not entitled to receive the cost of examination of the Form 1 prepared by Ms. Chalova on November 7, 2017.
Mr. Malitskiy had been ice-fishing with some friends when their vehicle hit a pressure crack on the lake and flipped over ejecting its passengers. He was seriously injured, and another passenger was killed. All parties agree Mr. Maliskiy is CAT impaired as a result of the accident. He has significant brain injury having a combined 63% whole-person impairment as a combination of physical and mental-behavioural issues from the accident.
Mr. Malitskiy suffers from chronic pain from his injuries, requires assistance and supervision when showering and dressing. He has chronic balance issues, cognitive and memory issues. His emotional state is unstable, and he struggles with depressions, hygiene, self-worth and eating. It is on this basis that he makes his claims.
Overall, Unica is of the view that Mr. Malitskiy does not require overnight assistance to ensure safety and security in his bedroom. In addition, Unica has not assigned an allowance for cuing for Mr. Malitskiy to engage in activities such as feeding and grooming. Unica pointed to the fact that the hospital discharge note indicated that Mr. Malitskiy was able to dress himself. When Mr. Malitskiy was asked about this during cross-examination, she stated that it is typical for a hospital discharge note to indicate such information when, in the longer term, the same patient will experience difficulties with dressing. The Adjudicator found this reasonable.
When Unica’s IE was undertaken the assessor did not consider whether Mr. Malitskiy needed cuing, emotional support, and supervision at night. During cross-examination, she testified that she did not ask Mr. Malitskiy questions in this regard and was unable to conclusively explain why she did not ask Mr. Malitskiy these questions. Mr. Malitskiy also proved at this hearing, on a balance of probabilities, that he has incurred monthly expenses for attendant care from July 2017 to June 2019.
On the basis of the evidence presented the Adjudicator was satisfied that on a balance of probabilities, that Mr. Malitskiy has the functional needs requiring attendant care benefits up to the limit of $6,000 per month.
Home modifications were also proposed for Mr. Malitskiy. Unica is of the view that a portion of these proposed home modifications are reasonable and necessary. The significant items of contention between Mr. Malitskiy and Unica are the installation of an in-home elevator and a therapy room for space to engage in exercises and use equipment while at home.
The Adjudicator noted the medical evidence used to determine ACB entitlement and the same evidence was persuasive when it came to determining whether the proposed home modifications are reasonable and necessary. The Adjudicator was satisfied, on a balance of probabilities, that Mr. Malitskiy requires the elevator to safely access areas of the home that he needs for his ordinary living. The manner in which he negotiates stairs at present is not safe and can contribute to his injuries. The struggle to navigate stairs will on the balance of probabilities worsen as Mr. Malitskiy ages. Therefore, the elevator provides him with safe access to key areas of his home for ordinary living, which include the exit/entryways, kitchen, bedroom and bathroom.
The Adjudicator found that the therapy room affords Mr. Malitskiy the space and ability to engage in exercises and a room of this nature has a reasonable purpose considering Mr. Malitskiy’s functional impairments from the accident that were established in the evidence.
On this basis, Mr. Malitskiy is entitled to the home modifications in the amount of $344,864 as recommended by Adaptable Designs in its treatment plan dated October 19, 2018.
The Adjudicator determined that Unica should pay the balance of the cost of the housing analysis assessment as this type of assessment is not an assessment or examination as referred to in s.25 of the Schedule:
It is not, as the Cost of Assessments and Examinations Guideline (“Guideline”) describes, a “clinical evaluation or an appraisal of health status.”22 It involves a review of comparable properties and prices in the real estate market. According to the treatment plan submitted, the tasks to be performed include determination of housing criteria; investigation of housing options to determine market cost for new home; and an analysis of homes found to determine approximate budget.
Unica shall pay interest on the benefits that are found to be owing and are overdue.
An award under Section 10 of Regulation 66427 is payable where the Tribunal finds that an insurer unreasonably withheld or delayed payment of a benefit. If the Tribunal makes such a finding, the Tribunal can order the insurer to up to 50% of the withheld or delayed payment together with interest at 2% per month compounded monthly.
The Adjudicator noted that while Unica paid for most of the disputed benefits in part there was a failure on the part of Unica or its agents to ask the relevant questions about Mr. Malitskiy’s functional needs. Therefore Unica’s poisition with respect to the attendant care benefit and the home modifications amounted to an unreasonable withholding or denial, when the medical evidence, including evidence from Unica’s own assessors, supported Mr. Malitskiy’s need for these claimed benefits. Unica’s partial denials of these benefits to be imprudent, inflexible, and immoderate.