News Update – January 6, 2020

25% Award for $500k ACB & Home Modifications

“Imprudent, Inflexible, and Immoderate” Denials – In Malitskiy v Unica (18-010164) just made available to us by Gary Mazin at Mazin & Associates, released to the parties January 2, 2020, the insurer is facing the single largest award to date, 25% on a matter wherein the insured was found to be entitled to ACB and home modifications approaching $500,000 in value. The Applicant was found entitled to 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, and a rehabilitation benefit for home modifications up to $344,864.

The Conflict

The Applicant’s assessor opined that the Applicant required slightly in excess of $6,000 per month, while the Respondent’s assessor indicated that the Applicant’s requirements were $1,199 per month. Overall, the Respondent was of the view that the Applicant does not require overnight assistance to ensure safety and security in his bedroom.

Weighing the Evidence

The Tribunal however found that the evidence tendered at the hearing confirmed that the Applicant will “need support at nighttime for mobility, transfers, the use of facilities, and support with any emotional and cognitive concerns and responding in emergencies. I find that [the Applicant] cannot ‘functionally exit the home’ on his own without additional assistance to safely overcome his physical pain and mobility limitations.” As a result, the Applicant was awarded the maximum $6,000 in monthly attendant care.

Relying largely upon the same evidence, the Tribunal considered home modifications, with the significant items of contention between the parties being the installation of an in-home elevator and a therapy room for space to engage in exercises and use equipment while at home. In awarding the modifications requested, the Tribunal found that they would allow for access to areas of the home that he needs for ordinary living, and they have the purpose of eliminating the effects of his disability resulting from the accident.

Assessment Not Subject to $2,000 Cap

The Applicant was also found entitled to a housing analysis assessment in the amount of $4,952.50, despite the Respondent’s argument that a cap of $2,000 should be applied to the report. Contrary to the finding in 17-006934 v State Farm, the Tribunal did not consider the report as an assessment or examination under section 25, as it is not “a “clinical evaluation or an appraisal of health status”. Therefore, the Respondent was obliged to pay for the report in its entirety, noting as well that the Respondent had paid in excess of $2,000 for other housing reports they secured.

The Award

Considering a request for an award, the Tribunal found that the Respondent had failed to ask the relevant questions about functional needs, and “should have asked its assessors to investigate whether [the Applicant] needed cuing, emotional support, and nighttime supervision”. Further, it was unreasonable for the Respondent to focus on their expert reports when its own assessors had designated the Applicant to be catastrophically impaired due to brain injury, a marked impairment in adaptation, and a 63% whole person impairment, and when read together, their expert reports did not correspond to the information in the Applicant’s medical file.

The Respondent “did not make the relevant inquiries into the functional needs that should have been apparent based on the evidence it already had on hand. Therefore, the position taken… with respect to the attendant care benefit and the home modifications amounted, in my view, to an unreasonable withholding or denial, when the medical evidence, including evidence from [the Respondent]’s own assessors, supported [the Applicant’s] need for these claimed benefits. I find [the Respondent]’s partial denials of these benefits to be imprudent, inflexible, and immoderate.”