Volume. 5 Issue. 7 – February 10, 2021

Read our latest blog on The 86% Solution – Year 5 LAT Stats!

In this edition of the LAT inFORMER, we discuss what would seem to be the final word on the amount payable for home modification assessments, with the Tribunal affirming that an assessment is “not necessarily restricted to a medical assessment prepared by a medical practitioner in a medical context.”

Two successful reconsiderations both heard by original hearing adjudicators resulted in:

1. A re-hearing ordered on the Tribunal’s error of relying upon s.25(1)4 without the parties’ submissions making this argument

2. Varying the length of the psychological session payable based upon an error in not considering the relevant evidence on causation

Housing Assessment is An ‘Assessment’

As Assessment, is an Assessment is an Assessment – In R.J. v Certas (19-009603), R.J. sought the balance remaining ($7028.11) for a housing assessment after the Respondent agreed to pay only $2460. R.J. contended that “when section 25(5)(a) of the Schedule refers to ‘any assessment or examination’, it means a medical assessment or evaluation performed by a health care practitioner in a medical context. Furthermore, to fall under section 25(5)(a) of the Schedule, the assessment or examination must be a ‘clinical evaluation or appraisal of a claimant’s health status’.”

The Respondent for their part contended that “the preamble to s. 25(5) consists of mandatory language that prevents the carving out of exceptions for full payment of” OCF-18s that are outside the narrow scope of an “appraisal of health status.”

The Tribunal referenced an earlier case R.G. v State Farm (17-006934), wherein a housing assessment fell within the definition of ‘assessment’ and ‘examination”. Upon reconsideration, it was noted that an ‘assessment’ “was not necessarily restricted to a medical assessment prepared by a medical practitioner in a medical context.” The Tribunal found that “the omission of a condition under s. 25 specifically addressing medical assessments was intentional…s. 25(5)(a) does not create a separation between medical assessments, housing accessibility assessments, or any other assessment or for preparing reports in connection with that assessment or examination.”

Concluding, it was confirmed that R.J.’s “functional needs are considered throughout (the) report… (that) by its very nature, involves an appraisal of the applicant’s health status.” The fact that there are considerations throughout the report of R.J.’s physical and psychological functionality (and recommendations for modifications based on them), indicates that “an assessment of his well-being was considered in preparation of this report.”

…Is an Assessment – Similarly, in Verschuren v The Personal (20-003677), Verschuren sought the balance of a $9217.40 home modification assessment that had been partially approved for $2200. Verschuren contended that the Treatment Plan is not an ‘assessment’, that the majority of the costs of the plan are for other services and that the Respondent has discretion to pay above the assessment cap. Reference was again made to R.G. v State Farm, as well as to Z.P. v Certas (19-003226), wherein it was determined that the assessments “related to an assessment and appraisal of the applicant’s health issues.”

The assessment sought in this matter is “based on the medical information provided to it, a meeting with the applicant, a home site visit, consultation with his treating rehabilitation professionals and an investigation of zoning restrictions for the property, I find it necessarily involves an assessment of the applicant’s impairments and functional limitations to fall within s. 25(5)(a).” Concluding, the Tribunal disagreed with Verschuren’s suggestion that this was somehow not an ‘assessment’, as “the evidence indicates that the treatment plan provides for an assessment of his impairments and functional limitations at his residence.”

Tribunal Can’t Make Your Case

Take a Walk in My Shoes – In P.W. v Aviva (18-000854), the Respondent sought reconsideration of a matter awarding an attendant care assessment, contending that the entitlement was granted based upon an argument not raised by either party. The Tribunal, upon ‘own recon’, found for a fact that the Tribunal had relied on s.25(1)4 of the Schedule, that was not addressed in the submissions of the parties. The Respondent submitted that as a result, “the adjudicator essentially stepped into the shoes of the applicant in relying on section 25(1)4 of the Schedule.”

The Tribunal agreed, confirming that “the applicant has the obligation to make their own case, and the Tribunal should not satisfy the evidentiary onus for them…the adjudicator should have contacted the parties in order to get their submissions on the applicability of section 25(1)4 of the Schedule. The adjudicator did not do this which was not procedurally fair to the respondent.” As a result, the entitlement was sent back for a re-hearing, with each party to make submissions with respect to the applicability of s.25(1)4.

Causation Reduces Treatment Time

Causation Costs a Half Hour – In C.M. v Intact (18-008995), the Tribunal, upon ‘own recon’, varied their own decision, reducing the psychological therapy sessions granted from 1.5 hours to one hour, given concerns regarding causation. In the original decision, the Tribunal found the evidence regarding C.M.’s psychological condition to be “irrelevant” given that both parties had agreed that there was in fact a psychological impairment. The Respondent took issue with the Tribunal’s failure to consider relevant evidence.

Upon reconsideration, the Tribunal agreed with the Respondent that said evidence must be considered, “because it is directly related to the length and type of treatment that the applicant requires.” The Tribunal found that C.M.’s psychological problems were not exclusively caused by the accident, and that as a result, the accident related psychological impairments would not warrant the 1.5 hour sessions, as opposed to the one hour sessions approved by the Respondent.

While agreeing that C.M.’s current psychological condition “may be more severe since the accident”, the Tribunal attributed “this increase in her psychological problems to the personal difficulties she experienced post-accident.” Noting in addition that “benefits cannot be used for psychological issues that are not related to the motor vehicle accident.”

Related LAT inFORMER Issues:
Assessment Not Subject to $2,000 Cap

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