Accident Benefits Update - Unica Loses Cat Fight Over AC and Housing Modifications

Malitskiy v. Unica Insurance Inc. (18-010164/AABS) a Licence Appeal Tribunal (LAT) decision released January 2, 2020, involved a dispute over entitlement to attendant care benefits and home modifications by the catastrophically impaired (catastrophic) applicant, Sergey Malitskiy.

The applicant was injured on March 16, 2014 during an ice fishing expedition with friends, one of whom died in the accident. The applicant suffered a traumatic brain injury, several fractures including his cervical spine and psychological impairment. He continued to experience significant cognitive, psychological, emotional and physical impairments and was deemed catastrophic by Unica on February 2, 2017.

The applicant submitted treatment plans seeking attendant care in the amount of $6,000 per month (the Catastrophic-level maximum) from October 2017 and ongoing, and home modifications including an in-home elevator and a therapy room costing $344,864.

Unica agreed to pay $1,199 monthly for attendant care. It refused to pay for the proposed home modifications. As a result, the applicant commenced this proceeding with the LAT, seeking payment of the disputed benefits with interest. He also sought a special award on the grounds that Unica had unreasonably withheld or delayed payment these benefits.

Attendant Care

As a result of the accident, the applicant continued to suffer from: ongoing chronic pain with weakness in his right shoulder, significant mobility and balance issues that resulted in repeated falls, cognitive and memory impairments, depression and other emotional issues. Based on these impairments, his treating occupational therapist submitted an Assessment of Attendant Care Needs (Form 1) recommending more than $6,000 a month including amounts to assist with routine self-care and to ensure safety and security overnightor in the event of an

emergency.

Unica’s occupational therapy assessor did not allot time for emergency response, coordination of attendant care, assistance with exercise, or for administering, monitoring, maintaining and controlling supply of medications. She also allotted significantly less time for self-care.

After hearing evidence from the applicant, his wife, and the experts, Adjudicator Punyarthi accepted on a balance of probabilities that the applicant did require the more extensive care detailed in the Form 1. She found it reasonable to infer that the applicant needed support at nighttime for mobility, transfers, the use of facilities, support with any emotional and cognitive concerns and emergency assistance. As well, she accepted that the applicant’s cognitive impairments and emotional issues necessitated assistance with cuing and conversation to engage in self-care activities, as well as assistance with medication management and coordination of his service appointments. Based on these findings, and Adjudicator Punyarthi ordered Unica to pay the $6,000 catastrophic limit for attendant care from October 13, 2017 and ongoing with interest, less amounts already paid .

Home Modification

Unica accepted that some modifications to the applicant’s home were reasonable but had refused to fund the in-home elevator and therapy room proposed by the applicant. It proposed installment of a stairlift instead of an elevator and argued that an in-home therapy room would only serve to isolate the applicant from his community.

Adjudicator Punyarthi disagreed, noting that the same evidence that established the reasonableness and necessity of the applicant’s attendant care needs was persuasive for the home modifications sought. The evidence demonstrated that his impairments were worsening over time, and he was deconditioning with age. While a stairlift would provide access to the upper floor of the house, it did not allow the applicant to safely transport items with him including assistive devices.

Additionally, Mr. Baum for the applicant explained that incorporating a stairlift would make the stairs too narrow to meet the Ontario building code. Unica’s expert, Mr. Borthwick denied this non-compliance, but did not provide either evidence or a reference to another portion of the Code in support. When asked why he did not consider the possibility of including an elevator as an alternative, Mr. Borthwick simply explained that Unica’s consulting occupational therapist did not recommend those items.

Adjudicator Punyarthi accepted that a therapy room would provide the space and ability for the applicant to engage in exercises in the convenience and relatively quiet and familiar space of his home. Given his physical limitations, she recognized the utility and reasonableness of such a space for the applicant’s ongoing rehabilitation needs. This was particularly the case as the renovations required to install the elevator would create the space needed for the therapy room at the same time. She was not convinced by Unica’s expressed concern with isolation from the community that might result.

In view of these considerations and the uncontested evidence that home modification was much less expensive than purchasing a new home, the adjudicator ordered payment of the proposed amounts with interest.

Special Award

The applicant sought a special award with interest because Unica had unreasonably withheld or delayed payment of these benefits. While she recognized that Unica provided or agreed to provide at least partial payment for most of the disputed benefits, Adjudicator Punyarthi nonetheless found that there was a failure by Unica or its agents to ask the relevant questions about the applicant’s functional needs. She highlighted the fact that no investigation was performed to determine whether the level of care and accommodation identified in the applicant’s Form 1 was required - Unica’s OT confirmed that she did not explore questions concerning cuing, emotional support, or nighttime supervision. Similarly, Unica’s housing expert was not asked to comment on the feasibility of an elevator or therapy room. The adjudicator viewed these failures as unreasonable given Unica’s own finding that the applicant was catastrophic and had a Whole Person Impairment rating of 63%. It had the requisite information and reasonable basis to make further relevant inquiries into his functional needs when it received the Form 1 and home modification treatment plan but failed to do so.

Overall, Adjudicator Punyarthi found Unica’s partial denials of these benefits to be "imprudent, inflexible, and immoderate".As a result, she ordered a special award of 25% of the amounts awarded with interest.

Impact

This decision, including the significant special award, represents an outstanding result for the applicant. It shows the potential benefit of fighting meritorious claims to a hearing instead of giving in to an insurer’s pressure tactics, and of insisting on an oral hearing.

If you have been seriously injured in a car accident, and have questions about this decision, catastrophic impairment or your claim generally, we are pleased to offer a free consultation. Put Campisi LLP to work for you - Clients First, Excellence Always!