Individuals who are injured in motor vehicle accidents in Ontario are usually entitled to statutory accident benefits (“accident benefits”). As one would expect, those injured parties often face a number of barriers as they attempt to recover from their accident related injuries and hopefully return to their pre-accident level of function. One situation that injured people often face is the prospect of being discharged from a care facility and having to return to a home, vehicle or workplace which is neither suitable nor accessible to a newly disabled person. The Ontario Legislature therefore included home, work and vehicle modifications/renovations as part of the important benefits that are available to injured parties in Ontario through the accident benefits regime.
This paper will detail the types and scope of accident benefits that are available for home, work and vehicle modifications and renovations. It will also review the process and evidence required in order to obtain these benefits on behalf of injured clients and lastly it will examine the issue of betterment as it relates to accident benefits.
As mentioned above, subject to some restrictions, the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”)1 provides that individuals injured in Ontario car accidents can receive accident benefits, usually from their own car insurer. Accident benefits are available to replace a variety of potential losses such as lost salary, attendant care expenses, medical and rehabilitation costs as well as death and funeral expenses.
Section 16 of the SABS provides that all reasonable and necessary rehabilitation expenses are to be paid in order to reduce or eliminate the effects of an accident-related disability. Home renovations, home devices, workplace and vehicle modifications all represent items which may be claimed under section 16 of the SABS as a rehabilitation benefit.
- WHAT BENEFITS ARE AVAILABLE?Section 16(3) (h) of the SABS provides that the insurer must pay for all reasonably and necessary workplace modifications and workplace devices, including communication aids, to accommodate the needs of the injured person.Section 16(3) (i) of the SABS further stipulates that an insurer must pay the injured person for all reasonable and necessary home modifications and home devices, including communication aids. Moreover, s. 16(3)(i) also provides for the purchase of a new home for the injured person if it is more reasonable to purchase a new home to accommodate the injured person’s needs than to renovate his or her existing home. The caveat being that, the amount of the benefit for the purchase of a new home shall not exceed the value of the renovations to the injured person’s existing home that would be required to accommodate his or her needs.2 If the existing home is incapable of being modified the only cap on the amount available to purchase a new home is the available policy limits for this category of benefits.3With respect to automotive transportation, Section 16(3) (j) states that the insurer must pay for all reasonable and necessary vehicle modifications to accommodate the needs of the injured person, or the purchase of a new vehicle if it is more reasonable to purchase a new vehicle to accommodate the needs of the injured person.
- HOW MUCH MONEY IS AVAILABLE FOR THESE BENEFITS?Two notable types of accident benefits are medical and rehabilitation benefits (“med/rehab benefits”). In general, med/rehab benefits are designed to pay for all reasonable and necessary accident related expenses incurred for medical and/or rehabilitation purposes. As noted previously home, work and vehicle modifications and renovations all fall under the heading of rehabilitation benefits; however for the purpose of determining available insurance policy limits med/rehab benefits are always considered as a unit. If the injured person did not suffer a catastrophic impairment as defined in the SABS4 the maximum amount he or she is eligible to receive for med/rehab benefits is $50,0005 over a maximum of 10 years.6If the injured person did suffer a catastrophic impairment the available med/rehab benefits increase to $1,000,0007 and the benefits are payable over the injured person’s lifetime.
- HOW ARE THESE BENEFITS ACCESSED?Provided that the injured person has already successfully applied to the insurer for accident benefits, the first step in obtaining modifications for the client is to refer him or her for a home-site and/or work-site assessment.Home-site and work-site assessments provide realistic suggestions for the injured person to live and work effectively in their homes and workplaces. The assessments should be focused on returning the injured person to their pre-accident level of function as quickly, safely and cost-effectively as possible. It should be noted that injured people who have suffered catastrophic or other serious injuries may require additional assessments. Those assessments may include a housing accessibility report or an alternative housing report, both of which are explained below.The insurer will generally pay for the home-site and work-site assessments but they must be approved in advance. The injured party must have a regulated health professional8 complete an “OCF-18: Treatment and Assessment Plan” (“OCF-18”)9 and submit it to the insurer in order to obtain funding for these assessments. An occupational therapist or case manager10 will often be the person to complete the OCF-18; however these forms can be completed by any regulated health professional including a chiropractor or family doctor. Once the insurer has approved the OCF-18, the assessments can take place.Once the assessments have been completed and the reports have been received, the next step, if required by the insurer, is to have a regulated health professional complete another OCF-18 which attests that the requested renovations and modifications are both reasonable and necessary to accommodate the injured person’s needs.11 If the insurer insists on an OCF-18, it is common practice to attach a quote from a contractor outlining the cost for completing the proposed work to the OCF-18. If the insurer accepts that the recommended renovations/accommodations are reasonable and necessary to accommodate the injured person’s needs, it will approve funding for the work and the renovations/modifications can begin.12
- EVIDENCE REQUIRED: LESS SEVERE INJURIESIf the client has suffered soft tissue or other relatively minor injuries and the recommended renovations and accommodations are likely to be comparatively modest, it is wise to refer him or her to an occupational therapist in order to complete a home-site and/or work-site assessment.A home-site assessment would include an assessment of pre-injury activities of daily living including: personal care, housekeeping, home maintenance and/or care giving tasks maintenance. The OT should also provide a breakdown (including cost) of recommended assistive devices, home modifications and simple home renovations (e.g. removing carpet to allow for use of a wheelchair) in his or her report.A work-site assessment will provide a review of the physical and mental demands of a particular job and provide recommendations which, if necessary, should include workplace modifications. The assessment should also include an estimated cost of the proposed modifications.The benefit of having an occupational therapist perform these types of assessments is that the cost of the assessments are relatively low and the injured party will likely be able to use the assessments to access a variety of benefits.
Provided that the recommended renovations included in the home-site and work-site assessments represent the total amount of renovations and other accommodations required to meet injured party’s needs, simply attach the completed assessments, along with an estimate from a contractor, to a completed OCF-18 and submit it to the insurer for approval.
- EVIDENCE REQUIRED: CATASTROPHIC AND OTHER SERIOUS INJURIESIf the client is seriously injured and will require substantial home modifications (such as ramps, elevators and/or additions to his or her home) it is essential to refer the injured person, in addition to the above noted reports, for a home accessibility report (“HAR”).A HAR is focused only on the client’s housing needs and what modifications will be required to allow them to live comfortably in their home. The HAR should include an outline of the client’s housing requirements, as they relate to his or her reported functional abilities, a description & photographs of the client’s existing residence, and an outline of the disability-specific home modifications/renovations that would be necessary to fulfill the client’s housing requirements at his or her existing residence. The HAR should also include estimated budget costs and plans/diagrams of the proposed renovations. The report will often have to deal with issues such as complying with local municipal by-laws, obtaining variances and construction specific issues that simply cannot be addressed by an ordinary occupational therapist. There are a number of well-known companies in Southern Ontario that produce these reports. These companies often offer design/build services and they can often perform the renovations once they have been approved.Once the HAR has been delivered and a decision has been made to go ahead with the proposed renovations, the injured person must submit an OCF-18 to the insurer and wait for approval prior to commencing the renovations.
- A NEW HOME?Once the HAR has been delivered, a decision will need to be made to determine whether the proposed renovations to the house are in fact the best method to accommodate the injured person. It may be more feasible to simply purchase a new home for the injured person rather than try to renovate the existing one.Some issues that can lead to the decision to purchase a new home rather than renovate are:
- the injured person is renting his/her existing home;
- the recommended renovations will be prohibitively expensive;
- the recommended renovations will require extensive variances from local municipal authorities;
- the injured person is young and was still living with his/her parents prior to the accident; or
- the location of the injured person’s pre-accident home is no longer convenient for the injured person as they now need to be close to expert treatment providers in the Toronto area (e.g. spinal cord specialists).
If the decision is made to explore the purchase of a new home, the company that prepared the HAR can prepare a follow-up alternative housing report (“AHR”) to identify alternative housing options that could provide the injured person with a more feasible housing solution. The AHR would then be submitted to the insurer and an OCF-18 would be completed in order to obtain insurer approval for the purchase of a new home.
The difficulty with asking the insurer to purchase a new home is that, as mentioned previously, the amount that the insurer is required to pay for a new home is capped at the amount that it would have had to pay to renovate the existing home. If the HAR determines that the existing home is not capable of renovation then the maximum available to purchase a new home is either $50,000 or $1,000,000 depending on whether the injured person has suffered a catastrophic injury.13
Assuming that the existing home can be modified, if the client is otherwise impecunious and lives in the Toronto area14 , it is often difficult if not impossible to find an affordable home that can be purchased for the amounts available from the accident benefits insurer.
- BETTERMENT & INCREASE IN HOME VALUEThe issue of betterment is related to whether the proposed renovations are reasonable and necessary in order to accommodate the injured person’s impairments. If the insurer agrees that the proposed renovations are reasonable and necessary in order to accommodate the injured person’s needs then it does not matter if the renovations leave the injured person’s house significantly better than before the person was injured.Likewise the insurer has no right to demand a portion of the sale price of the home if the injured person later sells the home and it has increased in value as a result of renovations paid for pursuant to s. 16 of the SABS.However if the injured person wishes to complete renovations that are unrelated to accommodating their injury at the same time as s.16 work is being done (e.g. upgrading electrical wiring) he or she will be responsible for those costs.
In summary, Section 16 of the SABS provides that all reasonable and necessary rehabilitation expenses are to be paid in order to reduce or eliminate the effects of an accident-related disability. These expenses can include home renovations, home devices, and workplace and vehicle modifications. It is important to have the injured clients assessed by competent professionals in order to assess what their reasonable and necessary needs are for work, home and vehicle renovations/modifications and to then vigorously pursue the insurer in order to ensure that those needs are met.
- Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended, made under the Insurance Act, R.S.O. 1990 c. I.8, as amended.
S. 16(4)(c) of the SABS
See Wynn v. Belair Direct  O.J. No. 4180 (S.C.J.) This is disputed by insurers. Please see J.S. v Guarantee Company of North America (FSCO A09-000442. June 23, 2010)
S. 3(2), 3(3), 3(4), 3(5) and 3(6) of the SABS
Provided no optional benefits have been purchased. Optional benefits can increase the maximum amount of med/rehab benefits to $100,000 pr $1,100,000 for non-catastrophic injuries and $2,000,000 for catastrophic injuries.
Or up to age 25 if the injured person was less than 15 years old on the date of the accident.
Again assuming no optional benefits have been purchased.
Including chiropractor, dentist, massage therapist, nurse practitioner, occupational therapist, optometrist, physicians, physiotherapist, psychologist, social worker or speech language pathologist.
OCF Forms are the standard forms required for use when applying or accessing accident benefits. All OCF forms are available at: http://www.fsco.gov.on.ca/english/forms/autoforms/claims
Provided he or she is a nurse practitioner, social worker or other regulated health professional.
Often the insurance adjuster will not require a treatment plan once they have received the work-site or home-site assessment report provided that they agree that the requested renovations/accommodations are reasonable and necessary to accommodate the injured person’s needs.
If the insurer denies that the recommended renovations/accommodations are reasonable and necessary this could lead to an s.44 insurer examination followed by a rebuttal examination and mediation at FSCO. If the mediation fails the next step is to either apply for arbitration with FSCO or to commence a lawsuit.
Again assuming no optional benefits have been purchased.
Where the cost of a new home averages over $300,000.