“Moving Expenses” May Be Recoverable Under Section 15
Author(s): David R. Neill
May 1, 2009
When an accident victim’s mobility is affected by injuries sustained in a motor vehicle accident, there is usually a need to assess the injured person’s living accommodation to determine whether home modifications are required.
The Statutory Accident Benefit Schedule (schedule), provides in section 15(5)(i), that a rehabilitation benefit is available to pay all reasonable and necessary expenses incurred by the insured person for home modifications to accommodate the needs of the insured person, or the purchase of a new home if it is more reasonable to do so. When reviewing section 15(5)(i), it should be remembered that the dominant purpose of the rehabilitation benefit is stated in section 15(2):
“The rehabilitation benefit shall pay for reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment or to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.”
It is with this purpose in mind that the expenses incurred by or on behalf of the insured person under section 15(5) should be considered.
It should also be remembered that there are limitations imposed on the home modification benefit as set out in section 15(7) and 15(8).
Section 15(7) provides that the expenses incurred to renovate the insured person’s home shall be deemed not to be reasonable and necessary, if the renovations are only for the purpose of giving the insured person access to areas of the home that are not needed for ordinary living.
Section 15(8) provides that the cost to purchase a new home shall not exceed the value of the renovations to the insured’s existing home that would have been required to accommodate the need of the injured person.
The issues arise when considering these sections can be troublesome and time consuming to resolve. What is reasonable? What is necessary? How do the suggested renovations seek to promote the stated purpose of section 15(2).
The reasonableness and necessity of any benefit will necessarily be fact specific. This is particularly true in cases involving the need for home modifications. An assessment of these needs must be undertaken by an occupational therapist, or other qualified health professional. The report or opinion prepared should spell out in detail why a particular modification is required having regard to the impairments of the individual.
The modifications which are identified by the occupational therapist, for example, should be reviewed by the insured person’s physician or perhaps a physiatrist, who has also assessed the insured, so that a medical opinion can be provided which supports the assessed needs having regard to the impairments which have been identified.
It is worth remembering that the purpose of the rehab benefit is to facilitate the insured person’s reintegration into his or her family, the rest of society and the labour market.
Once the needs of the injured accident victim have been determined it will be necessary to retain an expert with experience in designing accommodation for mobility impaired individuals. Usually, this will be an architect with the appropriate training and experience, who can review the opinions obtained concerning the insured’s impairment and then assess the present living arrangements to provide an opinion with respect to what modifications are reasonable and necessary and at what cost.
As noted above, section 15(5)(i), also provides for the purchase of a new home, if it is more reasonable to do so rather than renovate. It may be more reasonable to purchase a new home if the injured person’s accommodation is not amenable to renovation. For example, spinal cord injuries sustained by a person living in a multi level townhouse at the time of the accident presents serious challenges with respect to the cost of renovations. Perhaps the injured victim resides in a rental property and the landlord is not willing to dramatically change the design without some assurance that the property will be restored to its original unmodified design when it is no longer required by the insured person so that the marketability of the home can be maintained.
Moreover, there is the very serious limitation provided in section 15(8), which mandates that the rehabilitation benefit for the purchase of a new home shall not exceed the value of renovations to the insured’s existing home that would have been required to accommodate the needs of the insured person.
Notwithstanding section 15(8), it may be reasonable in some cases for the insured to purchase a new home and to then seek the additional cost involved in doing so, even though extensive renovations are not required.
This issue, among others, was considered by Arbitrator John Wilson, in Hill v. Coseco (2006) FSCO-A04-001991, in which Ms. Hill claimed reimbursement of approximately $60,000.00 in moving expenses incurred when she moved to a bungalow loft style home from her five storey townhouse.
Ms. Hill was injured in a car accident in 2000. The accident caused significant injuries and left her with mobility challenges and in particular difficulty climbing stairs. She could slowly climb stairs using the wall and railing for support and facing sideways to limit ankle flexion. Her mobility had been compromised to a significant degree in terms of her living accommodation but she was not restricted to a wheelchair.
Two expert reports were filed with FSCO with respect to the proposed renovations to Ms. Hill’s home at the time the accident happened.
The issue to be decided was whether the costs of the move were payable as reasonable and necessary measures undertaken by an insured person to reduce or eliminate the effects of any disability resulting from the impairment.
In order to gauge the reasonableness of the insured’s claim, Arbitrator Wilson, considered the cost of renovations to the existing home. The insurer’s contractor estimated the cost at approximately $30,000.00, in contrast to the insured’s experts who estimated the cost to renovate the existing home at approximately $198,000.00. Arbitrator Wilson preferred the detailed report of the insured’s experts and stated at page 11 of his reasons:
“While the $198,200 price tag for the renovations recommended by Adapt-Able may seem steep at first glance, the report provides solid support for most of its recommendations. It considers the challenging architecture of the house before deciding on a plan that juggles the usage of space and provides for a small addition to make an interior elevator a successful key to access to the principal rooms.”
Arbitrator Wilson determined that the cost estimate submitted by the insured was reasonable in all of the circumstances and should be the standard by which the compensable cost of moving into a new house should be measured pursuant to section 15(7) and (8) of the schedule.
At page 14, Arbitrator Wilson stated:
“…Consequently, I find the purchase of a bungalow-style home to address mobility issues to be reasonable in the circumstances. I also find that it is a cost-effective alternative to renovation, both in initial capital cost, and ongoing maintenance…”
The appeal from Arbitrator Wilson’s order was dismissed and his decision confirmed on October 17, 2007.
This case underlines the importance of obtaining detailed expert opinions with respect to the mobility needs of the insured and the extent of the renovations that are required. Even though the costs of renovation of the existing home are significant, it may well be that these costs can serve an appropriate standard against which to compare the cost of moving. It is also important to keep in mind that significant home modifications may be necessary even for those injured victims who are not confined to wheelchairs but nevertheless have serious mobility issues.
In cases where the purchase of a new home outright may well exceed the cost of home renovations, injured accident victims should not completely dismiss the idea of moving into another home. The moving costs associated with this (as in Ms. Hill’s case), may be less than the costs of renovation to original home and if these costs are reasonable they should be recoverable under section 15 of the schedule.