Licence Appeal Tribunal File Number: 23-013448/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Lauren Thompson
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Dagmara Szczudlo
APPEARANCES:
For the Applicant:
Brenda Hollingsworth, Counsel
For the Respondent:
Lori Marzinotto, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Lauren Thompson, the applicant, was involved in an automobile accident on August 19, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Definity Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $3,028.54 per month from September 26, 2022 to ongoing?
ii. Is the applicant entitled to $12,200.00 for apartment rental costs associated with an independent living trial proposed by Spark Life Care in an OCF-18 submitted February 14, 2024 and denied February 14, 2024?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to ACBs of $3,028.54 per month from September 26, 2022 to ongoing. The applicant is not entitled to payment for the time-period claimed because she has not proven that the benefits have been incurred.
4The applicant is not entitled to $12,200.00 for apartment rental costs associated with an independent living trial proposed by Spark Life Care.
5The respondent is not liable to pay an award.
6The applicant is not entitled to interest.
ANALYSIS
Background
7At age 19, the applicant was involved in an automobile accident. She was walking on a crosswalk and was struck by a right-turning vehicle that ran over both of her legs. She suffered fractures in her left ankle and foot and required surgery with an antiglide plate for the left ankle. The respondent’s assessors confirmed she sustained a catastrophic impairment because of marked impairments in three or more areas of function that preclude useful functioning under criterion 8. This catastrophic determination entitles the applicant to additional medical, rehabilitation, and attendant care benefits as well as case manager services as per s. 17 of the Schedule.
ACB
8I find that the applicant is entitled to ACBs of $3,028.54 per month from September 26, 2022 to ongoing. The applicant is not entitled to payment for the time-period claimed because she has not proven that the benefits have been incurred.
9Section 19(1)(a) of the Schedule outlines the legal test related to attendant care benefits. In order to establish that these benefits are payable, the applicant needs to prove the expenses are reasonable and necessary, and that the expenses are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility. The onus rests with the applicant to prove, on a balance of probabilities, that she is entitled to attendant care benefits.
10Section 3(7)(e) provides further guidance on when an expense is incurred:
i. the insured person has received the goods or services to which the expense relates;
ii. the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense; and,
iii. the person who provided the goods or services a) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or b) sustained an economic loss as a result of providing the goods or services to the insured person.
11Section 42(1) provides that an application for ACB must be in the form of, and contain the information required to be provided in the document entitled Assessment of Attendant Care Needs (“Form 1”). Section 42(5) provides that an insurer is not required to pay an expense for ACB which is incurred prior to a Form 1 being submitted to the insurer.
12The dispute regarding ACB is centered on two assessments of attendant care needs, one submitted on behalf of the applicant by Nicole Bezan, occupational therapist (“OT”) dated September 26, 2022 (“Bezan Form 1”) and one prepared on behalf of the respondent by Mohan Iyengar, OT dated February 1, 2023 (“Iyengar Form 1”). Both assessors agreed that the applicant requires ACB, however, came to different conclusions regarding the amount of care required as summarized in Table 1 below.
Table 1. Summary of Assessment of Attendant Care Needs Form 1s
Author of Form 1
Date of Form 1
Part 1 Total (min/week)
Part 2 Total (min/week)
Part 3 Total (min/week)
Monthly Cost of ACB
OT Assessor Comments
Stephanie Bosse
For applicant
December 9, 2019
810
1810
100
$2,363.67
N/A
Nicole Bezan
For applicant
September 26, 2022
1016
1884
396
$3,028.54
“I believe that the applicant's mental health was not adequately assessed, addressed, or considered in the Form 1 completed by Mr. Iyengar.”
Mohan Iyengar
For respondent
February 1, 2023
420
600
0
$880.77
“It is the opinion of this
therapist that she could be more independent in her care. She requires minimal ongoing attendant care for some hygiene activities, some security and comfort on a daily basis and in elaborate meal preparation.”
13The applicant submits that the Bezan Form 1 should be preferred because it is most consistent with the medical evidence and takes into consideration all of the applicant’s functional impairments including her psychological needs and relies on an affidavit from Nicole Bezan, OT sworn June 11, 2024.
14The applicant further submits that the respondent approved ACBs based on the lower estimates outlined in the Iyengar Form 1 and imposed a condition that “hourly rates shall not exceed the hourly rate outlined in this form”. The respondent’s limitation on the hourly rates prevents the applicant from accessing any external attendant care support despite the ACB ‘approval’ and her demonstrated need.
15The applicant relies on S.K. v. Aviva Insurance, 2020 CanLII 94803 (ON LAT), to argue that the maximum hourly rates referenced on the Form 1 are only used to calculate the quantum of the monthly benefit. The applicant also relies on a statement from Russ Courtney (Financial Services Regulatory Authority of Ontario “FSRA” spokesperson) to CTV News on behalf of FSRA. In an article published February 15, 2023, Mr. Courtney clarified that "FSRA's guidelines do not set an hourly wage”, and he encouraged those impacted by the insurance practice of using the hourly rates instead of the monthly rate to file a complaint with FSRA. He was critical of Economical Insurance’s practice and stated, "the insurer would be incorrectly interpreting the Statutory Accident Benefits Schedule". The applicant seeks an order confirming that her entitlement to monthly attendant care benefits up to the amount of $3,028.54, regardless of the hourly rate charged by the external service provider.
16The respondent submits that since the accident, the applicant has not submitted any invoices for attendant care nor incurred any attendant care services. The respondent argues that they have not refused to pay ACB as alleged by the applicant, but instead the applicant presumed that properly incurred and invoiced attendant care services would not be paid and has not submitted any invoices since the accident. The respondent relies on Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603, and argues that the Divisional Court has ruled that there is nothing unlawful or unfair about paying below market hourly rates for attendant care benefits under the Schedule, and this Tribunal is bound by that decision. The respondent also submits that neither the Guideline nor any applicable legislation empowers this Tribunal to order insurers to pay above the maximum prescribed hourly rates.
17In reaching the conclusion that the applicant is entitled to ACBs of $3,0284.54 per month I have considered the Form 1s before me and reached the following conclusions.
18First, I prefer the Bezan Form 1 over the Iyengar Form 1 because the ACB assessment in the Bezan Form 1 includes both physical and psychological aspects of proposed care which aligns with Dr. Suddaby’s psychiatric CAT assessment report and the appellant’s catastrophic designation under Criterion 8. This criterion encompasses impairment resulting from accident-related mental or behaviour disorders, and it does not include physically based impairments. I find that although Mr. Iyengar acknowledges in his report that “she seemed to have not fully recovered from her psychological issues”, his report focuses on physical needs and does not acknowledge the need for ACB support to address non-physical aspects of care.
19Second, I find the Iyengar Form 1 to underestimate the applicant’s needs in comparison to the other Form 1s submitted because of its failure to account for complex functions. Further, I am not persuaded that the applicant’s condition or needs have changed significantly during the time the assessments were completed to warrant such a significant reduction in proposed care. Since there was a prior Form 1 submitted for the applicant, I reviewed the ACB assessment submitted by Stephanie Bosse dated December 9, 2019 and the respondent’s explanation of benefits (“EOB”) dated December 11, 2019. While the estimates vary, assessments of ACB outlined in the Bosse Form 1 are closer to those of the Bezan Form 1 than the Iyengar Form 1. Both Bosse and Bezan agree that the applicant requires attendant care for routine personal care, basic supervisory functions, and for complex care and hygiene functions. The Iyengar Form 1 does not include any allowance for complex functions, and I find this omission to be indicative that not all of the appellant’s needs were considered during the assessment, particularly as the applicant is designated as catastrophically injured under Criterion 8.
20I also compared both EOB letters from the respondent which were issued in response to Form 1s. The first EOB dated December 11, 2019, did not include a disclaimer regarding hourly rates that was included in the last EOB dated April 4, 2023 based on the Iyengar Form 1. I find this to be significant because it highlights an unexplained departure from a previous practice by the respondent. Not only were the respondent’s assessor’s estimates significantly below prior ACB assessments, but this statement effectively limited the rates for the services to rates which are significantly below the current provincial minimum wage as follows:
Table 2. Summary of rates used in calculation of attendant care costs
Level 1 attendant care
Level 2 attendant care
Level 3 attendant care
Current Ontario Minimum Wage (effective October 1, 2025)
Rates used in calculation of attendant care costs in Iyengar Form 1
$13.19
$11.25
$19.35
$17.60
Maximum rates used in FSCO Superintendent’s Guideline No. 01/18, Last modified: April 19, 2018
$14.90
$14.00
$21.11
N/A
21Although the respondent cites the Divisional Court decision in Malitskiy v. Unica Insurance Inc., 2021 ONSC 4603, I find that case to be distinguishable for two reasons: first, the current factual basis differs and, in my view more importantly, the decision references an earlier Superintendent’s Guideline No. 03/10 (Attendant Care Hourly Rate Guideline) dated June 2010, which has been superseded.
22I am persuaded by the FSCO Superintendent’s Guideline No. 01/18 (Attendant Care Hourly Rate Guideline) and Bulletin A-03/18, which state that the maximum hourly rates are only required to calculate the monthly attendant care benefit for the purposes of the Form 1, and not to strictly apply the maximum hourly rates as the maximum payable for attendant care services (my emphasis added):
The maximum hourly rates to be used with the Assessment of Attendant Care Needs (Form 1) to calculate the monthly attendant care benefit payable are set out below. Once a notice to the insured person has been issued pursuant to s. 42(3) or s. 42(13) of the SABS, insurers shall use the resulting monthly attendant care benefit amount to pay the benefit.
Previous guidelines could be interpreted to strictly apply the maximum hourly rates as the maximum payable for attendant care services, rather than using the hourly rates to calculate a monthly benefit as was originally intended.
23I find that the respondent is in violation of the FSCO Superintendent’s Guideline No. 01/18 (Attendant Care Hourly Rate Guideline) and Bulletin A-03/18 in imposing a condition that “hourly rates shall not exceed the hourly rate outlined in this form”. As a result, the respondent is ordered to fund the full Form 1 quantum of $3,028.54 per month, irrespective of the hourly rates billed by ACB providers.
24As I have concluded that the applicant is entitled to ACB as per the Bezan Form 1, I must now determine whether ACBs are payable. The respondent argues that since the accident, the applicant has not submitted any invoices for attendant care nor incurred any attendant care services. The appellant submitted that attendant care is being provided by Ms. Thompson’s mother and acting as a caretaker for a young adult placed additional strain on the relationship between mother and daughter. On a balance of probabilities, I agree with the applicant and find that ACB have been provided, however, they have been uncompensated to date. Nevertheless, in considering s. 19 which requires ACB to be incurred, and s. 3(7) which defines ‘incurred’, I find the applicant is not entitled to payment for ACB provided by her mother for the time-period claimed because she has not proven that her mother sustained an economic loss as a result of providing ACB to the applicant.
25For the above-noted reasons, I find that the applicant is entitled to ACBs of $3,028.54 per month from September 26, 2022 to ongoing as proposed in a Form 1 submitted by Nicole Bezan. The applicant is not entitled to payment for the time-period claimed because she has not proven that the benefits have been incurred.
Apartment rental costs for an independent living trial characterized as a rehabilitation benefit
26The applicant is not entitled to $12,200.00 for apartment rental costs associated with an independent living trial proposed by Spark Life Care.
Is the treatment plan reasonable and necessary?
27The treatment plan for $12,200.00 for apartment rental costs is not reasonable and necessary, nor does it meet the definition of a rehabilitation benefit.
28To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
29To receive payment for a rehabilitation benefit under s. 16 of the Schedule, the applicant bears the burden of demonstrating that the expenses first fit within the definition of a rehabilitation benefit as outlined in s. 16(3) and secondly, be reasonable and necessary.
30The applicant is seeking a monthly rental allowance in the amount of $1,000.00 per month for a period of twelve (12) months (in addition to an OCF-18 fee) and submits that this treatment plan is to rent the independent basement unit within the family home to alleviate the negative effects of a strain in the relationship between the applicant and her mother, address her developmental need for independence, and address housing instability experienced by the applicant as a result of conflict with her primary care giver.
31The applicant further submits that this independent living trial is a rehabilitation benefit and is reasonable and necessary for the purposes of reducing the effects of any disability resulting from the applicant’s impairments and to facilitate her reintegration into her family and the rest of society.
32The respondent submits that the rental allowance/independent living trial is not reasonable and necessary. Had the accident not occurred, the applicant would still be required to pay for her own housing accommodations if she wanted independent living.
33I am not persuaded that the apartment rental costs associated with an independent living trial are reasonable and necessary, nor meet the criteria outlined in s.16(3) to be classified as a rehabilitation benefit. The activities and measures described in subsection 3 refer to counselling, training, home, work or vehicle modifications or devices to assist the injured person to reduce or eliminate the effects of the disability or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market. While it is arguable that an independent living space may assist in the applicant’s “reintegration with her family” (viz. her strained relationship with her mother), I find that s. 16(3) does not contemplate paying rent. The closest, related head of rehabilitation benefit may be in s. 16(3)(i) but that refers to home modification, home devices or the purchase of a new home in lieu of renovating an existing home. I find that the treatment plan submitted does not provide an estimate of expenses that would be required to set up an independent unit for the applicant and instead requests a sum for a rental allowance. I agree with the respondent that the applicant is responsible to cover her own living expenses, particularly since after the trial is complete, the intention is for the applicant to move to independent living facilities (own apartment) as stated by Ms. Bezan in her Justification Memo dated February 12, 2024.
Is the denial of the treatment plan compliant with s. 38 (8)?
34The EOB for the treatment plan for $12,200.00 for apartment rental costs is compliant with s. 38 (8).
35To receive payment for a treatment plan due to s. 38 (8) non-compliance, the applicant bears the burden of demonstrating that one or more procedural requirements on an insurer after receiving a treatment (or assessment) plan have not been met.
36Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
37The applicant submits that the respondent’s response to this treatment plan does not conform to the requirements of section 38(8), as no medical reason was provided as to why the independent living trial is not reasonable or necessary.
38The respondent submits that the explanation of benefits (“EOB”) with respect to the rental allowance is not deficient and complied with s. 38(8) of the Schedule in providing clear and sufficient details in the denial to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. The respondent relies on Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, in which the Court of Appeal confirmed that an insurer is not always required to provide a medical reason. An insurer may rely on non-medical reasons under s.38 to deny payment of benefits sought and is not required to fabricate a medical reason.
39I find the EOB responding to the proposed apartment rental costs/ independent living plan meets the procedural requirements outlined in s. 38(8) as follows, because the respondent:
i. Responded to the treatment plan within 10 business days of receipt;
ii. Clearly stated that the proposed benefits are not approved; and
iii. Provided reasons why using the additional comments field as follows: “The proposed treatment plan for rent does not appear reasonable or necessary nearly 8 years post accident as you were discharged from the hospital years ago, and you would otherwise be responsible to cover your own living expenses without being involved in a motor vehicle accident”.
40Based on the nature of the proposed services, I find that the Court of Appeal direction in Varriano applies in these circumstances and the respondent was not obligated to fabricate a medical reason in responding to a treatment plan for a rent allowance. The denial provided an adequate explanation such that an unsophisticated person can make an informed decision to either accept or dispute the insurer’s decision.
41For the above-noted reasons, I find that the applicant is not entitled to apartment rental costs associated with an independent living trial as it is not a rehabilitation benefit under section 16(3) of the Schedule. I further find that the treatment plan is not payable pursuant to s. 38(11) of the Schedule as the respondent’s denial was compliant with s. 38(8).
Award
42I find the applicant is not entitled to an award for the following reasons.
43The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
44The applicant submits that the respondent has taken an unreasonable position regarding the payment of ACB, its actions consciously contravened FSCO Superintendent’s Guideline No. 01/18, and its failure to produce the unredacted adjuster notes related to the denial of rent allowance treatment plan is a further ground for the special award.
45The respondent counters that that the applicant is not entitled to an award under s.10 of Reg. 664 and cites S.M. v. Unica Insurance Inc., 2020 CanLII 61460 which states that in order to attract an award, the conduct must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.
46Although I agree that the respondent contravened the FSCO Superintendent’s Guideline No. 01/18, the associated ACBs were approved, albeit at a reduced monthly quantum reflected in the Iyengar Form 1. Although the applicant disagreed with some of the decisions made by the respondent, a mere denial of a claim is not in itself an act that rises to the level of being “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.
47I find that the applicant is not entitled to an award in this matter because I am not persuaded that the respondent’s actions rise to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour.
48The applicant is not entitled to an award under s. 10 of Regulation 664.
Interest
49Given there are no benefits incurred or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
50The applicant is entitled to ACBs of $3,028.54 per month from September 26, 2022 to ongoing. The applicant is not entitled to payment for the time-period claimed because she has not proven that the benefits have been incurred.
51The applicant is not entitled to $12,200.00 for apartment rental costs associated with an independent living trial proposed by Spark Life Care.
52The respondent is not liable to pay an award.
53The applicant is not entitled to interest.
Released: December 17, 2025
Dagmara Szczudlo
Adjudicator