Licence Appeal Tribunal File Number: 24-005440/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:
Christopher Dumas
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Domenic Pellegrino, Counsel
Tricia McAvoy, Counsel
For the Respondent:
Robert P. Bowman, Counsel
Court Reporter:
Anne Geuzebroek, Professional Court Reporters
HEARD: by Videoconference:
March 24, 25 and 26, 2025
OVERVIEW
1Christopher Dumas, the applicant, was involved in an automobile accident on August 29, 2022, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue in dispute is:
i. Is the applicant entitled to an attendant care benefit (“ACBs”) in the amount of $6,000.00 per month from February 28, 2025 to date and ongoing?
3Prior to the hearing, the parties resolved all of the other issues outlined in the Tribunal’s case conference report and order.
RESULT
4I find the applicant has established entitlement to ACBs in the amount of $2,724.28 per month from February 28, 2025, to date and ongoing.
BACKGROUND
5In October 2019, the applicant was involved in a logging truck accident in which he was diagnosed with a concussion, a right wrist impairment, post-traumatic stress disorder and depression. The accident took place while the applicant was at work, so he was receiving Workplace Safety Insurance Board (“WSIB”) benefits when the accident occurred. The medical records and reports in the WSIB file establish that he was limited in carrying out his activities of daily living and that his partner was doing the cooking, cleaning and grocery shopping. The applicant also complained of significant cognitive decline and memory issues following this accident.
6On August 29, 2022, the applicant was involved in the subject accident when his motorcycle collided with a vehicle. He was thrown from his motorcycle and went head-first into the other vehicle’s windshield. He was transported to hospital where he was diagnosed with a mild complicated traumatic brain injury (“TBI”), left leg and ankle fracture, dislocated left shoulder and soft tissue injuries to his cervical and lumbar spine. He underwent surgical intervention for the left leg and ankle fractures and remained in the hospital for three weeks. The healing of the applicant’s left leg fracture was delayed because he had a wound infection which required a second surgery in February 2023. Following this accident, the applicant has had significant issues with mobility because of his left leg impairment and is limited with prolonged standing and walking. He relies on a cane for inside mobility and an electronic scooter for accessing the community. He has also reported significant decline in his memory and cognition following this accident. As of the date of the hearing, the applicant also has ongoing pain and functional limitations pertaining to his left shoulder impairment.
7The applicant purchased optional benefits which increased his access to ACBs from $3,000 per month for non-catastrophically impaired individuals to $6,000 per month. Prior to the hearing, the respondent conceded that the applicant was entitled to $6,000.00 per month in ACBs up until February 27, 2025. Consequently, the time period in dispute for his entitlement to ACBs was narrowed from February 28, 2025, to date and ongoing.
ANALYSIS
8The applicant has established that he is entitled to $2,724.28 per month in ACBs from February 28, 2025, to date and ongoing.
9Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an occupational therapist (“OT”) sets out the services and amount of care an individual requires as well as the monthly amount payable.
10Both parties agree that the applicant requires ACBs, however, there is a significant disagreement regarding the amount. The applicant relies on the attendant care assessment report and Form 1 prepared by Jory Spring, occupational therapist (“OT Spring”) dated December 8, 2022, who determined that he needs $10,718.87 per month in ACBs, which amounts to 24-7 supervision. The respondent relies on the report and Form 1 of Christina Phillips (“OT Phillips”) dated October 9, 2024, who recommended $1,743.25 per month, which is just under four hours per day. It also relies on the ACB report of Dr. West, neuropsychologist from the same date who determined that the applicant does not require ACBs as a result of any neurocognitive impairment.
11The applicant argues that he requires 24-7 supervisory ACBs because of his accident-related physical, psychological and cognitive impairments. He submits that he lacks motivation to get out of bed every day to carry out his basic needs and requires significant assistance to prompt, motivate and supervise him in carrying out his daily activities. He contends that he requires almost 24-7 supervision daily for safety reasons. For example, he has repeatedly left the stove on and has burnt food, loses his phone, misses appointments and is a safety risk for falling. The applicant maintains that he is a danger to himself if left unsupervised. The applicant testified on his own behalf, as did his mother, his partner and OT Spring.
12The respondent submits that the applicant does not require 24-7 supervision as he has both the physical and cognitive functional capacity to respond in an emergency and carry out most of his daily activities. It also asserts that the applicant is not a safety risk and has the ability to call 911 and exit his house in the event of an emergency. Further, he can ride a scooter and independently access the community which involves some degree of cognitive capacity. Consequently, 24-7 supervision is not required. The respondent relied on the testimony of OT Phillips and Dr. West. I will first address whether the applicant requires 24-7 supervision and then I will discuss my findings regarding the amount of ACBs I find to be reasonable and necessary.
The applicant does not require 24-7 supervision.
13I find that the applicant does not require 24-7 supervision for the following reasons.
14The applicant, his mother and partner all testified that the 2022 accident caused the applicant’s cognitive decline, memory issues and resulting functional limitations. They all submit that in the six months prior to the 2022 accident the applicant was on the mend and was getting ready to return to work. Of note, there was no medical evidence relied upon to support this. Also of significance, the WSIB report of Dr. Slonin, neuropsychologist dated January 21, 2025 (which took place shortly before this hearing) both the applicant and his partner attributed the 2019 accident to his cognitive and memory issues and advised the doctor that the 2022 accident had no impact.
15During cross-examination, the applicant and his partner were asked about the WSIB medical records and reports, and they denied that they made these statements to the doctor and that it was the doctor who made the mistake. I do not accept their explanation for these inconsistencies and as a result I find their testimony regarding the applicant’s cognitive decline and memory issues following the subject accident unreliable. Despite this, I do find that the pre-accident medical records in the WSIB file show that the applicant was functioning at a much higher level as he was independent with self care, he could drive, he did not have any issues with mobility or the impairment to his left shoulder which has resulted in functional limitations.
16Overall, I find limitations in the opinions and reports of both parties’ OT assessors. For example, OT Spring’s assessment and Form 1 is outdated as it was completed in December 2022 when the applicant was unable to bear weight on his left leg. During this time, the applicant was experiencing decreased mobility because of a wound infection in his left leg, which required additional surgical intervention in February 2023. In addition, the hospital records from the fracture clinic establish that in January 2024 the applicant’s left leg was stable. Consequently, I find the amount of ACBs recommended by the OT Spring does not likely represent his current function. In contrast, OT Philip’s assessment took place in a rented office space and lacked the benefit of observing the applicant in his home environment. As a result, I find that OT Phillips did not have a full picture of the barriers the applicant encounters within his home.
17OT Spring testified that the applicant requires 24-7 supervision because he lacks the ability to respond in an emergency because of his physical, cognitive and psychological impairments. Following the accident, the applicant moved in with his mother who lives in a two-storey home. A hospital bed was set up on the main floor, however, the only bathroom in the home is located on the second floor. OT Spring stated that based on his observations if the applicant is on the top floor when an emergency occurs, he would need assistance to get out of the home in a timely manner because of his left leg impairment and challenge navigating stairs. He is also known to leave his cane upstairs. OT Spring also testified that he has showed up at the applicant’s home for appointments on three occasions and had to wait 20 minutes for the applicant to get to the door because he had been sleeping on the top floor. He also submits that the applicant is a significant risk of falling because of his left leg impairment and has had several near falls and one fall resulting in an injury to his right hand.
18OT Spring acknowledged that the applicant has the ability to call 911, however, he has lost his phone several times or his phone has been cut off for failing to remember to pay his bill. His family members have also reported safety issues with the stove because the applicant has burned food or left the stove on. OT Spring also testified that the applicant has a lot of issues with memory as he missed 20 OT treatment sessions. Further, during a situational assessment done in 2024, he had to repeat instructions several times for the various tasks assigned. Further, the applicant has been verbally aggressive towards him, lashes out and almost collided with people while riding his scooter during this assessment.
19I find OT Springs Form 1 and assessment outdated because it was completed during a time when the applicant required more care because of the delayed healing and subsequent infection of his left leg impairment. What I find lacking in this matter is a medical opinion from a doctor to support that the applicant requires 24-7 supervision because of any physical, cognitive, or psychological impairment. Further, the medical evidence I have before me does not support that he requires 24-7 supervision. For example, the recent report of Dr. Slonim, referenced above stated that the applicant’s “tests of executive functioning was mixed, his ability to know when to do what and why has not deteriorated as a result of the work-related and subsequent injury.” I find that this report does not establish that the applicant requires 24-7 supervision because of any accident-related neurocognitive disorder. Nor do any of the post-accident hospital records note any concerns with the applicant’s inability to respond in an emergency from a physical perspective.
20In contrast, Dr. West testified that there was no reliable evidence of a neurocognitive impairment because of validity issues in the applicant’s neuropsychological testing. Dr. West clarified that this does not mean the applicant was purposely being dishonest or malingering but that he did not put forth sufficient effort for the doctor to form a reliable diagnosis. The applicant did not submit any evidence to refute Dr. West’s opinion. In light of my findings regarding the reliability of the applicant and his partner’s testimony, I find an opinion from a doctor regarding the applicant’s cognitive decline would have been helpful.
21I find that the applicant has the ability to respond in an emergency given that he testified that he would call 911 in the event of a fire or emergency. I also find the evidence about him sleeping on the second floor inconsistent because both the applicant and his mother testified that he sleeps on the main floor of the home. The applicant also splits his time at his partner’s residence which is located on the main floor of an apartment building which does not have the same barriers as his mother’s home. I also find the evidence regarding how much time the applicant spends between the two residences to be vague and unclear.
22In addition, I note that the applicant is able to drive his scooter to access the community which requires a degree of cognitive ability. Although I acknowledge that the applicant sustained serious impairments because of the accident which has resulted in functional limitations, I was not presented with any persuasive medical evidence for the time period in dispute that he requires 24-7 supervision.
23I will now address the amount of ACBs I find to be reasonable and necessary based on both parties’ Form 1s. Because of the limitations of both parties’ assessments, I have taken a practical approach based on the testimony of the witnesses and medical evidence before me in determining the applicant’s entitlement. The chart below summarizes my findings based on the number of minutes per week for the levels of care and my rationale follows.
Applicant Form 1
OT Spring
Respondent
Form 1
OT Phillips
Tribunal’s
Finding
Level 1
minutes/week
minutes/week
minutes/week
Dressing/undressing
280
56
140
Grooming
35
30
30
Feeding
420
315
420
Mobility
840
210
420
Extra laundering
0
60
60
Total:
1575
571
1070
Level 2
minutes/week
minutes/week
minutes/week
Bathroom hygiene
280
35
35
Bedroom hygiene
35
35
35
Ensure comfort & safety
70
630
630
Clothing
0
70
70
Basic Supervisory Care
7814.8
0
240
Coordination of AC
420
0
60
Total:
8584.8
770
1070
Level 3
minutes/week
minutes/week
minutes/week
Exercise
0
0
0
Skin care
0
0
0
Monitor medication
70
0
0
Bathing
210
28
210
Maintenance
0
140
140
Supervision
0
0
0
Total:
280
168
350
Level 1
Dressing
24OT Spring recommended 40 minutes per day, seven times a week to assist the applicant with dressing and undressing the upper and lower extremities for a total of 140 minutes per week. OT Philips proposed eight minutes per day, seven times a week for assistance with this task. I find the amount endorsed by OT Phillips insufficient because the applicant testified that he has difficulty putting on shirts because of his left shoulder impairment and he has issues dressing his lower extremities because of his left leg impairment and issues with balance. At the same time, I find the amount proposed by OT Spring excessive because the applicant has some compacity to dress himself. Consequently, I find 20 minutes per day, seven times per week to be reasonable for assistance with this task.
Grooming
25OT Spring recommended 35 minutes once per week to assist the applicant with shaving. OT Philips recommended that the applicant receive 10 minutes two times a week for assistance with shaving and 10 minutes once a week for assistance with toenail care. I prefer the amounts proposed by OT Philips as I find that the amount of time allotted is more practical for assistance with these tasks.
Feeding
26OT Spring recommended 60 minutes per day seven times a week for assistance with feeding for a total of 420 minutes per week, whereas OT Philips recommended that the applicant requires 45 minutes per day seven times a week. I prefer the amount recommended by OT Spring because of the applicant’s left leg and shoulder impairment. The applicant’s ability to stand for prolonged periods is limited. I find his mobility issues and left shoulder impairment would limit his ability to stand, chop food and lift pots and pans. Further, both assessors determined that there are safety issues because the applicant has left the stove on and has burnt food. In addition, the applicant’s cooking is now limited to making unhealthy meals like pogo sticks and chicken fingers.
Mobility
27Regarding mobility OT Spring recommended 30 minutes per day seven times per week for assistance with transferring the applicant into a sitting position for a total of 210 minutes per week; 60 minutes per day seven times per week to supervise the applicant while walking; and 30 minutes per day seven times per week for a total of 210 minutes for assisting the applicant with transfers from the wheelchair to bed. OT Philips proposed that the applicant receive 30 minutes per day, seven times per week for supervision while walking. However, she observed that the applicant was independent with transfers.
28I prefer the 60 minutes per day for supervision while walking proposed by OT Spring over the 30 minutes recommended by OT Phillips. I find the medical evidence and the testimony of all of the witnesses establish that the applicant still has significant limitations with mobility due to his left leg impairment. During OT Phillip’s assessment he displayed a walking tolerance 50 meters at a slow pace in which he lost his breath and appeared tired. Consequently, I find that he would require additional time for assistance with mobility. However, I find that the applicant has the functional capacity to stand up from a sitting position and do not find that the evidence supports that he requires assistance with transfers into bed.
Extra Laundering
29I accept the 60 minutes per week allotted by OT Phillips for extra laundering because the applicant spends a lot of time in his home, and I heard evidence from the applicant and both OT assessors that the applicant spills things and would require assistance clearing pathways.
Level 2
Bathroom Hygiene
30With respect to bathroom hygiene, OT Spring recommended that the applicant receive 40 minutes per day, seven times a week for assistance with cleaning the tub, sink and shower for a total of 280 minutes per week. OT Phillips proposed that the applicant receive five minutes per day, seven times a week for assistance with bathroom hygiene: five minutes per day, seven times a week for bedroom hygiene for a total of 70 minutes per week. I find the amount proposed by OT Spring more reasonable because I find the evidence supports that the applicant does not have the physical capacity to carry out these tasks.
Ensuring Comfort and Safety
31OT Spring also recommended that the applicant receive 10 minutes per day, seven times per week to ensure comfort and safety in the bedroom environment for a total of 70 minutes per week. OT Phillips recommended 90 minutes per day, seven times per week for a total of 630 minutes for assistance with this task. I accept the amount proposed by OT Phillips because the applicant spends the majority of his time inside the home and has issues with mobility. Consequently, I find the amount proposed by OT Philips to be reasonable.
Clothing Care
32OT Phillips recommended that the applicant receive 70 minutes per week for assistance with clothing care because he spills things and because of his physical limitations he cannot carry out this task. I accept the amount proposed by OT Phillips for assistance with this task.
Basic Supervisory Care
33Although I have determined that the applicant does not require 24-7 supervision, I find OT Phillips recommendation of 90 minutes per day (under ensuring comfort and safety in the bedroom environment) for supervision insufficient. I find that the applicant requires some additional custodial care because he has significant limitations with mobility because of his left leg impairment and functional limitations due to his left shoulder impairment which to date have not resolved. Further, he has left the stove on, has left the keys in the door, loses his phone, misses medical appointments and does not actively engage in activities because of his physical impairments. Consequently, I find that the applicant requires an additional 240 minutes (four hours) per day for supervisory care to cue and assist the applicant in carrying out his daily activities in a meaningful way.
Level 3
Bathing
34OT Spring recommended that the applicant receive 10 minutes per day, seven times per week for monitoring medication for a total of 70 minutes per week. The therapist also recommended that the applicant receive 30 minutes per day, seven times per week to assist the applicant with transfers in and out of the bathtub for a total of 210 minutes per week. OT Philips allocated zero for monitoring medication and recommended four minutes per day, seven times per week for assistance with transferring him into the bathtub for a total of 28 minutes per week.
35I prefer the amount recommended by OT Spring for bathing because the applicant would need assistance getting in and out of the tub and I find four minutes to be insufficient to assist the applicant for the full duration of this task. I reject OT Spring’s recommendation for monitoring medication because the applicant currently does not take any medication which requires monitoring.
Maintenance of Supplies
36OT Phillips recommended that the applicant receive 20 minutes per day seven times per week for monitoring equipment and ensuring assistive devices are safe and secure for a total of 140 minutes. I find this amount to be reasonable because the applicant has a scooter and various other assistive devices which need to be maintained.
37OT Spring proposed that the applicant receive 420 minutes per week for assistance with coordinating ACBs. OT Phillips recommended zero. I find 420 minutes per week recommended by OT Spring excessive but acknowledge the applicant requires some assistance because he lacks organization. Consequently, I find 60 minutes for coordination of ACBs to be reasonable.
38When the time I have determined to reasonable and necessary under the different levels of care are calculated as per the formula on the Form 1, I find the applicant is entitled to $2,724.28 per month in ACBs ($1,121.23 for Level 1; $1,073.55 for Level 2 and $529.50 for Level 3)
39Of note, both parties agreed that whether the benefit has been incurred is not in dispute because no invoices have been submitted to the respondent for the time period in dispute.
ORDER
40For the above-noted reasons, I order that the applicant has established entitlement to ACBs in the amount of $2,724.28 per month from February 28, 2025, to date and ongoing.
Released: May 26, 2025
__________________________
Rebecca Hines
Adjudicator