Citation: Fagbemi v. Zenith Insurance Company, 2026 ONLAT 24-007163/AABS

Licence Appeal Tribunal File Number: 24-007163/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:

John Olu Fagbemi

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

APPEARANCES:

For the Applicant:

Keshma Sankar, Counsel

For the Respondent:

Riley Groskopf, Counsel

HEARD:

By way of written submissions

OVERVIEW

1John Olu Fagbemi, the applicant, was involved in an automobile accident on July 27, 2023, 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, Zenith Insurance Company, 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 a non-earner benefit (“NEB”) of $185.00 per week from August 24, 2023, to date and ongoing?

ii. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $2,429.98 per month from March 25, 2024, to date and ongoing?

RESULT

3The applicant is not entitled to a NEB or ACB in the amount of $2,429.98 per month from March 25, 2024, to date and ongoing.

ANALYSIS

Non-Earner Benefit

4I find that the applicant is not entitled to a NEB.

5Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

6The applicant submits that prior to the accident, he was independent in his self-care tasks, housekeeping chores and activities. The applicant submits that, as a result of the accident and the ongoing pain, he requires a personal support worker (“PSW”) because he is unable to do his own personal care activities, cooking, cleaning, laundry, and grocery shopping. The applicant further submits that he no longer drives, goes on walks, or leaves his home due to the physical pain, his concussion related symptoms, and psychological issues. The applicant submits that he has suffered a complete inability to do his activities of daily living as a result of the accident. The applicant relies on the clinical notes and records (“CNRs”) of family practitioner, Dr. Jonathan Carr; the psychological assessment report of registered psychotherapist (qualifying), Homa Javadzadeh and psychologist, Dr. Mandeep Kaur Singh, dated February 5, 2024; and the chronic pain assessment of Dr. Grigory Karmy, dated April 16, 2024.

7The respondent submits that the applicant’s reports of difficulties with a selection of pre-accident activities falls short of demonstrating that he is continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged prior to the accident, relying on the decision in Heath. As such, the respondent submits that the applicant has failed to meet his onus in establishing that he suffers from a complete inability to carry on a normal life as a result of the accident.

8I find the evidence does not support that the applicant has an inability to carry on a normal life as defined by s. 3(7)(a) of the Schedule.

9I give little weight to the CNRs of Dr. Carr because I find that they do not evidence the applicant’s pre- and post-accident functional capabilities in a manner that would satisfy the test in Heath. For example, Dr. Carr writes a letter on April 25, 2025, indicating that the applicant suffers a complete inability to carry on a normal life “and also to do his pre accident activities of daily living that he used to do prior” to the accident. Dr. Carr wrote on March 26, 2024, “I have recommended this patient have increased access to a PSW – raised to 5-6 days a week to assist with his pre-accident activities of daily living, such as cooking, cleaning, laundry, food shopping and bathing”. However, I am not pointed to evidence of Dr. Carr which addresses the central question of the applicant’s pre-versus post-accident capabilities.

10More specifically, I am not pointed to evidence that would differentiate the applicant’s functional abilities prior to the accident and his functional abilities post-accident because the evidence supports that the applicant had functional limitations prior to the subject accident. For example, a CNR of Dr. Carr, dated November 18, 2021, indicated that the applicant “wants handicapped parking pass re knee pain”. The Parking Permit application completed by Dr. Carr on December 29, 2022, notes the applicant’s health condition as “whose ability to walk is severely limited due to an arthritic, neurological, musculoskeletal or orthopedic condition”. On August 19, 2022, Dr. Carr completed a Medical Request for Additional Bedroom for the applicant. Dr. Carr noted the medical condition or disability that would require the additional bedroom as “when ill at night, a family member frequent [sic] sleeps over”. As such, I am unable to determine from the CNRs of Dr. Carr what the applicant’s pre-accident functional abilities were in comparison to his post-accident abilities.

11I also give little weight to the report of Dr. Karmy because the applicant’s noted functional limitations as they relate to his activities of daily living are largely self-reported and not observed by the assessor. Moreover, while Dr. Karmy concluded that “the claimant’s chronic pain has become a major interference in his daily activities”, I am not pointed to evidence that this assessor opined a complete inability to engage in activities of daily living.

12Given that s. 25 Occupational Therapist, Mr. Pawan Chopra, and s. 44 Occupational Therapist, Mr. Harish Sharma, observed a number of the applicant’s functional abilities, I find their subsequent reports persuasive when considering the applicant’s ability to perform activities of daily living.

13Specifically, the Attendant Care Needs Assessment report of Mr. Chopra, dated January 27, 2024, indicates that the applicant performed functional abilities either independently, with difficulty, or with assistance in the following categories: dressing capabilities, hygiene, meal service, meal preparation (pouring hot liquid, opening jars/containers, opening cans, peeling vegetables, chopping/cutting, using oven/stove), ambulation and mobility, and outdoor maintenance. Mr. Chopra notes the applicant to be unable to perform bending to low cupboards/shelves, reaching high cupboards/shelves, toenail care, floor care, cleaning, laundry, and groceries. Mr. Chopra also notes the applicant has not driven since the accident.

14While there are some variations between the reports of Mr. Chopra and Mr. Sharma of what the applicant is observed to be able to do independently, with assistance, or what he is unable to do, Mr. Sharma similarly observes the applicant to perform the majority of the observable tasks. Mr. Sharma ultimately opines that the applicant does not suffer a complete inability to carry on a normal life.

15I find that this does not satisfy the test under Heath, wherein the applicant must demonstrate that the impairment continuously prevents him from in engaging in substantially all of the activities that he ordinarily engaged before the accident. This is because I find that the evidence supports that the applicant demonstrated an ability to perform the majority of the observable tasks, albeit with some assistance and/or difficulty.

16Furthermore, while the applicant submits that he was independent in personal care tasks, household chores, cooking, cleaning and laundry, the s. 44 report of psychologist, Dr. Kelly McCutcheon, dated January 19, 2024, indicates that prior to the accident, the applicant would engage in ‘some’ household chores, and that “friends would help out, and [he] also got government assistance for cleaning and laundry twice a month”. As such, I find the evidence does not support that the applicant is continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident because the evidence supports that the applicant was not engaging in the activities the assessors found he was unable to perform, prior to the accident.

17With respect to the applicant psychological impairment as it would relate to his post-accident abilities, I am not persuaded by the psychological report of Homa Javadzadeh and Dr. Mandeep Kaur Singh, dated February 5, 2024, because these assessors do not opine that the applicant suffers a complete inability to engage in tasks of daily living. These assessors, do however, report that the applicant “completes his daily tasks with significant difficulty”. I find that the applicant completing daily tasks, albeit with difficulty, does not satisfy the test in Heath. Moreover, this report is conducted largely on the basis of the applicant’s self-reported impairments and clearly states “that there were no documents available to be reviewed”.

18I am persuaded by the paper review report of Dr. McCutcheon, dated March 26, 2024, as this assessor opined that while the applicant is experiencing anxiety and depression, “the impairment is not of a sufficient incapacitating degree, and therefore, from a psychological perspective, he does not suffer a complete inability to carry on a normal life”. Dr. McCutcheon made this finding after review of several of the applicant’s medical records in addition to her observations during her prior assessment, dated January 19, 2024. Additionally, Dr. McCutcheon notes that the applicant continues to socialize, and that the applicant stated, “I talk to my kids, and my friends help out.” I find that this evidence is unsupportive of an inability to engage in substantially all the activities in which he ordinarily engaged before the accident.

19In sum, I find that the applicant has not proven, on a balance of probabilities, that he is entitled to a NEB.

Attendant Care Benefits

20I find that the applicant is not entitled to received ACB in the amount of $2,429.98 per month from March 25, 2024, to date and ongoing.

21Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 3(7) 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.

22Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

23The applicant submits that ACBs in the amount of $2,429.98/month is reasonable and necessary and that the reduction of ACBs to the amount of $518.72/month, is not sufficient to cover the cost of PSW services for five days/week. The applicant relies on the Attendant Care Assessment of Mr. Chopra, dated January 27, 2024, and the CNRs of Dr. Carr.

24The respondent submits the requested $2,429.98/month in ACBs based on the report of Mr. Chopra is not reasonable and necessary because the corresponding Form 1 includes time for various activities that the applicant admitted being capable of performing without assistance, such as daily dressing, hair brushing, and medication management. The respondent submits that s. 44 assessor, Mr. Sharma, does recognize the applicant’s needs for some ACBs, such as cleaning his bathroom, changing his sheets, and cooking. The respondent argues that Mr. Sharma’s recommendation of $518.72/month is reasonable. The respondent further submits that no payment of ACBs is owing as the applicant has not submitted any evidence of incurred attendant care treatment beyond the amounts already paid.

25The onus is on the applicant to establish entitlement to ACBs on a balance of probabilities, and in this case, I find that the applicant has fallen short of meeting his onus for the following reasons.

26First, the applicant has not directed me to evidence that the ACB expenses in the applicant’s Form 1 have been incurred pursuant to s. 19 of the Schedule. While the applicant submits the letter from Dr. Carr dated April 25, 2025, states “the patient is under my care. He continues to require PSW assistance for his daily chores and personal care activities”, the applicant has not provided evidence that any of the proposed services have been provided by a PSW or that the applicant incurred an expense for same as defined in section 3(7).

27Second, I note that the applicant did not enclose of copy of the Form 1 for the disputed ACBs in his submissions. The respondent, in its submissions, provided a copy of Mr. Chopra’s completed Form 1, dated January 27, 2024. I have reviewed Mr. Chopra’s Form 1 and find that time was included for upper/lower extremity dressing, brushing/combing and washing/drying hair, despite Mr. Chopra indicating within his report that the applicant was able to complete these tasks, albeit with difficulty. As such, I find these services to not be reasonable and necessary as the applicant demonstrated an ability to complete these activities. While I acknowledge that the applicant needs assistance with some of the identified activates, such as laundry and cleaning, I do not find that the total amount requested is reasonable and necessary.

28In conclusion, I find that the applicant he has not demonstrated that attendant care services were incurred. Accordingly, I find that, on a balance of probabilities, he is not entitled to the disputed ACBs in the amount of $2,429.98 per month from March 25, 2024, to date and ongoing.

ORDER

i. I find that:

(a) The applicant is not entitled to a NEB;

(b) The applicant is not entitled to ACB in the amount of $2,429.98 per month from March 25, 2024, to date and ongoing; and

(c) The application is dismissed.