Citation: Ferguson v. Zenith Insurance Company, 2026 ONLAT 25-002406/AABS

Licence Appeal Tribunal File Number: 25-002406/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:

Jennifer Ferguson

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Jennifer Ferguson, Applicant

Tara Lemke, Counsel

Elise J. Hallewick, Counsel

For the Respondent:

Lisa Gardner, Claims Adjuster

Amanda Lennox, Counsel

Court Reporter:

Sherinne La Bastide

HEARD by Videoconference:

November 24-28, 2025

OVERVIEW

1Jennifer Ferguson, the applicant, was involved in an automobile accident on May 30, 2021, 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. Has the applicant sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule?

ii. Is the applicant entitled to $1,929.68 for an in-home assessment submitted on a claim form (OCF-18) dated February 13, 2023?

iii. Is the applicant entitled to attendant care benefits (ACB) in the amount of $1,080.37 per month from February 12, 2023 to August 25, 2025 and $1,636.96 per month from August 26, 2025 to date and ongoing?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

3The amount and period for issue (2)iii. above was amended, on consent, at the beginning of the hearing.

4The following issue was resolved prior to the hearing and is no longer in dispute:

i. Is the applicant entitled to a post-104-week income replacement benefit to date and ongoing?

RESULT

5The applicant has sustained a CAT impairment as defined by s.3.1(1)8 of the Schedule.

6The applicant is entitled to $1,929.68 for an in-home assessment, plus interest.

7The applicant is not entitled to attendant care benefits (ACB) in the amount of $1,080.37 per month from February 12, 2023 to August 25, 2025 and $1,636.96 per month from August 26, 2025 to date and ongoing.

8The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

Has the applicant sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule?

9I find that the applicant sustained a catastrophic (“CAT”) impairment as defined in the Schedule under section 3.1(1)8 (“Criterion 8”).

10Criterion 8 relies on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”). The applicant must prove on a balance of probabilities, as a result of the accident, that she suffers from a marked (“Class 4”) impairment in at least three of the four domains, or at least one extreme (“Class 5”) impairment, due to a mental or behavioural disorder. The Guides set out the four functional domains and the levels of impairment as illustrated in the chart below.

Area or Aspect of Functioning

Class 1: No Impairment

Class 2: Mild Impairment

Class 3: Moderate Impairment

Class 4: Marked Impairment

Class 5: Extreme Impairment

Activities of Daily Living (ADLs)

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace

Adaptation (Deterioration in a work-like setting)

11The applicant’s position is that she meets the definition of a CAT impairment under Criterion 8 with four Class 4 or marked impairment ratings. These ratings are offered in a Catastrophic Impairment Determination Examination – Section 25 report by Dr. Emily Gavett-Liu, Psychiatrist, dated September 23, 2024. The applicant also relies on two Occupational Therapy Independent Examination reports completed by Ms. Sally Anne Nicholson, dated April 26, 2024, resulting from an in-home activities of daily living functional assessment and a community functional and situational assessment.

12The respondent’s position is that the applicant does not have any Class 4 or Class 5 impairments. The respondent relies on a s. 44 Catastrophic Impairment Determination Psychiatric Assessment report by Dr. Velan Sivasubramanian, Psychiatrist, dated January 27, 2025. Dr. Sivasubramanian provides a Class 3 or moderate rating in the domains of ADLs, Concentration, Persistence, and Pace, and Adaptation; further, a Class 2 or mild rating in Social Functioning. The respondent also relies on two s. 44 Occupational Therapy Catastrophic Impairment Determination reports dated January 27, 2025 by Mr. Mohan Iyengar.

Summary

13In summary, I find that the applicant has a Class 4 marked impairment in three domains, ADLs, Social Functioning, and Adaptation. As to the respondent’s general argument that the applicant still has lots of functioning, I have considered the applicant’s engagement in activities wholistically with a focus on the quality of that functioning and the effect that such activities have on the applicant. Since having three Class 4 impairments meets the threshold of a catastrophic impairment under Criterion 8, it is not necessary to complete an analysis of the fourth domain of Concentration, Persistence, and Pace.

Parallels between PIRS and Criterion 8

14The respondent argues that Dr. Gavett-Liu’s Criterion 8 ratings are inconsistent with the scores she endorsed under the Psychiatric Impairment Rating Scale (“PIRS”). I am not persuaded by this argument because Criterion 8 and PIRS are materially different. Specifically, I note that:

i. The Schedule does not base a Criterion 8 analysis on the PIRS. The PIRS is part of a rating methodology under Criterion 7 which also incorporates the Brief Psychiatric Rating Scale and Global Assessment of Functioning Scale.

ii. Whereas a rating in one or three of the four areas of functioning can be conclusive for purposes of Criterion 8, Criterion 7 does not base its conclusion exclusively on all or part of the PIRS which is only one of many elements that are considered for Criterion 7. Essentially, the two are not comparable in their weight or value when considering catastrophic impairment.

iii. According to the AMA Guides, the four Criterion 8 domains are more wholistic than those in the PIRS. For example, the considerations for the Criterion 8 domain of activities of daily living are not the same as those considered by the PIRS. Travel is scored separately under the PIRS but is included within the Criterion 8 domain of activities of daily living.

iv. The scores or ratings have unique definitions and are not interchangeable between the PIRS and Criterion 8.

AMA Guides example of two marked and two moderate impairments

15The respondent argues that the applicant does not meet the definition of catastrophic impairment because her functioning is greater than the example provided in the AMA Guides of a 27-year-old woman evaluated to be markedly impaired in ADLs and Social Functioning, and moderately impaired in Concentration and Adaptation. In that sense, applying the threshold of Criterion 8 under the Schedule, the respondent is correct the example does not portray a woman that has sustained a catastrophic impairment. However, I note that the evaluator in the example in the AMA Guides also opined that in more demanding social or vocational situations the woman would be markedly impaired in Concentration and Adaptation as well, which certainly meets and exceeds the Criterion 8 threshold. For this reason, it is important to consider the overall context of the applicant’s situation with a wholistic and fact-specific approach, including the demands put on the applicant. I have considered how demanding each of the occupational therapy assessments were in assigning them weight with this principle from the Guides in mind.

16In my view, the respondent applied the Guides too strictly. For example, the respondent focuses on the contrast in the length of employment, where the applicant worked for a year and a half post-accident whereas the woman in the example had not worked for longer than 2 months at a time. I agree with the applicant that the example is not meant to portray the minimum requirements for a certain rating but rather is an example of how to consider some of the relevant considerations, on a case-by-case basis, within a range of outcomes.

17Further, the respondent argued that the Guides illustrate that a “[m]arked limitation in two or more spheres would be likely to preclude performing complex tasks without special support or assistance, such as that provided in a sheltered environment.” The respondent suggests, since the applicant does not require this type of support in a sheltered environment, the Guides should be interpreted as precluding three marked impairments in this context. In my view, the respondent’s interpretation is too strict for a number of reasons. First, the Guides do not suggest a sheltered environment is necessary for someone with two or more marked impairment ratings, just that it would be likely. Therefore, the Guides provide guidance with built-in flexibility for assessors to determine impairment ratings on a case-by-case basis rather than an overly strict application.

18Second, the Guides do not define a sheltered environment. In the example in the Guides referred to by the respondent, the 27-year-old woman had shown some ability to care for herself, she was cared for and supported financially by her aging parents and subsequently lived in a cooperative apartment. In the case before me, prior to the accident, the applicant was living with her mother and after the accident she was living with her partner. In terms of the applicant’s post-accident environment, her functioning is reliant, as discussed in more detail below, on being free of stressors and the responsibility of decision making. The applicant requires a heightened sense of safety at home and in the community, relies on her partner for motivation, relies on her partner for planning, and requires reminders for daily tasks. To some extent, the applicant requires her partner to play a supervisory role by checking in on her medications and has shifted her own pre-accident responsibility of helping her mother with medication to her sister. In this sense, and as further expanded below, the applicant’s current functioning occurs, to a degree, in a sheltered environment. However, my decision on Criterion 8 does not turn on whether the applicant’s environment is sheltered because it is not a requirement, as noted above.

Activities of Daily Living

19For activities of daily living, the AMA Guides specify the following considerations:

Activities of daily living include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function, sleep, and social and recreational activities. Any limitations in these activities should be related to the mental disorder rather than to such factors as lack of money or lack of transportation. In the context of the individual’s overall situation, the quality of these activities is judged by their independence, appropriateness, effectiveness, and sustainability. It is necessary to define the extent to which the individual is capable of initiating and participating in these activities independent of supervision or direction.

What is assessed is not simply the number of activities that are restricted, but the overall degree of restriction or combination of restrictions.

20With regard to activities of daily living, I find that the applicant is independent from a physical perspective in her self-care and personal hygiene activities as compared to her status prior to the accident. Dr. Gavett-Liu opined that the applicant’s impaired function is due to pain, anergia, anxiety, amotivation, and cognitive difficulties limiting her activities of daily living. I find that she is regularly uncertain whether she should or needs to engage in self-care activities and relies on reminders and encouragement from her family. In this regard, she does not make the decision or initiate tasks independently. The applicant and her partner testified that she cut her hair short and no longer colors it and does not do her makeup after the accident. The applicant has hired assistance to complete household tasks including housecleaning, laundry, and outdoor maintenance.

21The applicant experiences nightly awakenings. The applicant suffers from vivid nightmares that are accident-related, or at times about intruders or serial killers breaking into her home. The applicant sleeps with a knife next to her bed with the intention of protecting her family.

22Further, the applicant is limited by anxiety as a driver and as a passenger. She manages this to some extent by driving short distances, avoiding long distances, and medicating to manage symptoms when travelling as a passenger. At times, the applicant pulls over to gather herself due to panic attacks and anxiety based on driving conditions, including aggressive behaviour by other drivers. In these instances, the applicant reaches out to her partner for support before proceeding with driving. On a preponderance of the evidence, the applicant is reliant on her supportive partner who is the driving force behind the applicant remaining as functional as she now manages to be, in her activities of daily living.

23The applicant can use her phone and computer independently but requires assistance from her partner to organize, plan and pay bills. The applicant is independent with medication, however, her partner checks in regularly to ensure compliance. Dr. Gavett-Liu’s report notes that the applicant no longer assists her mother with medication after having made a potentially serious error. The applicant’s sister has taken over that responsibility. Dr. Gavett-Liu notes as a result of this error, the applicant has generalized this fear.

24The applicant prepares dinner on weekdays but only according to what is pre-planned with her partner in advance. The applicant’s partner testified that she is not able to match a grocery list with what is being made so weekday dinners are intentionally simple so that the applicant has the best chance to execute the plan. For example, cooking a weekday dinner may include cooking noodles in a medium sized pot and adding ground beef to a prepared store-bought sauce.

25The applicant experiences anxiety and panic both in her home and outside the home that can include episodes of shaking. During assessment in the home, Sally Nicholson observed the applicant rocking and tapping her feet. During assessment in the clinic, Ms. Nicholson noted the applicant reporting anxiety, observed shaking and tapping her foot but remained motivated to complete the assessment. With time, the applicant’s anxiety at the clinic increased but eventually she was able to calm down because there were no loud noises and not a lot of people around.

26The applicant can sometimes engage in grocery shopping but struggles with crowds and noise. Ms. Nicholson’s community assessment involved the applicant engaging in tasks in a mall setting that was unfamiliar to the applicant. The respondent’s assessor, Mohan Iyengar’s, assessment was at a grocery store that the applicant was very familiar with. I find that Ms. Nicholson’s report deserves more weight as the mall was not as familiar to the applicant and provided for a more accurate assessment as a result.

27On the day of the assessment at the mall, the applicant arrived early and spent 30 minutes in the car until she was calm enough to enter the mall for the assessment. During this assessment, Ms. Nicholson observed the applicant periodically standing with her back against the wall to catch her breath and calm down. In the final instance, the applicant’s chest was observed to be heaving with her body shaking while she was folding a task sheet into small accordion pleats. Ms. Nicholson made these observations from 15 feet away not interfering or influencing the assessment. Ms. Nicholson decided to stop the community assessment due to the episode and the applicant’s condition. The applicant was unable to orient herself to the mall. The applicant was provided guidance and directions and felt calmer as a result when leaving the mall accompanied by Ms. Nicholson. The applicant testified that she spent between 90 to 120 minutes in the car after the assessment before leaving the parking lot.

28I note that there is a contrast between the community assessments of Ms. Nicholson and Mr. Iyengar. I find that Ms. Nicholson’s evidence deserves more weight for the following reasons. Mr. Iyengar’s evidence is that the applicant had appropriate behaviours at the grocery store except she thought she was being followed and looked behind herself from time to time. While Ms. Nicholson’s evidence is that she stayed behind the applicant for observation, Mr. Iyengar was at times close to the applicant or even beside her as she moved through the store to complete the shopping task, leaving sufficient possibility that his proximity influenced the assessment.

29Further, Ms. Nicholson’s report provides additional relevant details including what happened prior to the entry into the mall. Mr. Iyengar’s report begins upon meeting for entry into the grocery store. On cross examination, Mr. Iyengar disagreed that his assessment began in front of the store and stated that the assessment started outside, in the parking lot seeing her park appropriately. However, during further cross-examination it became clear that Mr. Iyengar in this case did not observe the applicant arriving and parking at the location or leaving the parking lot afterwards. I find that this limited the relevant information gathered during the assessment.

30Further, Ms. Nicholson’s assessment included opportunities for the applicant to communicate with store staff whereas Mr. Iyengar’s assessment did not require any communication with others. Mr. Iyengar’s tasks required navigating through a very familiar store and picking up familiar items from a list made with the help of the applicant’s partner. Mr. Iyengar agreed that the assessment is meant to be in challenging circumstances that are in an unfamiliar environment. I find that his assessment did not ultimately meet this standard. For these reasons, I give less weight to the report of Mr. Iyengar and to the opinion of Dr. Sivasubramanian who heavily relied on Mr. Iyengar’s evidence.

31During cross examination of Dr. Sivasubramanian, his testimony was that he did not recall reading Ms. Nicholson’s report and did not know if the testing was different. However, he testified that he did not value Ms. Nicholson’s report when completing his assessment for two reasons. First, because it predated his assessment whereas Mr. Iyengar’s assessment was more recent. Second, because Dr. Gavett-Liu was interpreting Ms. Nicholson’s reports he did not need to do so. I find that it is unreasonable to deem a report less valuable without reading it. Under the circumstances, Dr. Sivasubramanian was limited by primarily relying on Mr. Iyengar’s report which was not as detailed and reliable in this case as I have found above. As a result of this shortcoming, Dr. Sivasubramanian was not aware that the applicant’s partner is the driving force behind the applicant leaving the house and stated, if this was the case, he would lower his opinion on her level of function. Another example is that Dr. Sivasubramanian agreed that recording the quality of a task is important, which in my view should include consideration of the difference in cooking pre- and post-accident. For these reasons, I give more weight to and am persuaded by the reports of Ms. Nicholson and Dr. Gavett-Liu as they considered such factors. Dr. Gavett-Liu concludes that the applicant’s impairment levels significantly impede useful functioning in her activities of daily living. Dr. Gavett-Liu notes her consideration of the emotional impact of stress and physical symptom escalation, due to mental and behavioural disorder and the applicant’s agoraphobia, which significantly impacts her daily functioning.

32I find, on a balance of probabilities, that the applicant meets the definition of a Class 4 marked impairment in her activities of daily living.

Social Functioning

33For social functioning, the AMA Guides specify the following considerations:

[A]n individual’s capacity to interact appropriately and communicate effectively with other individuals. Social function includes the ability to get along with others, such as family members, friends, neighbours, grocery clerks, landlords, or bus drivers. Impaired social functioning may be demonstrated by a history of altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships, and social isolation with similar events or characteristics.

34The applicant’s evidence largely supports an appropriate capacity to interact and communicate with family members and friends. There is no recorded history of altercations, evictions or firings due to social functioning impairment. However, the evidence supports impairment through social isolation due to being alert and on edge, resulting in exhaustion from the emotional impact of public outings or social interaction. The assessment of Ms. Nicholson completed in the mall is both relevant to the applicant’s ability to complete her activities of daily living in the community and from a social functioning perspective. Dr. Gavett-Liu notes the applicant displaying poor coping, reported isolation, debilitating anxiety, and a tendency to become overwhelmed easily. The preponderance of the evidence supports these conclusions.

35Prior to the accident, the applicant is described as never being home, always being up for anything and engaging in a number of team-oriented sports and activities. The applicant testified that she was always up for spontaneous invites and enjoyed concerts, trips, and parties. The applicant was active in the LGBT community and attended events including the pride parade. The applicant testified that she is not able to engage socially like this post-accident. She avoids crowds, noise, and prefers to stay in bed and stay home except that she is encouraged by her partner to try to stay engaged by getting out of the home.

36During her time at work after the accident, she described everyone being excited to see each other again after a return to office policy was implemented post-COVID-19. The applicant described being stressed, concerned about increased oversight, panic attacks, and telling co-workers she was busy to avoid interactions. These examples demonstrate impaired social functioning.

37Prior to the accident, the applicant had planned a trip to Prince Edward Island for a friend’s wedding. The plan included staying in a cabin with friends and the couple. However, since the trip took place after the accident, the plan required adjustments including staying in a different cabin that was near main roads to have the ability to escape, if necessary. This demonstrates the extent of the applicant’s mental and behavioural impairment’s effect on her ability to participate in social events. The applicant managed her symptoms by medicating and did not enjoy the trip. She is reliant on medication and her partner to manage her post-accident symptoms. The applicant testified that she is now a different person as a result of the accident. The applicant’s partner is careful and supportive, avoiding frustrating the applicant or causing an outburst. I find that the evidence supports the applicant’s reliance on creating a safe and comfortable environment as a prerequisite in order to engage in socially.

38The respondent challenges the applicant’s evidence of impaired social functioning at work noting no concerns mentioned in the Employee Performance Appraisals for September to October 2022. I am not persuaded by these performance reviews because I have no evidence before me as to what extent they may accurately capture relevant information that would be material to a Criterion 8 analysis. For example, the reviews do not comment on the applicant avoiding interaction and socializing. The respondent focuses on the review endorsing the applicant as being polite and professional whereas the applicant does not disagree with the statement but testified that she would mask her struggles at work. In my view, politely and professionally avoiding social interaction is still avoidance and an example of impaired social functioning covered by the Guides. To the extent that these reviews do not indicate social functioning impairment such as altercations or firings, I have taken this into account. However, as noted below, the applicant eventually stopped working due to her impairments.

39Dr. Gavett-Liu concludes that the applicant’s impairment levels significantly impede useful functioning in this domain. Dr. Gavett-Liu notes her consideration of the emotional impact of stress and physical symptom escalation, due to mental and behavioural disorder. I find, the applicant’s social functioning prior to the accident was independent, and the applicant is now significantly impeded in contrast with avoidance of social interaction outside of her immediate contacts including her family.

40I find, on a balance of probabilities, that the applicant meets the definition of a Class 4 marked impairment in her social functioning.

Adaptation (Deterioration in a work-like setting)

41For Adaptation (Deterioration in a work-like setting), the AMA Guides specify the following considerations:

[D]eterioration or decompensation in work or work-like settings refer to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is decompensate and have difficulty maintaining activities of daily living, continuing social relationships and completing tasks. Stressors common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers.

42After the accident, the applicant worked approximately for a year and a half, until December 2022. The applicant did not take time off of work immediately after the accident because she was working from home and managed to create an environment to manage her work responsibilities. While working from home, the applicant was not subject to stressors common to the work environment such as getting ready and travelling to work, in-person attendance, and in-person interactions. The applicant took regular breaks every 30 minutes to lay down or take a walk and continued working into the evening to account for the extra breaks. When the applicant was required to attend the office three days a week, the applicant describes her focus being non-existent and making many mistakes and suffering from panic attacks both on the way to work and at work. The applicant took more time off work when she was required to be in the office in contrast to days she could work from home. On the final day of work, the applicant was shaking, crying, and unable to communicate. The applicant’s manager told her to clock out and get medical attention. The applicant has not returned to work since then, in December 2022.

43I find that the applicant’s attempts to continue working substantiate a repeated failure to adapt to stressful circumstances. While she was working from home, she was unable to adapt to her work responsibilities requiring decision making and accuracy, without extensive self-accommodation as noted above. This became more apparent when she was required to attend the office three days a week and failed to adapt to the stressors of her work-environment, and avoiding the situation by taking time off.

44The applicant’s deterioration is also substantiated through Ms. Nicholson’s assessments which noted her comprehension and ability to follow instructions were poor in the Five Activities functional task. In the Cognistat Multiple Elements Test the applicant performed poorly in following multi-step instructions. In the Zoo Map test, the applicant performed poorly, with improvements when provided with step-by-step instructions. She also performed poorly the community outing at the mall in which the applicant walked around the circumference of the mall, did not use the directory, and ultimately stood in one spot with her back to the wall, with Ms. Nicholson observing debilitating anxiety as reviewed previously.

45Dr. Gavett-Liu concludes that the applicant’s impairment levels significantly impede useful functioning in this domain. Dr. Gavett-Liu notes her consideration of the emotional impact of stress and physical symptom escalation, due to mental and behavioural disorder. I find the applicant is now significantly impeded in contrast to her ability to overcome what can be described as stressors that are common to the work environment, including travel, attendance, making decisions, scheduling, completing tasks, and interacting with others. Prior to the accident, the applicant worked for the same employer for approximately 20 years in various positions of increasing responsibility. I have also considered examples of the applicant being motivated and trying to continue with the tasks at hand. The applicant does not voluntarily stop, for example, it was the applicant’s boss who told her to stop working and seek medical attention. In another example, it was Sally Nicholson who recognized the applicant’s incapacity to continue at the mall and ended the assessment. I give less weight to the respondent’s evidence in contrast for reasons noted previously.

46I find, on a balance of probabilities, that the applicant meets the definition of a Class 4 marked impairment in this domain.

47The evidence demonstrates that the applicant suffers from a marked impairment in the spheres of ADLs, social functioning, and adaptation. Accordingly, I find that the applicant sustained a catastrophic impairment on criterion 8.

Is the applicant entitled to $1,929.68 for an in-home assessment submitted on a claim form (OCF-18) dated February 13, 2023?

48I find, on a balance of probabilities, that the applicant is entitled to $1,929.68 for an in-home assessment.

49To 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.

50The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds to suggest that some condition exists warranting investigation by way of an assessment.

51The applicant argues that the assessment was reasonable and necessary at the time it was requested. Further, that the respondent denied it but then requested the same assessment by way of a section 44 insurer examination.

52The proposed OCF-18 by Sio Cheong (Stephen) Tang for an Occupational Therapy in-home assessment was to evaluate the applicant’s safety, and her physical, psychosocial, cognitive function post-accident including function in self care, productivity and leisure. The proposed assessment included completion of an Assessment of Attendant Care Needs (“Form 1”).

53The respondent argues that if there is no attendant care amount established then the OCF-18 cannot be reasonable and necessary. However, this is not the test for whether assessments, which are speculative by nature, are reasonable and necessary. It may well be that an investigation is warranted but ultimately the investigation proves to be positive or negative.

54In a Chronic Pain Assessment Report dated February 15, 2023, Dr. Kevin J. Smith diagnosed the applicant with chronic pain syndrome associated with psychological/emotional disturbance, chronic headaches, chronic low back, upper back, and neck pain. Dr. Smith opined the applicant met the criteria for assessment of chronic pain under the AMA Guides, sixth edition. Dr. Smith made a number of further investigative and treatment recommendations including psychological, pharmaceutical, and physical. As to the applicant’s impairments, Dr. Smith opined:

These diagnoses result in pain-related impairments that limit the following important functions: heavy lifting, prolonged walking, prolonged sitting, prolonged standing, repetitive bending/pushing/pulling, higher axial impact physical activities (for example, running, jumping) and sustained extension or lateral flexion of the neck. Although Ms. Ferguson is physically capable of performing these functions to variable degrees, they are expected to exacerbate the painful symptoms and materially contribute to a lessening of her quality of life and level of function.

55The applicant reported to Dr. Smith that pain interfered with the following activities: getting in and out of bed, climbing up 5 steps, bending to pick up clothing from the floor, and getting in and out of a car. The applicant is reported to have gained 40 pounds after the accident, by Dr. Smith. The applicant also reported having to lay down several times a day due to pain and fatigue. In my view, this, in addition to the fact that the applicant was going on leave from work in December 2022, is sufficient objective evidence to warrant an investigation.

56For the reasons above, I find, on a balance of probabilities, that the applicant is entitled to $1,929.68 for an in-home assessment.

Is the applicant entitled to ACBs in the amount of $1,080.37 per month from February 12, 2023 to August 25, 2025 and $1,636.96 per month from August 26, 2025 to date and ongoing?

57Section 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 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 Form-1.

58Also relevant to this matter is section 3(7)(e)(iii) of the Schedule. It states that an expense is not incurred unless the person who provided the goods or services: (A) did so in the course of their employment, occupation, or profession for which they would normally be engaged in but for the accident, or (B) sustained an economic loss as a result of providing them to the insured person.

59I find that the applicant has not led evidence of incurred expenses of $1,080.37 per month from February 12, 2023, to August 25, 2025, or to $1,636.96 per month from August 26, 2025 to the date of the hearing on November 24, 2025. The question before me is therefore narrowed to whether the applicant is entitled to $1,636.96 per month from November 24, 2025 and ongoing, if incurred.

60The applicant argues that she needs help with personal care and that she is functionally limited due to chronic pain with both physical and psychological components. Further, that she is no longer engaging in housekeeping like she used to prior to the accident. The applicant refers me to two Form-1s as described above, arguing that her need for ACBs has increased.

61The applicant also argues that she is entitled to the amounts of ACBs in dispute because her partner plays a role in helping the applicant get up in the morning, getting dressed, and ensuring a safe space with no surprises so they can have an enjoyable morning routine together. Further, that her partner is the driving force behind getting the applicant out of the house, she sets the applicant’s routine, plans the meals for the week, makes the grocery lists, checks on the applicant’s medication, coordinates the schedule and sets appropriate reminders. In addition, the applicant is dependant on her partner when in a state of panic.

62In the Form-1 dated August 6, 2025, completed by Mr. Tang, the total assessed monthly ACB amount is $1,636.96.

Level 1 ACB

63Mr. Tang assessed the applicant with 508 minutes or 8.47 hours per week for routine personal care. This includes dressing and undressing for a total of 4 minutes 2 times per week, face washing for 5 minutes 4 times a week, toenail care for 10 minutes once a week. I find that dressing and undressing is not a reasonable and necessary expense. The applicant testified that she occasionally requires help from her partner on days when she cannot reach behind her back due to back or neck pain. However, the applicant also testified that Mr. Tang had not addressed this concern yet by using methods of dressing and undressing without having to reach back on days that this is a concern. For this reason, it is premature to assign a regular ongoing expense when the applicant has not been provided or educated on available methods to attempt to address this functional impairment which may occur intermittently. I find that attendant care for face washing is not reasonable and necessary because the applicant testified that she does it regularly and independently before heading downstairs in the morning. I find that the proposed toenail care is not a reasonable and necessary expense as a result of the accident because the applicant testified that she was receiving pedicure services both prior to and after the accident. Mr. Tang testified that the applicant requires encouragement and reminders and that this could turn into a discussion or an argument requiring even more time. However, when challenged, Mr. Tang could not provide an example of when this may have occurred.

64A large portion of the assessed minutes are assigned for preparing, serving and feeding meals at 20 minutes 7 days a week, and supervising and assisting in walking for 55 minutes 6 times a week. I find that the time allotted for meal related services is not reasonable and necessary because it is an overestimation. However, the applicant did not establish clearly to what extent this proposed allotment is reasonable and necessary. The applicant testified that she cooks dinner on weekdays for which she requires assistance with heavy pots once they are filled and help with items stored in the lower cupboards if necessary. During cross examination, Mr. Tang was asked whether he had proposed getting lighter cooking equipment which the applicant testified would be too expensive for her to get on her own, or whether he proposed changes in the kitchen that would increase her function. Mr. Tang testified that he had provided the applicant with strategies to adapt but that she still needs assistance with heavy pots. The applicant’s partner testified that the applicant does fine with pots up to medium size when cooking during weekdays. Deanne Evans, a section 44 occupational therapist assessor opined that ACBs are for tasks the applicant cannot do for herself rather than tasks she cannot do for others. This opinion was not challenged during the hearing, and I am persuaded that it is a reasonable approach. In that sense, the applicant’s tasks of using larger heavy pots in order to prepare dinner for her family would not fall under the umbrella of ACBs.

65Further, Mr. Tang’s evidence confirmed that the proposed time would be an overestimation for two reasons. First, since she does not cook seven days a week and the time proposed is for every day of the week, and second, because every meal does not require a heavy pot in any case. Mr. Tang also emphasized that there is still a chance she may need to reach for other things that she requires assistance with located in the lower cabinets. Under the circumstances, I am not persuaded that the type of cooking the applicant needs to do for herself on a day to day basis, which only requires less than a handful of ingredients for the day, such as spaghetti, ground beef, and store bought sauce, would be placed out of the safe reach of the applicant when she is independently delegating where those items should be placed. Overall, Mr. Tang’s report in this aspect is not sufficiently reliable due to the reasons above relating to overestimation.

66I find that the expense for supervising and assistance in walking is not reasonable and necessary. The applicant testified that she independently takes their 55 lb dog out for walks in the neighborhood without supervision or assistance. I am also persuaded by the applicant’s ability to manage walking into and out of the Walmart at an outdoor plaza in snowy conditions during an assessment despite what she described as a big snowstorm requiring her to drive with the hazard lights on. Further, Mr. Tang testified that she is independent to mobilize without any physical limitations.

Level 2 ACB

67Mr. Tang assessed the applicant with 925 minutes or 15.42 hours per week for basic supervisory functions. Mr. Tang assessed 5 minutes 7 times a week for bathroom cleaning, 5 minutes 7 times a week for daily bedroom upkeep, and 120 minutes 7 days a week to ensure comfort, safety and security in the bedroom. Mr. Tang also assessed 15 minutes once a week for co-ordinating and scheduling attendant care. I find that the expenses are not reasonable and necessary. The applicant’s evidence points to a lack of enjoyment and motivation for not engaging in cleaning tasks as of February 2023, as reported by Dr. Smith. Accordingly, as an example, Dr. Smith notes that the applicant continues to enjoy cooking and therefore engages in it and seldom cleans up afterwards. Further, the applicant’s partner prefers to have a housekeeper since prior to the accident who handles all the deep cleaning. The applicant’s partner keeps up with the vacuuming, wiping counters and cleaning the toilets. She testified that the applicant would not be able to clean the bathtub or the mirrors because it requires being off balance, but the applicant can clean the toilet. Further, the applicant testified she can wipe down countertops and load the dishwasher but does not unload it.

68As to ensuring comfort, safety and security in the bedroom, the respondent argues that this is meant to encompass physical safety such as requiring changing positions as an example and Deanne Evans agreed with this approach. The applicant testified that there is a mound of clothing on her side of the bed and her partner asks what is dirty and what is not and folds the laundry. When asked if the applicant is unable to fold laundry, she testified that it was bringing the laundry up the stairs that was the issue, so her partner does it. I did not find a proposed time allotment for help with the applicant’s laundry in the Form 1.

Level 3 ACB

69Mr. Tang assessed the applicant with 110 minutes or 1.83 hours per week for complex health/care and hygiene functions. Mr. Tang assessed 5 minutes 7 times per week for assistance with a prescribed exercise or stretching program, 5 minutes 7 times per week to monitor medication intake and effect, 5 minutes 7 times per week to bathe and dry the applicant, and 5 minutes once a week to maintain the applicant’s supplies and equipment. I find that these expenses are not reasonable and necessary.

70Mr. Tang’s February 13, 2023 report confirms the applicant is able to perform all prescribed exercises independently. As of March 2024, Mr. Tang noted the applicant had been following his recommendation to participate in physical activities including going to the gym, taking walks, and performing stretching exercises, at least 3 times per week. As of March 2025, Mr. Tang noted the applicant was actively engaged in preparation for her trip to Newfoundland, such as training in the gym as well as going on a day trip to Perth to train for driving, sitting, and activity tolerance, but that the momentum ceased after the trip. As of September 5, 2024, Mr. Tang noted that the applicant joined a new gym, attended aqua fit classes that she enjoyed and intended to continue. Mr. Tang also notes the applicant’s ongoing concerns of being followed by a private investigator and that the respondent will use her community activities against her. Mr. Tang opined a combination of physical, psychoemotional limitations and the fear of surveillance greatly limited the applicant’s participation in community activities. Under the circumstances, the applicant has not met her onus to establish that assistance with exercise and stretching for 5 minutes a day 7 times a week is a reasonable and necessary ACB expense.

71In regard to medication, I have found that to some extent, the applicant’s partner plays a supervisory role by occasionally checking in on her medications and that the applicant has generalized a fear of making an error because of an instance where she made an error managing her mother’s medication. The applicant’s partner testified, for example, she will check in to make sure the pill organizer was filled, and at night she may check to see if the PM section is empty as a sign that the applicant has taken her medication. The respondent argues that this does not amount to cuing or anything that would require ACBs. In my view, the applicant has not established that she requires attendant care to monitor her daily medication intake and effect. Further, the applicant’s evidence does not support that she requires bathing and drying services because the applicant is independent physically in this task. While she is unsure when she may need to bathe, she independently bathes and dries herself. Lastly, the testimony of Mr. Tang established that there are no supplies and equipment provided to the applicant that would require 5 minutes of weekly maintenance, accordingly this is not reasonable and necessary.

Interest

72The applicant is entitled to interest which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

73The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The parties did not make arguments or refer me to evidence relating to the issue of an award. For this reason, the applicant has not met her onus in establishing the respondent’s liability to pay an award.

ORDER

74For the reasons above, I make the following orders:

i. The applicant has sustained a catastrophic impairment as defined by s.3.1(1)8 of the Schedule.

ii. The applicant is entitled to $1,929.68 for an in-home assessment, plus interest.

iii. The applicant is not entitled to attendant care benefits in the amount of $1,080.37 per month from February 12, 2023 to August 25, 2025 and $1,636.96 per month from August 26, 2025 to date and ongoing.

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.