Citation: Thomas v. Security National Insurance Company, 2026 ONLAT 24-006872/AABS

Licence Appeal Tribunal File Number: 24-006872/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:

Evdokia Thomas

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Sherilyn J. Pickering, Counsel

For the Respondent:

Geoffrey L. Keating, Counsel

HEARD: By way of written submissions

OVERVIEW

1Evdokia Thomas (“the Applicant”) was catastrophically impaired in an automobile accident on August 20, 2020, and sought benefits from Security National Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

I. Is the Applicant entitled to attendant care benefits in the amount of $6,000.00 per month from February 21, 2022, to-date and ongoing?

II. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

III. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant is entitled to ACBs at the rate of $1,529.96 per month.

4The Applicant is not entitled to payment of ACBs because she has not demonstrated that she incurred the expense or that the expense was unreasonably withheld or delayed by the Respondent.

5No interest or award is payable.

BACKGROUND

6The Applicant was struck by a left-turning vehicle in an urban intersection while crossing the street as a pedestrian. She suffered a mild traumatic brain injury, and sprain and strain injuries as a result of the accident. The accident has also caused the Applicant to suffer from ongoing headaches, Major Depressive Disorder, Post Traumatic Stress Disorder (“PTSD”), and Somatic Symptom Disorder. Her injuries were deemed by the Respondent to be catastrophic on a mental and behavioural perspective.

7To the Applicant, her accident-related injuries cause her to require the services of an aide or attendant. From the Respondent’s perspective, the Applicant requires no assistance for an aide or attendant, despite suffering from catastrophic mental and behavioural impairments.

8For the following reasons, I find that the Applicant has demonstrated that she is entitled to ACBs at the rate of $1,529.96 per month. However, I find that she is not entitled to payment of any ACBs because she never incurred the expense, and I choose not to deem the expense incurred.

ANALYSIS

12Pursuant to section 19 of the Schedule, ACBs shall pay for all reasonable and necessary expenses that are incurred by the Applicant for services provided by an aide or attendant. The onus is on the Applicant to demonstrate the level of care she requires and that she incurred the expense of hiring and aide or attendant.

13Section 19(2) provides that the amount of monthly ACBs is determined in accordance with the “Assessment of Attendant Care Needs”, otherwise known as a Form-1. Pursuant to section 3(8) of the Schedule, the Applicant may still be entitled to ACBs, despite not hiring an aide or attendant, if she can show that the expense was not incurred because the Respondent unreasonably withheld or delayed payment of the benefit.

14At issue is the level of ACBs that the Applicant requires. To her, she requires around-the-clock supervision primarily due to dizziness, vertigo, and other balance and cognitive impairments. She submits that, in the case of an emergency in her home, such as a fire, she would not be able to safely exit the home, which warrants ongoing supervision.

15The Applicant relies primarily on the Form-1 and report by occupational therapist (“OT”) L. Hamilton, dated May 17, 2022. The Form-1 allocates 1,151 minutes per week to level 1 care, or $1,229.08 per month; 8,867 minutes per week for level 2 care, or $8,896.56 per month; and 62 minutes per week for level 3 care, or $93.80 per month; for a total recommended amount of $10,219.44 per month.

16The Respondent submits that the Applicant requires no supervision, and does not require any attendant care, despite being catastrophically impaired. It submits that there is little notation of ongoing dizziness in the Applicant’s medical record, let alone dizziness that is at a level of severity to be completely debilitating in the event of an emergency. It relies on the report and Form-1 completed by OT D. Li, dated August 16, 2022. In that report, the OT found that the Applicant required no attendant care assistance as a result of accident-related injuries and impairments.

17As I will outline, I agree with some of the recommendations made by OT Hamilton, but I disagree that the Applicant requires supervisory care at the rate claimed.

Level 1 care

18I find that 706 minutes per week for level 1 care is reasonable and necessary, amounting to a monthly quantum of $753.89.

19Level 1 care relates to routine personal care such as dressing and undressing, personal grooming, feeding, and assistance with mobility.

20I find that the Applicant demonstrated restrictions in her ability to complete her dressing and undressing, personal grooming, and meal preparation. In both OT Hamilton and OT Li’s reports, the Applicant reported and demonstrated difficulty with using buttons and zippers, as well as donning and doffing clothes that are not loose. She reported to OT Li that she brushes her teeth and completes her fingernail care, but is unable to complete her toenail care. She reported to both OT Li and OT Hamilton that she does basic hair care, but that she is unable to do more than a ponytail.

21I find that the Applicant is restricted in her meal preparation and requires assistance with preparing healthy meals as she did prior to the accident. The Applicant reported to OT Hamilton that it is hard for her to bake and cook and she has difficulty reaching due to shoulder pain and carrying due to wrist pain. These complaints are consistent with the balance of the Applicant’s medical record. OT Li never assessed the Applicant’s function in the kitchen, such as her ability to prepare meals. Instead, OT Li based the recommendation on the Applicant’s ability to lift her hands do tasks such as reach into the refrigerator, bring her hands to her mouth, lift and carry a three-pound dumbbell while gripping her cane. OT Li never contemplated whether the Applicant could prepare her own meals and never allocated time for that.

22I find that OT Hamilton overstates the Applicant’s impairments regarding certain areas of personal care. Specifically, I disagree that the Applicant requires assistance with her wrist splints (10 mins per week), because she demonstrated to OT Li that she can don and doff her wrist splints independently. Similarly, I find that fingernail care (15 mins per week) is overestimated because the Applicant demonstrated the dexterity to don and doff her wrist splints, which involves similar movement.

23Lastly, I find that assistance with walking (420 mins per week) is overstated by OT Hamilton because the Applicant regularly reported that she was independent with walking while using a cane, but that it was limited to approximately 15 minutes. The Applicant continues to exhibit independence with walking, and recently reported to Dr. S. Alo, psychiatrist, in the August 7, 2024 report, that she walks independently outside but just cannot go far, which is consistent with her account to Dr. M. Friedlander, in the February 3, 2023 report and Dr. V. Basile, neurologist, in the November 21, 2023 report.

24Accordingly, I find that the Applicant is entitled to 706 minutes per week for level 1 care, amounting to a monthly quantum of $753.89.

Level 2 care

25I find that 680 minutes per week for level 2 care is reasonable and necessary, amounting to a monthly quantum of $682.27.

26Level 2 care relates to basic supervisory functions such as living space hygiene, and assistance with responding to emergencies.

27I agree with OT Hamilton that the Applicant requires assistance with hygiene in the bathroom, changing her bedding and cleaning her room, and ensuring comfort and safety with respect to hygiene. As noted earlier, the Applicant has impaired reaching and carrying, which impacts her ability to do certain level 2 care tasks such as cleaning her bathroom or changing her bedding. On the other hand, OT Li observed that the Applicant, on both formal and informal testing, demonstrated some functional limitations and impairments, but relied on the opinions of other assessors, such as Dr. E. Urovitz, orthopaedic surgeon, and Dr. N. Yahmad, neurologist, to conclude that no assistance was needed.

28I find that the Applicant has not demonstrated that she requires around-the-clock supervisory care in the case of an emergency. The Applicant’s claim is based primarily on the finding of OT Hamilton who concluded that the Applicant was a fall risk due to a history of falling in the home one time in May 2022, and due to intermittent dizziness. This finding was made despite the Applicant reporting to OT Hamilton that she felt capable of getting up and out of the home in case of an emergency. OT Hamilton opined that the Applicant would not be timely in exiting her home if she experienced dizziness and nausea while attempting to exit the home in an emergency.

29I find that the opinion of OT V. Madan, is an outlier and unsupported by the other evidence. In the December 21, 2023 catastrophic impairment assessment, OT Madan asked the Applicant what she would do in the event of an emergency, and she replied that she didn’t know. In the same assessment and report, when asked what she would do upon discovering a fire in the kitchen, the Applicant said she would scream for help and that her anxiety would get in the way to process the situation.

30Together, OT Madan and OT Hamilton are outliers in that no other healthcare provider has opined that the Applicant lacks the cognitive function to deal with an emergency, or that her anxiety would interfere with her ability to deal with an emergency. Likewise, no other treating psychologist or psychiatrist has opined that the Applicant’s anxiety would impair her ability to process information in the event of an emergency. For example, none of the progress reports by psychotherapist and social worker D. W. Ivey indicate that the Applicant’s anxiety would impair her ability to cope with an emergency in the house. Similarly, the February 8, 2024 report by Dr. A. Liu, psychiatrist, does not indicate that the Applicant’s anxiety is debilitating to the point that it would impair her ability to cope with an emergency situation. This is consistent with the other psychiatric and psychological reports, none of which indicate that the Applicant’s anxiety is as debilitating in an emergency as described by OT Madan and OT Hamilton.

31Overall, I prefer the opinion of OT Li with respect to the Applicant’s ability to exit the home in an emergency. OT Li observed the Applicant to access doorknobs and light switches, complete transfers and negotiate stairs and her home with her cane. From a cognitive perspective, OT Li observed that the Applicant demonstrates the cognitive ability to respond appropriately during an emergency. To me, this characterization of the Applicant’s function and ability to deal with an emergency is consistent with the balance of the medical record before me.

32Accordingly, I find that 680 minutes per week of level 2 attendant care is reasonable and necessary. This equates to a monthly quantum of $682.27.

Level 3 care

33I find that the Applicant is entitled to 62 minutes per week of level 3 attendant care, amounting to $93.80 per month.

34Level 3 care relates to complex health/care and hygiene functions that range from catheterizations to assisting with exercise.

35I prefer OT Hamilton’s recommendation over OT Li’s when it comes to level 3 care. The recommendation consists of managing medications (10 minutes per week), some bed bathing (28 minutes per week), assistance with exercises (14 minutes per week), and managing supplies and equipment (10 minutes per week). I find that 62 minutes per week ($93.80) is reasonable and necessary.

36Regarding level 3 care, OT Hamilton found that the Applicant was inconsistent with her exercise program and required assistance to complete it daily. OT Hamilton also recommended assistance with bathing because the Applicant reports completing the task independently with the use of grab bars but does so less frequently and only when someone else is present in the home. Therefore, assistance was recommended for transfers in and out of the shower, which are consistent with the Applicant’s demonstrated abilities, taking into consideration her reaching impairments and reduced mobility.

37I find that OT Li underestimated the Applicant’s level 3 care needs. OT Li did not consider the Applicant’s amotivation due to psychological symptoms when assessing whether assistance with exercise is required. OT Li did not consider the Applicant’s limited walking and mobility when OT Li accepted that the Applicant’s family picks up her medication at the pharmacy and felt that the Applicant could take a taxi or use a delivery system from a local pharmacy. Similarly, OT Li did not allocate time for bathing assistance, despite the Applicant’s reports that she needs occasional assistance with transfers in and out of the shower, her limited reaching ability, and her anxiety which appears to prevent her from showering when no one is present in the home.

38I find that allocation of some time for maintenance of supplies and equipment is also required, as recommended by OT Hamilton. OT Hamilton noted that the Applicant has an array of assistive devices which require monitoring for safety. I appreciate that OT Hamilton’s recommendation accounts for the Applicant’s low motivation and disorganization arising from her psychological impairments. OT Li noted that the Applicant demonstrated some functional limitations and impairments in this area but determined that no time be allocated based on general statements from other assessors. To me, OT Li’s conclusion fails to account for the maintenance of the Applicant’s various assistive devices, as well as the impact her low motivation has on her ability to monitor these devices to ensure they remain safe to use.

39Accordingly, I find that 62 minutes per week of level 3 attendant care is reasonable and necessary. This equates to a monthly quantum of $93.80.

40Altogether, in combining the three levels of care, I find that the Applicant is entitled to a incur monthly ACB expenses at the rate of $1,529.96 per month.

The Applicant has not incurred ACBs

41Having determined the amount of reasonable and necessary attendant care that the Applicant is entitled to claim, I must now determine the amount that she has incurred to-date, or whether it was not incurred due to the Respondent’s unreasonable withholding or delayed payment of the benefit.

42For the following reasons, I find that the Applicant has not incurred any amounts and has not demonstrated that ACBs were unreasonably withheld or delayed. Therefore, I decline to deem the expense to be incurred.

43The Applicant submits that the Respondent ignored all medical evidence, including its own assessors’ comments regarding her ability to respond in an emergency and her marked impairments in activities of daily living. The Applicant submits that the Respondent’s refusal to reconsider the denial of ACBs demonstrates an unyielding and unreasonable approach to adjusting her claim. Thus, she asks that ACBs be deemed incurred. In the alternative, and it is found that the Applicant never incurred ACBs, the Applicant seeks a finding that she is entitled to ACBs and is permitted to incur the expense following the outcome of the hearing. I note that the Applicant does not claim entitlement to ACBs on the basis that her service providers, her parents, are professional service providers. Similarly, the Applicant does not claim entitlement on the basis that her service providers sustained an economic loss due to providing care.

44The Respondent submits that no benefits should be deemed incurred because it approved ACBs at the rate of $3,000.00 per month for the period from November 20, 2020 to June 2022, yet none were incurred. It further submits that it never received the particulars of the ACBs incurred were ordered at the case conference.

45In reply, regarding the period from November 20, 2020 to June 2022, which is not at issue for this hearing, the Applicant submits that it was unclear whether her claim for ACBs was approved during that period because the Respondent provided contradictory statements regarding her entitlement and never approved the expense.

46First, I find that the parties’ arguments relating to the period predating the Applicant’s claim in this hearing is not relevant to the current dispute. Indeed, there was a dispute pertaining to the Applicant’s entitlement to ACBs during this period, and an application was made to the Tribunal to resolve the dispute, but it appears that it was resolved prior to a hearing.

47Second, I find that the Respondent’s denial of ACBs was not unreasonable because it was based first on the fact that it approved medical and rehabilitation benefits for the Applicant up to the non-catastrophic rate of $65,000.00. Once the Applicant was deemed to have sustained a catastrophic impairment, the Respondent assessed her again and relied on the opinions outlined in the multidisciplinary IEs. The multidisciplinary IE report, dated February 14, 2023, included opinions from OT Li, Dr. Yamad, neurologist, Dr. Grazer, psychiatrist, and Dr. Urovitz, orthopaedic surgeon, who unanimously agreed that the Applicant did not require any ACBs. Thus, it cannot be said that the Respondent’s denial was unreasonable, as it was reasoned by four regulated healthcare professionals. Similarly, I find that the Respondent has not exhibited unyielding behaviour because the Applicant never provided persuasive evidence of an ongoing need for ACBs, which would cause the Respondent to reevaluate its denial.

48Accordingly, I find that the Applicant has not demonstrated that ACBs were unreasonably withheld or delayed by the Respondent. Thus, I choose not to deem the expense incurred, pursuant to section 3(7) of the Schedule.

Interest

49Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits incurred, no benefits or interest is payable.

Award

50I find that the Applicant is not entitled to an award.

51The Applicant sought an award under section 10 of Regulation 664. Under section 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.

52The Applicant claims entitlement to an award on issues that were initially in dispute for this hearing but were resolved prior to it. Specifically, she claims entitlement to an award in relation to plans for OT services, speech-language pathology services, physiotherapy, and ACBs. Regarding the treatment and assessment plans, the Applicant submits that the benefits were only paid once she was deemed to have sustained a catastrophic impairment, and the fact that it paid for the benefits once she was deemed to have sustained a catastrophic impairment, establishes that the initial decision to deny the benefit was incorrect.

53The Respondent never addressed the Applicant’s submissions regarding the plans which were resolved prior to this hearing. On the issue of ACBs, it submits that it has acted reasonably by not subjecting the Applicant to assessments on the issue for more than a year and a half, and because no benefits would be payable until the Applicant was deemed catastrophically impaired because the Applicant had reached the funding limit for non-catastrophic injuries.

54I find that the Applicant has not demonstrated that the services were unreasonably withheld or that payment was delayed. In this case, the denial of the plans was based on the fact that the Respondent had approved medical and rehabilitation benefits up to the funding limit for non-catastrophic injuries. It would not be reasonable for the Respondent to approve medical and rehabilitation benefits after having approved other goods and services up to the funding limit. Moreover, the Respondent demonstrated that it is flexible in that it revisited the plans once the funding limit was lifted and approved the plans.

55On the issue of ACBs, I find that the Applicant had not demonstrated that the benefit was unreasonably withheld or payment was delayed. As noted earlier, the Respondent relied on the opinions of the IE assessors who unanimously agreed that the Applicant required no ACBs. My disagreement with those findings in this hearing does not make the findings unreasonable, as insurers are not held to a standard of perfection. Additionally, the Applicant never incurred the expense through a professional service provider and never provided any details of the care provided or of an economic loss that would make the benefit payable pursuant to section 3(7)(e) of the Schedule. Having never demonstrated that she received the services from a professional and never demonstrating that her non-professional service providers incurred an economic loss, it follows that no payment would be necessary and thus, it cannot be said that payments were unreasonably withheld or delayed.

56Accordingly, I find no award payable.

CONCLUSION AND ORDER

57The Applicant is entitled to ACBs at the rate of $1,529.96 per month.

58The Applicant is not entitled to payment of ACBs because she has not demonstrated that she incurred the expense or that the expense was unreasonably withheld or delayed by the Respondent.

59No interest or award is payable.