Licence Appeal Tribunal File Number: 24-008081/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:
Barbara Farrow
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Brennan Kahler, Counsel
For the Respondent:
Shivani Mehta, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Barbara Farrow, the applicant, was involved in an automobile accident on November 9, 2020, 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, Intact 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 December 9, 2020, to November 9, 2022?
ii. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $3,000.00 per month from October 18, 2022, to date and ongoing?
iii. Is the applicant entitled to $2,000.63 for occupational therapy services, proposed by Rehab First Inc. in a treatment plan/OCF-18 (“plan”) dated July 27, 2022?
iv. Is the applicant entitled to $3,707.55 for rehabilitation therapy sessions, proposed by Rehab First Inc. in a plan dated June 27, 2022?
v. Is the applicant entitled to $3,759.43 for occupational therapy services, proposed by Rehab First Inc. in a plan dated July 27, 2022?
vi. Is the applicant entitled to $3,030.40 for occupational therapy services, proposed by Rehab First Inc. in a plan dated October 12, 2022?
vii. Is the applicant entitled to $3,710.00 for social work treatment sessions, proposed by Rehab First Inc. in a plan dated October 12, 2022?
viii. Is the applicant entitled to $5,928.43 for social work treatment sessions, proposed by Rehab First Inc. in a plan dated November 21, 2022?
ix. Is the applicant entitled to $4,341.82 for occupational therapy services, proposed by Rehab First Inc. in a plan dated January 12, 2023?
x. Is the applicant entitled to $4,341.82 for occupational therapy services, proposed by Rehab First Inc. in a plan dated June 20, 2023?
xi. Is the applicant entitled to $3,542.63 for occupational therapy services and a wheelchair expense, proposed by Rehab First Inc. in a plan dated November 28, 2022?
xii. Is the applicant entitled to $5,668.43 for social work treatment sessions, proposed by Rehab First Inc. in a plan dated June 6, 2023?
xiii. Is the applicant entitled to $3,907.62 for speech language pathology assessment and treatment, proposed by Rehab First Inc. in a plan dated May 31, 2023?
xiv. Is the applicant entitled to $23,461.52 for the monthly fee for 12 months at a long-term care home, submitted by Rehab First Inc. via receipts dated November 9, 2022?
xv. Is the applicant entitled to $135.60 for attendant care expenses, submitted via receipts dated March 31, 2021?
xvi. Is the applicant entitled to $2,779.80 for attendant care expenses, submitted via receipts dated April 30, 2021?
xvii. Is the applicant entitled to $2,697.31 for attendant care expenses, submitted via receipts dated May 31, 2021?
xviii. Is the applicant entitled to $3,027.50 for attendant care expenses, submitted via receipts dated June 30, 2021?
xix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xx. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant is not entitled to non-earner benefits in the amount of $185.00 per week from December 9, 2020, to November 9, 2022.
The applicant is not entitled to an attendant care benefit in the amount of $3,000.00 per month from October 18, 2022, to date and ongoing, or to attendant care expenses.
The applicant is not entitled to the treatment and assessment plans.
The applicant is not entitled to interest or an award.
ANALYSIS
Is the applicant entitled to a NEB of $185.00 per week from December 9, 2020, to November 9, 2022?
4I find that the applicant has not met the burden of establishing entitlement to a NEB for the period in dispute.
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 compares the applicant’s pre- and post-accident activities.
6The applicant submits that her accident‑related impairments are significant, ongoing, and have resulted in a complete inability to carry on a normal life. She reports physical, cognitive, and psychological difficulties following the accident and states that she ultimately moved to a long‑term care facility because she could no longer live independently.
7The respondent argues that the applicant had considerable pre‑accident limitations and care needs, and that the evidence does not establish a continuous accident‑related inability to engage in normal life activities. The respondent relies on section 44 assessments dated September 30, 2022, and the framework set out in Heath.
Pre-Accident Functioning
8Before the accident, the applicant reported being largely independent in daily activities. She completed her own self-care, household tasks, laundry, and meal preparation. She participated in leisure activities such as gaming, watching television, making rosaries, attending church, playing bingo, dining out, and socializing.
9She did receive Personal Support Worker (“PSW”) assistance three times weekly for bed baths due to transfer difficulties, but she otherwise lived independently with her husband and used no mobility aids. Her chronic medical conditions, including sleep apnea, coronary artery disease, hypertension, hypothyroidism, bipolar disorder, and medication‑related Parkinsonism, were reportedly well‑managed and did not substantially affect her independence.
Accident-related Impairments
Post-Accident Impairments and Functioning
10As a result of the accident, the applicant sustained multiple injuries, including a concussion, rib and sternum fractures, a hand fracture, a shoulder injury, and spinal soft‑tissue injuries, resulting in reduced mobility and a period of hospitalization and rehabilitation. She became wheelchair‑dependent and required a Hoyer lift, full postural support, and staff assistance for transfers. Activities she previously performed independently, such as dressing, bathing, grooming, cooking, cleaning, and shopping, now require full PSW assistance. Assessments indicate she requires 24‑hour care.
11The applicant also reports significant cognitive impairment, including difficulties with memory, concentration, organization, judgment, insight, reading, communication, and orientation. She describes symptoms consistent with post‑traumatic stress, such as nightmares, flashbacks, low mood, anxiety, irritability, confusion, and emotional dysregulation. Once independent in managing finances and personal affairs, she now requires ongoing assistance. She has also lost interest in and engagement with leisure activities, including bingo, church, reading, socializing, and computer use.
12The applicant further reports reduced social engagement and feelings of isolation, noting that cognitive and emotional difficulties have limited her participation in community, religious, and social activities. She describes a loss of independence and identity, exacerbated by grief following her husband’s death in 2022.
13The applicant submits that due to her declining health and functional abilities, she moved into long‑term care in October 2022. Before the accident, she lived safely at home with minimal assistance.
14The applicant submits that the stark contrast between her pre‑accident independence and post‑accident dependence satisfies the Heath test, arguing that she has been substantially and continuously prevented from performing all of her prior activities.
15I find that the OCF‑3, dated December 21, 2020, completed by Dr. Ion Hons, did not support a finding of complete inability to carry on a normal life. The accompanying medical documents did not address functional inability (history and physical report dated November 13, 2020; discharge summary dated November 13, 2020; consultation report dated November 28, 2020; and Trauma resuscitation Note dated November 9, 2020).
16A later OCF‑3, dated October 5, 2021, completed nearly one year post‑accident by Dr. Jay Taylor, stated that the applicant suffered a complete inability to carry on a normal life due to ongoing pain and functional impairment. However, this opinion largely reflects the applicant’s self‑reported symptoms and limitations, similar to those described in paragraphs 10, 11, and 12, and is framed as a submission rather than as findings grounded in contemporaneous objective or functional evidence. The OCF‑3 does not provide a detailed functional analysis or comparative assessment of pre‑ and post‑accident activities sufficient to support a Heath comparison, nor does it reconcile the reported impairments with the broader medical and functional record.
17On September 30, 2022, Dr. Pankaj Bansal conducted an insurer’s examination and found no objective signs of ongoing musculoskeletal, orthopaedic, or neurological injury. He explained that such injuries typically resolve within approximately six months and concluded that the applicant did not suffer a complete inability to carry on her normal life due to accident‑related injuries.
18Occupational therapist Ms. Jackie Auger reported that the applicant demonstrated functional active range of motion in multiple areas, as well as grip strength, sitting tolerance, and the ability to stand and walk with a walker. She also observed the applicant performing forward bending, reaching, and sit‑to‑stand transfers.
19Ms. Auger concluded that the applicant had sufficient functional tolerance to independently complete bed baths and showering in her properly arranged bathroom. She demonstrated functional movement and tolerance consistent with independence in basic hygiene tasks, meal preparation, exercises, and medication management. The applicant demonstrated functional mobility with a cane and performed independent transfers. No distress or cognitive impairment was noted that would necessitate attendant care. Ms. Auger reached the same conclusions in a subsequent assessment dated February 22, 2023.
20The evidence also shows the applicant had significant pre‑accident medical conditions and functional limitations, including reliance on ODSP/CPP‑Disability benefits and PSW assistance prior to the accident.
21The respondent’s section 44 occupational therapy and general practitioner reports conclude that the applicant’s accident‑related injuries did not prevent her from engaging in most pre‑accident activities and that her current limitations stem primarily from pre‑existing conditions rather than the accident.
22I accept that the applicant experienced a decline in health and entered LTC in 2022. However, the statutory focus is on the 104‑week post-accident period. The earliest OCF‑3 does not support NEB, and the later OCF‑3 lacks functional detail in accordance with Heath. In contrast, the s. 44 assessments provide contemporaneous, function‑based analysis addressing the legal test and are consistent with documented pre‑accident PSW needs and comorbidities. Where the evidence conflicts, I prefer the s. 44 opinions for their methodological rigour, temporal proximity to the end of the NEB period, and clear causation analysis.
23Further, the record indicates that the most significant decline occurred after the 104‑week period and was attributable to non‑accident factors (e.g., dementia, infections, hospitalizations), thereby not meeting the requirement for accident-related impairments to continuously prevent the applicant from engaging in substantially all of her pre-accident activities during the required period to establish entitlement.
24Accordingly, on a balance of probabilities, the applicant has not proven a complete inability to carry on a normal life as a result of the accident and is not entitled to NEBs of $185.00 per week from December 9, 2020, to November 9, 2022.
25Is the applicant entitled to an ACB of $3,000.00 per month from October 18, 2022, to date, and ongoing and to Attendant Care Expenses?
26I find that the applicant is not entitled to an ACB of $3,000.00 per month for the period in dispute, nor to payment of the claimed attendant‑care expenses.
Attendant Care Benefit
27I find that the applicant is not entitled to ACB of $3,000 per month for the period beginning October 18, 2022, nor to payment of the attendant care expenses claimed.
28Section 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 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 document entitled Assessment of Attendant Care Needs (“Form-1”).
29The applicant relies on a Form 1 dated October 18, 2022, which assesses her monthly attendant care needs at over $10,000. She submits that she requires extensive assistance due to her ongoing functional impairments.
30The respondent submits that the applicant’s combined medical, rehabilitation, and attendant‑care limits were fully exhausted on June 4, 2022. The respondent relies on the February 22, 2023, in‑home occupational therapy assessment and the section 44 general practitioner examination, both of which conclude that no accident‑related attendant care is required.
Non-CAT Monetary Limit
31I find that an ACB is not payable after June 4, 2022, because the applicable non‑catastrophic combined limit of $65,000 has been exhausted.
32The respondent relies on the Standard Benefit Statement (“SBS”) dated June 4, 2022, which confirms that the applicant’s policy provided $65,000 in combined medical, rehabilitation, and attendant‑care funding for a non‑catastrophic impairment. The SBS records $65,429.03 paid to date, exceeding the policy maximum. As a result, all ACB claims submitted after that date, including the $3,000‑per‑month claim beginning October 18, 2022, were denied on the basis of policy‑limit exhaustion, not medical necessity.
33The applicant argues that the limit should not bar payment because her Forms 1s (January 2021, July 2021, and October 2022) show needs that exceed the statutory cap. She also asserts that long‑term care fees of $1,938.46 per month fall within the monthly ACB maximum and that the respondent misapplied or misallocated the policy limit.
34However, the SBS clearly confirms exhaustion of the non-CAT limit:
ACB paid to date: $18,360.80.
Medical/rehabilitation paid to date: $47,068.23.
Total: $65,429.03.
35There is no evidence of a catastrophic impairment determination that would increase available benefits. Nor is there evidence that the respondent miscalculated or misapplied the benefit categories.
36After reviewing the record, I accept that both the medical/rehabilitation and attendant‑care limits were exhausted as of June 4, 2022. Once the non‑CAT limit is reached, the benefit is not payable unless a catastrophic impairment is established. Because there was no CAT designation, the ACB payments are limited to the non-CAT cap. For this reason alone, ACBs after June 4, 2022, are not payable.
Medical Evidence
37In addition, based on the medical evidence, even if the policy limit had not been exhausted, the applicant has not established entitlement to an ACB.
38The applicant submits that her long-term care needs are accident-related and supported by several Form 1s.
39The January 21, 2020, Form 1 assesses only basic supervisory care needs.
40The July 4, 2021, Form 1 lists needs in the areas of feeding, mobility, hygiene, supervision, and exercise.
41The October 18, 2022, Form 1 assesses needs in dressing, bathing, toileting, mobility, skin care, medication, and supervision.
42The respondent relies on two section 44 assessments. Occupational Therapist Ms. Auger found no need for attendant care related to the accident. The applicant demonstrated adequate mobility, activities of daily living, and cognitive functioning. Many of the applicant’s care needs predated the accident. General Practitioner Dr. Bansal found no ongoing accident-related musculoskeletal, neurological, or orthopaedic impairments. Functional limitations were attributed to pre-existing conditions, rather than the accident.
43The respondent submits that the applicant would not qualify for an ACB even if monetary limits remained in place, as the insurer‑examiner evidence supports a calculated ACB entitlement of zero dollars.
44I find the Section 44 assessments more persuasive than the applicant’s Form 1 evidence. These assessments were completed closer to the disputed period, included detailed functional testing, and directly addressed causation. Both conclude that the applicant’s functional needs are attributable to pre‑existing conditions and age‑related decline, not the accident.
45While the applicant’s Form 1s list extensive care needs, they do not sufficiently differentiate between pre‑existing, age‑related, and accident‑related impairments. Nor do they provide the analysis required to connect the applicant’s long‑term care placement or later‑developing deficits to the accident.
46Because the Schedule requires that attendant‑care needs be “as a result of the accident,” the applicant has not met the statutory requirement.
47Accordingly, even without the policy‑limit issue, the medical evidence does not support entitlement to an ACB.
48The applicant is therefore not entitled to an ACB of $3,000.00 per month from October 18, 2022, to the present.
Attendant Care Expenses
49I also find that the applicant is not entitled to payment for the disputed attendant‑care expenses.
50The plan dated November 9, 2022, seeks $23,461.52 for long‑term care (“LTC”) expenses, based on monthly fees of $1,938.46 for 12 months following the applicant’s admission to long‑term care on October 25, 2022. The record also includes invoices from Right at Home Canada for personal‑care services provided in March ($135.60), April ($2,779.80), May ($2,027.50), and June 2021 ($3,027.50).
51The applicant submits that these costs were incurred due to her accident‑related needs and are within the allowable amounts.
52The respondent argues that these claims are barred because the combined medical, rehabilitation, and attendant‑care limit of $65,000 was exhausted by June 4, 2022, and that the applicant lacks a catastrophic impairment designation. The respondent also relies on the section 44 assessments, which conclude that there is no accident‑related need for attendant care.
53I agree with the applicant that the Right at Home invoices predate June 4, 2022, and therefore fall within the period before the policy was exhausted. However, the denial letters dated May 5, 2021, and August 6, 2021, indicate that these expenses were denied because the applicant failed to provide the required documentation confirming the services provided, by whom, and on which dates, as required under the Schedule.
54Although the provider submitted invoices specifying the amounts billed for services, the applicant did not, in the evidence, show that she provided the insurer with the required supporting information. As a result, I am not satisfied that the attendant care expenses are payable.
55Regarding the LTC fees, I accept the respondent’s position that the claim is barred by the exhausted non‑CAT limit. The June 4, 2022, SBS confirms that the full $65,000 limit had been paid by that date, with no remaining coverage. There is no evidence of a catastrophic impairment determination that would increase the limit. The LTC expenses were incurred after June 4, 2022, and are therefore subject to the exhausted limit.
56Accordingly, I find that she is not entitled to payment of the disputed attendant‑care expenses.
Is the applicant entitled to the treatment and assessment plans?
57I find that the applicant is not entitled to payment for the disputed treatment and assessment plans.
58To 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.
59The purpose of assessments is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Occupational and Rehabilitation Therapy
60I find that the applicant is not entitled to the disputed occupational therapy (“OT”) or rehabilitation therapy plans for occupational therapy and rehabilitation services.
61The following plans were all denied on the basis that the combined non-catastrophic limit of $65,000 had already been reached:
OT plan dated July 27, 2022 ($2,000.63), denied August 9, 2022.
OT plan dated July 27, 2022 ($3,759.43), denied August 9, 2022.
OT plan dated October 12, 2022 ($3,030.40), denied October 25, 2022.
OT plan dated January 12, 2023 ($4,341.82), denied January 24, 2023.
OT plan dated June 20, 2023 ($4,341.82), denied July 6, 2023.
OT and wheelchair plan dated November 28, 2022 ($3,542.63), denied December 16, 2022.
Rehabilitation Therapy plan dated June 27, 2022 ($3,707.55), denied August 9, 2022.
62The applicant submits that these OT and rehabilitation plans were reasonable and necessary, citing chronic pain, fatigue, deconditioning, mobility limitations, balance deficits, dependence in activities of daily living, fall risk concerns, and the need for environmental modifications, cognitive cueing, energy conservation, and structured reconditioning. She notes that providers repeatedly recommended ongoing therapy from 2021 to 2023.
63She further argues that rehabilitation therapy was required to restore walking, standing, and transfer tolerance; improve strength and endurance; train her in the use of mobility aids; counteract deconditioning; facilitate safe community reintegration; and prevent further decline.
64The respondent submits that none of these plans are payable because the combined medical, rehabilitation, and attendant care limits were fully exhausted on June 4, 2022, and no determination of catastrophic impairment has been made.
65Based on the evidence, I accept the respondent’s position. The SBS confirms that the non-catastrophic limit was fully exhausted as of June 4, 2022, leaving no remaining funding for plans submitted after that date. The applicant has not established that she was determined to be catastrophically impaired, nor has she shown any error in the insurer’s accounting.
66Given these findings, it is unnecessary to determine whether each plan was both reasonable and necessary.
67Accordingly, all OT and rehabilitation therapy plans in dispute submitted after June 4, 2022, are not payable.
Social work treatment sessions
68I find that the applicant is not entitled to the social work treatment plans for social work services.
69The following plans were denied due to exhausted limits:
Plan dated October 12, 2022 ($3,710.00), denied October 25, 2022.
Plan dated November 21, 2022 ($5,928.43), denied December 6, 2022.
Plan dated June 6, 2023 ($5,668.43).
70The applicant submits that social work was reasonable and necessary to address psychological symptoms, including anxiety, depression, panic, trauma-related symptoms, isolation, and difficulty coping after her husband’s death. She notes repeated recommendations for social work support.
71The respondent maintains that all plans were properly denied because the non-CAT limit was exhausted, and no catastrophic impairment determination extended coverage.
72Given my findings on the policy limit issue, I accept the respondent’s position. It is unnecessary to assess whether the plans were reasonable and necessary.
73Accordingly, the applicant is not entitled to the social work treatment plans.
Speech language pathology (“SLP”) assessment
74I find that the applicant is not entitled to the SLP assessment plan.
75The plan dated May 31, 2023, for $3,907.62, was denied on June 14, 2023, because the combined non‑CAT limit had already been exhausted.
76The applicant submits that an SLP assessment was reasonable and necessary to address cognitive‑communication difficulties affecting memory, attention, language, reading, and functional communication.
77The respondent submits that the policy limit was exhausted on June 4, 2022, and that, without a catastrophic impairment designation, no further funding is available.
78The SLP plan was submitted nearly one year after the policy limit was exhausted, and the applicant has provided no contrary accounting or evidence of catastrophic impairment. Given my findings on the policy‑limit issue, I do not need to determine whether the assessment was reasonable and necessary.
79Accordingly, the applicant is not entitled to the SLP assessment plan.
Interest
80Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that none of the claimed benefits are payable, there is no entitlement to interest.
Award
81The applicant sought an award under section 10 of Regulation 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.
82The applicant seeks an award under s. 10 of Reg. 664 on the basis that the insurer unreasonably withheld or delayed payment of benefits.
83The respondent submits that its conduct in making the adjustment was reasonable, transparent, and supported by medical evidence. It notes that it paid more than $65,000 in combined medical, rehabilitation, and attendant‑care benefits; denied NEBs based on s. 44 assessments; and denied ACB and treatment plans based on policy‑limit exhaustion and contemporaneous medical evidence.
84An award under s.10 is a remedy reserved for situations in which an insurer unreasonably withholds or delays payment despite the evidence and the requirements of the Schedule. The burden rests with the applicant.
85On the record before me, I am satisfied that the respondent’s denials were based on contemporaneously documented policy‑limit exhaustion, the absence of a catastrophic impairment determination, and functional and medical evidence obtained through section 44 assessments. I have found that none of the benefits are payable, and therefore, no benefits were withheld or delayed. The respondent’s conduct reflects a reasoned adjustment process rather than unreasonable withholding or delay.
86Accordingly, the request for an award under section 10 of Regulation 664 is denied.
ORDER
87For the above reasons, it is ordered that:
i. The applicant is not entitled to non-earner benefits in the amount of $185.00 per week from December 9, 2020, to November 9, 2022.
ii. The applicant is not entitled to an attendant care benefit in the amount of $3,000.00 per month from October 18, 2022, to date and ongoing, or to attendant care expenses.
iii. The applicant is not entitled to the treatment and assessment plans.
iv. The applicant is not entitled to interest or an award.
v. The application is dismissed.
Released: March 27, 2026
Harouna Saley Sidibé
Adjudicator