Citation: Romans v. Co-operators General Insurance Company, 2026 ONLAT 24-004840/AABS

Licence Appeal Tribunal File Number: 24-004840/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:

Cassandra Romans

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Mohamed Elbassiouni, Counsel

For the Respondent:

Lisa Armstrong, Counsel

HEARD: By way of written submissions

OVERVIEW

1Cassandra Romans (“the Applicant”) was involved in an automobile accident on May 2, 2019, and sought benefits from Co-operators General 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 in dispute are:

(i) Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $6,000.00 per month, less any amounts paid by the Respondent, for the period from July 1, 2024, 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

3I find that the Applicant has demonstrated that she is entitled to claim ACBs in the amount of $6,000.00 per month.

4The Applicant is entitled to ACB expenses incurred to-date totalling $15,120.00, less any amounts paid by the Respondent.

5The Applicant is entitled to interest on the overdue payment of ACBs, noted above.

6No award is payable.

7All other issues related to this hearing, as outlined in the case conference report and order, dated September 4, 2024 (“the CCRO”), were withdrawn by the Applicant prior to the end of this hearing.

Preliminary matters

Hearing format

8According to the CCRO, this dispute was ordered to a written hearing on the consent of the parties. About a month following the case conference, the Applicant sought to convert the hearing from one in writing to a video conference hearing. The Applicant’s motion was denied by motion order, dated October 29, 2024.

9The Applicant disagrees with the result of the Tribunal’s motion order, dated October 29, 2024. To her, it is a violation of procedural fairness to deny her a videoconference hearing. She submits that procedural fairness mandate that she be afforded a meaningful opportunity to present viva voce evidence and call witnesses in support of her claims for ACBs and the other benefits.

10I will not address the substance of the Applicant’s submissions on the format of the hearing. The issue of the hearing format was addressed in the motion order, dated October 28, 2024, and is not an issue in dispute for me to address in the substantive issues hearing.

Background

11The Applicant suffered catastrophic mental and behavioural impairments as a result of the subject accident. She also sustained multiple rib fractures and other physical injuries in the accident. She was hospitalized for five days following the accident. Since the accident, the Applicant has been admitted to the hospital for mental and behavioural issues several times.

12The Applicant claims that the combination of mental and behavioural, physical, and cognitive impairments necessitates her need for around-the-clock (“24/7”) supervisory care. Accordingly, she seeks entitlement to monthly ACBs in the amount of $10,306.32 per month, but has capped her claim at the rate of $6,000.00 per month, in accordance with section 19(3)ii of the Schedule.

13The Respondent disagrees and frames the Applicant as a malingerer who is dishonest with healthcare providers about her mental health. It agrees that the Applicant requires ACBs at the rate of $901.19 to $1,361.60 per month, to complete some of her activities of daily living (“ADLs”) but concludes that 24/7 care is contrary to the recommendations of the Applicant’s treating psychiatrists, and that 24/7 care will only hurt her recovery.

14For the following reasons, I find that 24/7 supervisory care is reasonable and necessary as a result of the accident.

ANALYSIS

Attendant Care Benefits (“ACBs”)

15Pursuant 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 that she required the care of an aide or attendant and that she incurred the expense of hiring one. 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.

The Applicant is entitled to claim ACBs at the rate of $6,000.00 per month

16I prefer the Form-1 of occupational therapist (OT) MacIsaac, dated April 4, 2024, recommending ACBs in the amount of $10,306.32 per month, over the Form-1 of OT M. Vitali-Perrier, dated May 9, 2024, recommending ACBs in the amount of $901.19 per month, and the recommendation by Dr. V. Sivasubramaniam, psychiatrist, in a report dated December 30, 2024, to increase the Applicant’s monthly ACBs up to $1,361.60. My preference is based heavily on the fact that the Form-1 by OT MacIsaac is endorsed and supported by Dr. M. El-Saidi, the Applicant’s treating psychiatrist.

17I place great weight on the recommendation from the Applicant’s treating psychiatrist, Dr. El-Saidi. Dr. El-Saidi has treated the Applicant since December 2022 and expressly endorses the recommendation from OT MacIsaac for 24/7 care. To Dr. El-Saidi, the Applicant suffers from a major depressive disorder, post-traumatic stress disorder (“PTSD”), and somatic symptom disorder, which causes her to have frequent suicidal thoughts. In an April 30, 2024 report, Dr. El-Saidi endorsed 24/7 care, as recommended by OT MacIsaac, primarily due to the Applicant’s suicidal ideation. Additional care is recommended by both Dr. El-Saidi and OT MacIsaac to assist the Applicant with her activities of daily living (“ADLs”) because she suffers a marked impairment in that sphere of functioning.

18Dr. El-Saidi continues to recommend 24/7 care for the Applicant. In the March 4, 2025 report, Dr. El-Saidi again confirms that the Applicant suffers from a major depressive disorder, PTSD, and a somatic symptom disorder. Dr. El-Saidi reiterates that the Applicant requires 24/7 supervisory care as a result of her psychiatric impairments, particularly her vulnerability for suicide. Dr. El-Saidi reported that the Applicant’s vulnerability increases when there is a lack of PSW support, poor sleep, pain, and cognitive limitations. To Dr. El-Saidi, the Applicant is not safe to be left alone and not safe to live independently.

19I find that the Applicant’s hospital discharge reports do not demonstrate that 24/7 care is strongly opposed, as submitted by the Respondent. As highlighted by the Respondent, a report relating to the Applicant’s April 5, 2024 hospital admission noted the Applicant as disengaged in the therapeutic process, and physicians observed no objective evidence of a mood or anxiety disorder. CNRs from that visit indicate that Dr. J. Patterson, psychiatrist, referred the Applicant to an outpatient program, primarily related to the Applicant’s difficulty engaging in care while in the hospital. From the same visit, Dr. N. Bakker, psychiatrist, noted that ongoing admission is unlikely to be therapeutic for the Applicant, based on her historical lack of motivation to earnestly engage in care and work towards recovery.

20I find the comments by Dr. Patterson and Dr. Bakker to be related to in-patient hospital care and should not be construed as opposing 24/7 care by a PSW, as recommended by Dr. El-Saidi. This is exemplified in Dr. Bakker’s notes, which state that in-patient care is unlikely to be therapeutic and could reinforce the Applicant’s regression, but based this opinion on the Applicant’s history of a lack of motivation to engage in care and work towards recovery – not because she is a malingerer, and not because she is without any mental and behavioural impairments. It is reasonable to discharge a patient from in-patient hospital care because they are not using the resources provided in the hospital, and those resources could be allocated to other patients who demonstrate the motivation to participate in in-patient care. This does not equate to an opinion that attendant care benefits are not required.

21I acknowledge Dr. Patterson’s report that the Applicant is malingering, but find that it is outweighed by the reports of Dr. El-Saidi, Dr. Sivasubramaniam, and Dr. S. Patel, psychiatrist, amongst others. Dr. El-Saidi, in the March 4, 2025 report concluded that the Applicant’s mental health impairments, and impairments related to completing her ADLs are a direct result of the subject accident. Dr. Sivasubramaniam conducted an insurer’s examination and concluded in a December 30, 2024 report that while the Applicant had other psychosocial stressors unrelated to the accident, the accident itself appears to be the primary stress driving her current mental health pathology. Dr. Patel assessed the Applicant, and concluded in an October 4, 2021 report that the Applicant sustained marked impairments in the spheres of ADLs, social functioning, and deterioration in work or work-like settings, as a result of the subject accident. All these reports conclusively relate the Applicant’s current presentation to the subject accident.

22It appears that the Respondent has conflated 24/7 care provided in-home, by a regulated healthcare provider, with in-patient emergent hospital care. The two services are different, and a recommendation against one service does not negate the need for the other. Consider the different ways in which ACBs may be provided, such as outlined in Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014, which concluded at paragraph [81] that ACBs “may be “provided” in the form of phone calls, e-mails, texting, FaceTime and other similar electronic means”. This is a vastly different services relative to in-patient hospital care.

23Considering the difference between the two types of services addressed by the parties in their submissions, and the Applicant’s consistent psychiatric complaints with suicidal ideation, together with the recommendation from her treating psychiatrist, I conclude that 24/7 attendant care is reasonable and necessary as a result of the accident.

The Applicant has incurred $15,120.00 in ACBs during the period of claim

24I find that the Applicant has demonstrated that she incurred ACBs totalling $15,120.00 during the period of claim.

25Pursuant to section 19(1)(a), the Applicant is entitled to all reasonable and necessary expenses incurred by or on her behalf as a result of the accident, for services provided by an aide. Relevant for the Applicant, section 3(7)(e) of the Schedule provides that an expense is not incurred unless the insured person received the goods and services, the insured person has paid the expense or is otherwise legally obligated to pay the expense, and the person who provided the services did so in the course of their employment, but for the accident.

26I find that the Applicant received ACBs from a professional service provider, for the months of December 2023, January 2024, and February 2024, totalling $15,120.00. The expense is confirmed by way of three invoices from the service provider, numbered 279826, 279827, and 279828. The invoices on their own do not include the service provider’s information, nor the services provided. Accordingly, the Respondent sought a statutory declaration, which the service provider complied with, on April 15, 2024. In that declaration, the service provider stated that she worked as a self-employed PSW prior to providing services to the Applicant. The service provider also confirmed that she helped with routine personal care such as dress, undress, grooming, hygiene, supervisory care, bathing, preparing and serving meals, medication, and serving any other need. This information is sufficient in the circumstances to qualify as an incurred expense because the service provider did so in the course of her employment in which she was ordinarily engaged, but for the accident.

27I find no other evidence demonstrating that the Applicant incurred ACBs outside of the amounts outlined in the invoices. Her submissions confirm that the service provided stopped providing services in April 2024, which is supported by the service provider’s statutory declaration.

ACBs should not be deemed incurred in this scenario

28I choose not to exercise my discretion to deem ACBs incurred.

29Pursuant to section 3(8) of the Schedule, the Tribunal may deem an expense to have been incurred if it finds that the expense was not incurred because the Respondent unreasonably withheld or delayed the payment of the benefit.

30Here, the Applicant asks that the difference between her $6,000.00 entitlement and the amounts claimed be deemed incurred, pursuant to section 3(8) of the Schedule. The Respondent never addressed this issue directly, but tendered submissions and evidence confirming that it approved ACBs at the monthly amount of $901.19 effective June 13, 2024, and increased the monthly amount to $1,361.60, on January 15, 2025, based on the recommendation from Dr. Sivasubramaniam. It is not that the Respondent disagrees that the Applicant is entitled to ACBs, it’s that it disagrees with the monthly quantum of ACBs.

31To me, the evidence does not support a finding that the expense was not incurred because the Respondent unreasonably withheld or delayed payment of ACBs. Frist, the Respondent’s decision to approve ACBs up to the monthly amount of $901.19 and $1,361.60 were made on the recommendation of qualified healthcare professionals, which consideration for the comments by the psychiatrists who monitored the Applicant’s in-patient hospital care and opined that it would not have a therapeutic benefit and could lead to the Applicant’s regression. While I have found that the Respondent’s determination was incorrect, I find that it was not an unreasonable determination that would engage the deemed incurred provision in section 3(8) of the Schedule. Insurers are not held to a standard of perfection.

32Second, the Respondent never denied ACBs in full, and the Applicant chose not to incur ACBs at the lesser rate. The Respondent has maintained that the Applicant is entitled to incur ACBs at the rate of $901.19 and increased to $1,361.60 effective January 15, 2025. Here, the Applicant incurred ACBs at the rate of $5,040.00 per month for a period of three months in early 2024, then chose not to incur any ACBs thereafter, despite being entitled to and approved to claim up to $1,361.60 per month. I am unable to find that a benefit was unreasonably withheld or delayed by the Respondent, when the Applicant was approved for ACBs up to $1,361.60 per month but chose not to incur the expense.

33Lastly, I acknowledge that the Applicant’s service provider stopped providing ACBs on the basis that she was not paid for her services but find that this does not upset the Applicant’s obligation to incur approved benefits to further the Applicant’s recovery. Indeed, the service provider’s statutory declaration states that services were stopped due to non-payment. However, there is no explanation by the Applicant as to why she incurred no ACBs when she was approved for up to $1,361.60 per month. Incurring ACBs at the approved rate has no bearing on the debt owed by the Applicant to her prior service provider. That is, while there is a dispute regarding the quantum of ACBs, it still serves the Applicant best that she incurs ACBs at the approved rate while the dispute over quantum is resolved. If one service provider refuses to do the work, the Applicant is open to finding another provider who will provide the services. The funding was available for the Applicant to use but she chose not to do that and instead, incurred no ACBs.

34Having found that the Respondent’s denial to be not unreasonable and considering the fact that the Applicant chose not to incur ACBs, despite being approved for it by the Respondent, I conclude that ACBs were not unreasonably withheld or delayed. Accordingly, I chose not to deem the expense incurred.

Interest

35Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the ACBs she incurred, less the amounts already paid by the Respondent, it follows that she is also entitled to interest on the overdue payment of those benefits.

Award

36The 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.

37First, I reiterate my findings above regarding whether ACBs should be deemed incurred. I note that the Respondent’s denial was not unreasonable in light of the recommendations from the IE assessors, and with consideration for the Applicant’s in-patient hospital-based psychiatrists’ opinion that ongoing in-patient care would provide no therapeutic benefit.

38Additionally, I note that the information regarding the service provider and the services provided was missing. The invoice does not include the service provider’s contact information, nor does it outline the services provided. It is reasonable for the Respondent to seek this information to confirm that the service provider meets the requirements to deem the expense incurred.

39Lastly, the Respondent agreed to pay ACBs at the lesser rate, yet the Applicant chose not to incur the expense. It cannot be said that the Respondent acted in a stubborn or unyielding way when it agreed to pay at the rate recommended by the IE assessors.

40Accordingly, I find no award payable.

CONCLUSION AND ORDER

41The Applicant is entitled to claim ACBs at the rate of $6,000.00 per month.

42The Applicant is entitled to payment for ACBs incurred to-date, less the amounts already paid by the Respondent.

43The Applicant is entitled to interest on the overdue payment of her incurred ACB expenses, pursuant to section 51 of the Schedule.

44No award is payable.

45The other benefits outlined in the case conference report and order, dated September 4, 2024 were withdrawn by the Applicant prior to the end of this hearing.