Citation: Kelly v. Intact Insurance Company, 2026 ONLAT 24-003751/AABS

Licence Appeal Tribunal File Number: 24-003751/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:

Fiona Kelly

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Brent McQuestion, Counsel

For the Respondent:

Christine Haddad, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Fiona Kelly, the applicant, was involved in an automobile accident on September 1, 2018, 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.

2This decision is a partial rehearing as a result of the reconsideration decision dated April 29, 2026. The issue of ongoing attendant care benefits was ordered to be reheard based on the parties’ original written hearing submissions and evidence.

ISSUES

3The issue in dispute is:

1. Is the applicant entitled to attendant care benefits in the amount of $2,058.90 per month from January 30, 2026, to date and ongoing?

RESULT

4The applicant is entitled to attendant care benefits in the amount of $522.30 per month from January 30, 2026, to date and ongoing.

Procedural history

5In a Tribunal decision released January 30, 2026, the Tribunal found that the applicant was not entitled to the disputed treatment plans, or attendant care benefits “to the date of this decision”. In a reconsideration decision dated April 29, 2026, the Tribunal found that despite the fact that the issue in dispute was whether the applicant was entitled to attendant care benefits from May 15, 2024 “to date and ongoing”, the hearing adjudicator had not addressed ongoing attendant care benefits past the date of the decision.

6Accordingly, this partial rehearing was ordered to address the issue of whether the applicant was entitled to attendant care benefits from January 30, 2026 [the date of the decision] to date and ongoing.

ANALYSIS

Attendant Care Benefits (“ACBs”)

7I find that the applicant is entitled to ACBs in the amount of $522.30 per month, from January 30, 2026, to date and ongoing.

8Section 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 document entitled Assessment of Attendant Care Needs (“Form-1”).

9The applicant submits that she is entitled to a monthly quantum of $2,058.90 in ACBs, based on the recommendation of occupational therapist (“OT”) Afsha Husain in an OT assessment report dated May 30, 2024, and a Form 1 dated May 15, 2024. The respondent submits that the monthly quantum should be $0, based on the recommendation of OT Shoabana Kugathsan in a Form 1 and OT assessment report dated November 20, 2024.

10Ms. Husain found that the applicant was limited with respect to her activities of daily living, household, cooking and cleaning activities, due to her neck and mid back pain, amotivation, fatigue, visual and vestibular symptoms and emotional difficulties. Ms. Husain recommended ACBs in the areas of grooming, feeding, mobility, hygiene, basic supervisory care, coordination of attendant care, medication and bathing, as follows:

Applicant’s Form 1

Level 1 Grooming

(30 min/week) Shaving with electric/safety razor (60 min/week) Haircare – shampoo, drying hair styling

Food preparation/ Service

(630 min a week) Assistance, either in whole or part, in preparing, serving and feeding meals

Mobility

(180 min a week) Supervising/assisting in walking

Level 2 Hygiene

(300 min a week) Cleaning tub/shower/toilet after use, changing bedding and cleaning bedroom, ensuring safety and security in environment

Basic Supervisory Care

(630 min a week) Applicant lacks ability to independently get in and out of wheelchair or be self-sufficient in an emergency

Coordination of Attendant Care

(30 min a week) Assistance in coordinating/scheduling attendant care

Level 3 Medication

(19 min a week) Monitoring and maintaining medication

Bathing

(70 min a week) Bathing and drying

11The respondent relies on the conclusions of its IE assessors to argue that the applicant is not entitled to any attendant care. Its GP assessor Dr. Kopyto diagnosed the applicant with strain of the neck and back, post-traumatic headaches and concussion, but found that the applicant did not have a musculoskeletal impairment that required ACBs. Dr. Kucher, neurologist, diagnosed the applicant with a concussion and found that the applicant did not have any neurological impairments which required attendant care. The respondent’s psychological assessor Dr. Ian Smith diagnosed the applicant with accident-related Major Depressive Disorder and Posttraumatic Stress Disorder in partial remission. Although Dr. Smith noted the applicant’s reports of reduced motivation for self-care and some household tasks, she remained psychologically capable of independent completion of the tasks.

12The respondent’s OT assessor Ms. Kugathasan found that the applicant had functional range of motion in all areas, with discomfort in the mid-back with neck, shoulder, trunk and hip movements. The respondent argues that the applicant reported that she could manage her personal care tasks independently, that she was able to shave but “did not bother”, that she was able to prepare a simple breakfast and heat up leftovers, and that she can physically clean the bathroom and bathe.

13The respondent argues that the quantum of ACB services proposed by Ms. Husain is excessive. It submits that under Level 1, routine personal care, there is no indication that the applicant cannot shave or wash her hair, or that she needed any assistance with walking. With respect to meal preparation, the respondent argues that the applicant reported that she can prepare “simple meals” and that her husband and housemate prepared the dinner meals. Under Level 2, supervisory care, the respondent argues that the bathroom and bedroom hygiene are excessive and are housekeeping services, rather than attendant care. It further submits that there is no evidence that the applicant requires supervision due to the inability to be self-sufficient in an emergency. Finally, with respect to Level 3 care, the respondent argues that the applicant does not physically require assistance for bathing, and that queuing and prompting for self-care was already proposed.

14In reply the applicant submits that the respondent’s position that she does not require any attendant care is incongruent with the fact that on April 30, 2025, more than seven years post-accident, it approved a number of treatment plans, including ones for vision therapy, rehabilitation therapy, and for assistive devices including an installation of a staircase, a food processor, electric razor, orthopedic pillows, a whiteboard, shower head, hot packs, and a supportive mattress. The applicant further argues that the respondent’s assessment does not take into account the need for queuing or emotional support or whether the applicant needs supervision at night.

15I find that the applicant has established that $522.30 a month of ACBs is reasonable and necessary.

Level 1

16With respect to Level 1 care, I find that the applicant is entitled to 60 minutes a week in shampooing and hairstyling and 30 minutes a week in shaving assistance. Although the respondent argues that the applicant is physically able to shave and wash and style her hair, the applicant reported to Ms. Husain that lack of motivation, pain and fatigue limited her self-care, and Ms. Husain noted the applicant’s appearance was disheveled, consistent with previous sessions. The applicant also reported to the respondent’s assessors that while she was independent with self-care, she struggled with motivation. I find that the applicant has established that assistance and prompting for these tasks are reasonable and necessary.

17With respect to food preparation, I find that the applicant is entitled to 315 minutes per week of food preparation assistance, rather than the proposed 630 minutes per week. I am not persuaded by the respondent’s argument that the applicant is fully independent in this area. She reported to all assessors that prior to the accident she was primarily responsible for meal preparation and cooking. After the accident, she was able to prepare a simple breakfast and heat up leftovers, but due to back pain, reduced stamina and motivation, she struggled with preparing meals, and tasks such as chopping, and relied on her partner or housemate to make dinner. Ms. Husain also noted that the kitchen was highly disorganized and that the applicant struggled to make room to prepare meals. I find that 45 minutes a day to assist with dinner preparation and organization are reasonable and necessary, rather than the proposed 90 minutes a day. I also note that in the applicant’s submissions, she confirmed that the respondent had approved an 8-cup food processor, which was one of the items that Ms. Husain said would help promote independence with meal preparation.

18I find that the applicant has not established that she needs assistance or supervision with mobility. Ms. Husain had recommended 180 minutes a week due to dizziness, difficulty in accessing the basement due to steep stairs and a lack of railing, and support in going into the community. However, I agree with the respondent that the applicant has not established issues with mobility. Further, in the applicant’s submissions, she confirmed that the respondent had approved treatment plans for rehabilitation therapy to attend appointments and encourage community access, and the installation of a staircase railing. As a result, the applicant has not established that 180 minutes a week for assistance with mobility is reasonable and necessary.

Level 2

19I find that the applicant has established that 90 minutes per week to assist with bathroom and bedroom hygiene are reasonable and necessary.

20Ms. Husain proposed 660 minutes a week for basic supervisory care for cueing and prompting to attend self-care activities, eat meals, keep track of appointments, and to provide reassurance and support, monitor the applicant’s emotional well-being and coordinate attendant care. I agree with the respondent that some of the proposed supervisory services are a duplication of services, since in Level 1, the applicant has requested assistance (including prompting) for self-care tasks and meal preparation, partly due to lack of motivation. Further, with respect to keeping track of appointments, the applicant reported that she used a whiteboard to keep track of appointments.

21With respect to hygiene, Ms. Husain proposed 90 minutes a week for hygiene tasks such as cleaning the bathroom after use, changing bed linens and cleaning the bedroom, and 210 minutes per week to ensure her safety and security in her bedroom environment due to poor sleep, emotional dysregulation and infrequent nightmares. I agree with the respondent that with respect to the 210 minutes for comfort and security in the bedroom, the applicant has not established that she requires assistance with bed transfers, or that she requires overnight supervision.

22However, I find that the applicant has established that 90 minutes per week to assist with bathroom and bedroom hygiene is reasonable and necessary. The applicant reported to Ms. Husein that she relied on her husband to change the bed sheets, and that she struggled with completing these tasks due to low motivation. The respondent’s OT assessor Ms. Kugathasan noted that the applicant reported that while she can physically clean the bathroom, she does not do it, and that she does not make her bed. Ms. Kugathasan noted that the applicant did not currently have bed sheets on her bed, that she finds the mattress heavy and she is not motivated to make her bed.

Level 3

23I find that the applicant has not established that Level 3 ACBs are reasonable and necessary.

24Ms. Husain proposed 19 minutes a week in medication management, and 70 minutes a week for bathing assistance. However, the applicant reported to multiple assessors that she managed her medication by getting blister packs. Further, with respect to bathing, the evidence establishes that the applicant could independently transfer into the bathtub, but that she had difficulty washing her back and she required cueing to shower regularly due to lack of motivation. However, under Level 1 care I have already approved ACBs for support and cueing for hair washing in the shower. Further, although the applicant had reported difficulty with washing her back, the applicant confirmed in her submissions that the respondent had approved a treatment plan for a shower hose/head, which was a recommended device for assisting her independence with showers.

25Accordingly, I find that the applicant has not established entitlement to Level 3 ACBs.

26The applicant is entitled to ACBs as follows: Level 1 - 315 minutes per week of food preparation assistance, 60 minutes a week in shampooing and hairstyling and 30 minutes a week in shaving assistance; Level 2 – 90 minutes per week for bedroom and bathroom hygiene, being $522.30 per month in total ACBs. ACBs are payable once incurred pursuant to s. 3(7)(e) of the Schedule.

ORDER

27The applicant is entitled to attendant care benefits in the amount of $522.30 per month from January 30, 2026, to date and ongoing, once incurred in accordance with s. 3(7)(e) of the Schedule.