Written by Simrin Pardal
In this edition of our Summer Newsletter, we will be discussing the case decision of Patton v. Aviva Insurance Company of Canada, 2025 CanLII 28487 (ONLAT) [1] July 12, 2024.
Mr. Patton, the applicant, was involved in an automobile accident on November 23, 2020. Following the accident, Mr. Patton experienced significant changes in his physical and cognitive abilities making it difficult for him to perform self-care activities.
He sought benefits pursuant to the SABS but was denied by the Aviva Insurance Company of Canada. In order to resolve the dispute, Mr. Patton applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
Issues proposed in dispute pertained to entitlement of attendant care benefits, occupational therapy assessment and therapy services, social work services, physiotherapy services, psychological services, a liability award, and interest on overdue payment of benefits.
Mr. Patton received some of the aforementioned rehabilitation services based on partial approvals despite being denied entitlement to them by Aviva Insurance Company of Canada.
In 2021, Mr. Patton’s attendant care needs were assessed by an occupational therapist using a document entitled Assessment of Attendant Care Needs (“Form-1”), which includes a breakdown of the amount of time required for assistance with specific tasks:
“Ms. Lewis’ Form-1 indicates that the applicant requires assistance with the following:
(a) Dressing upper/lower body – 28 minutes per week
(b) Washing face – 35 minutes per week
(c) Shaving – 10 minutes per week
(d) Hair care – 35 minutes per week
(e) Toenail care – 10 minutes per week
(f) Meal preparation – 630 minutes per week
(g) Walking supervision/assistance – 840 minutes per week
(h) Bathroom hygiene – 35 minutes per week
(i) Bedroom hygiene – 70 minutes per week
(j) Ensuring comfort, safety, and security in the bedroom – 1260 minutes per week
(k) Hanging and sorting clothes – 15 minutes per week
(l) Basic supervisory care (to be self-sufficient in an emergency) – 6898 minutes per week
(m) Co-ordination of attendant care – 60 minutes per week
(n) Transfer from bed to and from bathtub or shower – 35 minutes per week
(o) Bathing and drying – 105 minutes per week
(p) Brushing teeth – 14 minutes per week”
In 2021, Aviva Insurance Company of Canada completed a general practitioner and psychologist assessments for entitlement to attendant care benefits. An IE OT assessment was not arranged.
There had not been another attendant care assessment until the LAT date.
The adjudicator found that the initial occupational therapy assessment “was reasonable and necessary around the time the treatment plan was submitted.”
Mr. Patton had difficulty with his sleep, cleaning and personal care habits, concentration, memory, and organization/planning tasks. He also presented with antalgic gait, reduced walking tolerance, and balance issues.
Mr. Patton experienced decreased motivation and low mood making hygiene tasks challenging for him. The occupational therapy services would assist Mr. Patton with cueing to change his clothes, groom himself, prepare meals, and clean.
However, Given the lack of information relating to Mr. Patton’s ongoing and specific care needs and the 3 years that passed from the initial attendant care assessment to the LAT, the adjudicator did not find Mr. Patton entitled to ongoing attendant care benefits.
The adjudicator stated
“Although I acknowledge that some amount of attendant care might be reasonable and necessary, I find that the applicant has not met his onus of proving what that amount is. He refers to various reports to indicate his impairments, but those reports do not indicate the specific type or minutes of care that he requires. The only document that does so is the Form-1 which I find is no longer relevant given the time that has passed since its completion, and the change in the applicant’s needs since then. I find that he has not provided me with a clear picture of his needs as of the date of this hearing.”
With regards to OT services, an IE occupational therapist indicated (in 2022) that occupational therapy sessions would be beneficial as they could “provide compensatory strategies around emotional and cognitive challenges, community re-integration, increasing social/recreational repertoire, and a return to full time employment.”
The Aviva Insurance Company of Canada denied the need for OT services and stated that they rely on the opinions from their assessors, both of whom are not occupational therapists.
The adjudicator stated that they place greater value on the opinion of the occupational therapists for identifying the need of occupational therapy:
“Further, Dr. Sands and Dr. Howard are not occupational therapists, and the respondent’s occupational therapist was of the opinion that occupational therapy intervention was appropriate. Dr. Sands felt that psychological intervention was necessary, but that an occupational therapy assessment was no longer reasonable and necessary as the applicant had returned to a number of his activities. Although Ms. Bhatnagar did not comment on the need for an occupational therapy assessment in particular, I prefer her opinion, as well as Ms. Lewis’, over Dr. Sands with respect to the need for occupational therapy intervention as this is their area of discipline. As occupational therapy was deemed reasonable and necessary, it follows that an assessment to determine the applicant’s occupational therapy needs would also be reasonable and necessary.”
The need for occupational therapy can be best assessed by an occupational therapist.
While other healthcare professionals may also be able to provide their expert opinions and refer to occupational therapy services, they may not understand the full scope of the profession.
It is best to seek out an occupational therapist recommendations and opinion, if you think you may need occupational therapy services.
At GLA Rehab, our OTs are assessing the physical, cognitive, and emotional difficulties following an accident when analysing the need for attendant care or OT services.
An occupational therapy assessment can hold value in describing functional impairments and determining needs for assistance with ADLs and functional therapeutic goals for OT services.
Had the applicant provided the findings from an up-to-date occupational therapy assessment, including a Form 1, which provides a reflection of a client’s current needs, it would have allowed the adjudicator from the Tribunal to determine what maximum amount of benefits Mr. Patton was entitled to.
Ongoing and up-to-date occupational therapy assessments are important for determining changes in care needs and determining treatment plans.
[1] Patton v Aviva Insurance Company of Canada, 2025 CanLII 28487 (ON LAT), <https://canlii.ca/t/kbdg1>, retrieved on 2025-06-06