Citation: Yip vs. Economical Insurance, 2021 ONLAT 19-013649/AABS

Released Date: 05/05/2021

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:

Yiu Chung Yip

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Nick Hamilton, Counsel

For the Respondent:

Lisa Armstrong, Counsel

HEARD:

Via written submissions

1YCY was injured in an automobile accident on April 21, 2019 and sought benefits from the respondent, Economical, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹

2YCY sustained injuries to his head, neck, shoulder, pelvis/hip and left hand. YCY also sustained a mild concussion and suffers from headaches. YCY submitted treatment plans for chiropractic treatment and an attendant care assessment. A treatment plan for chiropractic treatment was partially denied on the basis that the fee for an initial assessment report was a duplicate amount and therefore not reasonable and necessary. A second treatment plan for an attendant care assessment, was partially denied by Economical on the basis that the amount charged for a cost of education expense was not reasonable and necessary and that the total cost of the treatment plan was above the maximum amount allowed for a cost of examination expense under the Schedule. Economical also denied transportation expenses submitted by YCY on the basis that they were not reasonable and necessary. YCY disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

3The following are the issues to be decided:

a. Is YCY entitled to an Initial Assessment Report fee in the amount of $366.63 submitted by Total Recovery Rehab in a treatment plan (OCF-18) dated May 6, 2019, and denied on May 13, 2019?

b. Is YCY entitled to a Cost for Education expense in the amount of $200.00 submitted by Total Recovery Rehab in an OCF-18 dated May 6, 2019, and denied on May 16, 2019?

c. Is the rehabilitation benefit in the amount of $2,880.00 for transportation expenses, reasonable and necessary?

d. Is YCY entitled to interest on any overdue payment of benefits?

e. Is YCY entitled to an award under Ontario Regulation 664 because Economical unreasonably withheld or delayed the payment of benefits?

FINDINGS

4I find that YCY is not entitled to any of the disputed OCF-18, interest or an award.

BACKGROUND

5YCY’s vehicle was stolen on April 21, 2019. YCY reported the theft to police, who attended the scene and took a statement. That same evening, YCY located his vehicle parked in an alleyway behind a business in Windsor, Ontario.

6YCY attempted to take back his vehicle when the driver allegedly reversed the vehicle striking him while attempting to escape. The force of the impact knocked YCY to the ground.² YCY was taken to the Windsor Regional Hospital, where he was diagnosed with skull fractures, subarachnoid hemorrhage subdural hematoma and fractures in the left arm and shoulder.³

7As a result of his injuries, YCY submitted various OCF-18s between May and October 2019, which were subsequently partially approved by Economical. YCY submits that Economical did not issue any payments until after the case conference held on August 20, 2020, which forms the basis of his claim for an award.

ANALYSIS

OCF-18 in the amount of $366.63

OCF-18 in the amount of $200

8Section 15(1) of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. YCY bears the onus to prove that the specific benefits he claims are reasonable and necessary for his accident-related impairments. I find that YCY has not met his onus on a balance of probabilities.

9YCY submissions regarding the reasonableness and necessity of the balance of the OCF-18s focus on the balance of two OCF-18s dated May 6, 2019; being, $366.63 for an initial assessment report and $200 for the cost of education. YCY submits that removing the $200 cost from the calculation allows for the disputed cost of education amount to be paid without exceeding the allowable maximum for a cost of examination under the Schedule.

10Economical submits that the $366.63 represents an initial assessment that is duplicative of 16 sessions of therapy that were approved in the May 6, 2019 OCF-18. Economical’s position is that an initial assessment was conducted for the purposes of the OCF-18, which was approved, and YCY offers no explanation as to why another assessment fee is reasonable and necessary. Regarding the second May 6, 2019 OCF-18, Economical denied the $200 on the basis that there is no indication that the amount would be related to completing the OCF-18. Further, there are no additional comments that clarify the $200 fee.

11I agree with Economical that the $366.63 for the initial assessment report is duplicative of the approved portions of the OCF-18. An initial assessment was conducted for the purpose of completing the OCF-18 and there is no objective evidence as to why another assessment fee is reasonable and necessary.

12I also do not find the OCF-18 for the cost of education in the amount of $200 payable. The entries under Part 12 of the OCF-18 indicate duplicate services, ie. “Documentation support activity for claim form - $70 and Documentation support activity for claim form - $200.” There is no clarification for the duplicate entries. YCY has not directed me to any evidence that the additional $200 fee is reasonable and necessary. On this basis, Economical has approved this OCF-18 in full up to the regulated amount. No further amount is payable.

Transportation expenses in the amount of $2,880

13Section 15(2)(c) of the Schedule states that an insurer is not liable for transportation expenses “other than authorized transportation expenses.” Section 3(1)(a) sets out that “authorized expenses” are calculated by applying the rates set out in the Transportation Expenses Guidelines published by the Financial Services Commission of Ontario (“FSCO”). Section 3(1)(b) further sets out that unless the insured is catastrophically impaired, transportation expenses are only payable after the first 50 kilometres of a trip. There is no dispute that the applicable Guideline for YCY’s date of loss is No. 04/16.

14YCY submits that his injuries include driver’s anxiety, cause him to be unable to drive. He resides in Windsor and since the accident has been receiving treatment at Total Recovery Rehab Centre in Scarborough. YCY claims that although the cost of each round trip is below the maximum allowed, Economical has refused to pay for transportation on the basis that there are other treatment centres closer to his home in Windsor.

15YCY’s position is that being of Chinese descent with limited spoken English capacity, he decided to receive treatment at the aforementioned treatment providers located in Scarborough, where the staff and health practitioners are predominantly of Chinese descent and speak the same language. YCY posits that he has already developed trust and rapport with these clinics, and that he should not have to find a new clinic where the staff are not familiar with his medical history and treatment needs. YCY submits that “as long as the transportation costs are reasonable, they are payable.”

16Economical submits that in order to determine whether transportation expenses are reasonable and necessary, other factors must also be considered, i.e. the distance, and availability of alternative service. Economical submits that the distance is excessive, and that there was no pre-existing relationship between YCY and any of the treatment providers who submitted the disputed OCF-18s. Its position is that YCY has submitted no evidence that adequate treatment could not be found closer to his home. In fact, YCY submits that there may be clinics with Chinese speaking staff in Windsor.

17I agree with Economical for several reasons. YCY provided no evidence that it was necessary to receive treatment in Scarborough as opposed to Windsor or that the treatment received in Scarborough is unique in any way. In addition, there is no evidence that adequate treatment is not available in Windsor. Essentially, YCY chose to attend and receive treatment where he wanted. However, that choice must still be reasonable and necessary. I find travelling from Windsor to Scarborough, when there are similar options in Windsor is not reasonable and necessary. There is no persuasive medical or other reason why YCY needed to receive treatment for his injuries in Scarborough. Further, there is no evidence that his treatment needs could not be adequately met from any of the available treatment providers in Windsor that also have staff of Chinese descent.

18For these reasons, I find the claimed transportation expenses are not reasonable and necessary.

Award and Interest

19YCY sought an award and interest. However, as he was unsuccessful in his claim for accident benefits, neither is payable.

CONCLUSION

20YCY is not entitled to the disputed OCF-18s as they are not reasonable and necessary. As no benefits are payable, it follows that interest is not payable. Further, as there was no unreasonable withholding of benefits, no award is payable.

Released: May 5, 2021