Huang v. Certas Home and Auto Insurance Company, 2021 CanLII 96844

Citation: Huang v. Certas Home and Auto Insurance Company, 2021 ONLAT 20-009810/AABS

Release date: 10/04/2021

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:

Wan Ling Huang

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice Chair

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Masiya Ahmadzai, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on May 26, 2018, and sought various benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Certas has paid or partially paid certain benefits to date but denied the benefits in dispute on the basis that they are not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

a. Is the applicant entitled to $2,250.00 ($3,981.88 less $1,756.88 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan (OCF-18) dated September 23, 2019?

b. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan (OCF-18) dated May 26, 2020?

c. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to payment for the treatment plans in dispute as she has not demonstrated that they are reasonable and necessary. The applicant is not entitled to interest or an award.

ANALYSIS

Are the treatment plans reasonable and necessary?

4To receive payment for benefits under the Schedule, the applicant bears the burden of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

5As a result of the accident, the applicant submits that she sustained physical and psychological impairments. For the purposes of this hearing, she relies on various clinical notes and records from Dr. Chang and Dr. Wong and Dr. McDowall’s December 2018 diagnosis of Major Depressive Disorder and Specific Phobia (Travel). This diagnosis prompted counselling sessions with psychologist Dr. Cook and two assessment reports from September 2019 and April 2020 where Dr. Cook reaffirmed his diagnoses of Major Depressive Disorder, mild, and Specific Phobia (passenger). Both treatment plans in dispute were recommended by Dr. Cook, which the applicant argues are reasonable and necessary and essential to her recovery.

6In response, Certas submits that there are no visits to Dr. Chang for accident-related psychological complaints after 2018; that physiatrist Dr. Wong is not qualified to express an opinion with respect to psychological impairments; that the applicant has not been prescribed any medication for her psychological issues or sleep difficulties since December 2019; that the progress reports in evidence reveal improvement and the ability to drive, undermining Dr. Cook’s diagnosis; that the applicant has not provided any clinical notes from her sessions with Dr. Cook; that the applicant’s treatment was actually conducted by Ms. Tam, whose notes have also not been provided; that the s. 44 report of Dr. Goodfield was based on testing, an interview with an interpreter and a review of the applicant’s medical records; that Dr. Cook’s OCF-18s are identical despite evidence of progress and do not provide specific details of the applicants condition; and that the applicant has not sought continued coverage for her treatment through her collateral benefits provider.

7I agree with Certas and find that the applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary. The notes of Dr. Chang do not support an ongoing psychological condition in the three years post-accident to date. The progress reports from Dr. Cook and the s. 44 report of Dr. Goodfield reveal that the applicant has reported improvement from her previous treatment, that she feels less anxious while driving and that her daily activities—she returned to work, continues to drive, does the housekeeping and caregiving—are unaffected.

8In my view, Dr. Cook’s two progress reports are largely identical, suggesting either that the applicant has not been improving—which calls into question the efficacy of the treatment received to date—or that the reports are merely boilerplate exercises, which undermines any argument that the applicant’s treatment is being tailored to her specific post-accident condition. That Dr. Cook has recommended a total of 42 one-and-a-half-hour sessions without any change to the proposed treatment’s frequency or duration further undermines the proposed treatment, as there has been no ramp down in the length or cost, despite the applicant’s reports of improvement in the years post-accident. I agree with Certas that the applicant has not demonstrated that the investment of time, effort and expertise is reasonable when taking into consideration the conflicting degrees of success from the treatment.

9Indeed, as Certas points out, the goals identified in the OCF-18s in dispute are identical, despite the applicant receiving significant treatment with Dr. Cook/Ms. Tam to date. On this basis, it is difficult to find that the goals of treatment are being met to a reasonable degree or that the treatment is effective where the goals remain unchanged over time. Where the applicant has also not made a single accident-related psychological or emotional complaint to her family physician since 2018, has not been prescribed any medication for same, has reported no functional difficulties and seemingly has unused collateral benefits available to her, it is also difficult to find that ongoing treatment at the costs proposed is a necessary expense.

10While the applicant takes issue with Dr. Goodfield’s s. 44 report that found that eight treatment sessions were reasonable and necessary based on her DSM V diagnosis, in my view, the medical evidence supports this. I found Dr. Goodfield’s report to be fairly balanced and more nuanced than Dr. Cook’s progress reports. Dr Goodfield accepted that the applicant sustained a psychological impairment that required intervention while also acknowledging that the applicant had already undergone quite a bit of treatment. Her recommendation for a ramp down in frequency was reasonable based on testing that revealed a dramatization of symptoms and which did not correlate with the applicant’s presentation or the medical records before her. While the applicant may disagree with Dr. Goodfield’s opinion, it is the applicant’s burden to prove that the additional, lengthier sessions proposed by Dr. Cook are reasonable and necessary. For these reasons, I find that she has not met her burden and that the OCF-18s in dispute are not reasonable and necessary.

Interest and s. 10 Award

11As no benefits are overdue, it follows that no interest is payable under s. 51.

12The applicant also sought an award under s. 10 of O. Reg. 664, submitting that Certas breached its duty of good faith and fair dealing. Under s. 10, the Tribunal may award up to 50% of the total benefits in dispute if it finds that benefits were unreasonably withheld or delayed. I find an award is not appropriate. As no benefits are overdue, it follows that they were not unreasonably withheld or delayed. On the medical evidence, I also find no reason to interfere with Certas’ determination.

ORDER

13The applicant is not entitled to payment for the treatment plans in dispute as she has not demonstrated that they are reasonable and necessary as a result of the accident. No interest or an award is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.