Citation: Yu v. Certas Home and Auto Insurance, 2022 ONLAT 20-010330/AABS

Licence Appeal Tribunal File Number: 20-010330/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:

Shu Fang Yu

Applicant

and

Certas Home and Auto Insurance

Respondent

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Rose Bilash, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

1Shu Fang Yu, the applicant, was involved in an automobile accident on November 20, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by Certas Home and Auto Insurance, the respondent, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues to be decided in this written hearing are²:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 19, 2018 to November 20, 2020?

ii. Is the applicant entitled to a balance of $150.00 for chiropractic treatment, proposed by EZ Physio in a treatment plan dated June 3, 2019?

iii. Is the applicant entitled to $3,981.88 for psychological treatment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated March 16, 2020?

iv. Is the applicant entitled to $2,200.00 for an occupational therapy in home assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated March 26, 2019?

v. Is the applicant entitled to $3,871.00 for chiropractic treatment, proposed by EZ Physio in a treatment plan dated December 16, 2020?

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

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

RESULT

3I find that:

i. The applicant is not entitled to a non-earner benefit for the period in dispute;

ii. The applicant is not entitled to the outstanding balance of $150.00 of the treatment plan dated June 3, 2019;

iii. The applicant is not entitled to the treatment plan for psychological services;

iv. The applicant is entitled to the treatment plan for an occupational therapy in home assessment, plus interest in accordance with s.51 of the Schedule;

v. The applicant is entitled to the treatment plan for chiropractic treatment, plus interest in accordance with s.51 of the Schedule;

vi. The respondent is not liable to pay an award under Regulation 664.

NON-EARNER BENEFIT

4The test for entitlement to a non-earner benefit (“NEB”) is for the applicant to show that she sustained an impairment as a result of the accident and that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident and does not qualify for an income replacement benefit.³ Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

5“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”⁴

6In the seminal case of Heath v. Economical Mutual Insurance Company,⁵ the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.⁶

7The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.⁷

8I find that the applicant has not satisfied her onus to prove that she suffers from a complete inability to carry on a normal life, for the following reasons.

9The applicant submits that she is entitled to NEBs as she has sustained serious physical and psychological injuries as a result of the accident. The applicant relies on the clinical notes and records (“CNRs”) of her family physician Dr. Albert Lai, to establish her physical impairments, including chronic pain in her neck, back, right shoulder, headaches, tendonitis and insomnia. The applicant further submits that she was diagnosed by Dr. Sharleen McDowell, psychologist, with Major Depressive Disorder with Anxious Distress, and Specific Phobia (Travel). As a result of these physical and psychological impairments, the applicant argues that she cannot engage in any of her pre-accident activities.

10However, although the applicant has provided submissions and evidence describing her physical and psychological impairments, the applicant has not provided any specific submissions and has not directed me to evidence of the activities she was engaged in pre-accident, or how she is now unable to engage with them post-accident, as required by Heath. Nor has the applicant provided submissions or directed me to evidence of which pre-accident activities were most important to her, and how she has been prevented from substantially engaging in them post-accident. The applicant has simply provided a general statement that she is unable to engage in any activities.⁸

11The applicant relies on the Disability Certificate (“OCF-3”) prepared by Dr. Thomas Blau, chiropractor, dated January 2, 2019, to establish her restrictions. However, upon a review of the OCF-3, I find that it does not provide the specific descriptive information necessary to establish the applicant’s pre- and post-accident activities.

12A “yes” was check-marked in response to the question of whether the applicant suffered a complete inability to carry on a normal life. However, the only additional explanation provided was “[p]atient is unable to perform her pre-accident ADL’s, work-related or home responsibilities without exacerbating their symptomatology”.⁹ There was no discussion or details provided of what these pre-accident activities of daily living (“ADLs”) or home responsibilities consisted of. Similarly, in her submissions, the applicant provides a general statement that her “pre and post accident activities have been significantly affected” and that “she does very little in the day” which is a significant change from her pre-accident life.”¹⁰ However, no list or details of any pre-accident activities was provided.

13In addition, I note that the applicant’s family physician Dr. Lai, opined soon after the accident, in February 2019, that the applicant did not suffer a complete inability to carry on a normal life.¹¹ In a questionnaire response to the respondent, Dr. Lai diagnosed the applicant with whiplash injury and lower back strain, together with psychological impairment. In response to the question of whether the applicant suffered a substantial or complete inability to carry on a normal life, Dr. Lai responded “no”.¹² Given that Dr. Lai was the applicant’s treating physician since 2001 and was actively involved in her medical care, I find him best placed to determine whether the applicant suffered a complete inability to carry on a normal life.

14Further, the applicant’s treating chiropractor, Dr. Blau, noted in his re-assessment report that the applicant reported that she had “difficulty” performing “some” of her household and everyday tasks.¹³ However, stating that the applicant has difficulty performing some pre-accident activities is not the same as the NEB threshold of a compete inability to carry on a normal life. This standard has often been cited as being one of the most difficult thresholds to meet under the Schedule, and requires evidence of a complete inability to do substantially all of the pre-accident activities post-accident.

15From a review of the evidence, it appears that the applicant did report to two of the respondent’s insurer examination (IE) assessors that as a result of the accident, she was unable to complete a number of her household chores. However, the applicant has not provided submissions or directed me to evidence identifying the frequency and time commitments of the specific activities she is no longer able to engage in, so that they may be assessed over a reasonable period of time prior to the accident. The applicant also has not provided any specific submissions as to how her caregiving responsibilities, leisure and social activities have been impacted post-accident. The onus is on the applicant to provide a comparison of her pre-accident activities and life circumstances, to those post-accident. The applicant has further not provided any submissions as to how much value or importance she placed on each activity. In the absence of this information, it is impossible to compare the applicant’s pre-and post accident abilities with respect to the activities she ordinarily engaged in or valued, as required by Heath.

16The applicant raises the additional argument that the respondent failed to properly assess her for entitlement to NEBs. The applicant submits that the respondent should have conducted an IE to determine her entitlement to NEBs. The applicant further argues that the adjustor’s log notes indicate that the respondent improperly denied her claim to NEBs, after a telephone call between the applicant and the adjuster, who does not speak Mandarin or Cantonese.

17I do not find either of these arguments to be persuasive. Firstly, an insurer is not obligated to conduct its own examination of the insured and s. 44(1) of the Schedule simply holds that an insurer may require an examination. The burden of proof is on the applicant to prove entitlement, and not on the respondent to disprove it.

18Secondly, although the applicant asserts that it was inappropriate that her claim for NEBs was denied after a telephone call with a non-Mandarin or Cantonese speaking adjustor, the respondent argues that there is no indication that language has been a barrier in any of the file documentation. Further, I accept the respondent’s submissions that it continuously reassessed the applicant’s entitlement to NEBs upon receipt of updated productions, such as Dr. Lai’s questionnaire and CNRs of Dr. Lai.

19On the totality of the medical evidence tendered by the applicant, I find that she has failed to meet her evidentiary onus. I find the applicant has not provided sufficient evidence that she suffers from a complete inability to carry on a normal life as a result of the accident for the period in dispute, and as a result, is not entitled to non-earner benefits for this period.

20Sections 14, 15 and 16 of the Schedule set out 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.

21The applicant has the onus 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.

OCF-18 dated June 3, 2019 - outstanding amount of $150.00

22The applicant submitted a treatment plan (“OCF-18”) dated June 3, 2019 in the amount of $2,969.08 for chiropractic services. The respondent partially approved the OCF-18 in the amount of $2,819.08. The remaining amount in dispute is $150.00 for “documentation, support activity for claim form”.

23The respondent submits that in its correspondence dated June 13, 2019, it approved the entirety of the expenses, including one documentation fee of $250.00, but that it did not approve the additional $150.00 documentation fee as this would exceed the maximum rate set under the Professional Services Guideline¹⁴ (“Guideline”).

24In her submissions, the applicant did not provide any arguments or evidence as to why the treatment provider required documentation fees beyond the $200.00 prescribed by the Guideline, or why the duplicative documentation fee was reasonable and necessary.

25As such, I am bound by section 15(2)(b) of the Schedule, which states that the respondent is not liable to pay for medical goods or services that exceed the maximum rate. Therefore, I find that the applicant has not proven on a balance of probabilities that the remaining fee, namely, the additional $150.00 for documentation support activity is reasonable and necessary, and accordingly, it is not payable.

OCF-18 dated March 16, 2020 for Psychological Services

26The OCF-18 in the amount of $3,981.88 prepared by Dr. McDowell, proposed fourteen 1.5-hour sessions of psychological treatment. The stated goals included a return to the activities of normal living and the use of cognitive restructuring techniques to reduce negative thought patterns, anxiety and depression. The respondent had previously approved an OCF-18 dated March 8, 2019 for fourteen 1.5-hour sessions, also submitted by Dr. McDowell.

27The respondent initially denied the OCF-18 in dispute by way of correspondence dated March 25, 2020 and requested that the applicant attend a s.44 assessment. Upon receipt of the Psychological IE Report of Dr. Marjan Saghatoleslami, the respondent denied the March 16, 2020 OCF-18 on the basis that further psychological treatment was not reasonable and necessary.¹⁵

28The applicant submits that the additional sessions of psychological treatment are reasonable and necessary to help alleviate her serious psychological impairments. The applicant relies on the Psychological Assessment Report of Dr. McDowell, dated April 23, 2019, where Dr. McDowell diagnosed the applicant with Major Depressive Disorder with Anxious Distress, and Specific Phobia (Travel).¹⁶

29The respondent submits that ongoing psychological treatment is not reasonable and necessary. The respondent asserts that the CNRs of Dr. Lai do not indicate that the applicant reported ongoing psychological symptoms, or that Dr. Lai had recommended psychological treatment after December 2018. The respondent further relies the Psychological IE Report of Dr. Saghatoleslami, dated August 20, 2020. In her IE Report, Dr. Saghatoleslami noted that the applicant reported that she did not think that the previous psychological treatment sessions had been helpful.¹⁷ Dr. Saghatoleslami further found that while it was plausible that the applicant had psychological distress previously, that at the time of the assessment, her symptoms did not meet the full diagnostic criteria for any mood or anxiety disorders.¹⁸

30Upon a review of the submissions and evidence of the parties, I find that the applicant has not provided sufficient evidence to meet her burden of proof that the OCF-18 in dispute is reasonable and necessary.

31The applicant asserts that in March 2020, after conducting a reassessment, Dr. McDowell endorsed a need for further psychological support. However, no contemporaneous evidence was submitted by the applicant to support her assertion that ongoing psychological treatment was recommended or required.

32The CNRs of the applicant’s family physician do not indicate that additional psychological treatment was recommended by Dr. Lai. In December 2018, Dr. Lai had provided an initial letter, recommending psychotherapy for the applicant.¹⁹ However, the applicant does not point to any evidence indicating that Dr. Lai continued to recommend such treatment fourteen months later, in March 2020. The CNRs of Dr. Lai further do not indicate that the applicant had reported ongoing psychological symptoms to Dr. Lai post-2018.

33The applicant submits the OCF-18 in dispute, as evidence of Dr. McDowell’s recommendation for further treatment. However, I agree with the respondent’s submissions that the OCF-18 is lacking in specificity as to the applicant’s progress with the previously approved psychological treatment. Under Part 9(b) – Plan Goals - Evaluation, which is to describe the applicant’s improvement under the previous treatment plan, the notation states “Please refer to the progress report”. However, no progress report is appended to the OCF-18 and no additional comments were provided to describe how the applicant had progressed with previous psychotherapy. The applicant did not include psychological progress reports with her submissions, nor were the treatment records of her psychological treatment providers provided, to establish what progress she had made and whether additional therapy was required.

34As such, the applicant does not point me to any contemporaneous medical evidence supporting an entitlement to additional psychological services, other than the OCF-18 itself. However, it is well-settled that OCF-18s alone are not the type of medical evidence required to prove that treatment is reasonable and necessary. Particularly when the recommendations are not supported by an objective referral from a family physician, no evidence has been provided as to the efficacy of such previous treatment and where the respondent’s IE examiner did not find evidence of any clinically significant psychological symptoms.

35Without objective evidence supporting the entitlement to psychological treatment and establishing how the goals of treatment are being met to a reasonable degree, I find that the applicant has not met her onus to prove that the OCF-18 in dispute is reasonable and necessary and as such, it is not payable.

OCF-18 dated March 26, 2019 for an Attendant Care Assessment

36The March 26, 2019 OCF-18 was completed by Mr. Raymond Wong, occupational therapist, and sought funding for an attendant care assessment. The goal of the assessment was listed as the completion of a Form 1 for Attendant Care, with the additional goal of a return to activities of normal living. The proposed assessment included the time to assess the applicant and complete the form, planning, documentation support activity and one counselling session, to promote health and prevent disease.

37The applicant provided limited submissions on why this assessment was reasonable and necessary. The applicant simply states that her treating providers have “continually” noted her ongoing physical and psychological impairments. However, despite the lack of detailed submissions on this issue, I find that the medical evidence establishes that the proposed assessment is reasonable and necessary.

38The purpose of an attendant care assessment is to determine if an insured has any functional limitations that would impact their ability to independently engage in self-care and activities of daily living. I note that assessments, by their nature, are speculative. They are conducted to determine if an insured has a specific condition or meets a specific threshold. There is also the possibility that the assessment will prove negative. However, there must be some indication that the specified condition exists, and that further investigation is reasonable and necessary.

39From my review of the evidence submitted, I find that there is sufficient medical evidence to warrant an assessment of the applicant’s functional limitations, which impact her activities of daily living.

40In terms of the applicant’s impairments, her reports of chronic pain are well-documented. Around the time that the OCF-18 in dispute was submitted, Dr. Lai’s CNRs indicate that the applicant was complaining of persistent neck, upper back, lower back and right shoulder pain and headaches and that Dr. Lai had prescribed pain medication. In April 2019, Dr. Lai had further referred the applicant to Dr. Vincenzo Basile, neurologist to investigate her pain symptoms.

41The applicant was a homemaker and as noted by both of the respondent’s IE assessors, had the primary responsibility for most if not all of the household chores pre-accident, including cleaning, laundry, grocery shopping and meal preparation. Post-accident, the applicant reported to numerous assessors that she was now limited in completing many of these chores.

42Around the time that the OCF-18 in dispute was submitted, in April 2019, the applicant reported to Dr. McDowell that since the accident, she could not complete household chores, such as vacuuming, laundry and grocery shopping. In August 2020, the applicant reported to Dr. Saghatoleslami that her children now had to assist her with her household chores. The applicant further reported to Dr. Samuel Wong as part of the physiatry IE assessment in 2021, that she still requires assistance with household chores including grocery shopping, meal preparation, washing the floors and bathrooms, doing dishes and laundry and tidying up. She noted that her daughters have assumed vacuuming of the house.

43The respondent submits that it denied the proposed assessment on the basis of Dr. Lai’s questionnaire, received February 21, 2019. In response to the question of whether the applicant suffered a substantial inability to complete pre-accident caregiving or housekeeping duties, Dr. Lai had opined “no”.²⁰

44I acknowledge the respondent’s submissions that the applicant’s family doctor opined soon after the accident that she did not suffer a substantial inability to complete her caregiving or housekeeping duties. However, I do find that there is evidence supporting the applicant’s position that she suffered from functional limitations that impacted her activities of daily living, particularly her housekeeping duties, such that further investigation by way of an assessment, is warranted. As such, I find that the proposed OCF-18 for an attendant care assessment is reasonable and necessary.

OCF-18 dated December 16, 2020 for chiropractic treatment

45The applicant is seeking entitlement to $3,871.00 for chiropractic treatment, proposed by Dr. Blau in an OCF-18 dated December 16, 2020. The treatment plan proposed ten sessions of chiropractic treatment, acupuncture and exercise/ strength training. The stated goals included pain reduction, increased strength and range of motion and a return to activities of normal living.

46The respondent denied the proposed chiropractic treatment on the basis of the physiatry IE assessment of Dr. Samuel Wong. In a Physiatry IE Report dated February 19, 2021, Dr Wong concluded that the applicant had received sufficient facility-based treatment for what was mainly soft-tissue injuries and that the proposed OCF-18 for further treatment was not reasonable and necessary. Dr. Wong further recommended an MRI of the lumbosacral spine and noted that his opinion could change depending on the results. He also recommended prescription pain medication and Botox for headaches, which could also help with cervical spine pain.²¹

47Upon a review of the medical evidence, I find that the applicant has adduced sufficient evidence to establish that the proposed OCF-18 is reasonable and necessary to help reduce her pain and improve her recovery.

48The applicant’s reports of chronic pain post-accident are well documented. The CNRs of Dr. Lai note consistent complaints of headaches, back, neck and right shoulder pain in the years post-accident. Dr. Lai referred to this pain as persistent or chronic pain and prescribed pain medication. On February 11, 2019, Dr. Lai noted that the applicant attended chiropractic treatment and on April 15, 2019, Dr. Lai recommended that she “continue current treatment”.²² In December 2019, Dr. Lai again noted chronic pain and recommended that the applicant continue with chiropractic treatment. In November 2020, Dr. Lai recommended a similar modality, osteopathic therapy.

49Dr. Lai had also referred the applicant to Dr. Vincenzo Basile, neurologist, to investigate the applicant’s ongoing pain complaints. Dr. Basile recommended a referral to a pain specialist clinic and a comprehensive multidisciplinary program including physiotherapy, exercise and chiropractic treatment.

50The applicant has reported to both of the respondent’s IE assessors that she finds the proposed treatment to be beneficial for pain relief. In August 2020, Dr. Saghatoleslami noted that the applicant reported that her treatments provided her temporary pain relief of about “50% as she initially could not move and with treatments she received she was able to move, wash dishes and vacuum”.²³ Further, in February 2021, Dr. Wong also noted that the applicant believed that the therapy she received was beneficial.²⁴

51The respondent relies in large part on Dr. Wong’s physiatry IE assessment to deny the proposed treatment, whose reasoning was that the applicant had received sufficient treatment for what appeared to be mainly soft tissue injuries. However, Dr. Wong did not fully address the OCF-18’s stated goal of pain relief, other than with respect to the applicant’s headaches. Dr. Wong recommended that rather than the proposed treatment, the applicant could consider medications or Botox for her headaches and that the Botox could potentially help with the cervical spine pain. However, the applicant has consistently reported pain in a number of areas, not just the cervical spine.

52I agree with the applicant’s submissions that it is well-settled that pain relief is a legitimate goal of treatment. Given the applicant’s continuing chronic pain complaints, that the applicant has reported functional improvement with the proposed treatment and that such treatment has consistently been recommended by her treating physicians, I find that the OCF-18 in dispute is reasonable and necessary.

Deficiency of the Respondent’s Denial Letters

53I note that the applicant as part of her submissions on the issue of a special award, has raised the issue of the inadequacy of the insurer’s denial letters with respect to the treatment plans. However, other than the general statement that the insurer’s responding letters failed to “provide ‘medical and all of the other reasons’ for the denial of medical benefits”,²⁵ the applicant has not provided any additional information. The applicant has not identified which of the four treatment plans she feels was not properly denied, what correspondence was insufficient, the specific language that she finds inadequate and arguments supporting the deficiency. I cannot address this issue without adequate submissions.

Interest

54The applicant is entitled to interest in accordance with s. 51 of the Schedule for the attendant care assessment and the OCF-18 dated December 16, 2020 for chiropractic treatment.

Is the applicant entitled to an award for unreasonably withheld or delayed payments?

55I find that the applicant is not entitled to an award for unreasonably withheld or delayed payments.

56Section 10 of Regulation 664 states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum up to 50 percent of the amount to which the person was entitled to at the time of the award, together with interest.

57As I have found that the applicant is not entitled to the cost of NEBs, psychological treatment or the outstanding balance of the OCF-18 dated June 3, 2019, there is no basis upon which to consider an award with respect to those issues. With respect the remaining issues of the attendant care assessment and chiropractic treatment, the applicant provided limited particulars as to why she should be entitled to an award for these payments.

58The applicant makes general submissions about the respondent’s duty of good faith and the need to consider all available evidence. The applicant further submits that the evidence of her impairment was such that the IE assessors’ conclusions should have been called into question by the adjuster on the file. However, the applicant has provided limited evidence in this regard.

59After considering the submissions and evidence of the parties, based on a balance of probabilities, I do not find that the respondent has unreasonably withheld or delayed the disputed benefits.

60I was not presented with direct evidence that the respondent did not act in good faith, other than the applicant’s submissions regarding the telephone call with the non-Mandarin or Cantonese speaking adjuster, which I have already canvassed above. Though the respondent denied the applicant’s position with respect to benefits, the respondent is entitled to maintain its position so long as it is based on persuasive medical evidence.

61In this case, the respondent relied on its IE assessments, the medical record and the CNRs of the applicant’s family physician, which from my perspective, was reasonable and understandable.

62Although I have found that the applicant is entitled to the cost of the attendant care assessment and chiropractic services, this does not automatically entitle the applicant to an award. It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Regulation 644 the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and the evidentiary onus is on the applicant to demonstrate this. The applicant has not established that the respondent acted unreasonably in withholding or delaying payment and so, is not entitled to an award.

CONCLUSION AND ORDER

63For the reasons outlined above, I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to the outstanding balance of $150.00 of the treatment plan dated June 3, 2019.