Citation: Zhang v. The Co-operators General Insurance Company, 2022 ONLAT 20-003427/AABS

Licence Appeal Tribunal File Number: 20-003427/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:

Feng Jin Zhang

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Sharla Bandoquillo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Feng Jin Zhang, (“the Applicant”), was involved in an automobile accident on February 12, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010. The Applicant was denied certain benefits by The Co-operators General Insurance Company, (“the Respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in this hearing are:

I. Is the Applicant entitled to $5,912.81 for the unapproved balance of a catastrophic impairment assessment plan proposed by Somatic Assessments and Treatment Clinic, dated December 6, 2019?

II. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant is not entitled to the fees claimed, nor interest.

BACKGROUND AND POSITIONS

4The Applicant was struck by a right-turning vehicle while she was crossing a busy intersection in downtown Toronto. The collision knocked the Applicant over and she fractured her left wrist and has since developed psychological injuries. Her accident-related injuries have prompted her to apply for a determination of catastrophic impairment.

5The Applicant sought funding for a treatment plan proposing a battery of catastrophic impairment assessments, totalling $16,712.81 (“the CAT assessment plan”). The Applicant submits that the Respondent is liable to pay for the entire CAT assessment plan because it proposes reasonable fees for preparing an application for a determination of catastrophic impairment. She submits that section 25(5)(a) of the Schedule “applies to “any one assessment or examination and for preparing reports in connection” with that one assessment or examination.” She submits that the cost of the catastrophic impairment assessment is reasonable and necessary.

6The Respondent partly approved funding for the catastrophic impairment assessments, in the amount of $10,800.00. It approved $2,000.00 each for psychological, occupational therapy, neurological, and orthopaedic assessments. It approved $2,000.00 for an executive summary and $200.00 for documentation fees and $600.00 for interpretation services. The Respondent denied funding for four clinic file review assessments at a cost of $2,000.00 for one of them and $1,000.00 for each of the remaining items. It also denied two transportation fees totalling $712.81 and a form fee of $200.00. With respect to transportation expenses, I note that the Respondent advised that it would reimburse the Applicant for any transportation costs that exceeded 50 km.

7The Respondent submits that the Applicant has provided no submissions or evidence on why the clinic file review assessments are required and that they are not payable. It submits that a file review is something that should be done as part of any other examination and should be treated as part of the assessment’s expense. It further submits that the plain reading of section 25(5) reads that the Schedule establishes that medical practitioners conduct an assessment and file review within the $2,000.00 limit. For these reasons, the Respondent concludes that the fees claimed in this hearing are not payable.

8The Respondent further submits that it received no claim transportation expenses and that none are payable where no proof or invoice of transportation expense was submitted. Likewise, it submits it is not liable to pay Harmonized Sales Tax (“HST”) where no HST is claimed nor charged by the service provider, and that it is not liable to pay any form fees where no form is submitted. It also notes that the Applicant exceeded the page limit for submissions.

9The Applicant was given an opportunity to reply but chose not to.

10Upon review of the submissions and evidence, I find that the Applicant has failed to meet her burden to prove that she is entitled to the benefits claimed. My reasons are as follows.

FILE REVIEW IS INCLUDED IN THE COST OF ASSESSMENTS

11I agree with the Respondent and find that any fee associated with reviewing files should be included in the $2,000.00 fee described in section 25(5) of the Schedule.

12There is no explanation for the file review assessments described above, nor the costs associated with them. The Applicant’s submissions never explain what services the fees are for. Instead, her submissions outline her numerous physical and psychological injuries and why catastrophic impairment assessments are reasonable and necessary. Yet, her injuries are not disputed or at issue for this hearing and the Respondent accepted that a battery of catastrophic assessments are reasonable and necessary.

13Section 25(5) of the Schedule states:

(5) Despite any other provision of this Regulation, an insurer shall not pay,

(a) more than a total of $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer;

14I agree with the Tribunal’s previous interpretations of section 25(5) in M.G. vs. Aviva Insurance Canada, [Applicant] vs Aviva General Insurance, and F.A. vs. Aviva General Insurance 2020¹. The Adjudicators in those matters found that the fees associated with reviewing files for an assessment are included in the $2,000.00 cap. The Applicant provides no caselaw to suggest otherwise. Instead, she suggests that the file reviews are assessments unto themselves, entitling her to funding of up to $2,000.00. Yet, regardless of the seriousness of her injuries, I am unable to make a finding in her favour on this issue because she provides no evidence to suggest the file reviews are independent assessments.

TRANSPORTATION FEES

15I find no evidence to show that the Applicant is entitled to transportation fees associated with the catastrophic impairment assessments.

16Section 25(4) of the Schedule provides that the Applicant is entitled to reasonable expenses incurred for authorized transportation expenses incurred in transporting her to and from an assessment or examination.

17An “authorized transportation expense” is described in section 3(1) of the Schedule. Relevant to this matter is part (b) of that definition. That part provides that the Respondent is not liable to pay for the first 50km of the trip, provided that the Applicant is not catastrophically impaired.

18To-date, the Applicant has not been deemed to be catastrophically impaired. Nor has she submitted an OCF-19 to apply for a determination of catastrophic impairment². Thus, she is not entitled to transportation expenses before the first 50 km. While she may be entitled to some transportation fees, the Applicant provides no evidence to show that any were incurred. I am unable to make a finding in her favour as a result.

FORM FEES

19I see no evidence to show that the Applicant is entitled to $200.00 for the preparation of an OCF-19.

20As noted above, section 25 of the Schedule, the $2,000.00 funding limit includes the fees associated with preparing reports in connection with the assessment. I see no reason why the preparation of an OCF-19 would be excluded from this provision of the Schedule.

21In addition to the above, the $200.00 form fee claimed by the Applicant is only applicable to disability certificates and treatment and assessment plans. This is stated in final table in the Professional Services Guideline – Superintendent’s Guideline No. 03/14. In this matter, the Respondent approved the $200.00 fee for completing the catastrophic impairment assessment plan. There is no reason it must pay an additional $200.00 for the completion of the OCF-19.

OTHER MATTERS: HST AND PAGE LIMITS

22The Respondent’s submissions included reference to payment for any HST, yet the Applicant’s submissions and the Order prompting this hearing do not address the issue. As a result, I am unsure if it is an issue in dispute.

23In any event, I see no issue with respect to the payment of HST. As noted above, section 25 of the Schedule provides that applicable HST is payable in addition to the $2,000.00 funding cap. Similarly, I see no reason why the Respondent would be liable to pay HST in a situation where the service provider has not claimed nor charged HST, as the Respondent submits.

24The Respondent also made submissions stating that the Applicant exceeded the page limit on submissions for this hearing and asked that I disregard the additional pages. I decided to deny the Respondent’s motion because the Respondent made no submissions on how it was prejudiced by the Applicant exceeding the page limit.

CONCLUSION AND ORDER

25The Applicant was seriously injured when she was struck by a vehicle while crossing a street. Her injuries warrant an assessment to determine whether she is catastrophically impaired as a result of the collision.

26However, the Applicant has not proven on a balance of probabilities that she is entitled to the unapproved assessment fees claimed because those fees exceed the limits provided by the Schedule and the Professional Services Guideline – Superintendent’s Guideline No. 03/14.

27The Applicant’s appeal is dismissed.

Footnotes

1. 12019 CanLII 40256 (ON LAT), 2018 CanLII 141011 (ON LAT), and CanLII 42649 (ON LAT), respectively
2. 2This is according to the uncontested response submissions of the Respondent.