Licence Appeal Tribunal File Number: 20-002482/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:
Fan Jia Ho
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
Angela Comella, Counsel
HEARD:
By way of written submissions
OVERVIEW
1FJH was involved in an automobile accident on March 13, 2018, and sought benefits from the respondent, Unica, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (the “Schedule”).1 Unica denied the benefits on the basis that the treatment plans (OCF-18s) were not reasonable and necessary. FJH disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
1The issues to be decided in the hearing are:
a) Is FJH entitled to medical benefits of $2,969.08 for chiropractic services?
b) Is FJH entitled to medical benefits of $280.00 for psychological services (transportation expenses)?
c) Is FJH entitled to medical benefits of $280.00 for psychological services (transportation expenses)?
d) Is FJH entitled to medical benefits of $117.87 for medical services (OCF-6 for medication)?
e) Is FJH entitled to medical benefits of $165.51 for medical services OCF-6 for medication)?
f) Is FJH entitled to medical benefits of $40.75 for medical services (OCF-6 for medication)?
g) Is FJH entitled to medical benefits of $68.30 for medical services (OCF-6 for medication)?
h) Is FJH entitled to medical benefits of $99.42 for medical services (OCF-6 for medication)?
i) Is FJH entitled to medical benefits of $94.51 for medical services (OCF-6 for medication)?
j) Is FJH entitled to medical benefits of $53.53 for medical services (OCF-6 for medication)?
k) Is FJH entitled to medical benefits of $38.76 for medical services OCF-6 for medication)?
l) Is FJH entitled to examination expenses of $2,200.00 for attendant care assessment?
m) Is FJH entitled to interest on any overdue payment of benefits?
FINDING
2FJH has not established that the disputed OCF-18s are reasonable and necessary. No interest is payable.
ANALYSIS
3Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. In all cases, FJH bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. To do so, FJH should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
4For the reasons set out below, I find that FJH has failed to demonstrate on a balance of probabilities that the disputed OCF-18s are reasonable and necessary.
5The majority of FJH’s submissions consist of confirming the observations and diagnoses of the author(s) of the OCF-18s in dispute and the opinion that “the treatment in dispute is reasonable and necessary.”
6To establish his claim, FJH relies on the following evidence:
a. Clinical notes and records (“CNRs”) from his family physician, Dr. Monica Chan; and
b. The records of EZ Physio.
7In response to FJH’s claim, Unica relies on the following evidence:
a. A report by Dr. Zabieliauskas, physiatrist, diagnosing cervical strain WAD I and possibly a mild lumbar strain, in addition to possibly a mild knee strain on the background of chronic knee pain.
8Unica also questions FJH’s claims with the following assertions:
a. The CNRs of Dr. Chan do not identify any ongoing accident-related issues;
b. FJH did not report the accident until September 2018 to Dr. Chan, who noted that it was hard to assess if the neck pain was related to the accident; and
c. FJH reported to Dr. Zabieliauskas that he started treatment at EZ Physio in September 2018 at the direction of his lawyer.
9I note that none of Unica’s assertions were contested by FJH, despite FJH having the benefit of reply.
10I find that FJH failed to meet his onus to prove entitlement for the following reasons:
a. Despite several visits to Dr. Chan between May 2018 and November 2020, there is no definitive connection between any pain complaints and the accident;
b. A comparison of the documented pain complaints to Dr. Chan appear related to work or sports activities and are similar in nature to his pre-accident pain complaints;
c. I prefer the report of Dr. Zabielauskas over the CNRs of Dr. Chan, as Dr. Zabielauskas is better qualified to provide a determination on pain-related issues than Dr. Chan or any of FJH’s other treatment providers;
d. The evidence of the distance between FJH’s residence and his treatment provider supports that the distance travelled is not in accordance with the Financial Services Commission of Ontario Superintendent Guidelines, which provides that the distance must be greater than a 50km round trip in order to be payable under the Schedule;
e. The claims for medication have not been shown or proven to be prescribed as a result of the accident; and
f. Despite claiming entitlement to an attendant care assessment, FJH made no submissions on the issue, nor did Unica address it. Accordingly, the issue is dismissed.
CONCLUSION
11FJH failed to establish on a balance of probabilities that the OCF-18s are reasonable and necessary, or that the OCF-6s are payable. Accordingly, as no benefits are payable, no interest is payable.
Released: January 18, 2022
__________________________
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.