Citation: Wang v. Co-operators General Insurance Company, 2022 ONLAT 20-009692/AABS

Licence Appeal Tribunal File Number: 20-009692/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:

Xin Yi Wang

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro

APPEARANCES:

For the Applicant:

Ankita Abraham, Counsel, and Yu Jiang, Paralegal

For the Respondent:

David Raposo, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Xin Yi Wang (“X.Y.W.”), was injured in an automobile accident on September 1, 2017 and sought accident benefits from Co-operators under the Schedule.¹ Co-operators has paid for some of the requested benefits but denied others. X.Y.W. appealed several of those denials to this Tribunal. For the reasons below, I find that she is not entitled to the benefits requested.

ISSUES

2I must decide the following²:

1. Is X.Y.W. entitled to $16,712.81 for catastrophic impairment assessments proposed in a treatment plan (“plan”) submitted by Somatic Assessments & Treatment Clinic on December 13, 2019? ³

2. Is X.Y.W. entitled to $2,289.07 for an attendant care assessment proposed in a plan by Total Recovery Rehab on January 28, 2020?

3. Is X.Y.W. entitled to $3,337.56 for chiropractic services proposed by Total Recovery Rehab in a plan submitted on March 13, 2020?

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

ResULT

3X.Y.W. is not entitled to the three treatment plans sought nor interest.

ANALYSIS

4X.Y.W., currently 56 years of age, has a history of medical issues prior to the subject accident of September 1, 2017. The records of her family physician, Dr. Irina Lam, show back pain from picking up a child in 2014, dizziness and chronic muscle pain is noted in January 2015, and in the first half of 2016, abdominal pain, dizziness, insomnia, and chronic pain are noted. On July 26, 2016, she was involved in an automobile accident, experiencing some vomiting, and notations of dizziness, cervical & left shoulder whiplash/strain. X-rays showed Degenerative Disc Disease at C5-6. She received physical rehabilitation through at least January 2017, and in June 2017, X.Y.W. was still reporting dizziness, light-headedness, neck pain and lack of sleep since the July 2016 accident. She also received a psychological diagnosis related to that 2016 accident.

5On September 1, 2017, X.Y.W. was involved in the rear-end accident at issue. X.Y.W. submits she sustained serious physical and psychological injuries, including major depressive disorder, chronic pain, post-traumatic stress disorder, and anxiety, to such extent that she is catastrophically impaired and needs the requested plans. Co-operators argues her evidence, coupled with credibility issues, does not support her claims. I agree. There are many inconsistencies.

Issue 1: Is X.Y.W. entitled to $16,712.81 for catastrophic impairment assessments recommended in a plan submitted on December 13, 2019?

6No. X.Y.W. must establish by a preponderance of the evidence that the catastrophic (“CAT”) impairment assessments are reasonable and necessary, i.e., it is reasonable and necessary to further investigate whether she is catastrophically impaired. X.Y.W. has not met that standard.

i. Requests for assessments must be reasonable and necessary

7As a threshold point, I note that X.Y.W. disagrees with the above standard. She asserts – incorrectly – that the following words of s. 25 of the Schedule establish that she need only show that proposed assessment fees are “reasonable,” but not that the assessment itself is “reasonable and necessary”:

“25. Costs of Examinations. (1) The insurer shall pay the following expenses incurred by or on behalf of an insured person: ...

3. Reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan under section 38, including any assessment or examination necessary for that purpose,…

4. Reasonable fees charged by an occupational therapist or a registered nurse for preparing an assessment of attendant care needs under section 42, including any assessment or examination necessary for that purpose.

5. Reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. (Underline added.)

8First, the flaw in this argument is that s. 25 must be read in conjunction with s. 38, as s. 38(1) states it applies to all applications for approval of assessments or examinations. S. 38(3)(c), in turn, provides that assessment plans must contain a statement that the assessment is “reasonable and necessary”, and s. 38(8) provides an insurer 10 business days to inform the applicant what part of the “assessments and examinations, …or the proposed costs of them, [that the insurer considers] not to be reasonable and necessary”, and why. Thus, it is absurd to conclude the Schedule requires a provider to attest that an assessment is “reasonable and necessary”, permits an insurer deny the request as not necessary, and requires the insurer to give reasons, but when a denial is appealed to this Tribunal, and the Tribunal is required to resolve that dispute in accordance with schedule per s. 280(4) of Insurance Act, the only issue is if the fees are reasonable, even if the plan is unnecessary.

9Second, “reasonable” in s. 25 is not defined. It inherently includes “necessary” because any fees for an unnecessary assessment cannot be “reasonable.”

10Third, the Tribunal has consistently held that all requests for assessments must be “reasonable and necessary”⁴ and I am not persuaded to depart from that line of thinking.

11To be clear, caselaw clarifies that for a request for an assessment to be “reasonable and necessary”, an applicant does not have prove that they have the condition or meet a specific threshold being examined (i.e., is CAT). Rather, they must establish that the assessment is reasonable and necessary to further investigate the applicant’s condition or reasonableness of treatment.⁵

12For instance, in O.S. v Certas, the Tribunal explained that an applicant “has an obligation to support his position for CAT assessments by providing persuasive medical evidence that shows that he continues to suffer from accident related impairments that warrant further investigation that he may possibly be catastrophically impaired.”⁶

13Thus, X.Y.W. must show her impairments warrant investigation that she possibly has a CAT impairment. As she is claiming mental and behavioral impairments under criterion 8 in the Schedule, she would need to show “Class 4 marked impairments”, as defined in the AMA Guides, in 3 of 4 psychological domains – i.e., impairments that “significantly impede” any useful functioning, a very high standard. For context, the next level, “Class 5”, means no useful functioning.

ii. X.Y.W. is not entitled to the catastrophic assessments

14While I accept that X.Y.W. did suffer some accident-related impairments, I find the evidence falls significantly short of establishing those impairments warrant further investigation that she may possibly be CAT-impaired.

15First, there are many glaring inconsistences in X.Y.W.’s self-reporting and other evidence which weakens all the medical opinions in support of her claim. For example, in February 2021 she told her own assessor (R. Wong, O.T.) that she uses a walking cane outside the house,⁷ but surveillance showed her without one. The same surveillance shows her driving, despite her statements to the contrary.

16Likewise, X.Y.W. has consistently given conflicting accounts of whether she (1) lost consciousness and (2) was working before, at the time of, or after the accident. For instance, in a September 13, 2017 signed statement, taken at her lawyer’s office with an interpreter, X.Y.W. reported losing consciousness for a time then opening the door of the car, but on December 4, 2017, during an Insurer’s Examination (“IE”), she told Dr. M. Ko she lost consciousness and woke up in the ambulance, and February 10, 2021 told her own assessor, R. Wong, O.T., that she woke up in an ambulance. Yet ambulance and hospital records show no loss of consciousness at all.⁸ On February 8, 2021 – just two days before the assessment with Mr. Wong – she told her other assessor, Dr. Palantzas, that she did not lose consciousness.⁹

17As for her work history, the same September 2017 statement states “I was not working at the time of the accident. I don’t have any employment or self-employment, I have no income”, explaining that she “hasn’t worked since the July 2016 accident.” X.Y.W. made similar statements to several of the IE assessors. Accordingly, X.Y.W. filed an OCF-10 Election Form dated September 5, 2017 electing non-earner benefits. Yet, X.Y.W.’s comments to many other medical providers clearly establish that she was working after the July 2016 accident and/or at the time of this September 1, 2017 accident, and has been working after the accident. For example, during a March 2, 2017 sleep study months before the subject accident she advised that she “works part-time at children care center” and she similarly advised Mr. Wong that prior to the subject accident, she “enjoyed working as an early childhood assistant”. Both statements contradict her claim that she not working since the 2016 accident¹⁰. Her 2018 T4 form shows $9,247 of income earned after the subject 2017 accident.

18Second, in this hearing, X.Y.W. focuses on her post accident records (starting with ER records) that note her reports of headaches, nausea, dizziness, neck and shoulder pain. However, the records of her family physician, Dr. Lam, include similar complaints before the accident. I find that important because, coupled with the self-reporting issues above, X.Y.W. has not provided a persuasive opinion that fully considers her pre-accident issues yet ties her ongoing issues to the accident.

19Third, in terms of physical injuries, the evidence shows at most relatively limited, if any, ongoing issues related to the accident. For instance, on December 4, 2017, Physiatrist Dr. Joseph Wong diagnosed myofascial injury of the neck, upper and lower back, as well as chronic insomnia and anxiety problems, but his diagnosis is not clearly related to the subject accident, as he notes she continued to have pain from the first accident.¹¹

20Rheumatologist Dr. M.T. Wong saw X.Y.W. post-accident on November 27, 2017, finding neck and back strains, and then periodically after, such as on April 8, 2019, when he saw X.Y.W. for neck strain and on left-sided knee pain. While his handwritten notes from each visit are unclear, and he does not appear to offer an opinion relating on on-going symptoms to the accident.

21The IE examinations made similar diagnoses as to injuries sustained in the accident but found that the impairments had resolved by the time of their respective exams. For instance, in a December 4, 2017 examination, Physiatrist Dr. Ko found that X.Y.W. sustained sprain/strain injuries to her spine, bilateral trapezii and sprain/strain injuries affecting the right knee, but noted a discrepancy between her range of movement when asked verses casual observation. X.Y.W. also advised that since the accident she could not walk outside, drive or do simple cooking – items not noted in her own treating doctors’ records. Importantly, he concluded there was no impairment from a physical perspective.

22During a March 10, 2020 IE assessment, Physiatrist Dr. Zabieliauskas also felt X.Y.W. was limiting her movement during the exam, and concluded that her “physical examination is devoid of any objective clinical findings attributable to the remote motor vehicle accident that occurred two and a half years ago” and that she had full physical recovery long ago, was fully capable of resuming all aspects of her life prior to the accident without any physical restrictions, and that an attendant care assessment was not reasonable and necessary.

23X.Y.W. also supplied recent expert reports, which I greatly discount for several reasons. First, Chiropractor Dr. Palantzas’s February 8, 2021 Orthopaedic Assessment offers 31 diagnoses from orthopaedic injuries to depression, head injuries, and concussion, the latter of which strike me as beyond her expertise and at odds with the views of hospital and various psychological and psychiatric assessors. While I agree with the report’s notation of no loss of consciousness as I noted above, the report describes pre-accident health as good, with no prior surgeries except for appendicitis and the July 2016 accident, but the Scarborough Hospital records record at least two laparoscopic procedures, and Dr. Lam’s medical file shows a host of medical issues – including headaches ongoing for 10 years. X.Y.W. also reported to Dr. Palantzas that she is not currently driving, when she is. The assessor’s statement that X.Y.W.’s history is reliable and consistent with the records further undermines the report’s value.

24Similarly, Raymond Wong’s February 2021 O.T. In-Home Assessment report contains X.Y.W.’s inconsistent self-reporting that undermines the report’s usefulness. X.Y.W. reported that prior to the index car accident, she enjoyed good health, which records show otherwise, and she worked as an early childhood assistant, although she previously denied working since the 2016 accident. She reports that her neck pain “disrupts work, and affects driving”.¹² She also reports three falls, which are not noted in the other records.¹³ Other discrepancies are noted above.

25Fourth, in terms of the psychiatry and psychological reports, I find Co-operator’s more persuasive. For instance, Psychiatrist Dr. Nancy Lin’s initial consultation note dated April 2, 2019, notes X.Y.W. “unfortunately encountered another motor vehicle accident in 2017 and this has significantly debilitated her in terms of mental health and endorsed ongoing chronic pain…unable to function, tear and hopeless feeling ongoing.” Dr. Lin diagnosed major depressive disorder, chronic; chronic pain after a motor vehicle accident and post traumatic stress disorder (differential diagnosis). However, the note does not refer to any validity or psychometric testing, and it describes X.Y.W. as otherwise healthy, but I find that inaccurate. Dr. Lin mentions X.Y.W. was working at the time of the accident, which appears accurate, but contradicts X.Y.W.’s self-reports to others.

26On November 16, 2019,¹⁴ Bruce Cook, a psychological associate with Somatic Assessments & Treatment Clinic (“Somatic”) assessed X.Y.W. He did conduct psychometric testing, but those produced validity scores that raised “some caution”. Yet, he still relied on her history, even finding her to be an “accurate historian”¹⁵ which I find not to be the case. Thus, I have doubts about his diagnosis. Some of his diagnosis overlaps with Dr. Lin, but some differ.

27Somatic’s March 30, 2019 Pre-screening notes¹⁶ inaccurately states X.Y.W. lost consciousness, noted that X.Y.W. lost her job as a result of the accident, which conflict with her other accounts, and does not appear to consider prior symptoms. Somatic’s April 17, 2020 progress note appears to pin on all of X.Y.W. psychological problems on her accident¹⁷, and a September 21, 2020 letter finds further psychological intervention is necessary, based on X.Y.W.’s “clinical interview, observation, and self-report.”¹⁸ Again, these statements contradict other evidence.

28On July 4, 2019, Psychiatrist Dr. Hines conducted an IE assessment. He previously examined X.Y.W. for the prior accident. During the examination, X.Y.W. again claimed she lost consciousness and had not worked since the last accident. Dr. Hines found she was uncooperative at times. He endorsed a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood but opined her subjectively reported emotional complaints are not causing any mental health impairments, nor any need for additionally counselling beyond what she received.¹⁹

29X.Y.W. consulted Perfect Physio & Rehab Centre in October 2017, and began physical therapy, but then later switched clinics to attend Total Recovery Rehab Centre in June 2019 at the request of her lawyer.

30There are some objective tests showing objective issues, such as a left shoulder ultrasound on November 17, 2017 that revealed a small partial tear of the supraspinatus tendon, indicating mild rotator cuff tendonapathy; a November 11, 2019 MRI of the cervical spine ordered by Dr. Wong showing early degenerative changes of the cervical spine, and early moderate right neural foraminal narrowing at C5-6 with equivocal impingement which “may account for patient’s presenting symptoms,” ²⁰, and Dr. Wong’s X-ray above. Still, none of these studies establish the findings are as result of the accident. In fact, 6 months before the subject accident, during a March 2, 2017 sleep study she advised having right sided headache for 10 years.²¹

31Against the above background, I do not find that the evidence establishes major depressive disorder nor, more importantly, point to even moderate levels of functional impairment from a physical or mental perspective. I find that it is not reasonable and necessary to investigate a catastrophic impairment rating.

32Co-operator’s raises a few other issues that supports that conclusion, such as the treatment plan itself contains oddities such as four file reviews of $1,000 each, $1,600 in form fees, and a request for a chiropractic assessment, despite this being a mental and behavioral claim. Additionally, almost four years after the accident, X.Y.W. has only incurred $21,132.33 in medical-rehab benefits, leaving $43,867.67 remaining on the non-CAT limits.

Issue 2: Is X.Y.W. entitled to $2,289.07 for an attendant care assessment recommended in a plan submitted on January 28, 2020?

33Co-operators submits this plan cannot be reasonable and necessary as the assessment X.Y.W. completed did not even produce a Form-1, the central purpose of such exam. Yet, that assessment does not purport to be an ACB assessment, but rather to support a catastrophic assessment. Thus, the report submitted appears to be the assessment requested on line 2 of the OCF-18 in Issue 1 – which plan I found not to be reasonable and necessary.

34If I review this plan as seeking a different ACB assessment and Form-1, the plan is still not reasonable and necessary as the evidence does warrant such an assessment. X.Y.W. is independent in her activities of daily living according to her own self-reports, her reports do not show meaningful functional impairments, and it appears X.Y.W. is working. X.Y.W.’s own in-home assessment performed for catastrophic purposes also shows little need, if any, for attendant care. I also accept Dr. Zabieliauskas’ opinion notes above that it is not necessary.

Issue 3: Is X.Y.W. entitled to $3,337.56 for chiropractic services recommended in a plan submitted on March 13, 2020?

35For a treatment plan under s. 15 and 16 of the Schedule, X.Y.W. must show that the plan is reasonable and necessary as a result of the accident.

36I find this claim for chiropractic service to be X.Y.W.’s most reasonable claim given her complaints.²² However, given her lack of reliability as to her true complaints and the lack of a tie-in to the accident, I do not find it reasonable.

37Also, the plan itself raises further doubts, such as the two-and-a-half-year delay from the accident and Dr. Palantzas’ overbroad endorsement of accident-related injuries. If X.Y.W. has concussion symptoms and chronic pain, it is unclear why this chiropractic treatment would help. Furthermore, the plan’s statement that it's “unknown” if X.Y.W. underwent investigation or treatment for this accident in the past year, leaves question if there was any coordination with her other treatment providers. I accept Dr. Ko’s opinion that this plan is not reasonable and necessary.

Issue 4: Interest

38As I find no benefits overdue, no interest is payable.

ORDER

39X.Y.W. is not entitled to the treatment plans. The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
2. 2X.Y.W. withdrew Issue [3]III listed in the February 1, 2021 Case Conference Report and Order.
3. 3The Rules of the Law Society of Ontario provide that a paralegal may not represent an applicant where catastrophic benefits are being sought. In this case, X.Y.W. only seeks treatment plans requesting assessments of catastrophic impairment, but not an actual catastrophic determination. To the extent the Rule does apply to this matter, while Ms. Jiang, a paralegal, signed the submissions, Ms. Abraham, a lawyer, filed them; I find that suffices for the Rule.
4. 4See O.S. v Certas Home and Auto Ins. Co., 2020 CanLII 42665 (ON LAT) at paras 21, 28, 41, and 52.
5. 517-006956 v. The Guarantee Co., 2018 CanLII 130858 (ON LAT) at paras 14-22, affirming 17-006956 v Guarantee Co., 2018 CanLII 110952 (ON LAT) at para 37; Y.D. v. Certas Home and Auto Ins. Co., 2020 CanLII 94721 (ON LAT) at para. 15.
6. 6O.S. v Certas, 2020 CanLII 42665 (ON LAT). In discussing non-CAT assessments, O.S. v Certas similarly held that the assessments must be reasonable and necessary “to explore the ongoing symptoms and assist his health care practitioners in recommending treatment.”
7. 7X.Y.W., Tab 14, at p. 10.
8. 8X.Y.W., Tab 1, at p. 84-86 and 88, with notations showing “No LOC”, “alert and oriented x 3” and similar.
9. 9X.Y.W., Tab 13, p. 1.
10. 10X.Y.W., Tab 2, Records from Dr. Irina Lam, pdf p. 95-97 of 127; Tab 14, p. 3.
11. 11X.Y.W., Tab 2, Records from Dr. Irina Lam, pdf p. 70 of 127. I note there are two different “Tab 2” – one 71 pages in length, and one 127.
12. 12X.Y.W, Tab 14, p. 4.
13. 13Scarborough Hospital ER record note a September 19, 2018 ankle sprain. Neither party addressed it.
14. 14X.Y.W. Tab 11, p. 58. X.Y.W. submissions identify this report as occurring in April 2019.
15. 15X.Y.W. Tab 11, p. 59 of 70. See page 2 of the Report.
16. 16X.Y.W. Tab 11, p. 11-12 of 70.
17. 17X.Y.W. Tab 11, p. 69-70 of 70.
18. 18X.Y.W. Tab 11, p. 3 of 70.
19. 19Co-operators’ submissions also refer to a February 8, 2021 IE assessment by Psychiatrist Dr. Finkel, but omitted to attach the report. I could request a copy be provided, but given my other findings above, rather then delaying this matter further, I am not considering the assessment.
20. 20X.Y.W., Tab 2, Records from Dr. Irina Lam, pdf p. 38 of 71.
21. 21X.Y.W., Tab 2, Records from Dr. Irina Lam, pdf p. 95-97 of 127.
22. 22The treatment plan is attached as Tab 10 to the X.Y.W.’s submissions.