Citation: Zhan v. Certas Home and Auto Insurance Company, 2022 ONLAT 20-009813/AABS

Licence Appeal Tribunal File Number: 20-009813/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:

Wei Min Zhan

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Masiya Ahmadzai, Counsel

HEARD:

By Way of Written Submissions

1The applicant was involved in an automobile accident on May 26, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).

2The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

3A case conference was conducted on April 8, 2021 and a written hearing was scheduled.

ISSUES

4The disputed claims in this hearing are:

i. Is the applicant entitled to $2,225.00 for psychological services recommended by Somatic Assessments and Treatment Clinic in a treatment plan (“OCF-18”) submitted September 23, 2019?

ii. Is the applicant entitled $3,701.88 for psychological services recommended by Somatic Assessments and Treatment Clinic in an OCF-18 submitted May 26, 2020?

iii. Is the applicant entitled to interest on any overdue payment of the benefit?

iv. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment of the benefit?

RESULT

5I find that the applicant has not met his burden of proving that the treatment plans in dispute are reasonable and necessary. As no benefits are owing, there is no basis to make an award and no interest is payable.

ANALYSIS

Are the treatment plans reasonable and necessary?

6Sections 14 and 15 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. 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.

7The applicant submits that he continues to experience ongoing physical and psychological impairments as a result of the accident, and continues to require psychological treatment.

8The respondent submits that in the three years post-accident several treatment plans have been approved to address the applicant’s psychological symptoms and that the applicant has received the required treatment. Therefore, the respondent submits that further psychological intervention is not reasonable and necessary.

9The OCF-18 dated September 23, 2019 submitted by the applicant’s psychologist Dr. B. Cook proposes fourteen (14) treatment sessions, $360.00 for a progress report, $200.00 for the completion of the OCF-18 and $280.00 for transportation for a total of $3981.88. The respondent partially approved the treatment plan in the amount of $1,756.88, and the applicant submits that the plan should be approved in its entirety.

10The applicant relies on the clinical notes and records of his family physician Dr. C. Chang, and a psychological assessment report of Dr. S. McDowell, psychologist, dated December 26, 2018, where Dr. McDowell diagnosed the applicant with Major Depressive Disorder and Specific Phobia (travel)¹. Dr. McDowell proposed fourteen (14) 1.5 hour sessions of therapy, which the applicant attended with Dr. B. Cook, psychologist and Ms. K. Tam, psychotherapist. The applicant further relies on the Psychological Progress Note of Dr. Cook appended to the disputed September 23, 2019 OCF-18. In his Progress Note Dr. Cook reaffirmed the diagnosis of Major Depressive Disorder (Mild) and Specific Phobia (Driver-Passenger)². Dr. Cook noted that further psychological intervention was necessary and recommended an additional fourteen (14) 1.5 hour sessions of psychological treatment.

11In response, the respondent submits that the balance of the OCF-18 is not reasonable and necessary and relies on the s.44 Psychological Assessment of Dr. C. Goodfield, dated November 29, 2019, which found that eight (8) one-hour sessions of psychological intervention would be sufficient. Dr. Goodfield found that the previous course of psychological treatment has benefited the applicant such that his current symptoms were now of mild severity³. The applicant had reported that his current mood had somewhat improved, he had returned to driving, and continued to care for his seven-year old daughter. The respondent further submits that the clinical notes and records of the applicant’s family physician Dr. Chang indicate that there were no visits for any accident-related psychological complaints post-2018. For the purposes of the September 23, 2019 OCF-18, the respondent submits that the s.44 Psychological Assessment of Dr. Goodfield should be preferred to the Progress Note of Dr. Cook, as her assessment included psychometric testing and a review of medical records in addition to the interview.

12I find that the applicant is not entitled to the disputed balance of the September 23, 2019 OCF-18, because he has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary. In this treatment plan, the stated goals of the proposed psychological treatment were reducing negative thought patterns and returning to the activities of normal living. However, on the evidence, it appears that the applicant has already returned to his activities of normal living and seen a significant improvement in his psychological functioning.

13As detailed in Dr. Goodfield’s Psychological Assessment, the applicant had returned to work one week after the accident, continued to drive (to and from work and to see his son who lived in the United States), walked daily and continued to perform all of his pre-accident household and childcare duties. Further, the applicant had reported to Dr. Goodfield that he had discontinued his sleep medication, and was experiencing improvement in his post-accident state. As a result, Dr. Goodfield concluded that the applicant’s diagnoses were resolving and now of mild severity. In corroboration of this improvement, I note that the clinical notes and records of the family physician do not indicate any visits post-2018 for psychological complaints⁴ and the prescription record does not indicate that the applicant took medication for psychological issues post-2018⁵. The applicant has not provided any additional contemporaneous medical evidence (such as clinical records from treatment providers such as Dr. Cook) to establish his continuing impairment.

14Although Dr. Cook’s Progress Note documented the applicant’s reports that he still experiences some frustration, lack of motivation and anxiety, it also stated that the applicant had reported improvements. Namely, his depressive symptoms were lessened, he had better sleep and that had learned some useful techniques to control his anxiety. In addition, the applicant also reported that he was feeling positive about his physical, psychological and emotional progress.

15Despite these apparent gains, Dr. Cook maintained the previous diagnoses of Major Depressive Disorder and Specific Phobia related to driving and recommended a second identical course of 14 treatment sessions. The Progress Note and treatment plan prepared by Dr. Cook do not appear to be reflective of the fact that the applicant had already received substantial treatment from Dr. Cook and appeared to be improving. For example, the OCF-18 itemized $280.00 for transportation expenses for the applicant to attend therapy⁶, despite the fact that the applicant was already driving daily.

16When comparing the s.44 Psychological Assessment of Dr. Goodfield and Dr. Cook’s Progress Note, I prefer the evidence of Dr. Goodfield. Dr. Goodfield’s assessment was more comprehensive, in that she completed a review of the applicant’s medical records, including the CNR’s of his family physician, the various claims form, and available records from the applicant’s treatment providers, such as Dr. Cook⁷. In addition to the clinical interview with the applicant, Dr. Goodfield also conducted psychometric testing to support her conclusions that the applicant’s symptoms were resolving and now of mild severity. Dr. Goodfield further noted that the applicant’s scores on the Symptom Checklist-90-R, suggested an inconsistent result between his reported psychological disturbance and his narrative and presentation, and that the applicant’s scores reflected a “dramatizing response style”.⁸ Taking into account the applicant’s medical history and current assessment, Dr. Goodfield acknowledged that the applicant had sustained an impairment from the accident which required an intervention, but concluded that given the substantial treatment he had already received and his current symptoms, eight additional treatment sessions would be sufficient to promote a full resolution of his difficulties.

17Given the apparent improvements in the applicant’s functioning and psychological condition in the three years post-accident, I find that it is practical for the proposed treatment to be reflective of these gains and be reduced either in frequency or duration. At the very least, if the same course of treatment is being proposed, there must be sufficient evidence establishing the ongoing psychological impairment, reasonable goals must be identified, with progress being documented by the treatment provider. The applicant has not provided such evidence.

18As a result, I find that the applicant has not met his burden of proof to establish that the lengthier treatment recommended by Dr. Cook in the unapproved balance of the September 23, 2019 OCF-18 is reasonable and necessary.

19The applicant submitted a subsequent treatment plan dated May 26, 2020 in the amount of $3,701.88, for an additional course of fourteen (14) 1.5 hour treatment sessions with Dr. Cook. The respondent denied this treatment plan in its entirety, again relying on the s.44 Psychological Assessment of Dr. Goodfield.

20I find that the applicant has failed to meet his onus of proving that the additional course of psychological treatment is reasonable and necessary on a balance of probabilities.

21The May 26, 2020 OCF-18 and supportive Progress Note submitted by Dr. Cook were almost identical to the September 23, 2019 OCF-18. Again, despite the fact that the applicant had essentially resumed all of his previous activities, one of the treatment goals in the OCF-18 was still listed as “a return to daily living”⁹. The new Progress Note still detailed the same improvements, such as a decrease in depressive symptoms and that the applicant felt positive about his progress, however, an unchanged course of fourteen additional treatment sessions was recommended.

22As summarized previously, the evidence does not establish that additional psychological treatment outside of the partially approved September 23, 2019 OCF-18 is reasonable and necessary. Repeatedly re-submitting essentially the same treatment plan and progress report, as the applicant has done here, implies that either the treatment provider is not updating its report and plan to reflect the ongoing treatment process (which undermines the recommended treatment), or that the psychological treatment is not working.

23In fact, the only notable difference in the most recent Progress Note dated April 25, 2020, was that Dr. Cook changed one of his diagnoses from Specific Phobia (Driver-Passenger) to Generalized Anxiety Disorder¹⁰. There is no explanation or discussion in the Progress Note as to why the applicant’s diagnosis had expanded from a specific phobia to generalized anxiety. In fact, this appears to conflict with the applicant’s self-reports that he was “benefitting from therapy and it helps him a lot.”¹¹, that he has learned some useful techniques to control his anxiety and Dr. Cook’s own assessment that therapy has had an ongoing stabilizing effect on the applicant. Despite the fact that the applicant had already attended an additional 5 therapy sessions from January to April 2020, and the improvements described in the Progress Note, Dr. Cook appeared to diagnose him with a worsening condition. As a result, it is difficult to see how a continued course of identical psychological treatment would be beneficial to the applicant or reasonable and necessary.

Deficiency of the Insurer’s Denial Letters

24I note that the applicant in his submissions at paragraph 26 has raised the issue of the inadequacy of the insurer’s denial letters. However, other than the general statement that the insurer’s responding letters failed to provide “medical and/other reasons which should make the treatment payable” and one case citation, the applicant has not provided any additional information. The applicant has not referenced which of the four insurer’s letters he is contesting, the specific language that he finds inadequate and arguments supporting the deficiency, or which section of the Schedule he is relying on. I cannot address this issue without adequate submissions.

Award

25Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As I have found that there are no payment of benefits owing, there is no basis upon which to consider an award in this matter.

Interest

26As there are no benefits payable, no interest is payable.

ORDER

27For the reasons outlined above, I find:

(i) The applicant is not entitled to $2,225.00 for psychological services recommended in an OCF-18 submitted September 23, 2019.

(ii) The applicant is not entitled to $3,701.88 for psychological services recommended in an OCF-18 submitted May 26, 2020.

(iii) As there is no benefit payable, no interest is payable.

(iv) The applicant is not entitled to an award under Regulation 664.

(v) The application is dismissed.

Released: July 4, 2022