Citation: Ouyang v. Allstate Insurance Company of Canada, 2022 ONLAT 20-010694/AABS

Licence Appeal Tribunal File Number: 20-010694/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:

Waner Ouyang

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Sophia Chaudri, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1Waner Ouyang (“applicant”) was involved in an automobile accident on June 27, 2019, 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 Allstate Insurance Company of Canada (“respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The disputed claims in this hearing are:

a. Is the applicant entitled to the following medical benefits recommended by Total Recovery Rehab Centre:

i. An amount of $1,414.56 ($4,688.71 less $3,274.15 approved) for chiropractic services recommended in a treatment plan dated July 15, 2019?

ii. An amount of $2,225.29 ($5,052.08 less $2,826.79 approved) for physiotherapy services recommended in a treatment plan dated August 13, 2019?

iii. An amount of $1,209.96 ($4,575.90 less $3,365.94 approved) for chiropractic services recommended in a treatment plan dated August 26, 2019?

iv. An amount of $512.00 ($4,575.90 less $4,063.90 approved) for chiropractic services recommended in a treatment plan dated December 2, 2019?

v. An amount of $512.00 ($4,575.90 less $4,063.90 approved) for chiropractic services recommended in a treatment plan dated March 7, 2020?

b. Is the applicant entitled to the following medical benefits recommended by Somatic Assessments & Treatment Clinic :

i. An amount of $280.00 ($3,981.88 less $3,701.88 approved) for psychological services recommended in a treatment plan dated August 14, 2019?

ii. An amount of $640.00 ($3,981.88 less $3,341.88 approved) for psychological services recommended in a treatment plan dated February 21, 2019?

iii. An amount of $640.00 ($3,981.88 less $3,341.88 approved) for psychological services recommended in a treatment plan dated June 16, 2020?

iv. An amount of $4,512.81 ($16,712.81 less $12,200 approved) for catastrophic determination reports recommended in a treatment plan dated November 15, 2019?

c. Is the applicant entitled to the amount of $33.70 for a hospital visitor meal expense set out in an OCF-6 dated August 2, 2019?

d. Is the applicant entitled to the amount of $32.60 for a hospital visitor meal expense set out in an OCF-6 dated August 26, 2019?

e. Is the applicant entitled to the amount of $ 588.34 for a physician fee set out in an OCF-6 dated November 25, 2019?

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

RESULT

3I find that the applicant has not established, on a balance of probabilities, that she is entitled to the remaining benefits in dispute. The applicant has not demonstrated that the outstanding balances of the treatment plans are reasonable and necessary as a result of the accident. The respondent is not liable for the additional expenses claimed. Since no payment is owing for the benefits claimed, no interest is payable.

ANALYSIS

4Sections 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. The applicant must also establish that the additional expenses claimed are payable under s. 38 of the Schedule.

The Parties’ Positions

5The applicant submits that she sustained serious physical and psychological injuries as a result of the accident, resulting in the need for ongoing chiropractic, physiotherapy, and psychological services. The applicant argues that the emergency room records from Hamilton General Hospital indicate the extent of her injuries immediately following the accident, including the fact that she had to undergo operative surgery for her pelvis and sacral S1 fractures². The applicant submits that she was slow to regain mobility post-surgery and required physiotherapy in hospital³.

6Subsequently, the applicant continued physical treatment with Total Recovery Rehab Centre and psychological treatment with Somatic Assessments & Treatment Clinic. Due to the extent of her injuries, the applicant submits that she applied for a determination of catastrophic impairment on October 15, 2020⁴. The applicant asserts that to date, despite the clear need for treatment, the respondent has withheld all payments towards physical therapy and has not provided any reasons for its partial denials of the treatment plans in dispute or the submitted expense claims forms (“OCF-6”s)⁵.

7In contrast, the respondent submits that the issues in dispute in this hearing do not relate to the extent of the applicant’s injuries, but are purely technical in nature. The respondent asserts that the vast majority of the treatment plans in dispute were partially approved, and that the outstanding portions relate to expenses that are not reasonable, necessary or even payable, such as expenses that exceeded the hourly rates in the Professional Fee Guideline⁶ (“PSG”), duplicative documentation fees⁷ or unauthorized transportation expenses⁸. Moreover, the respondent asserts that the applicant failed to specifically address any of the nine treatment plans or three expense claims in dispute and as such, has failed to meet her burden to establish that the outstanding amounts are reasonable and necessary or payable.

Are the Outstanding Balances of the Treatment Plans for Chiropractic, Physiotherapy and Psychological Services Reasonable and Necessary?

8I find that the applicant has failed to meet her burden of proof to establish that the outstanding amounts in the treatment plans relating to chiropractic, physiotherapy and psychological services are reasonable and necessary.

9The applicant submits nine treatment plans (“OCF-18”s) relating to physiotherapy, chiropractic and psychological treatment. However, I agree with the respondent that the applicant in her submissions does not specifically address any of the treatment plans in dispute. The applicant does not review the treatment plans, nor provide any submissions or evidence as to why the amounts denied by the respondent were reasonable and necessary. Instead, the majority of the applicant’s submissions simply describe the extent of her injuries.

10The applicant’s only reference to the OCF-18s is a general submission that the “medical benefits that have been withheld are reasonable and necessary”.⁹ The applicant goes on to state in her submissions that the respondent has “withheld all payments towards physical therapy”¹⁰.

11From my review of the submissions, treatment plans in dispute and the respondent’s Explanations of Benefits (“EOB”’s), I find that this is an inaccurate assessment. As summarized in the chart below, the respondent has not withheld “all payments towards physical therapy”. Rather, I agree with the respondent’s submission that the denied portions of the treatment plans relate to specific expenses such as fees that the respondent alleges exceeded the PSG, administrative documentation or duplicative fees or transportation expenses, as summarized in the chart below:

Treatment Plan	Full Amount of OCF-18	Denied Amount	Medical Benefits Denied
OCF-18 dated July 15, 2019	$4,688.71	$1,414.56 denied	Transportation expenses; and acupuncture expense in excess of $58.19/hr11
OCF-18 dated August 13, 2019	$5,052.08	$2,225.29 denied	Transportation expenses; Documentation support activity; “additional payment for therapy”12
OCF-18 dated August 27, 2019	$4,575.90	$1,209.96 denied	Transportation expenses; acupuncture fees in excess of rates set by FSCO; documentation support activity13
OCF-18 dated December 2, 2019	$4,575.90	$512.00 denied	Transportation expenses14
OCF-18 dated March 7, 2020	$4,575.90	$512.00 denied	Transportation expenses15
OCF-18 dated August 14, 2019	$3,981.88	$280.00 denied	Transportation expenses16
OCF-18 dated February 21, 2020	$3,981.88	$640.00 denied	Transportation expenses; documentation support activity17
OCF-18 dated June 16, 2020	$3,981.88	$640.00 denied	Transportation expenses; documentation support activity18

12Moreover, the applicant asserts in her submissions that the respondent “has not provided any reasons for its continued partial denial of treatment; they await their CAT reports but the Applicant asks if that is fair”.¹⁹ Similarly, I find that this is not an accurate characterization of the respondent’s responses to the treatment plans in dispute.

13From my review of the submissions, treatment plans and EOBs, I do not see any reference to the respondent waiting for catastrophic impairment reports (“CAT reports”) in order to respond to the treatment plans. Rather, the EOBs corresponding to each treatment plan in dispute provided a variety of reasons for the denial of the outstanding amounts.

14For example, with respect to the denials of the transportation expenses, the respondent stated in its EOBs that these amounts were subject to the 50km deductible for non-CAT impairments. Similarly, when denying the higher rate ascribed to an acupuncturist, the respondent referenced the rates stipulated by the PSG. Finally, the respondent denied certain administrative documentation fees as duplicative or excessive, pursuant to the PSG.

15In her submissions, the applicant did not acknowledge that only a portion of the treatment plans were denied, nor did she address the respondent’s reasons for the denials as stated in its EOBs. The respondent provided a description of each treatment plan and the reasons why the outstanding amounts had not been approved. Even if the applicant did not address the particulars of the denied portion of the treatment plans in her initial submissions, the applicant had a right of reply. As such the applicant could have directly addressed the outstanding amounts of the treatment plans and led evidence as to either the insufficiency of the respondent’s denial, or the reasonableness and necessity of the outstanding amounts. The applicant chose not to do so.

16As such, the only evidence the applicant has submitted in support of the denied portions of the treatment plans is a recitation of her injuries and a chronology of her treatment, which is of little persuasive value with respect to the technical issues of documentation fees, transportation expenses, duplicative fees, or the appropriate hourly rate under the PSG.

17The applicant did not argue that the respondent’s denials failed to comply with s.38(8) of the Schedule and did not reference s.38 at all. In the absence of such an argument, the onus is on the applicant to show that the outstanding amounts of the treatment plans are reasonable and necessary.

18It is well-established that the applicant bears the onus of establishing entitlement to a claimed benefit²⁰. Based on the evidence before me, the applicant has not met her onus. The applicant did not provide any evidence or submissions as to why the transportation expenses, documentation expenses or higher hourly rate for an acupuncturist are reasonable and necessary, and therefore payable. As such, I cannot conclude on a balance of probabilities that the applicant is entitled to the outstanding amounts of the disputed treatment plans.

Is the Outstanding Balance of the Treatment Plan for a CAT Assessment Reasonable and Necessary?

19In a treatment plan dated November 15, 2019, the applicant submitted a cost of CAT assessments in the amount of $16,712.81²¹. By way of an EOB dated November 28, 2019, the respondent initially denied the OCF-18, arguing that two years had not elapsed since the accident²². Subsequently, by way of an EOB dated October 7, 2020, the respondent partially approved the CAT assessments in the amount of $12,200.00²³.

20The respondent approved the psychological, occupational therapy and neurological assessments, a file review and summary, in the amount of $2,000.00 each. The denied portions of the treatment plan comprised of three additional file reviews, in the amount of $1,000.00 each, documentation support activity fees, interpretation service fees and transportation expenses.

21In order to be eligible for the outstanding amount claimed in this treatment plan, the applicant must demonstrate, on a balance of probabilities, that the assessment is reasonable and necessary as a result of the accident pursuant to s.15(1) of the Schedule and that the additional expenses claimed are payable under s.38 of the Schedule.

22The applicant has made no submissions directly addressing the reasonableness and necessity of the treatment plan for the CAT assessments or why the additional three file reviews or additional expenses should be paid . Nor does the applicant argue that the respondent’s denial failed to comply with s.38(8) of the Schedule. The only evidence the applicant has led is a recitation of the medical evidence describing her injuries and is of little persuasive value with respect to the issues of administrative file review expenses, interpretation or transportation fees.

23As such, I find that the applicant has not met her onus to establish entitlement to the denied portion of the treatment plan for a CAT assessment and is not entitled to such.

OCF-6 Expense Forms for Hospital Visitors

24The applicant claims that she is entitled to reimbursement for the expenses claimed in two OCF-6s²⁴, namely meal expenses claimed by two hospital visitors, who were identified on the OCF-6s as “family members”.

25In its EOBs dated August 27, 2019²⁵ and September 12, 2019²⁶, the respondent asked the applicant for additional information, including the name and relationship of the family members. The respondent also asked for clarification as to why the expenses related to visits on July 17, 2021 and August 21, 2019, when the applicant was discharged from the hospital on July 11, 2019.

26The applicant provided limited submissions on the issue. The applicant states that her husband and family members came to visit her in the hospital. However, she again did not identify the visiting family members. The applicant also did not make any submissions and did not present any evidence as to why the dates of the visits referenced in her OCF-6s did not correspond with her hospital stay. Absent submissions or evidence to provide clarification and context for this claim, I cannot conclude on a balance of probabilities that the applicant is entitled to the claimed amounts. Therefore, the applicant is not entitled to the disputed benefit.

OCF-6 Expense Form for Physician’s Fees

27The applicant also submitted an OCF-6 dated November 25, 2019²⁷ for four visits to a physician, on June 27 and 28, 2019. In its EOB dated November 28, 2019,²⁸ the respondent stated that it required a paid receipt, along with additional information, such as why the items were not approved by the Ontario Health Insurance Plan (“OHIP”) or the Interim Federal Health Program (“IFHP”). The applicant was asked to bill OHIP or IFHP first.

28The applicant provided a Medavie Blue Cross Summary (“Blue Cross Summary”) with her submissions, which was a printout that itemizes the paid and unpaid benefits pursuant to the IFHP, provided by Immigration, Refugees and Citizenship Canada²⁹. The summary lists the medical services provided, when they were incurred, when they were paid, and the amount that was ultimately covered by IFHP.

29I accept the Blue Cross Summary as evidence of the medical benefits that were submitted to and paid or denied by IFHP. However, from my review of the Blue Cross Summary, while I see a number of entries for physician visits which correspond with the dates listed in the OCF-6 as physician visits (June 27 and 28, 2019), I do not see any entries on those dates that are for the amounts of $206.80, $62.04, $83.40, $45.80 or $190.30, which were the specific amounts listed in the invoices attached to the OCF-6.

30In her submissions, the applicant does explain this discrepancy or direct me to any particular entry in the Blue Cross Summary, which would establish her claim. Without such clarification, I cannot conclude that she has adduced sufficient evidence that the costs of the physician visits are payable. Therefore, she has not met her evidentiary burden and is not entitled to the OCF-6.

Interest

31As there are no benefits payable, no interest is payable.

ORDER

32For the reasons outlined above, I find that the applicant has failed to establish that she is entitled to the disputed treatment plans and benefits or that the OCF-6s are payable. As no benefits are owing, no interest is payable. The application is dismissed.

33The applicant is not entitled to:

i. 1,414.56 ($4,688.71 less $3,274.15 approved) for chiropractic services;

ii. $2,225.29 ($5,052.08 less $2,826.79 approved) for physiotherapy services;

iii. $1,209.96 ($4,575.90 less $3,365.94 approved) for chiropractic services;

iv. $512.00 ($4,575.90 less $4,063.90 approved) for chiropractic services;

v. $512.00 ($4,575.90 less $4,063.90 approved) for chiropractic services.

vi. $280.00 ($3,981.88 less $3,701.88 approved) for psychological services.

vii. $640.00 ($3,981.88 less $3,341.88 approved) for psychological services.

viii. $640.00 ($3,981.88 less $3,341.88 approved) for psychological services;

ix. $4,512.81 ($16,712.81 less $12,200 approved) for catastrophic determination reports.

x. $33.70 for a hospital visitor meal expenses;

xi. $32.60 for a hospital visitor meal expenses;

xii. $ 588.34 for a physician fee; and

xiii. Interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Applicant’s Submissions, Tab 1, Records from Hamilton Health Sciences, pgs. 40-55, 112, 135.
3. 3Applicant’s Submissions, Tab 1, Records from Hamilton Health Sciences, pg.56.
4. 4Applicant’s Submissions, Tab 8 – OCF-19 and Catastrophic Determination Reports from Somatic Assessments & Treatment Clinic.
5. 5Applicant’s Submissions at paras. 26-28.
6. 6Respondent’s Submissions, Tab C, Explanation of Benefits (EOB) dated July 29, 2019, Tab E , EOB dated August 27, 2019, Tab G, EOB dated September 12, 2019.
7. 7Respondent’s Submissions, Tab E , EOB dated August 27, 2019, Tab G, EOB dated September 12, 2019, Tab O, EOB dated February 25, 2020, Tab Q, EOB dated June 22, 2020.
8. 8Respondent’s Submissions, Tab C, Explanation of Benefits (EOB) dated July 29, 2019, Tab E , EOB dated August 27, 2019, Tab G, EOB dated September 12, 2019, Tab I, EOB dated December 12, 2019, Tab K, EOB dated March 12, 2020, Tab M, EOB dated October 11, 2019, Tab O, EOB dated February 25, 2020, Tab Q, EOB dated June 22, 2020.
9. 9Applicant’s Submissions at para. 25.
10. 10Applicant’s Submissions at para. 26.
11. 11Respondent’s Submissions, Tab C, Explanation of Benefits dated July 29, 2019.
12. 12Respondent’s Submissions, Tab E, Explanation of Benefits dated August 27, 2019.
13. 13Respondent’s Submissions, Tab G, Explanation of Benefits dated September 12, 2019.
14. 14Respondent’s Submissions, Tab I, Explanation of Benefits dated December 12, 2019.
15. 15Respondent’s Submissions, Tab K, Explanation of Benefits dated March 12, 2020.
16. 16Respondent’s Submissions, Tab M, Explanation of Benefits dated October 11, 2019.
17. 17Respondent’s Submissions, Tab O, Explanation of Benefits dated February 25, 2020.
18. 18Respondent’s Submissions, Tab Q, Explanation of Benefits dated June 22, 2020.
19. 19Applicant’s Submissions at par. 28.
20. 20Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).
21. 21Applicant’s Submissions, Tab 18 – OCF-18 dated November 15, 2019.
22. 22Respondent’s Submissions, Tab S, EOB dated November 28, 2019.
23. 23Respondent’s Submissions, Tab T, EOB dated October 7, 2020.
24. 24Applicant’s Submissions, Tab 3, Disputed Expense Claim Forms.
25. 25Respondent’s Submissions, Tab V, EOB dated August 27, 2019.
26. 26Respondent’s Submissions, Tab X, EOB dated September 12, 2019.
27. 27Applicant’s Submissions, Tab 3, Disputed Expense Claim Forms.
28. 28Respondent’s Submissions, Tab Z, EOB dated November 28, 2019.
29. 29Applicant’s Submissions, Tab 6, Medavie Blue Cross Summary.```