Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-012139/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:
Haifan Chen
Applicant
and
Safety Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Miryam Gorelashvili, Counsel
For the Respondent:
Crystal Schulz, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Haifan Chen, (the “applicant”), was involved in an automobile accident on June 4, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Safety Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2At the time of the accident, the applicant was visiting Canada as part of a ten-day tour when the motorcoach he was riding in left the highway and struck a rocky embankment.
ISSUES
3The issues in dispute are:
Is the applicant entitled to $2,240.00 for massage therapy, proposed by Galit Liffshiz & Associates, in a treatment plan/OCF-18 (“OCF-18”) dated April 8, 2019?
Is the applicant entitled to $4,200.00 for occupational therapy, proposed by Galit Liffshiz & Associates, in an OCF-18 dated April 8, 2019?
Is the applicant entitled to $372.83 for assistive devices, proposed by Galit Liffshiz & Associates, in an OCF-18 dated April 8, 2019?
Is the applicant entitled to $1,700.00 for transportation services, proposed by Galit Liffshiz & Associates, in an OCF-18 dated April 8, 2019?
Is the applicant entitled to $726.04 for a rehabilitation support worker, proposed by Galit Liffshiz & Associates, in an OCF-18 dated August 27, 2018?
Is the applicant entitled to $4,200.00 for physiotherapy services, proposed by Galit Liffshiz & Associates, in an OCF-18 dated April 8, 2019?
Is the applicant entitled to $4,487.29 for occupational therapy services, proposed by Vitality Assessments Group in an OCF-18 dated November 11, 2020?
Is the applicant entitled to $2,400.00 for an assessment of attendant care needs, proposed by Galit Liffshiz & Associates in an OCF-18 dated August 24, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award pursuant to s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4For the reasons that follow, I find that:
i. The applicant is entitled to an OCF-18 for the cost of an assessment for attendant care needs, in the amount of $2,400.00, plus interest;
ii. The applicant is entitled to an OCF-18 for occupational therapy services in the amount of $4,487.29, plus interest;
iii. I find that the applicant is not entitled to payment or interest for the remaining OCF-18s in dispute, as he has not met his onus to prove that they are reasonable and necessary; and
iv. The applicant is not entitled to an award.
ANALYSIS
Reasonable and Necessary
5To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
The applicant has failed to demonstrate that he is entitled to the OCF-18s proposing Physiotherapy, Massage Therapy, Occupational Therapy in the amount of $4,200.00, and Transportation Costs
6I find that the applicant has not established that the proposed treatment plans are reasonable and necessary.
7The applicant submits that he suffers from ongoing pain and psychological impairments which requires further treatment. To this end, he relies on numerous section 25 reports conducted by: Ms. Champion, occupational therapist (“OT”); Ms. Kadowaki, kinesiologist; Ms. Hung, OT; Ms. Tuan Kichill, OT, and Dr. Rockman, psychologist. Further, the applicant relies on the OT session progress report completed by his treating OT, Ms. McHugh.
8The respondent submits that the location of the treatment provider renders the OCF-18s unreasonable.
9The four OCF-18s in dispute were submitted for treatment proposed by UP Shanghai Clinic. The OCF-18s were for 15 sessions of physiotherapy services, massage therapy, occupational therapy services (“OT”) and the transportation costs associated with travelling via train to attend the treatment.
10I find that the applicant has failed to establish how the proposed treatment at UP Shanghai Clinic is feasible. Each OCF-18 specifies that treatment is to be provided at the UP Shanghai Clinic, which is located in the City of Shanghai and the applicant resides in the Province of Jiangsu. The respondent submitted that there is approximately a 309 km round trip train travel required by the applicant to travel from Province of Jiangsu to the City of Shanghai, to attend the UP Clinic for the proposed treatment, which the applicant did not contest.
11I agree with the respondent that the psychological assessments of Dr. Rockman, psychologist, and Dr. Karp, psychologist, demonstrate that the applicant has severe passenger, pedestrian, and traffic related anxiety which would affect his ability to travel such a long distance. He was diagnosed with Post-Traumatic Stress Disorder, Major Depressive Disorder, and Somatic Symptom Disorder by Dr. Rockman and an Adjustment Disorder with Mixed Anxiety and Depressed Mood by Dr. Karp. On June 26, 2019, and July 7, 2019, Dr. Rockman noted that the applicant scored in the clinical range for phobic anxiety and was afraid to travel on buses, subways or trains. The applicant further advised Dr. Rockman that he no longer travelled following this accident due to anxiety. The applicant further advised Dr. Karp that he does not travel by bus or car following the accident because he has passenger anxiety. As such, the applicant has failed to demonstrate how he will travel in a train for such a long distance based on his severe passenger, pedestrian, and traffic related anxiety.
12While I acknowledge that the applicant submits that he could have stayed at his relatives, while receiving this treatment, he has not provided any evidence on which relatives he would stay with, how long for, and where these relatives are located. As such, I find that the OCF-18s are still unfeasible.
13Accordingly, and for the reasons outlined above, I find that the applicant has not demonstrated that these four OCF-18s are reasonable and necessary.
The applicant has not demonstrated that the OCF-18 for Assistive Devices is reasonable and necessary
14I find that the applicant has not demonstrated that the OCF-18 for assistive devices is reasonable and necessary for his accident-related impairments.
15The applicant submits that he has ongoing pain and impairments from this accident, and referred to the Occupational Therapy Functional Assessment, completed by Ms. Hung, OT, to demonstrate that he requires assistive devices.
16The respondent submits that the applicant has not produced any evidence to substantiate that his reported symptoms (other than back/rib/flank pain) are causally connected to the accident. Further, the respondent relies on the section 44 paper report by Dr. Khaled, general practitioner (“GP”), dated June 5, 2019, to support its position that the applicant sustained only uncomplicated soft tissue injuries which would have resolved at one year post accident. Lastly, the respondent submits that the applicant’s self-reporting with respect to his symptoms from this accident have been ever-changing, and he has failed to provide any evidence to substantiate that his reported symptoms are causally connected to the accident.
17I agree with the respondent that based on the objective evidence before me, the applicant’s accident-related injuries to his: back, chest, knee, right flank, and right rib had resolved in April of 2019. As such, I am not persuaded that the assistive devices are reasonable and necessary. On October 11, 2018, Ms. Hung recommended these assistive devices to improve the applicant’s quality of sleep and to improve posture and sitting tolerance in his back, however, the OCF-18 was not submitted until April 8, 2019. The post-accident records of Brockville General Hospital state the applicant complained of rib pain following this accident and that he was unable to sleep due to pain. However, these records are from June 2018 (approximately nine months before this OCF-18 was submitted).
18I have not been pointed to any further medical records beyond this date that supports the applicant that he has ongoing back pain from this accident. Moreover, the prescription summary produced by the applicant demonstrates that he was not prescribed any pain medicine from July 2, 2018, to October 8, 2022. As such, I have no reason to interfere with Dr. Khalid’s conclusion that the applicant sustained uncomplicated soft tissue injuries from this accident, which would have resolved at the time of the submission of this OCF-18.
19Lastly, I place little weight on the applicant’s self-reporting to various section 25 and 44 assessors about his pain symptomology, as I agree with the respondent, that it has changed from assessor to assessor. Further, without any objective medical evidence, I find that the applicant has not demonstrated that his changing pain symptomology is linked to the accident, nor has he referred me to any medical opinion that demonstrates that all of his symptomology is a result of this accident. Moreover, Dr. Stewart, on February 1, 2021, concluded that he could not establish a relationship between the applicant’s described pain and limitations to the injuries he sustained from this accident.
20Accordingly, I find the applicant has not met his onus to demonstrate that the OCF-18 for assistive devices is reasonable and necessary.
The applicant has not demonstrated that the OCF-18 for a Rehabilitation Support Worker is reasonable and necessary
21I find that the applicant has failed to demonstrate that the OCF-18 proposing services from a rehabilitation support worker is reasonable and necessary as a result of the accident.
22The applicant’s submissions are silent on whether the treatment goals are reasonable, whether the goals are being met to a reasonable degree and whether the overall cost of achieving the goals is reasonable. The applicant vaguely submits that he suffered from severe cognitive and mental/behavioural impairments that impeded his daily functioning.
23The respondent relies on the section 44 paper review, dated October 11, 2018, of Mr. Kaul, OT to support its position that there is no evidence that the applicant was suffering from a functional impairment as a result of this accident.
24The applicant failed to provide any submissions on what services were being proposed with respect to this OCF-18. Upon review of the OCF-18, dated August 27, 2018, it appears that the disputed OCF-18 is for rehabilitation support services, including interpretation services to be provided during an attendant care assessment, for communication/coordination services for different vendors in China/other treatment providers/family and to review the applicant’s records. I find that the applicant has failed to meet his evidentiary onus to demonstrate that this OCF-18 is reasonable and necessary, as he failed to provide any submissions on why the proposed services are required for his accident-related injuries.
25In addition, the applicant has not referred me to any compelling medical evidence, outside of the OCF-18, that shows he requires communication/coordination services with different vendors in China. While I acknowledge that Ms. Champion, OT recommended a rehabilitation support worker on July 12, 2018, this was for physical injuries, and the applicant has failed to establish how any of his accident-related physical injuries would impact his ability to communicate or require coordination services.
26While I acknowledge that the applicant has self-reported numerous cognitive symptoms following the accident, he has not referred me to medical evidence that demonstrates that as a result of these cognitive symptoms, he required communication/coordination services when this OCF-18 was submitted, which was on September 17, 2018.
27Lastly, while I acknowledge that the applicant has psychological impairments from this accident and has undergone treatment for this with Dr. Rockman. The applicant has failed to refer me to evidence that demonstrates he requires communication services or coordination services due to his psychological impairments during the time period the OCF-18 was submitted, which was on September 17, 2018.
28As such, I find that the applicant has failed to demonstrate that this OCF-18 proposing rehabilitation support worker services is reasonable and necessary.
The applicant has demonstrated that the OCF-18 for OT services in the amount of $4,487.29 is reasonable and necessary
29I find that the applicant has met his evidentiary onus to demonstrate that the proposed OCF-18 for OT services is reasonable and necessary.
30The applicant relies on an OT report completed by Ms. McHugh, OT and section 25 psychological assessment, completed by Dr. Rockman, dated August 16, 2019, to support his position that the OT services are reasonable and necessary from a psychological and cognitive perspective.
31The respondent submits that the disputed OCF-18 is to address sleep hygiene, activity pacing, and pain management. The respondent submits that the applicant has attended psychotherapy sessions which are already addressing sleep hygiene and pain management goals. The respondent further submits that there is no objective evidence to demonstrate that the applicant sustained cognitive impairments from this accident. In addition, the respondent relies upon the section 44 report of Dr. Stewart, GP.
32I find that the OCF-18 is reasonable and necessary to address the applicant’s ongoing sleeping difficulty, and pain management as a result of his psychological impairments. Dr. Rockman has diagnosed the applicant with a Somatic Symptom Disorder with predominant pain and has noted that the applicant often thinks about pain, sees it as magnified and feels helpless to prevent it. Dr. Karp also concluded that the applicant continued to experience some difficulty coping with his pain and reduced physical functioning, and as such, he continued to meet the DSM-5 criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood (mild to moderate severity).
33The psychological treatment records also show that the applicant on November 18, 2019, and February 12, 2020, advised that he continued to have sleep disturbances and increased pain. On March 2, 2021, Ms. McHugh, OT, noted that the proposed OT services would work to improve sleep management by providing consistent bedtime routine and to monitor improvements in sleep. Ms. McHugh also noted that the applicant would benefit from OT sessions to address his pain management by providing energy conservation principles. In addition, Ms. Tuan- Kichill in her report noted that OTs are trained to support individuals to regain their independence and re-engage in pre-MVA activities that are meaningful to them despite physical, cognitive, and psycho-emotional symptoms, and that the applicant received limited OT support to address his symptoms specifically related to pain and sleeping difficulty.
34I further disagree with the respondent that the proposed services in this OCF-18 are a duplication of the psychological services that have been already provided to the applicant. Dr. Stewart, in his report, dated February 18, 2021, noted that psychological counselling and occupational therapy services are different services, and the providers have different scopes of practice. In addition, Dr. Stewart opined that the proposed services did not appear to be a duplication of services, but also deferred this to a psychologist.
35Accordingly, I find that the applicant has demonstrated that the proposed OCF-18 is reasonable and necessary.
The applicant has demonstrated that he is entitled to an assessment for attendant care needs
36I find that the applicant has demonstrated that an assessment for attendant care needs was reasonable and necessary.
37The applicant submits that this OCF-18 was submitted based on the recommendation of Ms. Kadowaki, and that the OCF-18 was denied by the respondent as the applicant was in the MIG at that time.
38The respondent submits that the OCF-18 was not reasonable and necessary because the applicant did not incur any attendant care expenses. The respondent also relies on the section 44 paper reports of Mr. Kaul and Dr. Khaled, dated October 17, 2018.
39In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists.
40I prefer the evidence of the applicant over the respondent. On July 4, 2018, Ms. Champion, OT, spoke with the applicant virtually and noted that he was having pain in his right ribs, which was made worst by lifting and twisting movements. The applicant further advised that he was having difficulties with his activities of daily living as he was unable to lift heavy objects. The respondent does not appear to dispute that the applicant’s rib pain is connected to this accident. The records of Brockville General Hospital show that the applicant complained of right rib pain/tenderness shortly after the accident. As such, I find that the assessment for attendant care needs was reasonable and necessary in 2018 to explore how to treat the applicant’s difficulty with his activities of daily living.
41I am not persuaded by the paper reports of Mr. Kaul or Dr. Khalid, dated October 17, 2018, where they determined that the applicant’s injuries were classified within the MIG, and as such, the OCF-18 for attendant care services was not reasonable and necessary. I place little weight on these reports, because the applicant was removed from the MIG due to his psychological impairments. As such, the test I need to consider is whether the assessment for attendant care needs was reasonable and necessary, when it was submitted on September 17, 2018, which I find it was. Further, while I acknowledge that Mr. Kaul noted that there was a lack of medical evidence to suggest that the applicant has a need for attendant care assistance, he did not speak with the applicant like Ms. Champion to determine his functional status following his return to China.
42As a result of the foregoing, I find that the applicant has demonstrated that the cost of an attendant care assessment was reasonable and necessary.
Interest
43The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the OCF-18s for an assessment of attendant care needs and for occupational therapy services in the amount of $4,487.29.
The Applicant is Not Entitled to an Award Pursuant to Regulation 664
44The applicant sought an award and interest pursuant to section 10 of Regulation 664. Pursuant to section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
45It is well-settled law that an award should not be ordered simply because an insurer made an incorrect decision. Although I have found that the applicant was entitled to two of the treatment plans in dispute, I note that insurers are not held to a standard of perfection. In denying the applicant’s claim for an assessment of his attendant care needs and for the occupational therapy services in the amount of $4,487.29, the respondent did so on the basis of its IE assessor’s findings. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award is payable.
ORDER
46For the reasons set out above, I find that:
i. The applicant is entitled to an OCF-18 for the cost of an assessment for attendant care needs, in the amount of $2,400.00, plus interest;
ii. The applicant is entitled to an OCF-18 for occupational therapy services in the amount of $4,487.29, plus interest;
iii. The applicant is not entitled to payment or interest for the remaining OCF-18s in dispute; and
iv. The applicant is not entitled to an award.
Released: November 6, 2023
__________________________
Tanjoyt Deol
Adjudicator