Zhu v. The Co-operators General Insurance Company, 2023 CanLII 139

Citation: Zhu v. The Co-operators General Insurance Company, 2023 ONLAT 20-012105/AABS

Licence Appeal Tribunal File Number: 20-012105/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:

Le Rong Zhu

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on November 6, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant sustained a fractured fibula as a result of the accident. He submits that he also suffered soft tissue injuries, chronic pain, a partial thickness tear of his left shoulder, a concussion and psychological injuries as a result of the accident. He applied for non-earner benefits, attendant care benefits, physiotherapy, chiropractic treatment, psychological treatment, dental treatment, the cost of assessments and the cost of replacing damaged clothing and eyewear from the respondent. The respondent approved some of the claims and denied the applicant was entitled to the remainder of the benefits claimed. It relied on the opinions of it various assessors and submitted that the applicant’s musculoskeletal injuries have resolved.

3Except for some physiotherapy and psychological treatment, I find that the applicant has failed to prove that he is entitled to the benefits claimed.

ISSUES

4According to the case conference report and order, the issues I must determine are as follows: ¹

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 5, 2019 to date and ongoing?

2. Is the applicant entitled to $80.00 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted December 27, 2019?

3. Is the applicant entitled to $1,889.04 for physiotherapy services, proposed by Total Recovery Rehab Centre in a plan submitted March 9, 2020?

4. Is the applicant entitled to $4,380.08 for chiropractic services, proposed by Total Recovery Rehab Centre in a plan submitted July 22, 2020?

5. Is the applicant entitled to $3,989.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a plan submitted July 30, 2020?

6. Is the applicant entitled to $3,981.98 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted March 9, 2020?

7. Is the applicant entitled to $4,158.00 for dental services, proposed by Dr. Jia Cong in a plan submitted March 3, 2020?

8. Is the applicant entitled to $725.70 for replacement eyewear ($1,658.39 less $932.69 approved) submitted on a claim form (OCF-6) dated February 25, 2020?

9. Is the applicant entitled to $2,200.00 for a functional abilities assessment, proposed by Total Recovery Rehab Centre in a plan submitted January 27, 2021?

10. Is the applicant entitled to $112.81 ($2,112.81 less $2,000.00 approved) for an in-home occupational therapy assessment, proposed by Total Recovery Rehab Centre in a plan submitted July 14, 2020?

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

ANALYSIS

Non Earner Benefit

5The applicant has claimed non-earner benefits (“NEBs”) from December 5, 2019 to date and ongoing. I was provided with no authority by the applicant to show that I have the jurisdiction and authority to order the payment of benefits into the future. Further, the payment of NEBs is limited to no longer than 104 weeks after the accident under s.12(3)(c) of the Schedule. The applicant provided no submissions on why the two year limit on the payment of NEBs in s.12(3)(c) would not apply to him. Accordingly, I find that the applicant’s claim for NEBs is limited to November 6, 2021. The respondent submitted that it paid the applicant NEBs up to October 15, 2020 and relies on its letter terminating NEBs as evidence. The applicant has not disputed the respondent’s submission or provided any evidence to indicate that NEBs were not paid up to October 15, 2020. Accordingly I find that the NEBS claimed are limited from October 21, 2020 to November 6, 2021.

6Under s.12 of the Schedule, the respondent is required to pay NEBs to the applicant if he sustained an impairment as a result of the accident, he suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and he does not qualify for an income replacement benefit. For me to determine that the applicant has a complete inability to carry on a normal life, he must prove on a balance of probabilities that, as a result of the accident, he sustained an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.²

7There is no disagreement between the parties that the principles I must apply to determine the applicant’s entitlement to NEBs are found in the seminal case of Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”) and are as follows:

i. Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant's activities and life circumstances before the accident to his or her activities and life circumstances after the accident. This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant's pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant's post-accident condition.

ii. Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant's life in the time frame immediately preceding the accident. It involves an assessment of the appellant's activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

iii. In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre- accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life. Although this approach differs somewhat from the approach taken in Walker v. Ritchie, [2003] O.J. No. 18, 2003 CanLII 17106 (S.C.J.), in which the trial judge focused on those activities that were "most important" to the claimant before the accident, in my opinion, it better reflects the high threshold created by the language of the section and at the same time allows a claimant-focused inquiry.

iv. It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase "continuously prevents" means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted".

v. The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly "engaging in" the activity.

vi. In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

8These principles require a comparison of the applicant’s activities and life circumstances before the accident to those post-accident. The applicant submits, and I agree, that Heath requires the Tribunal to place greater weight on pre-accident activities that have a particular importance for the applicant. Heath also requires evidence to be led is capable of satisfying the test.

9The applicant sustained a right mildly comminuted minimally displaced fracture of his fibula as a result of the accident, requiring his right foot to be booted. The applicant submits that he also sustained a concussion and relies on a clinical note from his family physician, Dr. Chao-Wen Xiao. ³ I have a difficult time giving any weight to Dr. Xiao’s diagnosis of concussion because he provided no explanation of how he reached that conclusion. The ambulance call report stated that the applicant complained of dizziness, but he did not lose consciousness or strike his head in the accident.⁴ Dr. Xiao reported that the applicant had no headaches from the accident, but had some confusion from the pain killers prescribed at the hospital emergency department. The only indication there may have been any issue with the applicant’s head being injured was that a CT scan of his head was taken at the emergency department and almost two weeks post-accident, the applicant thought he might have lost consciousness briefly. However, the results of the CT scan were normal. Accordingly, it is not clear how Dr. Xiao arrived at his diagnosis of concussion.

10The applicant provided evidence that he had difficulty with a number of body functions and, as a result he has a decrease in his functional capacity to perform housekeeping. ⁵ He also made submissions that he complains of limping, insomnia, pain, anxiety, nightmares and dizziness.⁶ However, the applicant has failed to advise or point to evidence of what his pre-accident and post-accident activities are, which of those are of particular importance to him, if any, and how his accident injuries have affected his ability to do those activities.

11The applicant relies on two attendant care reports to submit that he demonstrated a reduced functional ability. The first report, by Raymond Wong, occupational therapist, dated December 4, 2019, records that the applicant was 64 years old when the accident occurred and was not working, but was looking for work. His leisure activities were shopping, visiting friends, and browsing the malls. The applicant reported to Mr. Wong that the pain and fatigue he experienced disrupted his self care, eating, sleeping, family and home responsibilities, recreation, social activities and exercise. The applicant had not resumed most of his pre-accident housekeeping activities and Mr. Wong determined that he required assistance with them in addition to some of his self care activities. However, Mr. Wong determined that the applicant should be encouraged to resume some of his housekeeping with pacing techniques. Other than recommending assistance grocery shopping, Mr. Wong did not report on how or whether the applicant’s leisure and social activities had been reduced as a result of his accident injuries. Nor did he report on the importance of the applicant’s pre-accident activities.

12The second attendant care report the applicant relies on is one prepared by Ariadna Randall, R.N., and Dr. Georgiana Palantzas, chiropractor, dated July 22, 2020. The applicant reported to Ms. Randall and Dr. Palantzas that he retired prior to the accident.⁷ The assessors reported that the applicant still required assistance with his housekeeping tasks and some self care tasks. However, they did not report on the applicant’s leisure and social activities or on the importance of the applicant’s pre-accident activities.

13Despite Mr. Wong’s and Ms. Randall’s recommendations that the applicant required assistance with meal preparation, the applicant’s pre-accident records indicate he did not cook much, he spends his days at home and when the weather is good, he takes walks outside. ⁸

14The applicant also relies on an interview report by Yvonne Ma, social worker, dated December 3, 2019.⁹ Ms. Ma reported that the applicant stopped driving a vehicle because his vehicle was a total loss and because of his physical limitations. His friend drives him to medical appointments but he is nervous and anxious in a car.

15The applicant submitted he underwent a psychological assessment with Dr. McDowall, psychologist, on December 20, 2019. However, there is no evidence to support this submission. The evidence relied on by the applicant was actually an assessment done by Bruce Cook, psychological associate.¹⁰ Mr. Cook’s opinion was that the applicant was suffering significant impairment of his activities of daily living and his symptoms were significantly interfering with his full level of pre-accident function. Mr. Cook’s description that the applicant had a significant interference of full level of pre-accident function does not inform me of whether the applicant is continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident. Mr. Cook did not list all of the applicant’s pre-accident activities, the post-accident activities he could not do, or which of those activities were of predominant importance to him, or provide examples of what significant interference of full level of pre-accident function is from a psychological perspective.

16The respondent relies on the insurer’s examination assessment reports conducted under s.44 of the Schedule (“IEs”) of Dr. Osama Gharsa, orthopaedic surgeon, dated August 4, 2020, and Dr. Kehinde Adekunle Aladetoyinbo, psychiatrist, dated October 1, 2020. The applicant reported to Dr. Gharsa that he does not have a vehicle to drive. The applicant is able to do some dishes but is unable to make his bed or do laundry. His son helps him with those chores every day. Pre-accident he had some pain in his shoulders and back once in a while without any major issues. His pain levels increased from 5 to 6/10 pre-accident (where 0 is no pain and 10 is the worst pain) to 6 to 7/10 as a result of his accident injuries.

17Dr. Gharsa’s examination of the applicant was normal with no finding of major muscle atrophy. The applicant had some crepitation of the left knee, but his right fibula fracture had healed with good range of motion. Dr. Gharsa diagnosed the applicant with a fracture of his proximal right fibula at the level of midshaft, soft tissue injuries to his low back and neck, and contusion to his chest and left knee. All these injuries healed physiologically within 6 to 12 weeks. His opinion was that the applicant’s pre-accident shoulder and back complaints may have been exacerbated by the accident, but they had healed. The applicant’s increased pain complaints were likely due to his pre-accident issues and were not related to any soft tissue injuries the applicant sustained in the accident.

18I prefer Dr. Gharsa’s opinion over that of Dr. Palantzas’ because Dr. Gharsa’s opinion is supported by the clinical notes and records of Dr. Xiao who reported that by May 20, 2020, the applicant no longer had complaints of back pain. Except for his right leg pain, he was back to his pre-accident chronic neck and shoulder pain. ¹¹ Dr. Gharsa could find no orthopaedic impairment attributable to the accident and opined that there were no functional limitations or physical restrictions that prevented the applicant from completing his pre-accident self care activities as a result of any injuries sustained in the accident. His opinion is supported by the medical records which record pre-accident history of chronic pain including chronic headaches, neck pain, shoulder pain, bilateral elbow numbness at the bottom of his elbow, sleep apnea and dizziness. ¹²

19Another reason I give less weight to Dr. Palantzas’ opinion is because she described the applicant has having a right facial contusion with dislocation of his upper and lower teeth requiring dental work. She diagnosed the applicant with a crushing injury of his face, which is inconsistent with the findings of Dr. Gharsa, Dr. Xiao, the ambulance call report, and the hospital emergency records.¹³ I also give little weight to her musculoskeletal diagnoses or opinion where it differs from Dr. Gharsa or Dr. Xiao’s opinions because there is nothing to corroborate her diagnosis of a face crush injury other than the treatment plans of Ahmed Afifi, physiotherapist. Mr Afifi works at Total Recovery Rehab with Dr. Palantzas and provided the exact same diagnoses as Dr. Palantzas. I give Mr. Afifi’s opinion little weight as well for the same reasons I give little weight to Dr. Palantzas’ opinion.

20Dr. Palantzas and Mr. Afifi also diagnosed the applicant with a number of psychological type of injuries in their treatment plans. Given that neither health practitioner is qualified to diagnosed psychological injuries, I have given little weight to these diagnoses. I prefer the opinion of Dr. Aladetoyinbo, who, as a psychiatrist, is qualified to diagnose psychological injuries.

21Dr. Aladetoyinbo reported that the applicant was staying with his son because the applicant cannot cook. He was capable of doing his personal hygiene, dressing and grooming. The applicant takes pain pills and Chinese medicine and denied taking any medication pre-accident other than vitamins. He reported that he stopped working in 2010 and that he did not have friends because he had not worked for so long. Dr. Aladetoyinbo reported that the applicant has symptoms suggestive of the diagnosis of adjustment disorder with mixed anxiety and depressed mood and an unspecified trauma and stressor related disorder. The symptoms were not solely attributable to the accident.¹⁴ However, there was nothing in Dr. Aladetoyinbo’s report to suggest that, but for the accident, the applicant would not have symptoms of the disorders. Despite this, it was Dr. Aladetoyinbo’s opinion that the applicant did not have a complete inability to carry on a normal life.

22Dr. Aladetoyinbo provided no analysis or reasons for how he reached is conclusion that the applicant did not have a complete inability to carry on a normal life. However, that does not mean that I accept the conclusions of Dr. Palantzas, Mr. Wong and Ms. Randall. The applicant relies on their reports and opinions to submit that he continues to experience ongoing physical and psychological impairments that negatively impact his life. I have no doubt that his impairments do negatively impact his life. However, that does not establish whether the extent of that negative impact has resulted in a complete inability to carry on a normal life. I have little to no information on what the applicant’s pre-accident normal life consisted of. Accordingly the applicant has failed to prove on a balance of probabilities that he had a complete inability to engage in a normal life as a result of his accident injuries.

Replacement Eye Wear and Clothing

23The applicant submitted an OCF-6 expense claim form with attached invoices to the respondent claiming expenses in the amount of $1,658.39 for parking, travel, assistive devices and damage to clothing and eyewear.¹⁵ The respondent approved the assistive devices and parking. The respondent partially approved the remaining claim of $1,451.40 for damage to clothing and eyewear at the rate of 50%, leaving $725.50 remaining. The respondent advised it would consider the remaining amount once the applicant provided receipts for the original items damaged in the accident.

24I was pointed to no evidence by the applicant that the items that were damaged in the accident were the same items he purchased or were of similar value as the items that he purchased. No invoices for the original damaged items or photos of the damaged items were included in the applicant’s submissions. Nor did the applicant make any submissions on the reasonableness of the respondent’s request. I find the respondent’s request for some evidence of what the original items were that required replacing was reasonable. Given that the applicant did not respond to the respondent’s request for some proof of what was damaged, this claim is dismissed.

Medical and Rehabilitation Benefits

25Under s.15 of the Schedule, the respondent is required to pay for all reasonable and necessary expenses incurred by the applicant as a result of the accident for medical benefits. Under s.16 of the Schedule, it is required to pay for all reasonable and necessary measures undertaken by the applicant for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the applicant’s reintegration into his family, the rest of society and the labour market. This can be determined by analysing whether the treatment goals are reasonable, whether they are being met, and whether the cost is reasonable. The applicant bears the onus of proving on a balance of probabilities that any claimed medical and rehabilitation expenses are reasonable and necessary.

Chiropractic and Physiotherapy Services

26It is trite law that a factor to consider in determining the reasonableness and necessity of treatment is whether it results in the temporary relief of pain that allows more function or a reduction in pain medication for chronic pain patients. The applicant submits that the on multiple occasions, he reported that physical therapy provided pain relief and improved his physical injuries. However, he did not point me to any evidence in support of this submission. The applicant has not identified any evidence that he has chronic pain as a result of his accident injuries.

27In September 2020, Dr. Xiao recommended physiotherapy for the applicant’s complaints of neck, shoulder, upper back and bilateral leg pain. ¹⁶ The applicant’s first complaint of upper back pain was not made until August 24, 2020.¹⁷ Given the length of time from the date of the accident before this complaint was first made, I am unable to find that it was caused by the accident. The other complaints reported by Dr. Xiao in September 2019 are the same as the applicant’s pre-accident complaints. Given Dr. Gharsa’s opinion that the applicant’s accident injuries had all healed within 6 to 12 weeks, I am unable to find the applicant’s complaints in September 2020 were as a result of the accident. This, in addition with the lack of examples of when or to whom the applicant has reported that physiotherapy or chiropractic treatment provides pain relief, does not satisfy the applicant’s onus to prove on a balance of probabilities that the following treatment plans from Total Recovery Rehab are reasonable or necessary as a result of the applicant’s accident injuries or impairments.

December 23, 2019 Treatment Plan for $80.00 for Chiropractic Services

28The applicant claims $80.00 for chiropractic services from Total Recovery Rehab Centre proposed in a treatment plan submitted December 27, 2019. The only treatment plan I have of a similar date was prepared by Dr. Georgia Palantzas, chiropractor, dated December 23, 2019 for $4,380.08. At issue appears to be the transportation portion Dr. Palantzas’ treatment plan. She recommended $4,380.08 in transport expenses, chiropractic and acupuncture services. Dr. Palantzas recommended 16 trips to treatment at a cost of $20 per trip for a total of $320.00.¹⁸

29The respondent approved the 16 transport fees, but at $15 per event for a total of $240.00, leaving $80 in dispute. The respondent’s denial letter of January 7, 2020 states that the respondent and the applicant’s legal representative had mutually agreed on January 3, 2020 that transportation to and from treatment would be approved at $15.00 per trip.¹⁹ The applicant did not dispute this submission. Therefore I find that there was an agreement in place that the respondent has complied with. For this reason, this claim is dismissed.

March 9, 2020 Treatment Plan for $1,889.00 for Physiotherapy

30The respondent submits that the treatment plan dated March 9, 2020 was actually for $4,069.56 and that it was partially approved by the respondent. The only treatment plan before me for that date and amount is one prepared by Ahmed Afifi, physiotherapist, for 16 one hour sessions of physiotherapy at $99.75 per hour and 16 sessions of one half hour of active physiotherapy, massage therapy, a progress report at a cost of $224.44 and transportation at $20 per session.²⁰ The goals of the treatment plan were pain reduction, increase strength and range of motion and return the applicant to his activities of normal living.

31Given that the treatment plan recommended half hour sessions of active physiotherapy, I have drawn an inference that the hour long physiotherapy was for passive treatment. This inference is supported by the applicant’s report to Dr. Gharsa that he was receiving physiotherapy before the pandemic, and then started doing self exercises at home during the pandemic. He advised Dr. Gharsa that he was back to receiving treatment once per week which consisted of suction cup, acupuncture and massage.

32The respondent advised the applicant on March 17, 2020 that it was denying $1,889.04 of the treatment plan. It was approving the 16 one hour sessions of physiotherapy for a total of $798.00. However, the cost of the 16 sessions was claimed at $99.75 per hour , which amounts to $1,596.00, not $798.00. ²¹The $99.75 per hour claimed is within the maximum hourly fee allowed under the Professional Services Guideline and is, therefore, reasonable. ²² It appears the respondent approved physiotherapy at the rate of $49.88 per hour, but provided no reasoning for the reduced hourly fee. Given that the respondent approved 16 one hour physiotherapy sessions, I find that the applicant is entitled to the passive physiotherapy at $99.75 per hour for a total of $1,596.00 and not $798.00.

33The respondent also agreed to pay for 8 sessions of massage therapy, but only for 30 minutes per session instead of an hour for a total of $399.04. This actually provides the applicant with 16 half hour sessions of massage therapy at $58.19 per hour, which is within the Professional Services Guideline.

34When the amounts approved in the respondent’s March 17, 2020 letter are added, the total is $1,796.08, leaving $2,273.48 in dispute and not $1,889.04 in dispute. When the amounts approved in the letter plus the corrected amount of $1,596.00 for the 16 one hour physiotherapy sessions are added together, the total is $2,594.08. This leaves $1,475.48 of the treatment plan which I find is not reasonable or necessary for the reasons set out above and as follows.

35The respondent advised the applicant that, as it appeared he had not undergone any improvement from physiotherapy, it required the applicant to attend an IE. The respondent relies on the resulting IE report of Dr. Gharsa. His opinion was that the applicant continue to work on a self directed active exercise program to help with his overall conditioning, focusing primarily on a core strengthening program to address any residual back pain. The applicant should be strongly encouraged to continue resuming all his pre accident activity to prevent any further deconditioning understanding that avoiding such activity will be more detrimental to his outcome. Dr. Gharsa also recommended that the applicant be educated about pain that hurts versus pain that harms.

36The applicant has provided no evidence or reasons to refute Dr. Gharsa’s opinion and recommendations. Accordingly, I find that the treatment claimed over and above what the respondent has agreed to pay for is not reasonable or necessary. I find that the respondent is liable for $798.00 in addition to the $798.00 it agreed to pay for 16 one hour sessions of physiotherapy because the hourly fee charged in the treatment plan is reasonable. This means the applicant is entitled to a total of $2,594.08 worth of treatment under the treatment plan. The remainder of the claim under this treatment plan is dismissed.

July 22, 2020 Treatment Plan for $4,380.08 for Chiropractic Services

37The only treatment plan before me dated July 22, 2020 for $4,380.08 is for chiropractic treatment and acupuncture proposed by Dr. Palantzas. She recommended 16 one hour sessions of chiropractic treatment at $112.81 per hour and 16 half hour sessions of exercise, strength and balance training, 16 half hour sessions of acupuncture at $112.81 per hour provided by Dr. Palantzas, a progress report at a cost of $250.00 and transportation at $20 per session for 16 sessions. ²³.

38For the reasons given in paragraph 27 above, I find that the treatment plan is not reasonable or necessary as a result of the injuries the applicant sustained in the accident.

July 31, 2020 Treatment Plan for $3,989.56 for Physiotherapy

39The applicant is seeking entitlement to physiotherapy treatment recommended in the amount of $3,989.56 in a treatment plan .The only treatment plan before us for this amount is one prepared by Ahmed Afifi, physiotherapist, dated July 31, 2020. Mr. Afifi recommended 16 one hour sessions of physiotherapy at $99.75 and 16 sessions of one half hour of active physiotherapy, massage therapy, a progress report at a cost of $224.44 and transportation at $15 per session.²⁴ Given that a recommendation was made for active physiotherapy, I have drawn an inference that the hour long physiotherapy was passive treatment.

40For the reasons already provided in paragraph 27, I find that the treatment plan is not reasonable or necessary as a result of the injuries the applicant sustained in the accident.

Psychological Services

41The applicant is claiming entitlement to $3,981.98 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan submitted March 9, 2020. I was unable to locate any such treatment plan in the parties’ submissions. Nor do the applicant’s submissions address any treatment plan for this amount dated before or on the submission date of March 9, 2020. The applicant’s submissions refer to a treatment plan for psychological services proposed by Dr Sharleen McDowall, psychologist, in the amount of $3,981.88 dated August 18, 2020.²⁵ The respondent also lists this treatment plan as one in dispute and provided submissions on this treatment plan. Accordingly, I have addressed the August 18, 2020 treatment plan for psychological services.

42The parties agree that following Bruce Cook’s report, the respondent approved 14 sessions of psychotherapy. Dr. McDowall recommended 14 further one and a half hour sessions with herself at $149.61 per hour, which is within the Professional Services Guideline. In the section of the treatment plan that addresses the question of what improvement the applicant had undergone at the end of the previous treatment plan, Dr. McDowall referred to a progress report. No progress report was filed in either parties’ submissions. The only psychological report before me was Mr. Cook’s report, which predated the 14 sessions of treatment approved by the respondent.

43Except for Dr. Aladetoyinbo’s report, the evidence relied upon by the applicant predates the applicant’s course of cognitive behavioural therapy that was approved by the respondent. The applicant has provided no evidence of his progress following the approved treatment or any evidence to corroborate why further treatment was warranted.

44Both the respondent and the applicant rely on the IE report of Dr. Aladetoyinbo, who diagnosed the applicant with symptoms suggestive of an adjustment disorder with mixed anxiety and depressed mood and an unspecified trauma and stressor related disorder. Dr. Aladetoyinbo recommended that the applicant undergo psychiatric care by a multidisciplinary team with concurrent psychotherapy consisting of eight to 12 sessions of evidence based psychotherapy based on principles utilizing cognitive processing therapy and prolonged exposure sessions.

45The respondent denied the treatment plan on the basis that Dr. Aladetoyinbo’s opinion was that it was not reasonable and necessary as a direct result of the subject accident. Section 15 of the Schedule does not say anything about the impairment being a “direct result” of the accident. It addresses an obligation to pay for reasonable and necessary treatment as “a result “ of the accident. This involves a “but for “ test of causation. According to Dr. Aladetoyinbo’s report, the applicant had some pre-existing issues that, together with the psychological issues caused by the accident, resulted in him requiring treatment. In other words, but for the accident the applicant would not have required psychological treatment.

46The respondent also denied the treatment plan on the basis that Dr. Aladetoyinbo commented that the OCF-18 does not explicitly outline the specific psychotherapeutic modality that will be applied and did not appear to take into consideration other non-accident related factors contributing to the currently observed symptom profile. The respondent did not provide a pinpoint reference for these comments. Nor could I locate these comments in his (whose?)report. There was no evidence that the treatment recommended by Dr. McDowall is something other than the evidence based psychotherapy recommended by Dr. Aladetoyinbo or that the time allotted per session should be reduced. Accordingly, for these reasons, I find that 12 sessions of the treatment recommended by Dr. McDowall is reasonable and necessary as a result of the applicant’s psychological impairment caused by the accident plus the cost of the treatment plan for a total of $3,253.04.

47I was provided with no reason or rational as to why a progress report was reasonable or necessary at a cost of $360.00. Presumably if the applicant requires more treatment at the end of the course of the twelve sessions, Dr. McDowall would provide a synopsis of the applicant’s progress in her new treatment plan. Accordingly, I deny this cost is reasonable or necessary.

48The treatment plan included 14 units of transportation at $20.00 per unit. There was no evidence or submissions from the applicant on transportation expenses or any indication that the applicant is unable to take a bus. Dr. McDowall’s office is 9.7 kilometres from the applicant’s residence. There is no requirement that the respondent pay for travel expenses under 50 km for a round trip. ²⁶ Accordingly, this part of the treatment plan is denied.

Dental Services

49The applicant is claiming $4,158.00 for dental services, proposed by Dr. Jia Cong in a plan dated submitted March 3, 2020. A pre-authorization request dated March 2, 2020 prepared by Dr. Cong, dentist, for $4,158 was before me.

50The applicant submits that the medical records show that he required dental work as a result of the accident and respondent has failed to conduct an independent assessment to review the proposed services. The applicant has not pointed me to any evidence or medical records to support this submission. In fact, the evidence is that the respondent arranged for the applicant to undergo an IE by Dr. Aviv Ouanounou, dental surgeon, on July 27, 2020.²⁷ Dr. Ouanounou reported that the applicant advised that his teeth were broken a few days after the accident. Dr. Ouanounou’s opinion was that there was no evidence that the applicant sustained trauma to his face in the accident. However, he deferred his opinion as he required information from Dr. Cong. He asked for Dr. Cong’s complete medical records for the applicant including the medical history, dental history, periodontal charting, odontogram, x-rays and her clinical notes for the past five years. He also asked for a letter from Dr. Cong explaining why she recommended the extraction of various teeth and new removable partial dentures, how they are for accident related injuries, and will be needed.

51The respondent followed up with the applicant asking for Dr. Cong’s records on August 27, 2020 pursuant to s. 33 of the Schedule. The respondent advised the applicant that under s.33 of the Schedule, the applicant was obliged to provide information reasonably required by the respondent in determining the applicant’s entitlement to a benefit. Further, that if the applicant failed to comply with the request and the respondent did not receive this information by September 25 2020, then the respondent was not liable to pay benefits in relation to the Standard Dental Claim Form dated March 2, 2020 in respect of any period during which the applicant failed to provide the requested information. The applicant did not provide Dr. Cong’s notes and the respondent notified the applicant on September 28, 2020 that the claim for dental services was denied in the absence of a reasonable explanation for failure to produce information.

52I find that Dr. Ouanounou’s request was reasonable in light of his determination that the condition of the applicant's teeth on examination was at odds with his report of good pre-accident dental health. Further, the only indication of dental injuries were the treatment plans by Dr. Palantzas and Mr. Afifi and Dr. Palantzas’ OCF-3 disability certificate dated December 4, 2019. As noted earlier, face crush injuries and the dental injuries listed by Dr. Palantzas and Mr. Afifi, who both work out of the same clinic, are inconsistent with all the other medical evidence. Nor are either of them qualified to provide opinions on the cause of any dental issue the applicant has. Dr. Ouanounou is a dental surgeon and is, therefore more than qualified. For these reasons, I prefer Dr. Ouanounou’s opinion that the applicant displayed no trauma related dental issues. Accordingly, I am unable to find that the applicant has satisfied his burden to prove on a balance of probabilities that dental work is a reasonable and necessary expense as a result of the accident.

Cost of Examinations

53Under s.25(1) of the Schedule, the respondent is required to pay for 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.

Functional Abilities Assessment

54Dr. Palantzas prepared a treatment plan dated January 27, 2020 proposing a functional abilities evaluation ("FAE"). The purpose of the assessment was to determine the applicant’s current capacity to perform his essential tasks (work, home, social/outdoor activities, etc.), and any additional physical needs required by him. ²⁸ The reason for determining his capacity was for Dr Palantzas and the clinic to make recommendations on the applicant’s physical and functional abilities.

55The applicant submitted that the respondent did not deny the cost of the assessment and also submitted that the respondent did not seek an insurer’s examination. He provided no reason for why the assessment was reasonable or necessary.

56The respondent relied on its letter denying the proposed assessment dated February 7, 2020, noting that Ahmed Afifi submitted a progress report dated January 28, 2020 stating that the Applicant was still in a walking cast, meaning that the tibia fracture had not yet healed.²⁹ I have some concerns that the applicant submitted that no denial was provided by the respondent and the respondent did not provide any proof that the February 7, 2020 letter was mailed to the applicant or faxed to her legal representative. However, since no reply submissions were filed by the applicant disputing that he received the respondent’s February 7, 2020 letter, I accept that he did, in fact, receive the letter.

57The respondent submits, and I agree, that an FAE was not reasonable and necessary at that time of recovery.

58It is not clear why Dr. Palantzas would need to make recommendations on the applicant’s physical and functional abilities. She had just assessed him in December 2019 in order to prepare her OCF-3 disability certificate and assessed his functional abilities again in July 2020 when the attendant care assessment was completed. Further, Dr. Palantzas was in a position to confer with Mr. Afifi because they are from the same clinic and Mr. Afifi was treating the applicant on a regular basis. For these reasons. I do not find the treatment plan was necessary.

59I do not find the fee charged by Dr. Palantzas for the FAE is reasonable. She lists a flat fee of $2,000.00 with no breakdown of the time involved in doing the assessment. other than one unit. It is impossible to determine whether the hourly fee charged is within the Professional Fee Guidelines. Accordingly, I find that an FAE was not reasonable or necessary and this claim is dismissed.

Occupational Therapy Assessment

60The applicant is claiming entitlement to $112.81 ($2,112.81 less $2,000.00 approved) for an in-home occupational therapy assessment, proposed by Total Recovery Rehab Centre submitted on July 14, 2020. However, I have no treatment plan before me for an occupational therapy assessment. The treatment plan the applicant refers to in his submissions is not for an occupational therapy assessment, but is a treatment plan dated July 14, 2020 prepared by Dr. Palantzas for an attendant care assessment to be conducted by herself and a nurse, Ariadna Randall. ³⁰

61The applicant submits that no denial letter was sent by the respondent. However, the respondent relies on its letter to the applicant dated July 14, 2020 approving the cost of the assessment up to $2,000.00.³¹ I have some concerns that the applicant submitted that no denial was provided by the respondent and the respondent did not provide any proof that the letter was mailed to the applicant or her legal representative. However, since no reply submissions were filed by the applicant disputing that he received the respondent’s July 14, 2020 letter, I accept that he did, in fact, receive the letter.

62The $112.81 portion of the treatment plan was denied by the respondent because it exceeded the $2,000.00 limit for the cost of assessments in s.25(5)(a) of the Schedule. The applicant submits that the $112.81 fee is for HST. However, there is no HST listed on treatment plan on the line allowed for tax.

63The amount of $112.81 is charged on the treatment plan for one hour travel time for Ms. Randall. There is no requirement in the Schedule or the any of the Guidelines for an insurer to pay for the travel time of treatment providers, only for the transportation of the insured person. ³². As set out in s.25(5)(a) of the Schedule, the maximum amount payable for an assessment is $2,000.00, including any fees or expenses for conducting the assessment. I find that this includes the cost of a health practitioner to travel to the location of the assessment.

64I find that the $112.81 exceeds the $2,000.00 limit payable under the Schedule and, accordingly, this claim is dismissed.

Interest

65The applicant has sought an order of entitlement to interest at the rate of 1 percent compounded interest under s.51. I am unable to grant the request because the applicable section of the Schedule dealing with interest is s.51(4) of the Schedule, which states the amount of interest payable on overdue payment of benefits is calculated at the prejudgment interest rate described in subsection 128 (3) of the Courts of Justice Act that is used for past pecuniary loss, and is payable for the period that begins on the date on which an application to the Licence Appeal Tribunal is brought under subsection 280 (2) of the Act and ends on the date a decision is issued that finally disposes of the dispute. Accordingly, the applicant’s entitlement to interest is in accordance with the Schedule and not at 1% compound interest.

CONCLUSION AND ORDER

66The applicant is entitled to $2,594.08 worth of physiotherapy and massage therapy under Mr. Afifi’s treatment plan dated March 9, 2020; and

67The applicant is entitled to $3,253.04 of psychological treatment from Dr. McDowall under her treatment plan dated August 18, 2020.

68The applicant is entitled to interest in accordance with the Schedule.

69The remainder of the applicant’s claims are dismissed.

Released: January 6, 2023

__________________________

Deborah Neilson

Adjudicator

Footnotes

1. 1The applicant advised in its submissions that his claims for attendant care benefits were withdrawn.
2. 2Section.3(7)(a) of the Schedule.
3. 3Tab 4 Applicant’s submissions, p.118: clinical notes and records from Dr. Xiao, family physician, dated November 18, 2019
4. 4Tab 3 Applicant’s submissions, p.40; Records from Markham Stouffville, ambulance call report dated November 6, 2019
5. 5Tab 6 Applicant’s submissions: OCF-3 of Georgia Palantzas, chiropractor, dated December 4, 2019
6. 6Applicant’s submissions paras.6 to 13.
7. 7Tab 16 Applicant’s submissions; p.311
8. 8Tab 3 Respondent’s submissions: p.27 Dr. Dr Chao-Wen Xiao clinical note dated February 6, 2017
9. 9Tab 8 Applicant’s submissions: OCF-18 dated Dec 4, 2019 from Bruce Cook, psychological associate p.353
10. 10Tab 19 Applicant’s submissions: report from Mr. Bruce Cook dated December 21, 2019
11. 11Tab 4 Applicant’s submissions: Records from Dr. Xiao pp.126
12. 12Tab 4 Applicant’s submissions: Records from Dr. Xiao pp.107-111,114, 127
13. 13Tab 1 Respondent’s submissions: Ambulance call report dated November 6, 2019, and Tab 4 Applicant’s submissions: Records from Markham Stouffville Hospital from November 7, 2019
14. 14Tab 7 Respondent’s submissions: Report of Dr. Kehinde Adekunle Aladetoyinbo, psychiatrist, dated August 18, 2020
15. 15Tab 1 Applicant’s submissions: Expenses Claim Form (OCF-6) dated February 24, 2020
16. 16Tab 4 Applicant’s submissions: Records from Dr. Xiao p130-131
17. 17Tab 4 T=Respondent’s submissions: Dr. Xiao’s clinical note dated August 24, 2020. P.71
18. 18Tab 7 Applicant’s submissions: OCF-18 dated Dec 23, 2019 from Dr. Palantzas
19. 19Tab 8 Applicant’s submissions: Letter from Co-operators Insurance dated January 7, 2020
20. 20Tab 9 Applicant’s submissions: OCF-18 dated March 9, 2020 of Mr. Afifi
21. 21Tab 10 Applicant’s submissions: Letter from Co-operators Insurance dated March 17, 2020
22. 22Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014 (“Professional Services Guideline”)
23. 23Tab 11 Applicant’s submissions: OCF-18 dated July 22, 2020 of Dr. Palantzas
24. 24Tab 5 Applicant’s submissions: OCF-18 from Ahmed Afifi, physiotherapist, dated July 31, 2020
25. 25Tab 20 Applicant’s submissions: OCF-18 dated Aug 18, 2020of Dr. McDowall
26. 26Superintendent's Guideline 04/16: Transportation Expense Guideline
27. 27Tab 16 Respondent’s submissions: IE report of Dr. Ouanounou, dated August 21, 2020
28. 28Tab 13 Applicant’s submissions: treatment plan of Dr. Palantzas dated January 27, 2020.
29. 29Tab 19 Respondent’s submissions: letter from the respondent to the applicant dated February 7, 2020
30. 30Tab 14 Applicant’s submissions: OCF-18 dated July 14, 2020 of Dr. Palantzas
31. 31Tab 21, Respondent’s submissions: Letter from respondent to applicant dated July 14, 2020
32. 32Section 25(4) of the Schedule.