Zhang v. The Dominion of Canada General Insurance Company, 2023 CanLII 32788

Citation: Zhang v. The Dominion of Canada General Insurance Company, 2023 ONLAT 20-015364/AABS

Licence Appeal Tribunal File Number: 20-015364/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:

Xiao Ping Zhang Applicant

and

The Dominion of Canada General Insurance Company Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Erin Morgan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Xiao Ping Zhang (“XPZ”), the applicant, was involved in two automobile accidents. The first, on November 19, 2018, and the second on April 26, 2020. XPZ sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). XPZ was denied benefits by the respondent, Dominion, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2As per the Tribunal Order dated October 1, 2021, the disputes involve the same applicant and the same respondent. While there are two separate accidents, counsel and the representative are the same for both disputes. On consent of the parties, the files were joined and shall proceed together. As such, the dispute will proceed under Tribunal File Number 20-015364/AABS.

ISSUES IN DISPUTE

3The issues from the November 19, 2018 claim to be determined are:

i. Is the medical benefit in the amount of $4,303.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan (OCF-18) dated October 19, 2020, reasonable and necessary?

ii. Is the medical benefit in the amount of $3,981.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in an OCF-18 dated November 25, 2020, reasonable and necessary?

iii. Is the medical benefit in the amount of $340.00 for acupuncture services, proposed by REN Acupuncture and Chines Medicine Clinic, in an OCF-6 dated December 11, 2020, reasonable and necessary?

iv. Is XPZ entitled to interest on any overdue payment of benefits?

4The issues from the April 26, 2020 claim to be determined are:

i. Is the medical benefit in the amount of $4,355.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in an OCF-18 dated May 25, 2021, reasonable and necessary?

ii. Is Dominion liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to XPZ?

iii. Is XPZ entitled to interest on any overdue payment of benefits?

5In its submissions, Dominion indicated that issues 3(i) and 4(i) are resolved as the treatment has been approved. XPZ did not dispute this, therefore, the decision will focus on the remaining issues in dispute.

RESULT

6XPZ has not demonstrated that the disputed OCF-18s are reasonable and necessary. Interest and an award are not payable.

ANALYSIS

OCF-18 in the amount of $3,981.88 for psychological services

7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary and that she suffers a complete inability to carry on a normal life as a result of the accident.

8In order to be entitled to payment for a treatment and assessment plan under the Schedule, the onus is on an applicant to demonstrate that it is reasonable and necessary as a result of the accident. To be successful, an applicant should establish that the treatment goals are reasonable, that the cost of the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

9XPZ has not established that the November 25, 2020 OCF-18 is reasonable and necessary.

10XPZ submits that she suffered psychological impairments as a result of the November 2018 accident, that required further facility-based treatment. Her position is that various assessors diagnosed her with psychological impairments, therefore the disputed OCF-18 is reasonable and necessary. She points to an April 15, 2019 consultation with Dr. McDowall, psychologist, who noted ongoing psychological concerns. XPZ further relies on a July 24, 2019 s. 44 insurer examination report from Dr. Reis, psychologist, who diagnosed her with major depressive disorder and specific phobia (vehicular). Lastly, in a subsequent report from Dr, McDowall, XPZ was diagnosed with major depressive disorder with anxious distress and specific phobia (travel).

11In response, Dominion relies on the report of its assessor, Dr. Ratti, psychologist, who opined that XPZ is experiencing severe depression, severe anxiety and chronic pain. XPZ denied being treated for any mental health concerns prior regarding this accident. I note that XPZ did report to Dr. Ratti that she began participating in mental health treatment after the April 2020 accident.

12XPZ also reported to Dr. Ratti that she had some emotional distress after the 2018 accident but had resumed many of her pre-accident activities at the time of the 2020 accident. Dr. Ratti opined that XPZ regarded the 2020 accident as significant and that her emotional distress is primarily related to the 2020 accident. Dr. Ratti concluded that XPZ meets the criteria for major depressive disorder, moderate to sever and single episode and specific phobia, situational type – driving anxiety that is largely related to the 2020 accident. Dr. Ratti went on to note that other than driving, there is no evidence that psychological factors resulted in any functional limitations. Dr. Ratti’s opinion that XPZ does not present with a mental health diagnosis related to the subject accident, is support by XPZ’s own medical evidence.

13For instance, and of significance, is a June 4, 2020 report from Ms. Fang, psychotherapist, who noted that XP made notable progress and met most of the treatment goals until her second accident. Ms. Fang noted that at the time of the 2020 accident, XPZ’s driving-related fear had greatly reduced, and she was able to drive on the highway. Further, XPZ had returned to work after the 2018 accident.

14XPZ has not established that the disputed OCF-18 is reasonable and necessary.

15XPZ reported to Ms. Fang that she was doing well from previously received psychological treatment for impairments suffered as a result of the 2018 accident. At the time of the denial, XPZ reported to either have only ongoing physical pain (reported to Dr. Ratti), or that she did not receive any psychological treatment prior to the 2020 accident. While I appreciate that she may not have remembered what treatment she made have received a year or more prior to meeting with Dr. Ratti, for all intents and purposes, she does not seem to have need of or want further psychological treatment as a result of the 2018 accident.

16For the treatment to be considered reasonable, there should be a demonstration that an applicant has suffered injuries that is remedied by the treatment being sought. Having denied receiving such treatment, and more importantly, denying that such symptoms were present as a result of an accident, is not supportive of funding the claimed treatment. I see no reason to interfere with Dominion’s determination. Lastly, despite having the opportunity to provide reply submissions contending Dominion’s arguments, XPZ did not.

17For the reasons set out above, I find that the November 25, 2020 OCF-18 for psychological treatment is not reasonable and necessary.

OCF-6 in the amount of $340.00 for acupuncture services

18XPZ submits that Dominion failed to respond to the OCF-6 (Expense Claim Form) and as such, it has not complied with s. 39 of the Schedule. She further submits that the alleged failure renders the OCF-6 payable.

19I agree with Dominion's submission that, s. 38(2) of the Schedule provides that an insurer is not liable to pay for a medical benefit if it was incurred before the insured submitted a treatment plan unless one of the exceptions are met: (a) the insurer gives the insured a notice under s. 39(1) stating that the insurer will pay the expenses without a treatment plan; (b) the expense is for an ambulance or other services provided on an emergency basis within five days of the accident; or (c) the expense is reasonable and necessary as a result of the impairment for drugs prescribed by a regulated health practitioner or goods referred to in s. 15(1)(d) to (f) and s. 16(3)(h) to (j) of the Schedule that cost less than $250 per item.

20The OCF-6 is not an exception contemplated by s. 38(2). Dominion did not agree prior to fund the expense.

21The Tribunal has found that there is no discretion as it pertains to s. 38(2) and is an automatic provision that applies once a failure by an insured to submit an OCF-18 prior to incurring an expense has occurred. Upon review, XPZ incurred the acupuncture treatment prior to submitting a treatment plan related to the treatment.

22Accordingly, the OCF-6 is not payable.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having determined that no benefits are payable, no benefits are overdue, therefore, no interest is payable.

Award

24The applicant sought an award under s. 10 of Reg. 664. Under s. 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. Provide the basis for the award.

25XPZ did not provide any submissions on her award claim.

26Dominion has paid some of the disputed benefits, and I have found that the remaining OCF-18s in dispute are not reasonable and necessary, therefore, Dominion cannot have been found to have unreasonably withheld or delayed payment of benefits.

27Accordingly, I find that an award is not appropriate.

ORDER

28XPZ is not entitled to payment for any of the claimed treatment plans or expenses. Interest and a s. 10 award are not payable.