21-002634/AABS

Licence Appeal Tribunal File Number: 21-002634/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:

Jie He

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Eric K. Grossman, Counsel

Rebecca Brown Greer, Counsel

HEARD:

In writing

OVERVIEW

1Jie He (the “applicant”) was involved in an automobile accident on September 17, 2016 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 the Co-operators General Insurance Company (the “respondent”). The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

ii. Is the applicant entitled to $3,231.32 for psychological services, proposed by Somatic Assessments and Treatment Centre in a treatment plan (“plan”) dated December 13, 2019?

iii. Is the applicant entitled to $6,712.81 ($13,512.81 less $6,800.00 approved) for a Catastrophic Assessment proposed by Somatic Assessments and Treatment Centre in a plan dated November 18, 2019?

iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The issue of catastrophic impairment was withdrawn by the applicant prior to the commencement of the hearing. I therefore make no determination on this issue.

4The applicant is not entitled to the amount of $3,231.32 for psychological services, nor $6,712.81 for a Catastrophic Assessment, as he has not shown that these treatment plans are reasonable and necessary. Since no benefits have been found to be outstanding, no interest or award is payable.

PROCEDURAL BACKGROUND

5The parties participated in a Case Conference on June 14, 2021, and scheduled a five-day, video conference to address the issues in dispute. The parties were invited to participate in a Settlement Conference by the Tribunal and did so on March 8, 2022, but were unable to resolve the issues in dispute.

6The applicant filed a Motion on March 10, 2022, requesting that the matter proceed via written hearing instead of by video hearing. The respondent consented to this matter, and the Tribunal granted the applicant’s request on March 10, 2022.

7On April 14, 2022, the applicant withdrew the issue of catastrophic impairment (“CAT impairment”), which the Tribunal accepted. The remaining issues in dispute shall proceed via this decision.

ANALYSIS

$3,231.32 for psychological services was properly denied per s. 38(8)

8Section 38(8) of the Schedule states that an insurer shall notify an insured person within 10 business days of receiving a treatment and assessment plan (“OCF-18”) if it agrees or refuses to pay for the OCF-18 and provide the medical reasons and all other reasons the OCF-18 is not reasonable and necessary.

9Section 38(11) of the Schedule states that if an insurer fails to give to comply with section 38(8), the insurer shall pay for the OCF-18 related to the period starting on the 11th business day after the day the insurer received the plan and ending on the day the insurer provides a notice that complies with section 38(8).

10The applicant argues that the respondent did not comply with section 38(8), as the applicant provided it with the OCF-18 for psychological services on December 13, 2019, and the respondent only responded on January 3, 2020. The applicant relied on the disputed OCF-18, dated December 13, 2019, and the respondent’s Explanation of Benefits (“EOB”) letter dated January 3, 2020.

11The respondent disagreed and submitted that it received the disputed OCF-18 on December 18, 2020, and based on this date, had until January 6, 2020, to respond. The respondent also relied on the disputed OCF-18, which stated: “Submission Date/Time: 2019/12/18 10:55 AM” and provided the applicant’s health care provider’s Health Claims for Auto Insurance (“HCAI”) number.

12After reviewing the evidence, I found the respondent’s evidence more persuasive as to what date the disputed OCF-18 was received by the respondent. The applicant’s arguments did not address that the disputed OCF-18 was transmitted to the respondent on HCAI on December 18, 2019, and therefore, was responded to within ten business days, as required by the Schedule.

13The applicant also argues that that the EOB of the disputed OCF-18 did not provide sufficient medical reasons for the applicant to fully understand the respondent’s denial. The applicant relied on the Divisional Court decision of Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 where, at paragraph 18, the Court found that insurer must provide meaningful reasons when refusing to pay for treatment. The applicant also argued that the respondent was required to provide details about his condition forming the basis of the denial, or information the respondent requires, as held in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT).

14The respondent disagrees with this and argues that the applicant fails to fully explain what medical reasons he feels are lacking.

15I find that the January 3, 2020 EOB provides sufficient medical and other reasons for denying the applicant’s OCF-18. The respondent’s denial was based on a “lack of compelling medical documentation” that supported the OCF-18, an Insurance Examination (“IE”) that did not support the disputed OCF18, and the fact that the IE assessor opined the applicant’s impairments were unrelated to the accident.

16This reasoning provides the applicant with an understanding of the reasoning of the respondent’s denial based on the unique facts and circumstances forming the applicant’s medical history, as well as information regarding the applicant’s condition. Therefore, I find the EOB denying this OCF-18 is sufficient.

$3,231.32 for psychological services is not reasonable and necessary

17To receive payment for a treatment and assessment plan under 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.

18The applicant submitted that the request for $3,231.32 for funding of the disputed treatment plan for psychological counselling, driver rehabilitation and the associated fees is reasonable and necessary. The respondent disagreed.

19The applicant relied on the clinical notes and records (“CNR”s) of Markham Stouffville Hospital, CNRs of Dr. Chongen Liu, the applicant’s family doctor, the CNRs Dr. M. Selim Asmer, psychiatrist, the applicant’s Application for Determination of Catastrophic Impairment (“OCF-19”) of Dr. Shobhan Vachhrajani, neurosurgeon, the applicant’s Disability Certificate (“OCF-3”) completed by Rick Tavares, the CNRs Dr. McDowall, and the disputed OCF-18s of this application.

20The respondent submitted that it denied the disputed OCF-18 based on a lack of medical information supporting the need for the treatment. The respondent also relied on its Insurer’s Examination (“IE”) of Dr. Joel Jeffries, psychiatrist, where the doctor found that the disputed treatment was not reasonable and necessary as the applicant had not responded to psychological treatment. Dr. Jeffries also raised issues of causation.

21The respondent also submitted that it had already approved two OCF-18s for psychological counselling and that the applicant has failed to show why further treatment was needed.

22I find that the applicant is not entitled to the disputed OCF-18 for psychological treatment, as he has not shown that the treatments are reasonable and necessary. I did find the applicant’s evidence persuasive that the applicant suffers psychological impairments as a result of the accident, as shown in the CNRs of Dr. Lieu, Dr. Asmer and the evidence of Dr. McDowall.

23However, I also found the evidence from Dr. Jeffries raised significant questions about the applicant receiving further psychological treatment, given the lack of response to treatment by the applicant to date. As the applicant did not persuasively address this issue, I find he has not met his evidentiary burden and shown that despite this lack of response to treatment, the OCF-18 is reasonable and necessary.

24I also note that the applicant did not fulsomely address the issue of causation and if his psychological impairment was as a result of the accident, which is a requirement for receipt of benefits under the Schedule. Therefore, the disputed benefit is not payable.

$6,712.81 for a Catastrophic Assessment

25The applicant submitted an OCF-18 for catastrophic assessments (“CAT assessments”) totaling $13,512.81. The respondent approved a total of $6,800.00 and denied the remaining balance of $6,712.81.

26The balance of $6,712.81 is made up of the following assessments, fees and services:

a) Neurological CAT Determination Assessment - $2,000.00

b) Transportation of the Applicant - $112.81

c) Transportation of the Applicant - $600.00

d) Clinical File Review Assessment of Dr. Vachhrajani - $1,000.00

e) Clinical File Review Assessment of Mr. Wong - $1,000.00

f) Clinical File Review Assessment of Dr. McDowall - $1,000.00

g) Clinical File Review Assessment of Dr. Palantzas - $1,000.00

Neurological CAT Determination Assessment – no procedural issue

27The applicant submitted that the respondent failed to properly deny the neurological CAT determination assessment, as the respondent did not provide meaningful, clear and sufficient reasons to deny the OCF-18. The applicant argues the denial is “boilerplate” and did not comply with the Schedule.

28The applicant also argued that the respondent’s denial ignored the applicant’s supporting documents related to his neurological symptoms and failed to consider all the evidence it had.

29The respondent argued that its denial was because the applicant failed to provide medical evidence to support his accident-related, neurological impairment and the respondent’s letter communicated this in clear, direct language.

30I find that the respondent’s denial of the disputed OCF-18 was sufficient. I agree with the respondent that the applicant did not direct the Tribunal to any evidence that the denial was unclear and unmeaningful. Instead, I agree that the denial addressed the specific medical and other reasons for the denial, which in this case, were that the respondent did not have enough medical information to find the OCF-18 reasonable and necessary.

31I understand that the applicant feels his sleep issue as reported to Dr. Liu would support this position, but I fail to see how a neurological assessment would be reasonable and necessary to address sleep issues which have not been identified as neurological in nature.

32I also note that the applicant reported neurological issues to Dr. McDowall in July of 2017. However, I would have expected these issues to be also mentioned in the clinical notes and records of the applicant’s family doctor, Dr. Liu, which I was not directed to. Instead, Dr. Liu noted the applicant’s extensive history of psychological issues and physical pain. Therefore, there are no deficiencies in the respondent’s denial.

Neurological CAT Determination Assessment is not reasonable and necessary

33The applicant submitted that the request for a neurological CAT determination assessment was reasonable and necessary, as the respondent conducted its own CAT assessments The applicant argued that based on the principle of fairness, he should be entitled to conduct his own assessment and challenge the respondent’s evidence.

34The applicant relied on the disputed OCF-18 of Dr. Vachhrajani, the OCF-19 of Dr. Vachhrajani, and the neurological assessment report of Dr. Vachhrajani,

35The respondent submitted that the applicant failed to establish why the disputed assessment is reasonable and necessary, as the applicant was not diagnosed with a neurological injury or condition as a result of the accident. The respondent noted the applicant was not referred to a neurologist.

36I note that Dr. Vachhrajani did not document any specific neurological issues related to the applicant’s injuries and sequalae in his evidence.

37The neurological assessment report of Dr. Vachhrajani, where the doctor opined that the applicant met the criteria for a catastrophic impairment, did not explore or express why the applicant requires a neurological CAT determination assessment or if the applicant suffers a neurological impairment as a result of the accident.

38I fail to see the nexus between the applicant’s severe, psychological conditions and the need to investigate his neurological status without some evidence from a medical professional that at least opined that the applicant’s psychological issues were related to neurological issue(s). I also was unable to follow Dr. Vachhrajani’s reasons for this and therefore find the assessment not reasonable and necessary.

Transportation of the Applicant is not payable

39Since the applicant is seeking funding for two transportation related aspects of an OCF-18, I will address them together.

40Section 3(1) of the Schedule provides definitions for various terms and phrases used in the Schedule. Sections 15(2)(c), 16(4)(f), 19(1)(b) and 25(4) of the Schedule states that an insurer is not liable to pay for transportation expenses other than “authorized transportation expenses.” The Schedule defines “authorized transportation expense” to mean those that: (a) comply with the latest transportation expense guideline published by the Financial Services Regulatory Authority of Ontario (or its predecessor, the Financial Services Commission), and (b) are expenses related to transportation for services incurred after the first 50 kilometres of a trip, unless an insured person has been deemed catastrophically impaired as a result of the accident.

41The applicant argued that the transportation portion of the OCF-18 is reasonable and necessary. The applicant relied on the respondent’s denial letter, which stated that the applicant had been driving post-accident and that the respondent did not have evidence to support the need for transportation to the CAT assessment.

42The applicant argued this was unfair and noted that the respondent provided the applicant with transportation to its IEs.

43The applicant also relied on the Court of Appeal decision Monks v. ING Insurance Company of Canada, 2008 ONCA 269, where the Court found that the "The legislation was designed for the protection of the insured and should be construed in the way most favourable to him."

44The respondent submitted it would pay for transportation pursuant to section 3(1)(b) of the Schedule. The respondent also argued that the applicant has failed to support these expenses with evidence of an invoice for transportation over fifty kilometres.

45While I generally agree that consumer protection legislation should be interpreted favourably to the consumer, the burden still remains on the applicant to prove his entitlement to the claimed transportation expenses. I find that the applicant has not shown that the transportation fees requested are payable pursuant to the Schedule. Though I understand that he would want the respondent to pay for transportation for his own assessments, the applicant failed to show any legal basis for this beyond assertions of fairness.

46Therefore, the transportation costs are not payable.

Clinical File Review Assessments are not reasonable and necessary

47Since the applicant is seeking funding for four clinical file review assessments, I will address them together.

48The applicant sought funding for Dr. Vachhrajani to conduct clinical file review assessments of the records of Dr. Vachhrajani, Mr. Wong, Dr. McDowall and Dr. Georgia Palantzas, chiropractor.

49The applicant submitted he is entitled to explore and challenge the respondent’s findings via his own assessments.

50The respondent submitted that the four disputed clinical file review assessments were not assessments of the applicant and therefore, not payable under the Schedule. The respondent argued that the applicant has not explained why these expenses are payable or how they are reasonable and necessary.

51The respondent also argued that file review assessments are a component of an examination and not a treatment or service that should be billed separate of an assessment. The respondent instead argued that this was a duplication of fees and unreasonable to bill in addition to Dr. Vachhrajani’s own assessment of the applicant.

52I agree with the respondent and find that the applicant has not met his evidentiary burden of showing that the four separate clinical file review assessments are reasonable and necessary. I too was left with many unanswered questions for the reasoning, methodology and execution of these clinical file review assessments. Neither Dr. Vachhrajani nor the applicant expanded on the issues.

53I also agree with the respondent’s position that the doctor’s requests for these services are normally part of the assessment process and not billed as separate items. Again, since the applicant nor the doctor fulsomely explained or defended the need for four separate clinical file reviews, I find that the applicant has not met his evidentiary burden, and therefore, the requests are not reasonable or necessary.

Interest

54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are payable no interest is owing.

Award

55The 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. Since there are no benefits owing, no award is payable.

ORDER

56The applicant is not to the disputed treatment plans, an award or interest. The application is dismissed.