Licence Appeal Tribunal File Number: 21-007577/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:
Jing Ouyang
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Nick Hamilton, Counsel
For the Respondent: Sophia Chaudri, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Jing Ouyang, the Applicant, was involved in an automobile accident on June 6, 2019, 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 Personal Insurance Company, the Respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the Applicant entitled to $277.13 incurred towards meal expenses submitted on an expense claim form (OCF-6) dated June 13, 2019?
ii. Is the Applicant entitled to $1,692.75 ($2,538.14 less $665.39 approved) for two iPads proposed in a treatment plan (“plan”) dated June 9, 2020?
iii. Is the Applicant entitled to $8,790.60 ($11,250.58 less $2,414.98 approved) for a home modification assessment proposed in a plan dated September 1, 2020?
iv. Is the Applicant entitled to interest on overdue payment of benefits?
3In its submissions, the Respondent agreed to pay the outstanding amount for meal expenses identified at paragraph 2(i) above, so I need not address the issue below.
RESULT
4The Applicant is not entitled to the balance of the disputed plans set out above. Accordingly, no interest is payable.
ANALYSIS
iPads
5I find that the Applicant has not discharged her burden to demonstrate on a balance of probabilities that the balance of the treatment plan is reasonable and necessary.
6The Applicant sustained serious injuries as a result of a motor vehicle accident and was airlifted to hospital, where she has remained since June 2019.
7The Applicant seeks the balance of a treatment plan prepared by R. Wong, occupational therapist, proposing the purchase of two iPad Air 256 GB, submitted on June 9, 2020. Under Part 9, the plan indicates that the goal is to “assist in ADL’s”, and “requesting for assistive devices”, without further particulars. There is no further information on which ADLs or how the iPads are intended to be used. The Applicant submits that the iPads would enable her to communicate with her family over videoconference as she remains in hospital.
8By letter dated June 13, 2020, the Respondent agreed to pay for the cost of a comparable product, one Samsung Galaxy Tab A 8.0, for her to complete video calls with her family. Specifications of the device were attached. The Respondent advised that there was no information to support that a second tablet was reasonable, necessary, and essential for her recovery.
9I find that the Samsung Galaxy tablet would achieve the stated goals and enable the Applicant to video call with her family. The Applicant has not provided any evidence to support why only an iPad, and not a Samsung Galaxy tablet, would achieve the stated goals.
10The Applicant submits that a second tablet is required, one for her and one for her family. I find that a second tablet is not reasonable or necessary. The Applicant has not provided any evidence to support that the insurer is required to fund assistive devices to family members. There was also no evidence as to whom the second tablet is intended for, or whether that person(s) has a compatible device.
Home Modification Assessment
11The Applicant claims the balance of a treatment plan prepared by R. Wong for an assessment of housing features, architectural design, etc. dated September 1, 2020, totalling $11,250.58.
12The language of Section 25(5)(a) of the Schedule is clear. Despite any other provision in the Schedule, an insurer shall not pay more than a total of $2,000.00 plus applicable harmonized sales tax (“HST”) in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer.
13Section 25 must be read in conjunction with the Superintendent’s Guideline 08/10 “Cost of Assessments and Examination Guideline” (“Guideline”). The Guideline defines the terms “assessment” and “examination” as follows:
“Assessment” and “examination” have the same meaning under the SABS. An assessment or examination is a clinical evaluation or appraisal of a claimant’s health status.
14The Guideline also notes that fees and expenses for conducting any one assessment include all costs, fees, etc. incurred by or on behalf of the health care provider who conducted the assessment or examination.
15The Applicant submits that the purpose of the treatment plan is not to appraise her health status, but rather to assess the home, produce architectural drawings and generate a budget for proposed modifications. The Applicant relies on S.M. v Unica Insurance Inc.1 (“S.M.”) where the Adjudicator found that the insurance company should pay the balance of the cost of a housing analysis assessment, because it was not a clinical evaluation or appraisal of health status. In the Adjudicator’s view, that type of assessment was not an assessment as contemplated by the Schedule. The Applicant submits therefore, the disputed plan is not subject to the $2,000.00 cap on assessments and examinations under s. 25.
16The Respondent submits that S.M. is distinguishable. I agree. In that case, the proposed assessment was to address section 16(4)(c) of the Schedule, to investigate housing options and determine whether the value of an alternative property was lower than the value of proposed home modifications. The subject treatment plan was not prepared to address s. 16. The Tribunal is not being asked to determine whether home modifications have a greater value than the purchase of a new home. The Adjudicator in S.M. even noted in her decision that the Tribunal had previously characterized a home modification assessment as an appraisal of health status, and then distinguished the facts of her case from the previous decisions based on s. 16. Like the other decisions referred to in S.M., this plan was prepared to address the Applicant’s health status.
17The Respondent relies on R.J. v. Certas2, and Handy v. Aviva3 where the Adjudicators found that home accessibility assessments were subject to the $2,000.00 limit on assessments pursuant to s. 25. Although I am not bound by prior decisions of the Tribunal, I find the decisions of my colleagues’ persuasive, and see no reason to depart from those findings. Similarly, I find that the proposed assessment by its very nature, involves an appraisal of the Applicant’s health status. In this case, the occupational therapist noted at line 12 that the services included “counselling, promoting health and preventing disease”, and at line 14 “assessment (examination), total body”.
18The treatment plan proposing a home modification assessment is subject to the $2,000.00 maximum payable for assessments pursuant to s. 25(5)(a) of the Schedule.
Interest
19There are no outstanding amounts owed, and therefore no interest is payable.
CONCLUSION
20The Applicant is not entitled to the balance of the disputed plans and no interest is payable.
21The application is dismissed.
Released: June 15, 2023
__________________________
Kate Grieves
Adjudicator
Footnotes
- S.M. v. Unica Insurance Inc., 2020 CanLII 12718.
- R.J. v. Certas, 2020 CanLII 101804.
- Handy v. Aviva Insurance Company of Canada, 2022 CanLII 78793.