Licence Appeal Tribunal File Number: 21-006224/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:
Yan Li Liu
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Catherine Zingg, Counsel
HEARD:
In writing
OVERVIEW
1Yan Li Liu (the “applicant”) was involved in an automobile accident on March 9, 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 Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for the resolution of the dispute.
ISSUES
2The issues in dispute from the Case Conference are:
i. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 5, 2019, to date and ongoing?
ii. Is the applicant entitled to $ 2,822.90 for chiropractic services proposed by V-Care and submitted on July 11, 2019?
iii. Is the applicant entitled to the assessments proposed by Somatic Assessments and Treatment Inc., as follows:
(a) $1,321.88 for psychological services submitted on April 6, 2020?
(b) $1,041.88 for a psychological service submitted on November 18, 2020?
(c) $3,701.88 for a psychological service submitted on March 21, 2021?
(d) $2,200.00 for the cost of examinations submitted on March 27, 2020?
iv. Is the applicant entitled to $112.54 for an administrative fee for a doctor visit submitted by Dr. Kris Cheng, on June 14, 2019?
v. Is the applicant entitled to $ 450.00 for a massage chair submitted on September 10, 2019?
vi. Is the applicant entitled to a $ 250.00 flight cancellation fee submitted September 16, 2019?
vii. 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?
viii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to a non-earner benefit of $185.00 per week, as she has not shown that she suffers from a complete inability as a result of the accident.
4The applicant is not entitled to $1,321.88 or $1,041.88 for psychological services, as she has not shown that the balances of the treatment plans are reasonable and necessary.
5The applicant is not entitled to the $2,200.00 for the cost of examinations for an occupational therapy assessment, as she has not shown that this benefit is reasonable and necessary.
6The applicant is not entitled to the $450.00 for a massage chair.
7The applicant is not entitled to a $250.00 flight cancellation fee.
8The applicant is not entitled to an award or interest.
9The respondent has agreed to pay $ 2,822.90 for chiropractic services - issue ii, $3,701.88 for psychological treatment – issue ii(c), and $112.54 for administrative fees for a doctor visit - issue iv.
ANALYSIS
The applicant is not entitled to the non-earner benefit
10The applicant submits that as a result of the accident, she suffers from physical and psychological injuries that led her to have a complete inability to live a normal life, and therefore she is entitled to a NEB. The respondent disagrees.
11The applicant relies on her disability certificate (“OCF-3”) of Dr. Georgia Palantzas, chiropractor, dated March 14, 2019. Dr. Palantzas found that the applicant suffered a complete inability to live a normal life as a result of the accident, with an estimated period of disability lasting more than twelve weeks. The doctor opines that as a result of the accident the applicant suffers from the following injuries: fracture of other specified cervical vertebra; torticollis; dislocation, sprain and strain of joints and ligaments at neck level; injury of muscle and tendon at neck level, headache, dizziness and giddiness; nausea alone; dislocation, sprain and strain of joints and ligaments of thorax; dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis; sprain and strain of sacroiliac joint; injury of muscle and tendon of abdomen, lower back and pelvis; injury of muscle and tendon at thorax level; dislocation, sprain and strain of joints and ligaments of shoulder girdle; radiculopathy; rotator cuff syndrome, sprain and strain of ribs and sternum; non-organic sleep disorders; nightmares; symptoms and signs involving emotional state; state of emotional shock and stress, unspecified; nervousness; malaise and fatigue; symptoms and signs concerning food and fluid intake; irritability and anger; slowness and poor responsiveness; cramp and spasm; difficulty in walking, not elsewhere classified; and disturbance of activity and attention.
12The applicant also relies on the clinical notes and records (“CNR”s) of her family doctor, Dr. Kris Cheng. Dr. Cheng noted on July 17, 2019, that he could not exclude that the applicant suffered a spinal fracture as a result of the accident. The applicant submits that she had an x-ray imagining done based on Dr. Cheng’s CNRs. Dr. Cheng diagnosed the applicant with diffuse idiopathic skeletal hyperostosis (“DISH”).
13The applicant also relies on the CNRs of Dr. Cheng from 2019 to 2022, where she continually complained about her neck pain, back pain and shoulder pain, fear, flashbacks, stress and sleep issues.
14The applicant was also diagnosed with several psychological conditions by Dr. Maneet Bhatia, psychologist, in her psychological assessment report dated April 3, 2020. Dr. Bhatia diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, symptoms of Post-Traumatic Stress Disorder (“PTSD”) and specific phobia situational type – automobile anxiety.
15The applicant also relies on the matter of Bissessar v. State Farm Mutual Automobile Insurance Company, 2013 ONFSCDRS 165 (FSCO A11-000204), where Arbitrator Sapin agreed that while the “complete inability” test was high, it should not be read so strictly as to make it impossible for anyone to qualify.
16The respondent submits that the applicant did not suffer a back fracture and that this was ruled out via an x-ray of the applicant’s back dated March 29, 2019. Therefore, the respondent submits a back fracture is not a basis for the applicant to have suffered an alleged complete inability.
17In terms of the applicant’s diagnosis of DISH, the respondent submits that, based on information from the Arthritis Foundation, DISH is “a type of arthritis that affects tendons and ligaments, mainly around your spine. These bands of tissue can become hardened (calcified), and form growths called bone spurs where they connect to your bones.” The condition is known to cause pain, “especially in your neck or upper back (cervical or thoracic spine)”. The respondent argues that the applicant’s diagnosis of DISH is age-related and not accident related.
18The respondent relies on the Insurer’s Examination (“IE”) of Dr. Oleg Safir, orthopedic surgeon, dated October 11, 2019. The respondent notes that during this IE, the applicant denied any prior back or neck issues, despite CNRs from Qili Hospital of Shandong University--the hospital where the applicant was treated in China and where she reported neck pain for over 10 years. Dr. Safir also found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.
19The respondent also relies on the addendum report IE of Dr. Safir, dated October 11, 2019, where he was provided with Dr. Cheng’s CNRs. These records did not change Dr. Safir’s findings whether the applicant had a complete inability.
20The applicant also attended an occupational therapy in-home IE with Dawn Li, occupational therapist. Ms. Li authored her IE report, dated October 11, 2019, and found that though the applicant showed reduced neck, right shoulder, and trunk lateral flexion movements, with reports of pain, she possessed a range of motion in her remaining extremities that were considered within functional limits.
21Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
22The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Insurance Company, 2009 ONCA 391, which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
23I find that the applicant is not entitled to the NEB since she has not shown that she suffers from a complete inability to live a normal life as a result of the accident. The applicant has not provided detailed information regarding her pre-accident activities which she normally engaged in, including the frequency and time commitments of said activities and how her accident has impacted these activities.
24Though I appreciated the applicant’s reports of pain and psychological issues to her treatment providers, assessors and doctors, Heath requires a comparison between the insured person’s “normal life” before and after the accident over a reasonable period. I found that the applicant has not provided this comparison.
25Instead, the applicant’s doctors and medical professionals captured her subjective reports of pain and injury, but offered very little that would speak to the legal issue at hand concerning the Heath test. Though I did consider the applicant’s OCF-3, I would have expected her contemporaneous medical evidence, meaning the CNRs of Dr. Cheng, to support this position, but they did not.
26Moreover, only the respondent’s evidence spoke to the direct question in issue, meaning the respondent’s IEs spoke directly to the question of the applicant’s complete inability. I found this evidence persuasive.
27I was not provided with a detailed account of how the applicant spent her time before and after her accident, nor was there a quantified comparison of such. As this is a requirement for entitlement to an NEB, the applicant has not met her burden of proof of showing she suffers a complete inability to lead a normal life as a result of her accident-related injuries. When considering the applicant’s circumstances with respect to Heath, I find there was limited evidence with respect to the applicant’s pre-accident activities and how her accident-related impairments have caused a complete inability to carry on with them after her accident.
28The applicant also failed to provide any direct evidence about her complete inability to live a normal life by testimony or affidavit that spoke to the Heath factors. I was not provided with evidence that provided an extensive history of the applicant’s normal life before her accident, how she spent her time, and how this differed from her post-accident life. Instead, I was presented with evidence that the applicant suffered physical and psychological injuries.
29Since I have found that the applicant does not suffer a complete inability to carry on a normal life because of her accident-related impairments and injuries, she is not entitled to an NEB.
The applicant is not entitled to the psychological services
30The applicant seeks funding for two treatment plans (“OCF-18”s), all related to psychological services with the same provider, with similar goals; therefore, I will address them together.
31The applicant relies on the CNRs of Dr. Cheng, where the applicant reported fear, flashbacks, stress, and sleep issues on April 4, 2019. The applicant also reported insomnia, flashbacks of her accident and anxiety on June 28, 2022, to Dr. Cheng.
32The applicant also relies on the psychological assessment report of Dr. Bhatia, psychologist, dated April 3, 2020. This assessment was conducted by video, due to the pandemic and the applicant being out of the country. Dr. Bhatia diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, symptoms of Post-Traumatic Stress Disorder (“PTSD”) and specific phobia situational type – automobile anxiety. Dr. Bhatia recommended that the applicant attend Cognitive Behavioral Therapy (“CBT”) for her post-traumatic symptoms, specifically fourteen weekly sessions.
33The applicant also relied on the progress reports of Dr. Sharleen McDowall, psychologist, from June 22, 2020, October 26, 2020, and February 25, 2021. The applicant reported to Dr. McDowall that over the course of her treatment, her symptoms decreased. Dr. McDowall recommended that the applicant an additional fourteen sessions of weekly therapy based on her symptomology.
34The respondent submits that the first disputed OCF-18 relates to a treatment plan in the amount of $3,981.00, and approved $2,660.00, leaving $1,321.88 in dispute. The respondent relies on its Explanation of Benefits (“EOB”) of April 15, 2020, which states that the balance of the OCF-18 was not approved, as it included an hourly rate claimed by the service provider which was outside the Professional Services Guideline – Superintendent’s Guideline No. 03/14 (the “PSG”) rates. The respondent also refused to pay $280.00 for transportation and requested further information from the applicant as to why this was required.
35The respondent submits that the applicant did not explain why her treatment providers were charging the rates of psychologists and not the lower rate of psychotherapists.
36The respondent submits similar submissions with respect to the second OCF-18 for psychological services. The respondent relies on its EOB of November 27, 2020, which partially approved the disputed treatment. The EOB explained that the service provider, who is a social worker, was only entitled to bill $100.00 per hour under the PSG.
37The applicant submits that the respondent denied the disputed OCF-18 because the treatment provider would be a psychotherapist and not a psychologist, and therefore, should be paid at a lower rate according to the PSG.
38The applicant relies on the matter of J.V. v Intact Insurance Company, 2019 CanLII 76995 (ON LAT), where the Adjudicator Parish found that a psychotherapist, conducting psychotherapy services that are within their expertise, experience and education are not disentitled to be paid at the same rate as a psychologist, or a psychological associate.
39The applicant further relies on the matter of A.S. vs. Aviva Insurance Company, 2020 CanLII 12787 (ON LAT), where Adjudicator Watt found that both a psychologist and a psychotherapist provide the same CBT, and therefore, a psychotherapist should be paid at the higher rate that a psychologist receives.
40Finally, the applicant relies on Jones v Intact Insurance Company, 2021 CanLII 131121 (ON LAT), where Adjudicator Paluch found that the PSG “does not state that a registered psychotherapist must be paid less than a psychologist or a psychological associate.”
41The applicant submits that the service provider of the first OCF-18, Mandy Fang, social worker, ought to be paid at a higher rate, given that Ms. Fang will be working under Dr. Bhatia’s supervision.
42The applicant submits that the service provider of the second OCF-18, Wen-Chiung Hsu, social worker, would be working under the supervision of Dr. Sharleen McDowall, psychologist, and therefore, should be paid the higher rate under the PSG.
43To receive payment for a treatment and assessment plan under s.14, 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.
44Section 3(1)(b) of the Schedule provides under “authorized transportation expense” that unless an insured person has been deemed catastrophically impaired as a result of the accident, expenses related to transportation for services are only incurred after the first 50 kilometres of a trip. 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”.
45I find that the applicant is not entitled to the balance of the disputed OCF-18s for psychological treatment. I agree that based on the medical evidence of Dr. Bhatia and Dr. McDowall, the applicant requires psychological services. However, based on the respondent’s EOBs, it is clear that the issue in dispute relates to the hourly charge of the service providers and the requested transportation cost.
46In terms of the transportation cost, ss. 15(2)(c) and 16(4)(f) provide that an insurer is not liable to pay for transportation expenses other than “authorized transportation expenses.” Section 3(1) of the Schedule defines “authorized transportation expenses” as being those that meet the Transportation Guideline published by the Financial Services Regulatory Authority and are subject to a 50 km deductible unless the insured person is catastrophically impaired. The applicant is not catastrophically impaired nor is that issue before me. Further, since I have not been provided with evidence that the applicant needed to travel fifty kilometres or more for these psychological services, she is not entitled to payment for this component of the OCF-18.
47In terms of the disputed hourly amounts claimed by the applicant, I do not agree that the OCF-18s hourly rate ought to be paid at that of a psychologist. Though I considered J.V. v Intact Insurance Company, I did not find this matter persuasive, as the applicant did not specifically discuss if either service provider was a specialist in CBT or registered with the Canadian College of Professional Counsellors and Psychotherapists (“CCPCP”) and the College of Registered Psychotherapists of Ontario (“CRPO”). I was also not presented with information about the service providers' hourly rates for uninsured patients.
48Without this information, I find that the applicant has not shown that the service providers hold the education, experience, academic credentials, and licensed status to be entitled to payment at the same rate as a psychologist, despite supervision. I echo these comments about A.S. v. Aviva Insurance Company.
49In terms of Jones v. Intact Insurance Company, though I did consider this decision, which does not force the respondent to pay a psychotherapist less than a psychologist, I also agree this does not compel the respondent to pay the higher hourly rate.
50As the applicant carries the onus of showing that the balance of the OCF-18s in dispute are reasonable and necessary, and has not done so, she is not entitled to payment for such. She failed to address why she required transportation, and why her service providers were charging amounts in excess of those prescribed by the PSG.
The applicant is not entitled to the occupational therapy in-home assessment
51The applicant submits that the occupational therapy in-home assessment and completion of the Assessment of Attendant Care Needs (“Form-1”) completion, recommended by Raymond Wong, occupational therapist, dated March 27, 2020, are reasonable and necessary. The applicant relies on the disputed OCF-18, which noted that the applicant suffered from the same accident-related injuries as noted by Dr. Palantzas in her OCF-3.
52The applicant also relies on the CNRs of Dr. Cheng from July 17, 2019, where the doctor could not exclude that the applicant suffered a spinal fracture and was diagnosed with DISH. The applicant also relies on the CNRs of Dr. Cheng from 2019 to 2022, where she continually complained about her neck pain, back pain and shoulder pain as a result of the accident.
53The respondent submits that the OCF-18 is not reasonable and necessary. The respondent relies on its EOB dated April 7, 2020. The EOB provides that the OCF-18 was denied based on the IE of Dr. Safir, dated October 11, 2019. Dr. Safir found that from an orthopedic perspective, the applicant did not suffer from any objective, musculoskeletal impairment as a result of the accident.
54The respondent also submits that subsequent IE was to be conducted but was delayed due to the Covid-19 pandemic. The respondent submits the IE was never actually scheduled because the applicant was out of the country.
55I find that the applicant is not entitled to the disputed OCF-18. After reviewing Dr. Cheng’s CNRs, I noted that the doctor did not comment on the applicant’s restrictions or specifically supported that the applicant receives an occupational therapy assessment. I would have expected to find some contemporaneous medical evidence to support her position in the applicant’s CNRs, but none was submitted.
56Instead, the only evidence that supported that the disputed OCF-18 was reasonable and necessary was the disputed OCF-18 itself. I must note that many of the findings of Mr. Wong go outside his scope of practice, including diagnoses involving the applicant’s psychological condition and her fracture. Though I did consider this document, I did not find it persuasive by itself in showing that the applicant’s request for the assessment was reasonable and necessary and afforded it little weight.
57Moreover, the applicant did not submit any persuasive evidence to address Dr. Safir’s findings. Since the applicant carries the burden of showing that the disputed benefit is reasonable and necessary and has failed to do so, she is not entitled to the benefit in dispute.
The applicant is not entitled to $ 450.00 for a massage chair submitted on September 10, 2019
58The applicant submits her Expense Claim Form (“OCF-6”) for a massage chair is reasonable and necessary and payable under the Schedule. The respondent disagrees.
59The applicant submits she bought a massage chair and provided the respondent with an OCF-6 to address her ongoing injuries and pain.
60The respondent submits that the OCF-6 is not payable based on section 38(2) of the Schedule, as this expense was incurred prior to the applicant submitting a treatment plan. The respondent also submits that sections 38(2)(a) to (d) of the Schedule provide the scenarios where an insurer may pay an expense without a an OCF-18. The respondent submits the disputed expense is not included in this list, nor do sections 15 and 16 of the Schedule list a massage chair as payable.
61The respondent also submits that sections 14, 15 and 16 of the Schedule set out the framework for paying for medical and rehabilitation benefits. The respondent argues that this disputed massage chair does not provide rehabilitation for the applicant’s recovery and was not specifically recommended by a medical professional.
62I agree with the respondent and find that the applicant is not entitled to payment for the OCF-6 for the massage chair. I find that the expense was incurred prior to the submission of an OCF-18. I find that the disputed OCF-6 does not fall within any of the exceptions of section 38(2) of the Schedule. Therefore, the expense is not payable.
The applicant is not entitled to $ 250.00 flight cancellation fee submitted September 16, 2019.
63The applicant submits her OCF-6 for her flight cancellation fee is reasonable and necessary and payable under the Schedule. The respondent disagrees.
64The applicant submits that the OCF-6 is payable and relies on a letter from Dr. Cheng dated April 16, 2019, which states that the applicant had to miss her flight to China due to the accident. The applicant submits that the respondent should pay her $250.00 cancellation fee described in the disputed $250.00 OCF-6.
65The respondent submits that the expense for a flight cancellation fee is not payable under the Schedule.
66Section 38(2) of the Schedule states that the insurer is not liable to pay an expense in respect of a medical benefit that was incurred prior to the submission of an OCF-18 unless the expense meets any of the exceptions provided, such as where the insurer provided notice of an intent to pay without an OCF-18 under s. 39(1); the expense is for an ambulance or emergency basis; the expense is reasonable and necessary for prescribed drugs or goods referred to in certain subsections of s. 15 and 16 with a cost of $250 or less; or if the insurer agrees that the expense is essential under s. 15 or 16 and costs less than $250.
67In this matter, I agree with the respondent and find that the applicant is not entitled to payment of the OCF-6. I find that the expense was incurred prior to the submission of an OCF-18. I find that the disputed OCF-6 does not fall within any of the exceptions of section 38(2) of the Schedule. Therefore, the expense is not payable.
Interest
68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.
Award
69The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no payments were unreasonably withheld or delayed, no award follows.
ORDER
70The applicant is not entitled to a non-earner benefit of $185.00 per week, as she has not shown that she suffers from a complete inability as a result of the accident.
71The applicant is not entitled to $1,321.88 or $1,041.88 for psychological services, as she has not shown that the balances of the treatment plans are reasonable and necessary.
72The applicant is not entitled to the $2,200.00 for the cost of examinations for an occupational therapy assessment, as she has not shown that this benefit is reasonable and necessary.
73The applicant is not entitled to the $ 450.00 for a massage chair.
74The applicant is not entitled to a $250.00 flight cancellation fee.
75The applicant is not entitled to an award or interest.
76The respondent has agreed to pay $ 2,822.90 for chiropractic services - issue ii, $3,701.88 for psychological treatment – issue ii(c), and $112.54 for administrative fees for a doctor visit - issue iv.
Released: September 20, 2023
__________________________
Stephanie Kepman
Adjudicator