Licence Appeal Tribunal File Number: 21-005728/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:
Qifang Hu
Applicant
and
Safety Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Miryam Gorelashvili, Counsel
For the Respondent:
Crystal Schulz, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Qifang Hu, the applicant, was involved in an automobile accident on June 4, 2018, 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 respondent, Safety Insurance Company, 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 attendant care benefits of $6,783.04 per month from May 9, 2019 to date and ongoing?
ii. Is the applicant entitled to $4,200.00 for physiotherapy treatment, proposed by UP Shanghai clinic in a treatment plan dated February 12, 2019?
iii. Is the applicant entitled to $1,299.75 for transportation expenses, submitted in a treatment plan dated February 12, 2019?
iv. Is the applicant entitled to $4,214.84 for occupational therapy, proposed by UP Shanghai clinic in a treatment plan dated February 12, 2019?
v. Is the applicant entitled to $4,160.00 for life skills training, proposed by UP Shanghai clinic in a treatment plan dated February 12, 2019?
vi. Is the applicant entitled to $3,074.85 for psychological services, proposed by Y.R.P.S. in a treatment plan dated May 29, 2020?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the applicant is entitled to an award under s. 10 of Regulation 664?1
RESULT
3For the reasons that follow I find that:
i. The applicant is not entitled to attendant care benefits for the period in dispute;
ii. The applicant is entitled to the treatment plan for psychological services, plus interest;
iii. The applicant is not entitled to the remaining treatment plans in dispute; and
iv. The applicant is not entitled to an award.
ANALYSIS
Background
4The applicant was involved in a motor vehicle accident on June 4, 2018, while visiting North America from China, as part of a 10-day tour. Her motorcoach left the highway and struck a rock face lining the highway.
5The applicant was ambulatory at the scene and was transported to Kemptville Hospital and diagnosed with a left knee injury and left knee pain. She subsequently returned for a follow-up at Brockville Hospital on June 10, 2018, where she requested a refill of her blood pressure medication. The applicant returned to China on June 16, 2018. She submits that upon her return to China, she has required attendant care services and ongoing treatment for her accident-related injuries.
Attendant Care Benefits
6I find that the applicant has not established entitlement to attendant care benefits (“ACBs”).
7Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACB services provided by an aide or attendant.
8Section 3(7)(e) of the Schedule provides guidance on when an expense is incurred: (i) the insured person has received the goods or services to which the expense relates, (ii) the insured person has paid the expense, has promised to pay the expense or is otherwise legally obligated to pay the expense, and (iii) the person who provided the goods or services, (A) did so in the course of the employment, occupation or profession in which he or she would ordinarily have been engaged, but for the accident, or (B) sustained an economic loss as a result of providing the goods or services to the insured person. The applicant bears the burden of proving entitlement to ACBs on a balance of probabilities.
9Although the CCRO specifies that the ACBs were being claimed from May 9, 2019 to date and ongoing in the amount of $6,783.09 per month, in her submissions the applicant clarified that she has been incurring ACBs since June 2018, and concedes that the maximum monthly amount she could claim under the Schedule is only $3,000.00. In her reply submissions the applicant further corrected the amount of monthly ACBs claimed, to $676.29 per month. She submits that Ms. Hong Ding, a personal support worker, provided attendant care services from June 2018 to present.
10Upon review of the evidence, I find that the issue in this matter turns on whether the benefit has been incurred in accordance with the Schedule.
11The respondent submits that the applicant has not provided sufficient evidence to establish that the ACBs have been incurred. It argues that it had requested evidence of incurred expenses beginning on September 9, 2019 with follow-up correspondence dated June 25, 2021, July 14, 2021, August 5, 2021, March 8, 2022, March 16, 2022, July 7, 2022 and September 14, 2022. Such documentation was not provided until October 11, 2022, more than four years after the applicant asserts attendant care services commenced. The respondent further submits that there are inconsistencies in the dates the services were to have been provided, a lack of detail of the services provided, and conflicting statements as to the timing and level of service being provided.
12On the evidence before the Tribunal, I agree that the applicant has failed to prove on the balance of probabilities that attendant care services were incurred, as required by s. 3(7)(e)(i) of the Schedule.
13The applicant has provided little evidence of incurred ACBs. Despite the fact that the applicant claimed that she had been receiving ACBs since June 2018, evidence of incurred expenses was not provided to the respondent until October 2022. This evidence consisted of a CV of Ms. Hong Ding, with hand-written receipts, which lack any supporting detail. Only four receipts were provided for a four year period, each dated on December 31st of the applicable year. The translated receipt simply states that Ms. Hong Ding “received [applicable amount] in cash for the attendant Care fee paid by Qifang Hu”, for the applicable year. I agree with the respondent that it is irregular for a treatment provider to accept payment only once a year, in cash. No corresponding bank records were provided. Even setting aside any concerns about cash being the method of payment, there were no details of the services purportedly provided to the applicant. A very sparse chart was also included, simply listing a total number of hours for each month, but without any detail or breakdown. No invoices of services were provided.
14Moreover, none of the receipts or chart provided any indication of the services being provided by Ms. Hong Ding. I agree with the respondent that the specific dates attended, time spent, or details of the services were not specified. The receipts and chart do not include itemized expenses for services incurred, do not have a breakdown of hours or minutes per task, a rate or approximate rate of pay for those tasks or even any detail of what the tasks provided entail. Ultimately, I find the supporting documents fall well short of the evidentiary burden required by s. 3(7)(e)(i), as they lack any detail of services provided and are essentially identical every year.
15Although the applicant submits that the CV of Ms. Ding provides sufficient detail of the ACBs provided, I do not find this argument to be persuasive. The CV lists chronologically Ms. Ding’s various employers and summarizes her employment with the applicant as being from June 2018 to present. A general paragraph description of this period is provided which lists numerous services, including, but not limited to: “attendant care”, grocery shopping and cooking, accompanying to hospital, taking medicine, decoding Chinese traditional medicine, “washing clothes, hygienic, dressing, undressing, cutting nails, etc.”. This singular summary of numerous services in a CV is markedly different than an itemized breakdown of services detailed in a recurrent invoice of services. No such evidence has been submitted by the applicant.
16I further agree with the respondent that the applicant has provided contradictory reports with respect to the provision of ACBs. To establish her claim for ACBs, the applicant relies in large part on the Occupational Therapy and Attendant Care Assessment of Ms. Lisa Hung, OT, dated January 4, 2019 (“OT Assessment”). This assessment was conducted at the applicant’s son’s home in China and discussed her current living arrangement with her husband, son and his family. The applicant provided details of her daily activities and tasks and discussed her difficulties in completing all of these activities. However, although this assessment was conducted during the period that the applicant claims to have been receiving ACBs from Ms. Ding, there is no mention in the report of any attendant care services being provided. Rather, the applicant stated that her family was providing her with care and that she could not afford to hire someone to help. As such, the applicant’s OT Assessment directly contradicts her evidence of incurred ACBs.
17Given the contradictory reports of the provision of ACBs and lack of invoices or specific details of attendant care services, I find that the applicant has failed to demonstrate on a balance of probabilities that she received the ACBs claimed, pursuant to s. 3(7)(e)(i) of the Schedule.
OCF-18s for Physiotherapy Services, Occupational Therapy, Rehabilitation Support Worker/Life Skills Training and Transportation
18I find that the applicant has not established that the proposed treatment plans are reasonable and necessary.
19The applicant submitted four OCF-18s dated February 12, 2019, for treatment proposed by UP Shanghai Clinic. The OCF-18s were for fifteen sessions of occupational therapy services, physiotherapy services, rehabilitation therapy services and the final OCF-18 was for transportation services. The applicant relies on the OT Assessment report to argue that all of the proposed services were reasonable and necessary. She further submits that the transportation expense is reasonable and necessary, as the clinic is 465 km from her house. Finally, the applicant submits that the respondent’s denials were not compliant with the Schedule, as they fell well outside the 10-day period specified by s. 38(8).
20I agree with the respondent that the applicant has not established how the proposed treatment at UP Shanghai Clinic is feasible. Each OCF-18 specifies that treatment is to be provided at the UP Shanghai Clinic. In her submissions, the applicant reports that this clinic is 465 km from her house. I note the respondent’s argument that the applicant has not explained how such regular physiotherapy, occupational therapy and rehabilitation therapy would be structured, if the applicant was travelling 465 km each way for the proposed 15 sessions of treatment.
21I further agree with the respondent that the applicant reported severe passenger anxiety symptoms to her psychological assessor Dr. Rockman. The applicant stated that she does not go out because she does not want to see cars, that she will only walk to the park in her neighbourhood and that she tries not to ride in any vehicle. However, no explanation was provided by the applicant as to how she would be travelling 465 km each way to each of her proposed treatment sessions.
22Despite providing reply submissions, the applicant did not address the respondent’s argument or provide any explanation as to how such treatment would be structured. The only argument offered by the applicant in response, was to reiterate that the respondent’s denials of all four of the treatment plans were well outside the 10-day limitation period specified in s. 38(8) of the Schedule and as such were payable pursuant to s. 38(11).
23On this issue, the respondent argues that due to a transmission error, it did not receive any of the OCF-18s in February 2019, but instead all four treatment plans were re-submitted “as is” on March 5, 2021. After conducting its own insurer’s examination, the respondent denied the treatment plans by way of letter dated May 7, 2021. Although the parties disagree as to when the respondent initially received the four OCF-18s, even if I accept the applicant’s position that the submission date of the OCF-18s was in February 2019, I still find that she has not established that they are payable pursuant to s. 38(11) of the Schedule.
24The applicant does not dispute that the respondent provided a denial letter for the four OCF-18s on May 7, 2021. As the respondent sent the proper notice on this date, any previous non-compliance was subsequently cured. However, the applicant has not led any evidence as to whether any of the OCF-18s were incurred during this period of non-compliance.
25I am bound by the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000 [Catic]. In that case, the insurer provided a denial letter outside of the 10-day period under s. 38(8) of the Schedule, and the insured did not incur any expenses up to the date the denial letter was delivered. The Court found that s. 38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred during the period of non-compliance, where any denial notice remains outstanding. The applicant has failed to provide any evidence that the OCF-18s were incurred before May 7, 2021.
26As such, I find that the applicant has failed to establish that the four OCF-18s dated February 12, 2019 are reasonable and necessary or that they are payable pursuant to s. 38(11) of the Schedule.
The applicant has established entitlement to the OCF-18 for psychological services
27The applicant submits an OCF-18 dated May 29, 2020 for ten sessions of psychological treatment. This OCF-18 is for a subsequent course of treatment, proposed after the applicant completed an initial course of 12 sessions of psychotherapy. The applicant had been diagnosed with post-traumatic stress disorder and major depressive disorder following a s. 25 psychological assessment by Dr. Hannah Rockman in November 2018. She completed her initial course of virtual psychotherapy sessions from December 2, 2019 to May 5, 2020. The applicant submits that the psychological progress report dated May 29, 2020 establishes the gains made with treatment and that the proposed additional course of therapy is reasonable and necessary.
28The respondent denies that the second course of treatment is reasonable and necessary, relying on the IE assessment of Dr. Karp dated August 17, 2020. While Dr. Karp accepted that the applicant suffered from mild to moderate PTSD and major depressive disorder, he found that the applicant derived limited benefit from the previous psychotherapy sessions with Dr. Rockman and recommended a medical consultation instead. If the applicant responded well to medication, then a further course of psychotherapy should be considered.
29I find that the applicant has led sufficient evidence that the proposed additional session of psychological treatment is reasonable and necessary.
30Dr. Rockman’s progress report notes that the applicant’s mental health had declined over 2019 and that in April 2019 she was hospitalized due to her increasingly depressive mood and sleeping difficulties. However, the applicant reported that after treatment started, she noticed positive changes in her mood and anxiety level, that she learned practical skills to manage her anxious thoughts and expressed hopefulness toward her recovery. Dr. Rockman further noted that treatment progress was interrupted by the COVID pandemic and the corresponding shutdown, which added a new layer of stress to the applicant’s pre-existing psychological distress.
31Although the respondent’s psychological IE assessor Dr. Karp found “limited benefit” from the psychotherapy completed to date, I note that the applicant reported to Dr. Karp that she learned psychological techniques from the prior sessions. She further reported that it felt good to talk to Dr. Rockman and that she would love to have more treatment. In addition, I note that in his report Dr. Karp did not discount future psychological treatment, but had recommended a medical consultation first. However, I agree with the applicant that an insured is not obligated to follow the treatment recommendations of an assessor. To the extent that the applicant chooses not to pursue pharmacological treatment, I do not find that this necessarily negates the need for further psychological treatment. Finally, although Dr. Karp did not find substantial progress at the time of his assessment in August 2020, I note that Dr. Rockman indicated in her Progress Note that the COVID pandemic and shutdowns had interrupted the treatment progress and created additional stressors.
32As such, I find that the applicant has led sufficient evidence to establish that an additional course of psychological treatment is reasonable and necessary.
Interest
33The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the OCF-18 for psychological treatment.
Award
34The applicant sought an award under s. 10 of Regulation 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.
35It is well-settled law that an award should not be ordered simply because an insurer made an incorrect decision. Although I have found that the applicant was entitled to one of the treatment plans in dispute, I note that insurers are not held to a standard of perfection. In denying the applicant’s claim for additional psychological treatment, the respondent did so on the basis of its IE assessor’s findings. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award is payable.
ORDER
36For the reasons set out above I find that:
i. The applicant is not entitled to attendant care benefits for the period in dispute;
ii. The applicant is entitled to the OCF-18 for psychological treatment, plus interest in accordance with s. 51 of the Schedule;
iii. The applicant is not entitled to the remaining treatment plans in dispute; and
iv. The applicant is not entitled to an award.
Released: October 6, 2023
__________________________
Ulana Pahuta
Adjudicator