Citation: Zhou v. Safety Insurance Company, 2024 ONLAT 21-003864/AABS

Licence Appeal Tribunal File Number: 21-003864/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:

Xuemei Zhou

Applicant

and

Safety Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Miryam Gorelashvili, Counsel

For the Respondent:

Crystal A. Schulz, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Xuemei Zhou (“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 Safety Insurance Company (“the respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The respondent raised a preliminary issue with respect to several of the treatment plans (issues #6 to 10 listed below). Although dated February 4, 2019, the respondent alleges they were not submitted to it until two years later on March 9, 2021.

3The respondent also submits that the applicant is not entitled to non-earner benefits or attendant care benefits for failure to provide an updated disability certificate or medical information in breach of s. 33 of the Schedule.

4I have addressed these arguments in my analysis below.

ISSUES

5The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 6, 2018 to date and ongoing?

2. Is the applicant entitled to attendant care benefits at the rate of $6,875.42 per month from December 6, 2018 to date and ongoing?

3. Is the applicant entitled to a medical benefit in the amount of $3,503.69 for psychological services recommended by York Region Psychological Services in a treatment plan dated June 26, 2020?

4. Is the applicant entitled to a medical benefit in the amount of $4,487.29 for occupational therapy services recommended by Vitality Assessment Group in a treatment plan dated November 11, 2020?

5. Is the applicant entitled to a medical benefit in the amount of $2,858.89 for kinesiology services recommended by Vitality Assessment Group in a treatment plan dated November 11, 2020?

6. Is the applicant entitled to a medical benefit in the amount of $4,200.00 for physiotherapy services recommended by Galit Liffshiz & Associates in a treatment plan dated February 4, 2019?

7. Is the applicant entitled to a medical benefit in the amount of $4,200.00 for occupational therapy services recommended by Galit Liffshiz & Associates in a treatment plan dated February 4, 2019?

8. Is the applicant entitled to $2,900.00 for transportation expenses recommended by Galit Liffshiz & Associates in a treatment plan dated February 4, 2019?

9. Is the applicant entitled to a medical benefit in the amount of $4,040.00 for life skills training recommended by Galit Liffshiz & Associates in a treatment plan dated February 4, 2019?

10. Is the applicant entitled to a medical benefit in the amount of $886.60 for assistive devices recommended by Galit Liffshiz & Associates in a treatment plan dated February 4, 2019?

11. Is the applicant entitled to a medical benefit in the amount of $292.23 for medical expenses related to insomnia treatment?

12. 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?

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

RESULT

6The applicant is entitled to the treatment plan for psychological services, with interest.

7The applicant is not entitled to attendant care, non-earner benefits or the remainder of the treatment plans in dispute.

PROCEDURAL ISSUES

8The respondent filed a motion to strike the applicant’s reply submission, in whole or in part, on the basis that the applicant raised new evidence and arguments, and were inflammatory and prejudicial. Alternatively, the respondent sought the ability to submit a sur-reply.

9The applicant was invited to file a response to the motion to strike, and the respondent was given a further reply.

10I have considered the parties’ submissions and decline to strike any submissions. The motion is essentially moot, as both parties effectively had the opportunity to submit sur-reply through the motion submissions.

BACKGROUND

11The applicant was visiting Canada from China and was a passenger on a tour bus that crashed on the highway. Three occupants died in the collision and many others were injured. The applicant was taken to hospital where she reported having a nosebleed initially that had now resolved. She denied any loss of consciousness, but some bruising was noted near her eye. She was diagnosed with “polytrauma”, which I take to mean multiple injuries. She attended the hospital in Canada again on June 6 for a nosebleed and pain in her neck. She was reassured and discharged. She returned on June 9 and 12, 2018 and reported back pain. She was diagnosed with soft tissue injuries and advised to take Tylenol. The applicant returned to China on June 14, 2018.

12On August 8, 2018, the applicant underwent a virtual occupational therapy assessment with Coriander Champion, at which time she reported her accident-related injuries as a contusion to the head and nosebleed.

13On August 15, 2018, the applicant visited a local hospital in China where she was reportedly diagnosed with a left arm and shoulder injury. The records from the Chinese hospital reportedly indicate that she was subsequently diagnosed with left rotator cuff tear, insomnia, low mood, anxiety and PTSD as a result of the accident, however the records are in Mandarin, and there is an uncertified translation of the records written in English by an unidentified author. According to these records, the applicant participated in treatment including acupuncture, physiotherapy, cupping, Chinese herbal medicine, infrared therapy, and was prescribed various medications.

14An occupational therapist from Galit Lifshiz & Associates, Ms. Lisa Hung, traveled to China and assessed the applicant on October 19, 2018. The applicant described pain in her head, neck, left shoulder, wrist, and low back as well as headaches. She also described emotional and cognitive problems since the accident. The applicant complained of feeling depressed all the time and thinking about what she witnessed and the passengers who passed away. The applicant reported that she stopped socializing, became apathetic, and argumentative with her husband. She was struggling with the cooking and cleaning. Her daughter and husband were cleaning, washing dishes, doing laundry and she had stopped driving. She was participating in weekly acupuncture therapy treatments at the traditional Chinese hospital, and was taking medication to help with sleep.

15Ms. Hung completed a disability certificate dated October 19, 2018, indicating that the applicant suffered a complete inability to carry on a normal life. She was unable to perform all of her self-care, her in home daily tasks, and was reporting cognitive and emotional difficulty that was affecting her function.

16The applicant participated in psychotherapy sessions with a mandarin-speaking therapist, Ms. Elaine Lam, under the supervision of Dr. Hannah Rockman, psychologist.

ANALYSIS

Non-Earner Benefits

17Pursuant to section 12 of the Schedule, the applicant qualifies for NEBs if she suffers from a complete inability to carry on a normal life as a result of and within 104 weeks of the accident.

18Section 33 of the Schedule states that an applicant shall, within 10 business days, provide the Insurer with any information reasonably required to assist the insurer in determining entitlement to a benefit.

19Section 37(1)(a) states that an applicant shall, within 15 business days, provide a new completed disability certificate at the insurer’s request but not more often than is reasonably necessary to determine if the person is still entitled to a specified benefit. The respondent’s position is that the applicant has failed to comply with its requests, therefore, pursuant to s. 33(6) and 37(3), the insurer is not liable to pay a benefit during the period of non-compliance.

20Upon receipt of the disability certificate and occupational therapy report the respondent submits it intended to send an occupational therapist to China to assess the applicant. However, tensions between Canada and China escalated around that time, other options were explored, but ultimately proved unfeasible. On May 10, 2019 the respondent wrote to the applicant in the context of updating the applicant on the delay in scheduling the IE, and requested an updated disability certificate and confirmation of whether she was participating in physiotherapy. The respondent requested she submit any other incurred expenses. The respondent advised that it would not hold the applicant to the strict 10 and 15 day timelines outlined in the Schedule given her location, but that it did require the information by June 30, 2019.

21No updated disability certificate has been provided to date. On November 30, 2020 updated medical information was provided in response to a further request for information regarding the applicant’s treatment. The respondent submits that the applicant’s failure to provide the requested information is in breach of sections 33(6) and 37(3) and she is therefore not entitled to receive the non-earner benefits. The applicant’s entitlement to non-earner benefits expired on June 4, 2020.

22The applicant submits that she spent a considerable amount of money to fly an occupational therapist to China to complete the initial disability certificate that indicates she qualified for the benefit, the respondent failed to assess the benefit and then requested a new disability certificate within seven months. The applicant submits that she “did not see a point in providing the insurer with an updated OCF-3”. The applicant points out that the respondent was able to conduct other assessments virtually to address treatment plans, but never addressed the non-earner benefit.

23I find that it was reasonable of the insurer to request additional information including an updated disability certificate after seven months. The initial disability certificate indicated that the anticipated duration was more than 12 weeks. Since that time, the applicant had been participating in physical treatment and psychotherapy. The applicant could have also had a disability certificate completed virtually.

24Therefore, I agree with the respondent, the requested information was reasonably required to determine if the applicant was entitled to the benefit. I find that, as result of her non-compliance, the provisions of section 33(6) and 37(3) are triggered and the respondent is not liable to pay the non-earner benefits during the period of non-compliance.

Attendant Care Benefits

25Section 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 attendant care services (ACBs) provided by an aide or attendant.

26Pursuant to section 3(7)e of the Schedule, an expense in respect of goods or services referred to in the Schedule is not incurred by an insured person unless the insured person has received the goods and services to which the expense relates, the insured person paid the expense or promised to pay the expense, and the person who provides the goods or services did so in the course of their employment, occupation, or profession, or incurred an economic loss as a result of providing the goods or services.

27The applicant relies on the occupational therapy assessment and Form 1 of Ms. Hung recommending assistance at the rate of $6,875.42 per month. The applicant indicates in her submissions that she is not seeking entitlement to past attendant care, but rather a declaration that her entitlement is ongoing.

28The Tribunal has no jurisdiction to make such an order. The quantum of attendant care payable for insured persons who sustain a non-catastrophic injury is a maximum of $3,000.00 per month up for up to five years from the date of the accident, therefore her entitlement to ACB expired on June 4, 2023.

29The applicant has not met her burden to prove entitlement to attendant care benefits.

30To receive payment for a treatment plan under s. 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.

31The applicant was assessed by Dr. Hannah Rockman on November 17, 2018. She was diagnosed with major depressive disorder, moderate to severe; post-traumatic stress disorder; and somatic symptom disorder with predominate pain. Treatment plans for psychotherapy were submitted and approved, and she completed 26 virtual counselling sessions between January 2019 and June 2020.

32The disputed treatment plan dated June 26, 2020 proposed a further 12 sessions. A progress report completed by Dr. Rockman indicates that the applicant was very engaged in her therapy sessions and was learning techniques to cope with her pain, and improvements to her sleep, overall mood and motivation. However, her progress had been negatively impacted by the COVID-19 outbreak as she was no longer able to attend her physical treatment. The applicant reportedly worried about the likelihood of regression without further support given the many stressors in her life at the time. The results of testing continued to reflect severe levels of catastrophizing, depression, and anxiety.

33The respondent relies on an insurer’s examination completed by Dr. Jeffrey Karp, psychologist, dated October 6, 2020. I find this report unpersuasive as his conclusions are inconsistent in my view. The applicant described significant symptomatology including suicidal thoughts, poor sleep, nightmares, anxiety, pervasive sadness, poor appetite, feeling defeat, social isolation, trauma related symptoms, and cognitive sequelae. Her scores on testing were largely consistent with Dr. Rockman’s. Dr. Karp agrees with the diagnosis, and that she had likely experienced a degree of improvement from the treatment received, and yet concludes that further virtual psychotherapy is unwarranted given its limited benefit to date. Dr. Karp suggests that she may benefit from adjunct treatment provided locally.

34While I appreciate that there may have been some validity concerns given the level of catastrophizing, I am persuaded that the evidence supports that the applicant continued to experience significant psychological symptoms, but had achieved some improvement with the treatment to date. I find that further treatment was warranted and that the plan for further psychotherapy was reasonable and necessary as a result of the accident, and that the overall cost of the plan was reasonable.

35To receive payment for a treatment plan under s. 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.

36These treatment plans were not provided, so I have no way of knowing what the goals of these treatment plans are, or whether the goals justify the cost. Further, the applicant’s submissions focus generally on the results of the occupational therapy assessment completed by Ms. Hung and criticizing the insurer’s examination reports of Dr. Mark D’Souza. However, she does not actually establish why the treatment plans for occupational therapy and kinesiology services were reasonable and necessary or explain how they would address her impairments as a result of the accident.

37I find that the applicant has not met her burden to prove that the treatment plans were reasonable and necessary.

38As noted above, the parties disagree about when these treatment plans were actually provided to the respondent.

39The treatment plans dated February 4, 2019 for occupational therapy, physiotherapy, transportation, life skills training and assistive devices were initially submitted by the provider to the applicant’s legal representative in error, rather than to the respondent.

40When the clinic followed up with the adjuster as to the status of the treatment plans, the respondent advised that there were no outstanding OCF-18s. The provider attempted to submit the documents by email in July and October 2019. However, the email included multiple documents for 14 different claimants, totalling 690 pages and it appears that the email was sent unsuccessfully. In October 2020 the respondent wrote to the applicant’s counsel and requested details of the applicant’s treatment. It was only in December 2020, after the application was filed at the Tribunal, that the respondent was made aware of the treatment plans. Counsel for the respondent confirmed it had no record of the treatment plans, and explained that it did not receive the email as the file size would have exceeded its email capacity.

41I am not persuaded, on a balance of probabilities, that the treatment plans were submitted to the respondent until March 2021. There are no read receipts or other evidence to establish that the earlier emails were sent successfully, and the respondent continued to inquire about the details of any treatment.

42I find that the applicant has not established why the treatment plans for occupational therapy, physiotherapy, life skills training and assistive devices were reasonable and necessary or explained how they would address her impairments as a result of the accident. The applicant’s submissions focus generally on the results of the occupational therapy assessment completed by Ms. Hung and criticizing the insurer’s examination reports of Dr. Mark D’Souza. There is no discussion of the goals of the treatment or how it would reasonably meet those goals. Further, the proposed treatment provider was the UP clinic, located almost 500 km from the applicant’s home, at a cost of $2,900.00 for transportation, when the applicant participated in similar therapy locally. The applicant participated in physiotherapy and acupuncture (among others) with her local treatment providers, and during the pandemic had been completing a self-directed home exercise program.

43The applicant has not met her onus to prove that the treatment plans were reasonable and necessary.

Expenses: Issue 11

44The applicant did not provide a copy of any OCF-18 or OCF-6 in relation to this claim. There is no detail about this expense, when it was submitted or denied, or why it was required. I find that the applicant has not met her burden of proof with respect to this issue.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the plan for psychotherapy.

Award

46The 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.

47The applicant submits that the insurer engaged in bad faith when it closed its mind to medical records, and relied on “bizarre” and unreliable opinions, resulting in the applicant’s deterioration.

48I agree with the respondent, and find that it duly engaged the services of medical professionals to review medical records and assess the applicant’s entitlement to benefits. Although it was not able to complete its in-person assessments of the applicant due to the travel restrictions imposed by the political tensions with China, the respondent sought updated information from the applicant which she failed to provide because she “didn’t see the point”. No further medical records were provided to the respondent after the May 2019 request until November 2020.

49I am not persuaded that the respondent engaged in bad faith, that it unreasonably withheld or delayed benefits or that its conduct should attract an award.

ORDER

50The applicant is entitled to the in the treatment plan for psychological services, with interest.

51The applicant is not entitled to attendant care, non-earner benefits or the remainder of the treatment plans in dispute.