Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-009278/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:
Siu Man Leung
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Aylina Dhanji, Counsel
For the Respondent: Jason Gooman, Counsel
Written Hearing
Heard by way of written submissions
OVERVIEW
1Siu Man Leung, the applicant, was involved in an automobile accident on November 1, 2021, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from November 30, 2021 to date and ongoing?
iii. Is the applicant entitled to $225.83 ($1,300.00 less $1,074.38 approved) for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan submitted January 10, 2022 and denied January 26, 2022?
iv. Is the applicant entitled to $3,981.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan submitted July 21, 2022 and denied August 4, 2022?
v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a plan submitted December 23, 2021 and denied January 6, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties confirmed that item [2]i and [2]v are no longer in dispute.
4The respondent confirms that given that the applicability of the MIG is no longer in dispute, the respondent agreed to pay for item [2]iii and the outstanding $225.83, upon resubmission of this invoice by the applicant’s treating clinic.
RESULT
5I find that:
i. The applicant is not entitled to an NEB for the period in dispute;
ii. The applicant is not entitled to 3,981.88 for psychological services;
iii. The applicant is not entitled to an award; and
iv. The applicant is not entitled to interest.
ANALYSIS
Non-Earner Benefit (“NEB”)
6The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.
7Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.
8The test for NEB involves a consideration of the applicant’s activities pre- and post-accident, as set forth in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391. It is the burden of the applicant to demonstrate that his life circumstances have changed enough to continuously prevent him from substantially engaging in the activities that he did before the accident.
9It is the applicant’s position that he suffers a complete inability to carry on a normal life including the inability to perform housekeeping tasks. The applicant relies on the OCF-3’s dated November 3, 2021, and June 2, 2022, completed by Ahmed Afifi, physiotherapist, who listed the disability as more than 12 weeks due to the number and severity of the injuries. Furthermore, the applicant relies on the OCF-12 which further indicates his inability to operate at pre-accident levels. The applicant specifically references pain in in his left knee and chest, as well as the inability to stand for too long nor carry heavy items. The applicant also submits that the respondent failed to provide sufficient notice pursuant to section 36(4)(b) of the Schedule, specifically that no section 44 assessments were scheduled, and that the respondent denied the NEB based on prior medical history.
10I disagree that the NEBs were improperly denied by the respondent. Section 36 of the Schedule governs the procedure for applying for and adjudicating NEBs but does not include any requirement that an insurer’s examination must be conducted. All that is required is that the respondent provide the applicant with notice explaining the medical or other reasons why the respondent believes that the applicant is not entitled to a NEB. I am satisfied that the respondent provided such reasons by way of letter dated November 29, 2021 and June 20, 2022.
11The respondent submits that the applicant has not met his burden of proving that his accident-related impairments prevent him from engaging in all activities that he did prior to the accident. It is the respondent’s position that the OCF-3 forms completed by Mr. Afiti, in the absence of any compelling medical evidence, are not sufficient to meet this burden.
12I find that the applicant failed to meet his burden of proving entitlement to NEBs. While I acknowledge that medical evidence is not strictly required to prove NEB it is the applicant’s burden to prove that his accident-related impairments continuously prevent him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The evidence before me is not persuasive to compare the applicant’s activities and life circumstances pre accident to his activities post accident. For example, the applicant has not provided details comparing his pre and post lifestyle, daily living, leisure or recreational activities or how the duration or frequency of each activity has changed.
13Further, I am not persuaded by the applicant’s reliance on the OCF-3 form completed by Mr. Afifi because it provides no detailed explanation as to how the applicant meets the disability test. Furthermore, I find that the applicant has not provided medical evidence to support that he suffers a complete inability to carry on a normal life as a result of the accident, nor is there any expert or medical report detailing how the applicant meets the complete inability disability test.
14The onus to prove entitlement to a NEB for the period in dispute rests with the applicant, I do not find that he has a complete inability to carry on a normal life as a result of the accident. Therefore the applicant is not entitled to a NEB.
Is the treatment plan reasonable and necessary?
15Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
16The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment plans are reasonable and necessary on a balance of probabilities by identifying the goals of treatment, how they would be reasonable met and whether the cost of same is reasonable.
Psychological services in the amount of $3,981.88
17I find that the treatment plan in the amount of $3,981.88 recommended by Ms. Sharleen McDowall, psychologist, for psychological services is not reasonable and necessary.
18The goal of the treatment plan is to challenge and reduce negative thought patterns by utilizing restructuring techniques to deal with anxiety and depressive feelings and cognitions, with the objective to have the applicant return to activities of normal living.
19The applicant provides overall submissions for all the treatment plans claimed, rather than providing specific submissions as to why the psychological services treatment plan is reasonable and necessary. The applicant relies on the OCF-18 completed by Ms. McDowall dated December 23, 2021, that states that he suffers from psychological, behavioral, and cognitive difficulties. Furthermore, the applicant relies on the psychological assessment of Ms. McDowall that diagnosed the applicant with major depressive disorder with anxious distress and specific phobia.
20The respondent relies on the insurer examination of Mr. Rakesh Ratti, psychologist, dated November 28, 2023. During the assessment the applicant provided that he sold his car, and has no plans to drive again, and that he did not want any treatment. The respondent submits that the applicant’s statement is consistent with the fact that no evidence has been produced that the applicant has attended any psychological counselling from the accident to date.
21I find that the applicant has not met his burden of proving that the disputed treatment plan is reasonable and necessary. The submissions made by the applicant are absent reference to any medical evidence or CNRs. Furthermore, I prefer Mr. Ratti’s evidence over Ms. McDowall’s who prepared the treatment plan. Mr. Ratti opined that the treatment plan is not reasonable or necessary as the applicant does not present with any diagnosis other than specific phobia (driving anxiety) and the applicant sold his car with no plan to purchase a new car or drive again. I find that based on the medical evidence and the self-reporting of the applicant during assessments there is no basis for the proposed treatment.
22I find that the treatment plan is not reasonable and necessary.
AWARD
23The 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. The applicant does not provide persuasive evidence that the respondent withheld any services. No award is granted.
INTEREST
24Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.
ORDER
25The application is dismissed, and I find that:
i. The applicant is not entitled to an NEB for the period in dispute;
ii. The applicant is not entitled to 3,981.88 for psychological services;
iii. The applicant is not entitled to an award; and
iv. The applicant is not entitled to interest.
Released: December 11, 2024
Monica Ciriello
Vice-Chair