Licence Appeal Tribunal File Number: 22-010741/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:
Wei Min Zhan
Applicant
and
Certas Home and Auto
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Anil Hampole, Counsel
For the Respondent:
Masiya Ahmadzai, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wei Min Zhan, the applicant, was involved in an automobile accident on May 26, 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, Certas Home and Auto, 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 $4,115.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 dated January 29, 2021?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to the disputed treatment plan, interest, or an award.
PROCEDURAL ISSUE
4In the last paragraph of his submissions, the applicant requested an order removing the applicant from the Minor Injury Guideline (the “MIG”), The applicant did not request to add removal from the MIG as an issue in dispute or provide any other submissions in support of the requested order. Further, removal from the MIG was not identified as an issue in dispute in the Case Conference Report and Order issued on June 22, 2023. The respondent confirmed that the applicant was previously removed from the MIG in 2018. Therefore, the applicant’s request to be removed from the MIG is moot.
ANALYSIS
5I find that the applicant has not proven on a balance of probabilities that the treatment plan in dispute is reasonable or necessary.
6To receive payment for a treatment and assessment 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 because 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.
7The applicant submits they are entitled to the medical benefit in the amount of $4,115.12 for physiotherapy services in an OCF-18 from Total Recovery Rehab Centre dated January 29, 2021. The OCF-18 identifies the treatment goals as: pain reduction, increased range of motion, increase in strength, and return to activities of daily living and recommends 12 treatments each of physiotherapy, active therapy, and massage therapy. It suggests that the applicant is suffering numerous accident-related restrictions in his daily life, and that the applicant reported that previous treatment had improved his condition, but that he continued to suffer from back pain.
8The applicant’s position is that the treatment plan is reasonable and necessary. The applicant relies on the Clinical Notes and Records (CNRs) of the Scarborough General Hospital, the reassessment reports of Dr. Georgia Palantzas, chiropractor, dated December 1, 2018, December 18, 2018, February 22, 2019, and August 2, 2019, and the OCF-18 prepared by Ahmed Afifi, physiotherapist, of Total Recovery Rehab Centre, dated January 29, 2021.
9The respondent countered that the applicant has not met his evidentiary burden to prove that the treatment plan is reasonable and necessary because the applicant has not provided evidence in support of the treatment plan at issue. The respondent relies on the reassessment reports and OCF-18s of Dr. Palantzas, the CNRs of the applicant’s family physician, Dr. CP Chang, and the Insurer’s Examination Report (IE) of Dr. Raymond Zabieliauskas, physiatrist, dated November 28, 2019.
10Dr. Zabieliauskas conducted an examination of the applicant and reviewed the available medical information. He concluded that the injuries sustained were uncomplicated soft tissue injuries, that the applicant had reached maximum medical recovery for his injuries, and no further treatment was required for the applicant’s soft tissue injuries.
11I agree with the respondent that the applicant has not established that the treatment plan is reasonable and necessary, because the applicant has not directed me to contemporaneous medical evidence to corroborate the need for the OCF-18. The applicant has made no submissions on the progression of the applicant’s condition between Dr. Palantzas’ reassessment report dated August 2, 2019 and the treatment plan in dispute, some 17 months later. Further, the applicant has not submitted any evidence to rebut the findings of Dr. Zabieliauskas that the applicant had reached maximum recovery and required no further treatment on November 28, 2019. As noted by the respondent, the CNR’s of Dr. Chang do not reveal any complaints related to the motor vehicle accident after 2018.
12As a result, I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary, therefore, the applicant is not entitled to the treatment plan for physiotherapy services dated January 29, 2021.
Award
13The 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.
14As the applicant is not entitled to the treatment plan in question, no benefits were unreasonably delayed or withheld by the respondent, and the applicant is not entitled to an award.
Interest
15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
ORDER
16I find that:
i. The applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary;
ii. No interest or an award is payable; and
iii. The application is dismissed.
Released: December 20, 2024
__________________________
Kathleen Wells
Adjudicator