Citation: Gu v. Safety Insurance Company, 2024 ONLAT 20-012144/AABS

Licence Appeal Tribunal File Number: 20-012144/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:

Min Gu

Applicant

and

Safety Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Miryam Gorelashvili, Counsel

For the Respondent:

Crystal Schulz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Min Gu (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 (the “Schedule”). The applicant was denied benefits by Safety Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 27, 2020 to date and ongoing?

2. Is the applicant entitled to $726.04 for rehabilitation support worker, proposed by Galit Liffshiz in a treatment plan/OCF-18 (“treatment plan”) dated October 17, 2018?

3. Is the applicant entitled to $2,925.19 for psychological services, proposed by Dr. Hannah Rockman in a treatment plan dated September 8, 2020?

4. Is the applicant entitled to $4,487.29 for Occupational Therapy Services by Fathima Kichill, in a treatment plan dated November 11, 2020?

5. Is the applicant entitle to $2,884.89 for Kinesiology services, proposed by Fathima Kichill, in a treatment plan dated November 11, 2020?

6. Is the applicant entitled to $4,040.00 for Life Skills training, proposed by Jenny Zhou, Rehabilitation Therapist, in a treatment plan dated May 13, 2019?

7. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3For the reasons that follow, I find that:

1. The applicant is entitled to NEB from March 9, 2020 to June 1, 2020 at the rate of $185.00 per week.

2. The applicant is entitled to $2,925.19 for psychological services.

3. The applicant is not entitled to the balance of the treatment plans.

4. The applicant is entitled to interest for any overdue amount relating to NEB and psychological services.

5. The respondent is not liable to pay an award.

ANALYSIS

Background

4The applicant is a 63-year-old resident of Shanghai, China. At the time of the accident, the applicant was visiting Canada as part of a ten-day tour when the motorcoach she was riding in left the highway and struck a rocky embankment.

5As a result of the accident, the applicant sustained a traumatic brain injury (“TBI”) and suffers from a number of TBI-related cognitive and psychological issues, including post traumatic stress disorder, major depressive episode (single episode severe), adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder.

6On June 9, 2022, the applicant was deemed to have sustained a catastrophic impairment as a result of the accident under Criterion 4.

Non-Earner Benefit (“NEB”)

7Section 12(1) of the Schedule 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.

8Section 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath), which generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.

9Per s. 12(3) of the Schedule, an insurer is not required to pay a non-earner benefit, (a) for the first four weeks after the onset of the complete inability to carry on a normal life, (b) before the insured person is 18 years of age, (c) for more than 104 weeks after the accident, or (d) if the insured person is eligible to receive and has elected under s. 35 to receive either an income replacement benefit or a caregiver benefits.

10Section 37(1) of the Schedule provides that if an insurer wishes to determine if an insured person is still entitled to NEB, the insurer may, but not more often than is reasonably necessary, (a) request that the insured person submit, within 15 business days, a new OCF-3 completed as of a date on or after the date of the request, (b) notify the insured person that the insurer requires an examination under s. 44, or (c) do both.

11At the time of the accident, the applicant was a 57-year-old retired quality control worker. Due to the applicant’s accident-related injuries, the respondent accepted that she suffered from a complete inability to carry on a normal life and started paying NEB. The latter were terminated, effective March 9, 2020.

12The applicant submits that she continues to suffer from a complete inability to carry on a normal life as a result of the accident and that she is entitled to receive NEB from February 27, 2020 to date and ongoing. The applicant relies on an OCF-3 dated February 6, 2020 and a psychological assessment report dated January 31, 2020, both completed by Dr. Hannah Rockman, psychologist.

13The applicant further submits that it is unreasonable for an insurer to deny NEB after accepting a catastrophic determination and that the respondent acted in bad faith in not considering the totality of the information available in managing the applicant’s claim and stopping NEB. Also, the respondent had an obligation to reconsider its denial of NEB once it concluded that the applicant was catastrophically impaired.

14The respondent acknowledges that it initially accepted that the applicant suffered from a complete inability to carry on a normal life and that it started paying NEB. The respondent further acknowledges that it continued to pay NEB for several months despite obtaining a psychological report dated March 7, 2019 completed by Dr. Peter Bernstein, psychologist, wherein Dr. Bernstein opined that the applicant did not suffer from a complete inability to carry on a normal life.

15The respondent submits that it reassessed the applicant’s entitlement to NEB in February 2020 and it accepted Dr. Bernstein’s finding in his paper review psychology report dated February 26, 2020 that the applicant did not suffer from a complete inability to carry on a normal life.

16On reply, the applicant submits that the respondent provided no explanation as to why it continues to deny NEB for a severely brain-injured applicant.

The applicant is entitled to an NEB for the period of March 9, 2020 to June 1, 2020

17I find that the applicant has demonstrated, on a balance of probabilities, that NEB is payable in the amount of $185.00 per week for the period of March 9, 2020 to June 1, 2020. The applicant is not entitled to NEB beyond June 1, 2020 pursuant to s. 12(3) of the Schedule.

18I find that the applicant’s evidence supports that she suffers from a complete inability to carry on a normal life. In the OCF-3 dated February 6, 2020, Dr. Rockman concluded that the applicant met the test for NEB and noted that the applicant was unable to do housework, socialize, and participate in regular exercises and hobbies due to her pain, physical limitation, low mood, cognitive impairments, and anxiety. Dr. Rockman’s opinion is informed by her assessment of the applicant, which is documented in her psychological assessment report dated January 31, 2020.

19In her report, Dr. Rockman provides a meaningful analysis of the applicant’s pre-accident and post-accident activities, as required by Heath. Prior to the accident, the applicant was social and fun loving. Further, she enjoyed seeing friends and family, travelling, playing mah-jong, singing, and going for walks. Since the accident, she stays at home all the time. She does not see any friends as she feels self conscious about her looks due to the scar on her face as a result of the accident. She feels she looks “ugly” because her face “does not look balanced and is very different than before.” She feels socially withdrawn, and she experiences an increase in irritability. She reported sleep difficulties and nightmares that have adversely affected her energy level and deteriorated cognitive functioning, and severe vehicular anxiety. Further, her psychological difficulties (including depressive, cognitive, anxious, phobic, and somatic symptoms) contribute to significant impairments in her activities of daily living and social functioning.

20I am not persuaded by Dr. Bernstein’s finding that the applicant does not meet the test for NEB. Although Dr. Bernstein concluded in his report dated March 7, 2019 that the applicant’s psychological condition was not severe enough to cause her to suffer a complete psychological inability to carry on a normal life, the respondent did not rely on this opinion and continued to pay NEB. Further, in his report dated February 26, 2020, Dr. Bernstein maintained his opinion as no treatment related progress reports or clinical notes and records relating to the applicant’s psychological condition had been provided for review. It is noteworthy that Dr. Bernstein did not review Dr. Rockman’s psychological assessment report. Additionally, the respondent provided no explanation as to why it did not accept Dr. Bernstein’s findings in his March 7, 2019 report but later accepted his similar findings in his February 26, 2020 report.

21Accordingly, I find that the applicant has demonstrated that she suffers from a complete inability to carry on a normal life as a result of the accident. Therefore, she is entitled to NEB.

The Treatment Plans

22To receive payment for the disputed treatment plans under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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 cost of achieving them are reasonable.

$2,925.19 for psychological services is reasonable and necessary

23I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plan dated September 8, 2020 for psychological services in the amount of $2,925.19 is reasonable and necessary.

24The treatment plan proposes 14 sessions of psychological treatment for a duration of 1 hour per session, testing, liaison, file review, coordination, progress or discharge report, and completion of the treatment plan. The goal of the treatment plan is to treat psychological symptoms, and to return to activities of normal living.

25Although the respondent previously approved 12 sessions of psychological treatment, which the applicant completed between April 27, 2020 and July 28, 2020, the respondent denied further psychological treatment. It relied on Dr. Bernstein’s report dated October 28, 2020 wherein he concluded that the applicant had reached maximum medical recovery and further virtual psychotherapy was unlikely to result in any substantial or material change in the applicant’s psychological presentation.

26I find that the provision of further psychological services is reasonable and necessary. According to Ms. Lam and Dr. Rockman’s progress report dated September 3, 2020, the applicant diligently attended her therapy sessions, she was increasingly engaged, and she continue to process her feelings and struggles. Further treatment was recommended to help the applicant better cope with her symptoms of anxiety, panic attacks, depressive, phobic, cognitive impairments, and somatic symptoms. Also, the therapy sessions would continue to be provided by Ms. Lam in the applicant’s native tongue.

27I find that the evidence supports that the applicant would benefit from continued psychological treatment, despite slow progress. The applicant continues to suffer from major depressive disorder (single episode), somatic symptom disorder with predominant pain, specific phobia related to being a pedestrian, a driver, and a passenger in a vehicle, and adjustment disorder with anxiety. Moreover, although Dr. Bernstein’s validity testing suggested that the applicant’s reporting was inaccurate and that she had a significant tendency to over-report symptoms, Dr. Bernstein nevertheless concluded that the applicant would benefit from continued treatment with her local psychiatrist and other healthcare practitioners within her vicinity.

28Accordingly, I find that the applicant is entitled to further psychology services.

$726.04 for rehabilitation support worker services is not reasonable and necessary

29I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated August 29, 2018 (incorrectly identified as October 17, 2018 above) for rehabilitation support worker services in the amount of $726.04 is reasonable and necessary.

30The treatment plan proposes 8 hours of rehabilitation support worker services for the client with a Mandarin speaking therapist to assist with interpretation during an attendant care assessment, communication/ coordination with vendors/ care agencies/ services agencies in China, communication with the client’s other therapy providers/family as needed, reviewing client records, and completion of the treatment plan. The goal of the treatment plan is to help increase the applicant’s daily function and participation in daily activities.

31I find that the applicant’s evidence and submissions are lacking in demonstrating that the disputed treatment plan is reasonable and necessary. Indeed, the applicant has not directed me to any evidence in support of the disputed treatment plan nor has she made any submissions regarding the treatment plan. Rather, the totality of the applicant’s evidence and submissions regarding rehabilitation support services relate to a treatment plan dated April 5, 2019 for rehabilitation therapy sessions for life skills training in the amount of $4,040.00.

32Further, I accept the findings of Dr. Mohamed Khaled, physician, and Himadri Kaul, occupational therapist, that the treatment plan is not reasonably required.

33Dr. Khaled found in his insurer examination medical physician paper review report dated October 17, 2018 that based on the most recent information made available, it was not clear that the applicant required occupational therapy support to assist with her activities of daily living or rehabilitation.

34Similarly, Ms. Kaul found in her insurer examination occupational therapy paper review report dated October 17, 2018 that there was a lack of medical evidence to suggest that the applicant had a need for a rehabilitation support worker as proposed by the treatment plan. She also noted that there was no medical evidence to support that the applicant required any special arrangements to travel back to China, a journey that takes at least 24 hours in transit, including the airtime, pre-boarding, and post arrival time, if flying direct and without a stop.

35As such, I find that the applicant has not proven that the treatment plan for a rehabilitation support worker is payable.

$4,487.29 for occupational therapy services is not reasonable and necessary

36I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan dated November 11, 2020 for occupational therapy services in the amount of $4,487.29 is reasonable and necessary.

37The treatment plan proposes 6 occupational therapy sessions, documentation activities, preparation, certified occupational therapy assistant services, communication with other healthcare professionals and communication with client outside of treatment hours, report writing, translation services, and completion of the treatment plan.

38The goals of the treatment plan are pain reduction, energy conservation techniques, mindfulness, relaxation, and moodiness management, community activities, sleep hygiene, and return to activities of normal living. Further goals include addressing task simplification, training in pain management, imposing independence in occupational performance tasks, pacing and energy conservation, and to monitor any equipment needs.

39I find that there is insufficient evidence to support that the treatment plan is reasonable and necessary. Although the applicant’s medical evidence supports that occupational therapy intervention is reasonably required, as indicated in an occupational therapy assessment report dated January 2, 2019 completed by Galit Liffshiz, occupational therapist, the cost of the disputed treatment plan is not reasonable and necessary as similar treatment was previously approved and the funds have not yet been utilized by the applicant.

40Indeed, Ms. Liffshiz recommended occupational therapy intervention in her report dated January 2, 2019 and submitted a corresponding treatment plan dated April 5, 2019. The goals were to complete a detailed cognitive assessment to determine the functional cognitive deficits resulting from the accident as well as to provide cognitive training and education and training regarding compensatory cognitive strategies, to increase the applicant’s independence for daily activities including self care and housekeeping activities, to assist the applicant with developing a meaningful daily routine, to educate and practice optimal body mechanics in supine for pain, to educate the applicant and practice proper body mechanics in various postural positions, to recommend task and/or environmental modifications to increase independence in daily activities such as self-care, and to supervise the rehabilitation therapist to augment the effect of occupational therapy intervention.

41According to a letter dated May 15, 2019, the respondent partially approved the April 5, 2019 treatment plan and agreed to pay $3,890.80 for 15 occupational therapy sessions over a period of 15 weeks with a duration of 2 hours per session, planning services, documentation, and preparation of the treatment plan. Despite the respondent’s approval, there is no evidence to support that the applicant utilized the approved treatment plan for occupational therapy services.

42As such, I find that the applicant has not proven that the treatment plan for occupational therapy services is payable.

$2,884.89 for kinesiology services is not reasonable and necessary

43I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan dated November 11, 2020 for kinesiology services in the amount of $2,884.89 is reasonable and necessary.

44The treatment plan proposes 12 kinesiology treatment sessions with a duration of 1 hour per session, documentation, preparation, translation services, and completion of the treatment plan. The goals of the treatment plan are to reduce pain, to increase range of motion, to increase in strength, to overcome physiological restrictions with registered kinesiology techniques, and to return to activities of normal living.

45I find that there is insufficient evidence to support that the treatment plan is reasonable and necessary. Although the applicant’s medical evidence supports that kinesiology intervention is reasonably required, as indicated in an occupational therapy functional ability and attendant care assessment report dated July 16, 2018 completed by Kailyn Mills, occupational therapist, the cost of the disputed treatment plan is not reasonable and necessary as similar treatment was previously approved and the funds have not yet been utilized by the applicant.

46Indeed, Ms. Liffshiz recommended physiotherapy intervention in her report dated January 2, 2019 and submitted a corresponding treatment plan dated April 5, 2019. The goal of the treatment plan was to address pain and gait.

47According to a letter dated May 15, 2019, the respondent partially approved the April 5, 2019 treatment plan and agreed to pay $2,194.57 for 15 physiotherapy session over a period of 15 weeks with a duration of 1 hour per session, planning services, documentation, and preparation of the treatment plan. Despite the respondent’s approval, there is no evidence to support that the applicant utilized the approved treatment plan for physiotherapy.

48Additionally, I accept the findings of Dr. James Stewart, physician, who found in his insurer examination general practitioner report dated February 17, 2021 that the applicant sustained a traumatic brain injury with a complex depressed skull fracture treated with emergency craniotomy. The applicant did not sustain any other significant musculoskeletal injury as a result of the accident. Dr. Stewart did not consider the provision of kinesiology services reasonable and necessary as there was no evidence of a physical injury or impairment attributable to the accident. He noted that the applicant’s impairment appeared to be psychological and/or neurological in nature, and that the need for further therapy of any kind should be deferred to specialists in those fields.

49As such, I find that the applicant has not proven that the treatment plan for kinesiology services is payable.

$4,040.00 for life skills training is not reasonable and necessary

50I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment plan dated May 13, 2019 for life skills training in the amount of $4,040.00 is reasonable and necessary.

51The treatment plan proposes 45 rehabilitation therapy sessions for life skills training over a period of 15 weeks with a duration of 3 hours per session.

52I find that the applicant’s evidence and submissions are lacking in demonstrating that the proposed treatment plan is reasonable and necessary. Although Ms. Liffshiz recommended rehabilitation therapy to improve daily function and to develop a daily routine with an occupational therapist, the applicant has not identified the goals of the disputed treatment plan, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

53Further, I accept the findings of Dr. Shafik Dharamshi, physician, that the treatment plan is not reasonably required. Dr. Dharamshi found in his insurer examination general practitioner paper review report dated August 15, 2019 that the applicant’s accident-related injuries include a head injury with a scalp laceration, compound skull fracture, and epidural hematoma that required surgical treatment. No other definite traumatic injuries have been identified, although the applicant likely suffered soft tissue injuries to her cervical spine, shoulders, and lumbosacral spine. Dr. Dharamashi concluded that the treatment plan was not reasonable and necessary as there was no evidence of any ongoing symptomology, physical impairment, or limitation identified in the applicant’s medical records.

54As such, I find that the applicant has not proven that the treatment plan for life skills training is payable.

Interest

55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for any overdue amount relating to NEB and psychological services.

Award

56Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit.

57The applicant submits that up until five weeks prior to the deadline for the applicant to deliver her written hearing submissions, the respondent had only fully approved two treatment plans and paid $9,968.75 for a catastrophically impaired senior citizen with a brain injury over a period of almost five years. The applicant further submits that the respondent owed her a duty of utmost good faith in adjusting her accident benefit claim.

58The applicant relies on the Financial Services Commission of Ontario’s Code of Conduct for Statutory Accident Benefits Representative, Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649 (ON LAT), AJ v. Security National Insurance Co., 2021 CanLII 35586 (ON LAT), 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT), and G.J. v. Coachman Insurance Company, 2019 CanLII 126208.

59The respondent submits that it made decisions in accordance with the Schedule and the medical evidence in its possession at the time the decisions were made. The respondent states that it retained medical personnel to conduct independent assessments and relied on their opinions. The respondent argues that if the applicant required treatment or services, it was incumbent on her to provide all necessary and relevant information pursuant to s. 44(9)2(ii) of the Schedule.

60The respondent further submits that it acted reasonably and that an award is not warranted in the circumstances. In the event that an error was made, it is well settled that insurers are not held at a standard of perfection in adjusting decisions. Further, a s. 10 award is meant to act as a deterrent against bad faith conduct by an insurer and not as a punishment for arriving at a wrong conclusion.

61The respondent relies on C.B. v. Allstate Insurance Company of Canada, 2019 CanLII 19732 (ON LAT), Waring v. Aviva General Insurance Company, 2022 CanLII 59513 (ON LAT), and Panchadcharam v. Aviva Insurance Company, 2023 CanLII 15061 (ON LAT).

62I agree with the respondent. It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. In this case, the evidence supports that the respondent denied the benefits in dispute based on the medical evidence provided by the applicant and insurer examination reports. Further, I find that there is no evidence that the respondent acted in bad faith nor that its actions rose to a level of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. In the circumstances, there is no basis to grant an award.

63Accordingly, the respondent is not liable to pay an award.

ORDER

64For the reasons outlined above, I find that:

1. The applicant is entitled to NEB from March 9, 2020 to June 1, 2020 at the rate of $185.00 per week.

2. The applicant is entitled to $2,925.19 for psychological services.

3. The applicant is not entitled to the balance of the treatment plan.

4. The applicant is entitled to interest for any overdue amount relating to NEB and psychological services.

5. The respondent is not liable to pay an award.