Xie v. Allstate Insurance Company of Canada, 2024 CanLII 2636

Citation: Xie v. Allstate Insurance Company of Canada, 2024 ONLAT 21-013825/AABS

Licence Appeal Tribunal File Number: 21-013825/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:

Xiao Mei Xie

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: Yu Denise Jiang, Paralegal

For the Respondent: Oliver Gorman-Asal, Counsel

HEARD: By written submissions

OVERVIEW

1Xiao Mei Xie, the applicant, was involved in an automobile accident on November 30, 2017, 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, Allstate Insurance Company of Canada, 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 $1,945.00 ($3,701.88 less $1,945.00 approved) for psychological services, proposed by Somatic Assessment and Treatment Clinic in a treatment plan/OCF-18 (“plan”) submitted September 10, 2021 and denied September 10, 2021?

ii. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessment and Treatment Clinic in a plan submitted June 21, 2022 and denied June 27, 2022?

iii. 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?

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

RESULT

3The applicant is not entitled to the treatment plans, nor interest.

4The respondent is not liable to pay an award.

ANALYSIS

5The applicant is not entitled to the treatment plans in dispute.

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 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.

7The applicant submits that she has been diagnosed with post-traumatic stress disorder (PTSD) by Dr. Kris Cheng. The applicant’s ongoing psychological difficulties are also supported in the insurer’s examination (IE) by Dr. Shulamit Mor, psychologist, and the treatment plan dated June 21, 2022 by Dr. Mc Dowell. The applicant submits that she is entitled to the benefits claimed.

8The respondent submits that it approved a psychological assessment and partially approved the treatment plan dated September 10, 2021 based on the recommendations in the IE of Dr. Mor. Since then the applicant has not provided evidence that further treatment is required. The respondent submits that the applicant is not entitled to these two treatment plans.

9The clinical note of Dr. Cheng is dated December 14, 2021, but this appears to be a telemedicine appointment that took place on November 25, 2021. The note shows that she reported nightmares associated with the accident, difficulty sleeping, driving anxiety, and fatigue caused by a lack of sleep. She also reported not trying any medications or psychotherapy. Dr. Cheng wrote “PTSD” under the heading of “Health Problems” but provides no further comment. He also prescribed the anti-depressant mirtazapine.

10Dr. Mor assessed the applicant on April 21, 2022. The applicant reports taking sleep medication about 2 times per week. She described her complaints as feeling nervous, including feeling more nervous when people are around her because of the pandemic. She has difficulty sleeping due to worries about work, her relationship with her husband, driving, and Covid-19. She wakes up 3 or 4 times per night for various reasons such as using the washroom, discomfort, and bad dreams. She also reported thinking about the accident daily and being nervous in a car, either as a passenger or driving.

11Dr. Mor also conducted psychometric testing. She scored in the severe range for depression in the Beck Depression Inventory -II, and was also in the severe range for anxiety in the Beck Anxiety Inventory.

12Dr. Mor diagnosed the applicant with Specific (in vehicle) phobia. He recommended a psychological assessment for treatment planning and 8 one hour weekly sessions of psychological treatment from the disputed treatment plan dated September 10, 2021.

13In regard to the applicant’s psychological condition, I prefer the diagnosis by Dr. Mor over the diagnosis by Dr. Cheng. The clinical note of Dr. Cheng provides no analysis or assessment that explains why he diagnosed her with PTSD. Moreover, there is no information on Dr. Cheng’s training or specialty. It is unknown how he is qualified to diagnose psychological disorders. Dr. Mor is a psychologist who interviewed the applicant and conducted psychometric testing. He provides a detailed explanation on why he diagnosed the applicant with Specific (in vehicle) phobia. For these reasons, I find Dr. Mor’s report and his diagnosis of the applicant to be more persuasive.

14In June 2022, the applicant invoiced the insurer for five 1.5-hour psychological therapy sessions. The applicant subsequently submitted a new treatment plan, dated June 21, 2022, for 14 1.5-hour sessions of psychological therapy by Dr. Sharleen Mc Dowall, psychologist. The applicant has not provided any other medical evidence to support the need for further treatment.

15As noted in 17-002689/AABS v Aviva Insurance Canada, 2018 CanLII 2311 (ON LAT), a treatment plan for a medical benefit, without more, is not enough to establish entitlement. The applicant has already received psychological treatment. Since then, she has only provided one treatment plan as evidence that further treatment is needed. Consequently, I find that the applicant is not entitled to the two treatment plans because there is a lack of supporting evidence to establish, on a balance of probabilities, that these treatment plans are reasonable and necessary.

16As no benefits are owing, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

17The 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.

18As no benefits are payable, the respondent cannot be liable to pay an award under s. 10 of Reg. 664.

ORDER

19The applicant is not entitled to the treatment plans, nor interest.

20The respondent is not liable to pay an award.