Licence Appeal Tribunal File Number: 22-002239/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:
Ying Yu
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Charles Gluckstein, Counsel
For the Respondent: Stanford Cummings, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ying Yu, the applicant, was involved in an automobile accident on July 2, 2020, 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 Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,167.65 per month from April 16, 2021, to date and ongoing?
Is the applicant entitled to $4,478.49 for chiropractic services, proposed by Chaplin Medical and Health Services in a treatment plan/OCF-18 (“plan”) dated May 17, 2021?
Is the applicant entitled to interest on any overdue payment of benefits? The issues to be decided in the hearing are:
RESULT
3I find the applicant is not entitled to any of the disputed benefits.
ANALYSIS
The applicant is not entitled to ACBs in the amount of $3,167.65 per month from April 16, 2021, to date and ongoing.
4Section 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 ACBs provided by an aide or attendant. The maximum payable under the Schedule is $3,000 per month for non-catastrophic insureds.
5Section 3(7)(e) provides that to meet the definition of incurred the following three criteria must be satisfied:
i. The applicant received the service to which the expense relates;
ii. The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense;
iii. The person who provided the service did so:
a) in the course of his or her employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or
b) sustained an economic loss as a result of providing the goods or services to the insured person.
6The applicant relies on the attendant care assessment report and Form 1 completed by Ariadna Randall, registered nurse, and Dr. Palantzas, chiropractor, dated July 6, 2020. The report notes that the applicant complained of pain in her cervical, thoracic, and lumbar spine, ribs, bilateral shoulder, bilateral hip, and knee. As a result of the pain, she has a sitting, standing, and walking tolerance of five minutes and has difficulties with reaching, stair climbing, lifting, bending, and gripping. Further, the report indicates that these limitations prevent her from carrying out her housekeeping and home maintenance tasks and personal care tasks such as shaving, showering, dressing, hair and nail care and food preparation. Ms. Randall recommended $3,167.65 in ACBs per month for assistance with the above-noted tasks.
7The applicant submits that I should prefer the report and Form 1 of Ms. Randall because it was completed by her treating practitioner. Further, that she sustained serious physical, cognitive and psychological impairments as a result of the accident that have resulted in the above-noted functional limitations. She also maintains that she has incurred the benefit.
8The respondent argues that it approved the applicant’s attendant care claim in the amount of $3,000.00 per month between July 30, 2020 and April 16, 2021. However, despite the fact that it approved the benefit, the applicant has not submitted proof that the benefit has been incurred as per s.3(7)(e) of the Schedule. Additionally, the applicant’s claim that her report and Form 1 should be preferred because it was completed by a treating practitioner carries little weight because her Form 1 and report was completed four days post-accident. As a result, no treating relationship had been established with her and the assessor. Further, the applicant had a subsequent Form 1 completed by Raymond Wong, occupational therapist, dated February 12, 2021, who recommended $1,107.68 per month in ACBs, which is much less than what is being claimed in this application. However, the respondent asserts that she did not submit the subsequent Form 1 and report for the Tribunal’s consideration.
9The respondent relies on the insurer examination (“IE”) attendant care assessment and Form 1 completed by Deepali Dhawan, occupational therapist, dated April 14, 2021, who recommended zero dollars in monthly ACBs. The report notes that in the first week post-accident the applicant had problems sleeping. Further, that a personal support worker (“PSW”) has been attending her house 3 to 4 days a week to help her with cleaning and childcare. Ms. Dhawan determined that the applicant demonstrated the ability to perform all functional tasks from a physical perspective using correct body mechanics and pacing. Further, she did not have any cognitive limitations which would prevent her from performing her pre-accident personal care tasks. I agree with the respondent and prefer the IE report and Form 1 completed by its assessor for the following reasons.
10First, I find that the applicant is not entitled to payment of any ACBs because she has not proven that the benefit has been incurred pursuant to s.3(7)(e) of the Schedule. In her submissions she maintains that she has been receiving ACB services from Yanming Chen, a registered PSW. However, it is well established that submissions are not evidence. I find the applicant has not submitted any proof supporting that the services were received or that she paid for, or promised to pay for, or became legally obligated to pay for, the service to which the expense relates, as required by the Schedule.
11Second, I find the applicant has not established that she is entitled to the benefit for the time period claimed. I find the report and Form 1 of Ms. Randall outdated as it was completed four days post-accident. In addition, I agree with the respondent that there was no treating relationship between Ms. Randall and the applicant because of the date of the report and Form 1. Further, I do not find the OCF-3 helpful in supporting that she requires ACBs because it is equally outdated. Moreover, I find the applicant was inconsistent in her self-reports about her functional limitations to assessors and her treating practitioners, which undermines her claim for entitlement. The following are some examples:
a) The re-assessment report of Total Recovery dated January 30, 2021 notes that she had extreme difficulties with household chores such as cooking, cleaning and grocery shopping. Further, she has difficulty showering, grooming, and dressing.
b) The OHIP funded neurological report completed by Dr. Lim, dated June 25, 2021, notes that the applicant remained employed and was independent with her activities of daily living and continues to drive. Of significance, this report was completed two months after the time period for which the applicant is seeking entitlement to ACBs.
c) The IE assessment of Dr. Zabieliauskas, general practitioner, dated July 21, 2021, notes that the applicant continues to drive, and does her housework, including laundry and cooking. Further, she demonstrated full range of motion of the cervical, thoracic, and lumbar spine, as well in her lower and upper extremities. The doctor concluded that she did not have any physical impairments that would result in any functional limitations and that any soft-tissue injuries had resolved.
d) The treatment notes of Cici Xi Chen, the applicant’s social worker between February and May 2022, notes that she is busy doing housework, paying bills, and taking care of her elderly parents and young daughter’s activities on a regular basis. Although I acknowledge that the applicant reported being stressed and irritated with her busy schedule, I find these notes support that she does not have the functional limitations highlighted by Ms. Randall’s report and Form 1.
12I find the applicant’s self-reports to the various assessors during the time period ACBs are being claimed to be inconsistent with the recommendations made in Ms. Randall’s Form 1 and report. For these reasons, I prefer the report and Form 1 of Ms. Dhawan, because it is more consistent with the above-noted reports, which largely support that the applicant returned to her personal care and housekeeping and home maintenance tasks and was caring for her elderly parents and young child for the time period ACBs are being claimed.
13For the above-noted reasons, the applicant has not met her onus in proving on a balance of probabilities that she is entitled to ACBs from April 16, 2021 to date and ongoing.
The applicant is not entitled to $4,478.49 for chiropractic services, proposed by Chaolun Medical and Health Services.
14To receive payment for a treatment and assessment plan under s. 14 and 15 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.
15The OCF-18 dated May 17, 2021, was prepared by Dr. Shin, chiropractor, and the goals were pain reduction, increase strength and endurance and range of motion (“ROM”) to return the applicant to her activities of normal living. The OCF-18 recommended 8 hour-and a-half sessions of chiropractic treatment at a cost $1,353.60, travel time at a cost of $902.40 and $451.28 for a progress note. The OCF-18 also recommended services by Karen Quan for 8 two-hour sessions for an exercise program, provider travel time at a cost of $465.60 and $174.57 for preparation of the report. The total cost of the OCF-18 was $4,478.49 and the duration was 8 weeks.
16The applicant argues that the disputed OCF-18 is reasonable and necessary because she still suffers from ongoing pain in her back, neck, shoulder, and lower extremities that prevent her from carrying out her daily activities. Further, she claims that past treatment has resulted in temporary relief from pain which in itself is a legitimate goal of treatment. The applicant submits that Dr. Palantzas also supports her need for ongoing treatment.
17The respondent submits that there is no independent medical opinion or evidence to support that chiropractic treatment has or ever will be beneficial. Further, neither the applicant’s family doctor nor Dr. Lim have recommended that she receive chiropractic treatment. Instead, both doctors advised her to seek physiotherapy and to perform home exercises. Moreover, it contends that Dr. Shin erroneously indicated that the applicant was substantially unable to perform her housekeeping, personal and caregiving task when the evidence indicates she continued to perform these tasks. The respondent relies on the aforementioned IE report of Dr. Zabieliauskas who concluded that the applicant sustained soft tissue injuries and that she did not present with a physical impairment at the time of the assessment. Further, the doctor determined that chiropractic treatment is not reasonable and necessary as a result of the applicant’s accident-related impairments. I agree for the following reasons.
18The applicant did not direct me to any evidence to support that the goals of the OCF-18 would be met as far increasing her strength, endurance or ROM. Dr. Shin stated “N/A” on the OCF-18 when asked whether any prior treatment resulted in any improvement. Further, the family doctor’s CNRs from 2021 note that the applicant had received physiotherapy, massage, and acupuncture without much benefit. In addition, there was no explanation for why travel time was needed for either service provider, and the applicant did not address the services of Ms. Quan or the cost of the OCF-18 in her submissions at all. In light of the above, I find the cost of the recommended treatment excessive. Consequently, the applicant has not met her onus in proving that the goals of the OCF-18 will likely be achieved or that the cost of same is reasonable. Finally, the case law is well established that treatment is reasonable and necessary if it alleviates an individual’s pain which improves their ability to function. I find the applicant has not proven that any past treatment received to date has resulted in any improvement in function.
19I prefer the report and opinion of IE assessor, Dr. Zabieliauskas, because I find the medical evidence such as her family doctor’s CNRs supports that she sustained soft-tissue injuries as a result of the accident. The doctor also conducted a physical examination which revealed functional ROM. Further, the doctor attributed any residual pain or limitations to the applicant’s pre-existing spondylosis and degenerative disc disease. This was also consistent with Dr. Lim’s neurological note dated October 4, 2021, which discussed the results of an MRI which confirmed these conditions. Dr. Lim referred the applicant to a pain clinic for these pre-existing conditions and recommended a multi-disciplinary chronic pain program.
20For these reasons, the applicant has not met her onus in proving on a balance of probabilities that the OCF-18 for chiropractic treatment is reasonable and necessary.
The applicant is not entitled to interest.
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I have not determined that any benefits are overdue.
ORDER
22The applicant is not entitled to any of the disputed benefits.
Released: January 5, 2024
Rebecca Hines
Adjudicator