Licence Appeal Tribunal File Number: 22-010704/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:
Bowen Zhu
Applicant
and
Allstate Insurance Company of Canada*
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Paralegal
For the Respondent:
Andrew Rodrigues, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Bowen Zhu, the applicant, was involved in an automobile accident on April 16, 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, 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 non-earner benefits in the amount of $185.00 per week from May 15, 2021 and ongoing?
ii. Is the applicant entitled to $3,898.56 for physiotherapy services proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted July 15, 2021 and denied July 27, 2021?
iii. Is the applicant entitled to $3,981.88 (less amount approved $3,701.88) for psychological services proposed by Somatic Assessments and Treatment Clinic in a plan submitted December 21, 2021 and denied January 5, 2022?
iv. Is the applicant entitled to $3,981.88 for psychological services proposed by Somatic Assessments and Treatment Clinic in a plan submitted June 17, 2022 and denied July 1, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
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?
RESULT
3I find that the applicant has not proven an entitlement to any of the benefits in dispute.
4This application is dismissed.
ANALYSIS
The applicant is not entitled to a non-earner benefit
5The applicant has not proven entitlement to a non-earner benefit.
6Section 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. Section 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 Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
7In their submissions the applicant has not identified their limitations or activities of daily living which they are unable to do as a result of the accident. There has been no comparison made between the applicant’s pre and post-accident activities. The applicant notes that all of their pre-accident activities have been affected. However, the applicant does not explain or demonstrate with evidence how the accident has resulted in their inability to carry on a normal life.
8While I note that the applicant complained of insomnia and stress after the accident, they have not established any reduction in functioning. More importantly, they have not led any evidence of their pre-accident activities, so there is no baseline of functioning against which to assess any reduction in activities of daily living.
9It is the applicant’s burden to prove entitlement to the benefit. As they have not met this burden, it is unnecessary to address the submissions of the respondent on this issue. I find that the applicant is not entitled to a non-earner benefit.
The applicant is not entitled to the treatment plans in dispute
10To 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.
The applicant is not entitled to physiotherapy treatment
11The applicant has not proven entitlement to physiotherapy treatment.
12The applicant has made no submissions on the goals of the treatment plan, how the goals would be met to a reasonable degree or how the cost of achieving them is reasonable. The applicant has adduced no medical evidence in support of physiotherapy treatment.
13It is the applicant’s burden to prove entitlement to the benefit. As they have not met this burden, it is unnecessary to address the submissions of the respondent on this issue. I find that the applicant is not entitled to physiotherapy treatment.
The applicant is not entitled to psychological treatment
14There are two disputed OCF-18s for psychological treatment.
15The first is a treatment plan dated December 21, 2021 which proposed 14 therapy sessions provided by Dr. Sharleen McDowall, psychologist. These 14 sessions of therapy were approved.
16The treatment plan also contained transportation to treatment at $20 a session for a total of $280.00. The respondent submits that this is the sole item not approved from the treatment plan. It is further submitted that transportation was denied as the policy contains a 50km deductible on transportation to treatment. The transportation proposed covers 7.6km.
17As the applicant has made no submissions relating to transportation costs contained within the treatment plan, I find that the applicant has not proven entitlement to the disputed amount.
18A second OCF-18 for psychological services is in dispute. This OCF-18 was dated June 17, 2022. Fourteen sessions of psychotherapy are proposed by Dr. McDowall, a psychologist.
19The applicant submits a psychological progress report dated August 5, 2022. This report indicates that the applicant has participated in 14 psychotherapy sessions with Ms. Lydia Wang, psychotherapist working under the supervision of Dr. McDowall. This progress report, signed jointly by Ms. Wang and Dr. McDowall recommend a further 14 sessions of therapy.
20The respondent submits that further psychological treatment is not required, as indicated in a report dated August 22, 2022 by Dr. Karen Spivak, psychologist. Dr. Spivak has assessed the applicant both before and after the 14 sessions of psychotherapy. Dr. Spivak has found that following the psychotherapy sessions, the applicant no longer met the criteria of a DSM-5 diagnosis.
21Dr. Spivak initially assessed the applicant on September 29, 2021 where she found that the applicant met the full criteria for a DSM-5 diagnosis of Specific Phobia and recommended 10-1 hour therapy sessions with a Registered Psychologist.
22Dr. Spivak administered the following psychometric tests during her initial assessment on September 29, 2021 and her reassessment on August 10, 2022. Below is the contrast of the results:
Test
Result
Sept 29/2021
Aug 10/2021
Beck Depression Inventory II (BDI-II)
Low-moderate range of depressive symptomatology
Mild range of depressive symptomatology
Zung Self-Rating Anxiety Scale (SAS)
Mild level of anxiety
Normal level of anxiety
Symptom Checklist Revised (SCL-90R)
Mild to moderate level of emotional distress
Low level of emotional distress
23The results above demonstrate an improvement in the applicant’s condition.
24From Dr. Spivak’s reports, I conclude that that the applicant’s condition has improved to the point where he no longer qualifies for a DSM-5 diagnosis.
25In their psychological progress report, Ms. Wang and Dr. McDowall recommend that the applicant continues with a further 14 sessions of psychotherapy.
26However, there was no indication that the applicant received any re-testing to determine if there has been an objective improvement in his condition. There is no reference made to a current DSM-5 diagnosis that the applicant is experiencing which would warrant further treatment.
27For these reasons, I give higher weight to Dr. Spivak’s assessment. I find that the applicant has not provided medical evidence that would support continued psychotherapy and is therefore not entitled to the disputed treatment plan for further psychological treatment.
Interest
28As no benefits are owing, no interest is payable.
Award
29The 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.
30As there have been no withheld or delayed benefits, there is no entitlement to an award under s. 10 of Reg 664.
ORDER
31For the reasons above I find that:
i. The applicant is not entitled to a non-earner benefit;
ii. The applicant is not entitled to the disputed treatment plans;
iii. The applicant is not entitled to interest; and
iv. The applicant is not entitled to an award under s. 10 of O.Reg 664; and
v. This application is dismissed.
Released: October 10, 2024
Julian DiBattista
Vice-Chair