Long Biao Huang v. Travelers Canada, 2024 CanLII 99635

Citation: Huang v. The Dominion of Canada General Insurance Company, 2024 ONLAT 20-010354/AABS

Licence Appeal Tribunal File Number: 20-010354/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:

Long Biao Huang

Applicant

and

Travelers Canada

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Jiang Yu, Paralegal

For the Respondent: Dylan Crosby, Counsel

HEARD: By way of written submissions

OVERVIEW

1Long Biao Huang, the applicant, was involved in an automobile accident on November 30, 2019, 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, Travelers Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2On July 6, 2023, a motion was granted substituting Wawanesa Insurance with Travelers Canada as the respondent. However, the respondent’s submissions identify The Dominion of Canada General Insurance Company as the respondent in the style of cause. A motion has never been brought to substitute Travelers Canada for The Dominion of Canada General Insurance Company, nor did the respondent request that relief in its submissions. It is clear that the body of the respondent’s submissions were meant for this appeal, despite the different name on the style of cause. Travelers Canada is still the responding insurer according to the Tribunal’s records.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to attendant care benefits of $286.00 per month from December 17, 2019 to December 18, 2019?

ii. Is the applicant entitled to attendant care benefits of $8,494.09 per month from January 25, 2020 to March 31, 2020?

iii. Is the applicant entitled to attendant care benefits of $4,200.00 per month from April 1, 2020 to April 30, 2020?

iv. Is the applicant entitled to attendant care benefits of $4,340.00 per month from May 1, 2020 to May 31, 2020?

v. Is the applicant entitled to attendant care benefits of $4,200.00 per month from June 1, 2020 to June 30, 2020?

vi. Is the applicant entitled to attendant care benefits of $4,340.00 per month from July 1, 2020 to July 31, 2020?

vii. Is the applicant entitled to attendant care benefits of $4,340.00 per month from August 1, 2020 to August 31, 2020?

viii. Is the applicant entitled to attendant care benefits of $4,200.00 per month from September 1, 2020 to September 30, 2020?

ix. Is the applicant entitled to attendant care benefits of $4,340.00 per month from October 1, 2020 to October 31, 2020?

x. Is the applicant entitled to attendant care benefits of $4,200.00 per month from November 1, 2020 to November 30, 2020?

xi. Is the applicant entitled to $4,383.90 for chiropractic treatment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on April 17, 2020 and denied on May 12, 2020?

xii. Is the applicant entitled to $670.00 ($4,195.12 less the partially approved amount of $3,525.12) for physiotherapy treatment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on July 10, 2020 and denied on July 23, 2020?

xiii. Is the applicant entitled to $3,989.56 for physiotherapy treatment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on August 20, 2020, and denied on September 3, 2020?

xiv. Is the applicant entitled to $45.00 for ambulance expenses, listed on an expense claim form (OCF-6) submitted on June 30, 2020?

xv. Is the applicant entitled to $2,200.00 for a psychological assessment, recommended by Somatic Assessments and Treatment Clinic in a treatment plan submitted on January 10, 2020, and denied on January 23, 2020?

xvi. Is the applicant entitled to $2,200.00 for an occupational therapy in-home assessment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on April 8, 2020 and denied on April 22, 2020?

xvii. Is the applicant entitled to $3,981.88 for psychological counselling services, recommended by Somatic Assessments & Treatment Clinic, in a treatment plan dated May 17, 2021 and denied on June 9, 2021?

xviii. Is the applicant entitled to $16,712.81 for catastrophic determination assessments, recommended by Somatic Assessments & Treatment Clinic, in a treatment plan dated April 20, 2021 and denied on June 15, 2021?

xix. Is the applicant entitled to an award under Reg. 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

4The applicant is entitled to $2,200.00 for a psychological assessment, recommended by Somatic Assessments and Treatment Clinic in a treatment plan submitted on January 10, 2020, plus any applicable interest pursuant to s. 51.

5The applicant is not entitled to the remaining treatment plans, attendant care benefits, or OCF-6 in dispute.

6The applicant is entitled to an award in the amount of $440.00, plus interest pursuant to Reg. 664.

ANALYSIS

Attendant Care

7For the reasons below, I find that the applicant has failed to prove that the attendant care expenses claimed were incurred, and they are accordingly not payable.

8Section 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 attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

9Section 3(7)(e) of the Schedule sets out the requirements to prove that an expense has been “incurred”. The insured person has to have received the goods or services to which the expense relates, and has either paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense. In addition, the person who provided the goods or services must have either (A) done so in the course of the employment, occupation or profession in which they would have 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.

10The onus rests with the applicant to prove that the expenses have been incurred.

Background

11An attendant care report and Form-1 were initially prepared by Raymond Wong, occupational therapist, on December 13, 2019. Mr. Wong recommended $3,163.77 of attendant care per month. The applicant was subsequently assessed under s. 44 by Derek Ho, occupational therapist, and his Form-1 recommended $395.87 per month. The respondent advised the applicant that this new amount was effective February 14, 2020.

12The applicant obtained a subsequent attendant care report and Form-1 from Ariadna Randall, registered nurse, which recommended $3,006.62 in monthly attendant care on March 6, 2020. The respondent advised the applicant on March 31, 2020, that it did not agree to pay for the services recommended by Ms. Randall.

13On April 2, 2020, the applicant submitted an OCF-6 claiming $9,385.00 for attendant care services provided by his son, An Ya Huang, between January 25, 2020 and March 31, 2020. The respondent partially approved the OCF-6 in the amount of $870.91, and made a s. 33 request for his son’s resume and an explanation of why and how his son was providing more services than what was recommended by the occupational therapist. The respondent submits that the applicant has never complied with this request for information. The benefit was suspended on May 4, 2020 as a result.

14The applicant subsequently submitted various OCF-6s for the months of April to November 2020. All of the OCF-6s indicate that the applicant’s son provided 7 hours of attendant care per day at an hourly rate of $20.

Issue (i) – December 17, 2019 – December 18, 2019

15The applicant claims $286.00 for attendant care between December 17, 2019 and December 18, 2019. The respondent submits that the applicant has never submitted an OCF-6 for this time period. Although the applicant submits generally that he has incurred the attendant care expenses claimed, he has not provided me with any invoices, OCF-6s, or other evidence to prove that this amount was incurred. I accordingly find that the expense set out in issue (i) is not payable.

Issue (ii) to (x) – January 25, 2020 to November 30, 2020

16I note that the amount for issue (ii) listed in the Case Conference Report and Order, and listed by the applicant in his submissions, is different from the amount claimed in the OCF-6 submitted for this time period on April 2, 2020. No explanation has been provided. In any event, the OCF-6 and invoice before me is for $9,385.00, for the time period of January 25, 2020 to March 31, 2020. This represents 469 hours (7 hours per day) at $20 per hour, for attendant care services completed by his son, An Ya Huang. The respondent submits that it paid $870.91 for this time period, representing the $398.87 per month in attendant care recommended by Mr. Ho.

17Thereafter, the applicant provided OCF-6s from April 1 to November 30, 2020 for a total of $34,160.00. This also represents 7 hours per day at $20 per hour for services provided by his son.

18There is little information before me that would enable me to assess whether the applicant actually incurred the expenses claimed. The applicant has not made any submissions with respect to s. 3(7)(e), aside from simply stating that he has incurred the expense in accordance with the provisions of the Schedule. He has not identified whether his son falls under category A or B in s. 3(7)(e)(iii). He has not provided a resume, pay stub, or any other information regarding his son’s employment, occupation, or profession. In addition, he has not explained whether he paid or promised to pay his son pursuant to s. 3(7)(e)(ii).

19I find that the applicant has not met his onus in proving that the expenses claimed at issues (ii) to (x) were incurred, and they are accordingly not payable.

20To 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.

Issue (xi) - $4,383.90 for chiropractic treatment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on April 17, 2020

21I find that the applicant is not entitled to this treatment plan.

22The treatment plan proposed 16 sessions of chiropractic treatment, 16 sessions of acupuncture, 16 sessions of exercise, a reassessment, the preparation of a progress report, and transportation, and was authored by Dr. Palantzas, chiropractor. The goals of the treatment plan were pain reduction, increase in strength, increased range of motion, minimize compensatory strain, return to activities of normal living, and promote soft tissue healing.

23The applicant submits that he is entitled to this treatment plan because of “the weight of the medical evidence.” The respondent submits that the applicant has not produced the clinical notes and records of his family physician, or any other OHIP funded treatment provider, from December 19, 2019 to present. There is accordingly no contemporaneous medical evidence, aside from the treatment plan itself, to prove that it is reasonable and necessary. The respondent points out that Dr. Palantzas completed a progress report on February 19, 2020, the same date a new treatment plan was prepared (and subsequently approved). However, no progress report was completed after that block of treatment concluded, despite the respondent approving funding for one. The respondent submits that it cannot be expected to fund more of the same treatment without receiving an update on how the last round of treatment went.

24There is very little evidence before me to indicate whether the treatment was assisting the applicant, or to what degree. The applicant only visited his family physician once in December 2019, and he did not make any particular recommendations. The applicant was to follow up with a fracture clinic, but I do not have records from the fracture clinic before me.

25Derek Ho, s. 44 occupational therapist, assessed the applicant on January 27, 2020, and noted that therapy was one of the pain relievers for the applicant’s left ankle, bilateral legs, and lower back. The applicant advised Dr. Ho that he was approximately 60% better.

26However, Dr. Palantzas’ progress report from February 19, 2020, does not show this level of improvement, even after further treatment sessions. The applicant rated his neck pain and rib pain as moderate to severe, and his back, shoulder, elbow, hip, knee, and ankle pain as severe. This was the exact same level of pain as he described in the initial assessment on December 16, 2019.

27The respondent relies on 17-003906 v. The Guarantee Company of North America, 2018 CanLII 39446, stating that an applicant will not meet the “reasonable and necessary test” unless he can establish the effectiveness of ongoing treatment. I find this case persuasive. There is a lack of information before me with respect to the effectiveness of the treatment proposed by Dr. Palantzas. Even if the treatment provided the applicant with temporary pain relief, I do not have information with respect to how long that pain relief lasted for, or whether that pain relief assisted the applicant in being able to complete his activities of normal living.

28I find that the applicant has not met his onus in proving, on a balance of probabilities, that this treatment plan was reasonable and necessary at the time it was submitted.

Issue (xii) - $670.00 ($4,195.12 less the partially approved amount of $3,525.12) for physiotherapy treatment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on July 10, 2020

29I find that the applicant is not entitled to the balance of this treatment plan.

30The remaining portion of this treatment plan is for an initial assessment report, and transportation expenses. The respondent submits that as the applicant had been attending this clinic since December 16, 2019, it was not reasonable for the clinic to complete an initial assessment report at that point. In addition, it submits that the applicant’s home is 1.9 kilometres from the clinic, and the amount sought for transportation should not be approved because of the 50 kilometre deductible for transportation expenses in the Superintendent’s Guideline No. 04/16: Transportation Expense Guideline.

31The applicant did not make any submissions or direct me to any evidence in support of his position that the balance of this treatment plan is reasonable and necessary. Despite stating generally that all treatment has been incurred, there is no evidence before me that these particular expenses were incurred. As such, he has not met his onus in proving on a balance of probabilities that the balance is payable.

Issue (xiii) - $3,989.56 for physiotherapy treatment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on August 20, 2020

32I find that the applicant is not entitled to this treatment plan.

33The respondent approved 16 sessions of physiotherapy on July 23, 2020. The respondent denied this treatment plan because, at the time, there was insufficient rationale for why another set of 16 physical therapy sessions was warranted. The respondent requested additional information on August 13 and September 3, 2020. It requested records from the physiotherapist to better understand his prognosis and the progress made so far, as well as his functional recovery results, and advised the respondent that it would revisit the treatment plan after the information was made available. The respondent submits that this information was never received.

34Aside from generally mentioning “the weight of the medical evidence”, the applicant has not made any submissions regarding this treatment plan in particular. As I have also indicated above, there is a lack of information before me with respect to the effectiveness of the treatment proposed, for example, how it assisted in his pain relief or functional recovery. The applicant has accordingly not proven, on a balance of probabilities, that this treatment plan was reasonable and necessary around the time it was submitted.

Issue (xiv) - $45.00 for ambulance expenses, listed on an expense claim form (OCF-6) submitted on June 30, 2020

35I find that the applicant is not entitled to this expense.

36The applicant did not make any submissions regarding this expense, nor did he provide a copy of the OCF-6 in dispute. The respondent submits that the applicant has never produced the ambulance call report, ambulance invoice, or OCF-6, and therefore entitlement has not been proven. I agree.

Issue (xv) - $2,200.00 for a psychological assessment, recommended by Somatic Assessments and Treatment Clinic in a treatment plan submitted on January 10, 2020

37I find that the applicant is entitled to this treatment plan.

38The treatment plan is for a psychological assessment, for the purpose of determining the presence and extent of the applicant’s psychological injuries. The applicant ultimately underwent this assessment with Dr. Sharleen McDowall on May 12, 2021, and was diagnosed with Major Depressive Disorder with Anxious Distress, as well as Specific Phobia (Travel). Dr. McDowall recommended a course of cognitive behavioural therapy.

39The respondent submits that the treatment plan for this assessment contains incorrect information, and that the medical records from Scarborough Grace Hospital and the applicant’s family physician do not mention any psychological complaints.

40While there are limited records from the hospital and the applicant’s family physician, there are indications in other documents before me that the applicant was suffering from psychological symptoms that warranted further exploration. Raymond Wong, occupational therapist, assessed the applicant on December 13, 2019, and indicated that the applicant was in a very depressive mood, and was quite upset about the impact of the accident on his life. He recommended that the applicant should receive psychological counselling.

41Further, the respondent obtained its own psychological assessment with Dr. Johan Reis on February 5, 2022, who also diagnosed the applicant with Major Depressive Disorder, Mild, with anxious distress, and Specific Phobia, Situational (vehicular).

42I find that the errors in the treatment plan indicated by the respondent are relatively minor, and do not take away from the rest of the information included in it. Dr. McDowall indicated that the applicant was experiencing a number of psychological symptoms such as nightmares, sleep difficulties, anxiety, frustration, and avoidance behaviour. I find that it was entirely reasonable at the time to explore the applicant’s psychological condition further.

43I also find that the cost of the psychological assessment is reasonable, as it is within the monetary limit indicated in s. 25(5) of the Schedule. I accordingly find that the applicant is entitled to this assessment.

Issue (xvi) - $2,200.00 for an occupational therapy in-home assessment, recommended by Total Recovery Rehab Centre in a treatment plan submitted on April 8, 2020

44I find that the applicant is not entitled to this assessment.

45The respondent submits that this expense was incurred prior to the treatment plan being submitted, and in accordance with s. 38(2) of the Schedule, it is not required to pay for it. The treatment plan was submitted on April 8, 2020, and the respondent received the report on March 18, 2020.

46Pursuant to section 38(2), the respondent is not liable to pay for an expense in relation to a medical and rehabilitation benefit that was incurred before the applicant submits a valid treatment and assessment plan, barring four exceptions. This assessment does not fall into any of the four exceptions listed at s. 38(2).

47The applicant simply states that the assessment is payable because of his ongoing impairments, and that he should be provided an opportunity to explore and determine the presence and extent of his injuries. He does not address s. 38(2).

48Without any submissions to the contrary, I find that the respondent is not liable to pay for this assessment by virtue of s. 38(2).

Issue (xvii) - $3,981.88 for psychological counselling services, recommended by Somatic Assessments & Treatment Clinic, in a treatment plan dated May 17, 2021

Issue (xviii) - $16,712.81 for catastrophic determination assessments, recommended by Somatic Assessments & Treatment Clinic, in a treatment plan dated April 20, 2021

49On August 23, 2021, a motion was granted adding these issues to the hearing. However, the applicant did not address either of these issues in his submissions, nor did he list them as issues in dispute. I find that the applicant has not met his onus with respect to these treatment plans.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on any overdue benefits.

Award

51The 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. I find that the applicant is entitled to an award in the amount of $440.00.

52The Tribunal has found that unreasonable behaviour can be seen as behaviour that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The respondent submits that its denials were not unreasonable and cannot be the basis for an award.

53I do not agree with the respondent. I find that it was entirely unreasonable to maintain the denial of the psychological assessment, especially given that the respondent’s own assessor made virtually the same diagnoses. The respondent had the duty to continue to adjust the applicant’s claim fairly; instead of doing so, it ignored the evidence of its own assessor and maintained its denial. It behaved in a manner that was excessive, unyielding, and unreasonable.

54In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay.

55In this case, I accept the applicant’s submissions that the insurer ignored medical records, and that this type of conduct should be deterred. Despite making the claim that the applicant is vulnerable, he has not provided evidence of this, so that factor is not applicable. I have considered the factors and do not believe that the respondent’s behaviour attracts the full 50% maximum allowable under Reg. 664, however I find the need for deterrence persuasive. I accordingly find that $440.00 is an appropriate quantum for the award, plus interest pursuant to Reg. 664. This represents 20% of the unreasonably denied psychological assessment.

ORDER

57The applicant is entitled to $2,200.00 for a psychological assessment, recommended by Somatic Assessments and Treatment Clinic in a treatment plan submitted on January 10, 2020, plus any applicable interest pursuant to s. 51.

58The applicant is not entitled to the remaining treatment plans, attendant care expenses, or OCF-6 in dispute.

59The applicant is entitled to an award in the amount of $440.00, plus interest pursuant to Reg. 664.