Licence Appeal Tribunal File Number: 23-013651/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:
Yuan Tong Ma
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Ryan Olson, Paralegal
For the Respondent: Alexander Dos Reis, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Yuan Tong Ma, the applicant, was involved in an automobile accident on February 27, 2022, 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, Co-operators General Insurance Company, 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 an income replacement benefit (“IRB”) in the amount of $298.41 per week from March 6, 2022 to date and ongoing?
ii. Is the applicant entitled to $4,389.56 for physiotherapy services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted June 13, 2022?
iii. Is the applicant entitled to $1,861.72 ($3,701.74 less $1,840.02 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan submitted April 19, 2023?
iv. Is the applicant entitled to $1,221.78 ($3,701.88 less $2,480.10 approved) for psychological services, proposed by Somatic Assessment and Treatment Clinic in a plan submitted July 14, 2023?
v. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessment and Treatment Clinic in a plan submitted December 12, 2023?
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?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an IRB.
4The applicant is not entitled to the treatment plans for physiotherapy services or psychological services.
5The applicant is not entitled to the outstanding amounts owing for the treatment plans for psychological services.
6The applicant is not entitled to interest or an award.
ANALYSIS
The applicant is not entitled to an IRB
7The applicant seeks an IRB in the amount of $298.14 per week for the period of March 6, 2022 to date and ongoing, which covers both periods of pre- and post-104-weeks after the accident.
a) Pre-104 Week IRB
8I find that since the applicant has not identified his pre-accident job, I cannot determine the essential tasks, and therefore, he is unable to meet his onus.
9To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which asks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
The applicant submits that he meets the test for an IRB, however, he has not identified the name of his employer or the essential tasks of his pre-accident employment. The applicant submits that his pain symptoms and cognitive symptoms of having a temper interacting with people limit him to a part-time job at a yogurt shop.
10The applicant relies on a Disability Certificate (“OCF-3”) dated March 3, 2022, completed by Dr. Richard Tavares, chiropractor; a psychological report dated March 27, 2023, by Dr. Sharleen McDowall, psychologist; and an OCF-18 dated June 13, 2023, by Ahmed Afifi, physiotherapist. The applicant also relies on the clinical notes and records (“CNRs”) of Dr. Heung Wing Li, family physician, which indicate on March 15, 2022, that he has neck and low back pain aggravated by long hours of standing at work. The applicant submits that he is unable to perform prolonged sitting, standing, walking, lifting and carrying tasks. However, the applicant does not provide another description of these essential tasks, or the reason he is unable to perform them. In addition, Dr. McDowall indicates in her report that the applicant has returned to work as a bartender.
11The respondent submits that the applicant was working as a kitchen helper at Dalong Restaurant at the time of the accident. The respondent submits that the duties of the applicant’s pre-accident employment involved food preparation for the chef. The respondent further argues that the applicant changed jobs on August 20, 2022, to work at a yogurt shop, and later, he started working as a bartender on March 7, 2023. The respondent further submits that the applicant has not produced the complete employment files from all his employers from one year pre-accident to date to determine his entitlement to an IRB.
12The respondent submits that the applicant has not met his onus to prove that he is substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident. The respondent submits that it denied benefits by letter dated October 30, 2022, based on Insurer Examination (“IE”) reports dated October 6, 2022, by Dr. Alfonse Marchie, physiatrist and Dr. Shulamit Mor, psychologist. The respondent submits that both Dr. Marchie and Dr. Mor concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment, and he has been working at a yogurt shop since August 20, 2022.
13I find that the applicant has not met his burden or produced evidence that indicates he has suffered a substantial inability to perform the essential tasks of his employment as a kitchen helper in a hot pot restaurant within 104 weeks after the accident. The applicant makes no submissions regarding the name of his employer or the duties of his pre-accident employment. I further find that the applicant has returned to work in a yogurt shop and as a bartender.
14I find that the applicant does not make any submissions in support of the essential tasks of his pre-accident employment before the accident. Even if I were to accept that he was working in a restaurant and his essential duties involved prolonged standing and multitasking, the applicant has not set out the reasons he is unable to perform these duties after the accident, and he has returned to work at a similar job in a yogurt shop and as a bartender.
15As a result, I find on a balance of probabilities that the applicant has not met his burden of establishing entitlement to an IRB.
b) Post-104 Weeks IRB
16For the reasons set out below, I find the applicant is not entitled to post-104-week IRBs.
17The applicant is claiming entitlement to an IRB post-104 weeks after the accident for the period from February 27, 2024 to date and ongoing. The applicant does not address how he has a complete inability to engage in any employment or self-employment for which he is suited by education, training or experience as a result of the accident. Therefore, I find that the applicant has not demonstrated entitlement to an IRB under s.6 of the Schedule.
18To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
19The applicant does not address the question of whether he satisfies the test for post-104-weeks IRBs in his submissions, and instead, focusing on the merits of his pre-104-week claim only. Therefore, the applicant has not demonstrated how he can discharge his onus. I find that his submissions on his pre-accident employment are not directly relevant to the question of whether the applicant has a complete inability to engage in any employment or self-employment for which he is suited by reason of education, training or experience. The applicant has not provided information or evidence to support his education, training or previous work experience such that he would be unable to work as a result of his accident-related impairments.
20The respondent submits that since the applicant returned to work in a yogurt shop on August 20, 2022, and later as a bartender on March 7, 2023, he does not meet the test for either pre-104 or post-104-week IRB entitlement. The respondent further submits that the applicant has not provided employment files, requested under s. 33 to determine whether he was off work after the accident.
21The respondent submits that the evidence suggests that the applicant is able to return to work because there is no medical evidence in support of his inability to return to work as a result of the accident. The respondent further submits that Dr. Marchie and Dr. Mor concluded that the applicant’s accident-related injuries do not prevent him from returning to work.
22I find that the applicant has not met his burden of proving on a balance of probabilities that he has a complete inability to engage in any employment for which he is suited by reason of education, training or experience. As a result, the applicant has not established on a balance of probabilities that he is entitled to an IRB under the post-104-week test from February 27, 2024 to date and ongoing. I find that since the applicant has not met his burden to establish entitlement to a post-104-week IRB, it is not necessary to determine the quantum.
23To receive payment for a treatment plan (OCF-18) 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. 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 same are reasonable.
Issue #2- Plan for physiotherapy services at UHeal Rehab Centre in the amount of $4,389.56
24I find that the applicant is not entitled to physiotherapy services because the medical evidence does not support that further therapy is reasonable and necessary for the applicant’s accident-related injuries.
25The applicant seeks payment for a plan dated June 13, 2022, in the amount of $4,389.56 for physiotherapy services, submitted by Ahmed Afifi, physiotherapist of UHeal Rehab Centre. The plan consists of 16 two and one half-hour sessions for physical rehabilitation, with provider travel time, documentation support activity, and completion of the OCF-18. The goals of the plan are for pain reduction, increase strength and range of motion (“ROM”), and return to activities of daily living.
26The applicant submits that he is entitled to the proposed plan because he continues to suffer from pain symptoms years after the accident. The applicant relies on the CNRs of Dr. Heung Wing Li; a pre-screen report dated March 7, 2022, by Bruce Cook, psychological associate; a psychological report dated March 27, 2023, by Dr. Sharleen McDowall, psychologist, and his self-reports of pain in his neck, shoulder, low back, knee and ankle. The applicant argues that the disputed plan for physiotherapy services is reasonable and necessary for pain reduction and to improve his functional abilities. The applicant further submits that the IE report by Dr. Marchie does not address whether the applicant has achieved pain relief with treatment, and his report should not be given any weight.
27The respondent submits that the applicant has not provided medical evidence in support of the disputed plan. The respondent relies on the IE report of Dr. Marchie, in which Dr. Marchie found that the applicant sustained uncomplicated soft tissue injuries, and there is no benefit from further passive therapy. Therefore, Dr. Marchie concluded the plan is not reasonable and necessary.
28I find that the applicant has not met his onus to establish how the proposed plan for physiotherapy services is reasonable and necessary. The applicant relies on the CNRs of Dr. Li which indicate on March 15, 2022, that he was working, and his injuries were aggravated in a subsequent accident on December 11, 2023. I find that the applicant did not make submissions or provide medical evidence to explain how his condition is affected by his subsequent motor vehicle accidents occurring on December 11, 2023, and March 3, 2024, or the reasons physical rehabilitation is reasonable and necessary.
29I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plan for physiotherapy services for his accident-related injuries.
Issue #3- Plan dated April 19, 2023 for the outstanding amount of $1,861.72
30I find that the applicant has not established that the outstanding balance of the plan dated April 19, 2023 is payable.
31Under s.25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No.03/14 (“Guideline”).
32The April 19, 2023 plan sought 14 one-hour sessions of mental health therapy, with documentation support activity, planning and brokerage services in the amount of $3,701.74. The respondent partially approved the treatment plan in the amount of $1,840.02 for 14 one-hour sessions at a rate of $91.43, plus the cost of completion of the OCF-18 for $200.00 and documentation support activity for $360.00. The respondent denied the proposed rate of $149.61 per hour for fourteen 1-hour sessions and paid a rate of $91.43 per hour for 14 one-hour sessions with treatment provider, Bohan Zhang, psychotherapist; and 3.5 hours each for brokerage services and planning services. The outstanding amount of $1,861.72 consisted of:
i. Psychotherapist – the difference between a rate of $149.61 per hour and $91.43 per hour for fourteen, 1.5-hour sessions, totaling $814.52;
ii. Brokerage services – 3.5 hours at a rate of $149.61 per hour at 0.25 hour each, totalling $523.60, and;
iii. Planning services – 3.5 hours at a rate of $149.61 per hour, at 0.25 hour each, totaling $523.60.
Psychotherapist rate
33I find that the applicant has not established how the hourly rate of the treatment provider, Bohan Zhang, who is a psychotherapist, should be equivalent to a psychologist, and therefore, payable at the maximum rate of $149.61 per hour.
34The applicant submits that the services of Bohan Zhang are the same or similar to a psychologist on the basis of his degree in Counselling Psychology, and his experience in cognitive behavioural therapy, and are therefore payable at the proposed rate of $149.61 per hour.
35The respondent submits that the applicant has not provided any evidence that Bohan Zhang has an advanced degree in psychology, or that he has expertise in providing cognitive behavioural therapy.
36The respondent submits that it paid a fair rate of $91.43 per hour for Bohan Zhang, as a psychotherapist, since the hourly rate of a psychotherapist is not payable at the same rate of a psychologist, which it argues is fair under the circumstances for the services of an unregulated health care professional.
37I find that the qualifications of Bohan Zhang as indicated on the plan is a psychotherapist, and there is no evidence that he has a degree in psychology. I also find that there is no evidence that Bohan Zhang has the same expertise as a psychologist.
Brokerage services
38I find that the applicant has not made any submissions to establish that the outstanding amount for brokerage services of $523.60 is reasonable and necessary.
39I agree with the respondent that the applicant has not provided an explanation for the additional brokerage services beyond the amounts which have already been paid. There is no explanation to distinguish between the additional time of 3.5 hours for brokerage services where the respondent had already approved documentation support activities for $200.00.
40Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $548.40 for brokerage services of the April 19, 2023 plan.
Planning services
41I find that the applicant has not made any submissions to establish that the outstanding amount for planning services of $523.60 is reasonable and necessary.
42I agree with the respondent that the applicant has not provided an explanation for the additional planning services beyond the amounts which have already been paid.
43Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $523.60 for planning services of the April 19, 2023 plan.
Issue #4 – Plan dated July 14, 2023 for the outstanding amount of $1,221.78
44I find that the applicant has not established that the outstanding balance of the OCF-18 dated July 14, 2023 is payable.
45The July 14, 2023 plan sought 14 one and a half-hour sessions of mental health therapy, with documentation support activity, planning and brokerage services in the amount of $3,701.88. The respondent partially approved the treatment plan in the amount of $2,480.10 for 14 one and a half-hour sessions at a rate of $91.43, plus the cost of completion of the OCF-18 for $200.00 and documentation support activity for $360.00. The respondent denied the proposed rate of $149.61 per hour for 14 one and a half-hour sessions and paid a rate of $91.43 per hour for 14 one and a half-hour sessions with treatment provider, Bohan Zhang, psychotherapist. The outstanding amount of $1,221.78 consists of the difference between a rate of $149.61 per hour and $91.43 per hour for 14 one and a half- hour sessions.
46The applicant submits that the services of Bohan Zhang are the same or similar to a psychologist on the basis of his degree in Counselling Psychology, and his experience in cognitive behavioural therapy, and are therefore payable at the proposed rate of $149.61 per hour.
47The respondent submits that the applicant has not provided any evidence that Bohan Zhang has an advanced degree in psychology, or that he has expertise in providing cognitive behavioural therapy.
48The respondent submits that it paid a fair rate of $91.43 per hour for Bohan Zhang, as a psychotherapist, since the hourly rate of a psychotherapist is not payable at the same rate of a psychologist, which it argues is fair under the circumstances for the services of an unregulated health care professional.
49I find that the qualifications of Bohan Zhang as indicated on the plan is a psychotherapist, and there is no evidence that he has a degree in psychology. I also find that there is no evidence that Bohan Zhang has the same expertise as a psychologist.
50I find that the applicant has not established how the hourly rate of the treatment provider, Bohan Zhang, who is a psychotherapist, should be equivalent to a psychologist, and therefore, payable at the maximum rate of $149.61 per hour.
Issue #5 – Plan dated December 12, 2023 for psychological services in the amount of $3,701.88
51I find that the applicant is not entitled to psychological services because the medical evidence suggests that further treatment is not reasonable and necessary for his accident-related psychological impairments.
52The applicant seeks payment for a plan dated December 12, 2023, in the amount of $3,701.88 for psychological services, submitted by Raymond Wong, physiotherapist of Somatic Assessments and Treatment Clinic. The plan consists of 14 one and one half-hour sessions for mental health therapy, at a rate of $149.61 per hour, with documentation support activity, and completion of the OCF-18. The goals of the plan are to challenge and reduce negative thought patterns by utilizing cognitive restructuring techniques to deal with anxiety and depressive feelings and cognitions and return to activities of daily living.
53The applicant submits that he is entitled to the proposed plan because he continues to suffer from depression and anxiety. The applicant relies on the report of Dr. McDowall; the IE report of Dr. Mor; and progress reports dated June 15, 2023, and November 8, 2023, by Bohan Zhang. The applicant argues that the disputed plan for psychological services is reasonable and necessary for his diagnoses of major depressive disorder and specific phobia by Dr. McDowall, and his diagnosis of adjustment disorder by Dr. Mor. The applicant argues that he has improved with psychotherapy. The applicant further submits that the IE report by Dr. Margolese should be given little or no weight, because she recommends psychotropic medication given his minimal progress with psychotherapy.
54The respondent submits that the disputed plan for psychological services is not reasonable and necessary. The respondent submits that Bohan Zhang indicates in his progress reports that the applicant has made very little progress with psychological therapy. The respondent relies on the IE report dated April 19, 2024, by Dr. Ellen Margolese, psychiatrist, in which Dr. Margolese opined that the applicant’s psychological symptoms are attributed to an adjustment disorder related to childhood abuse. Dr. Margolese further concludes that the applicant’s symptoms were aggravated by two subsequent accidents occurring on December 11, 2023 and March 3, 2024. Therefore, Dr. Margolese concluded the plan is not reasonable and necessary.
55I find that the applicant has not met his onus to establish how the proposed plan for psychological services is reasonable and necessary. I find that Dr. McDowall relied on the applicant’s self-reports of anger, depression and cognitive decline, and she indicates in her report that the applicant had no pre-existing psychological difficulties. I find that both Dr. Mor and Dr. Margolese diagnosed the applicant with adjustment disorder due to exacerbated childhood abuse. However, Dr. Margolese also indicates that the applicant has not improved with psychological treatment, and his condition has been further aggravated by two subsequent accidents after the date of Dr. Mor’s report, raising an issue of causation.
56I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plan for psychological services for his accident-related injuries.
The applicant is not entitled to interest and an award
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits have been unreasonably withheld or delayed, there is no interest payable.
58Under 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.
59Since the applicant isn’t owed any benefits, there is no basis for an award.
ORDER
60For the reasons stated above, I find that:
i. The applicant is not entitled to an IRB.
ii. The applicant is not entitled to the treatment plans for physiotherapy services and psychological services, nor the outstanding amounts of the treatment plans for psychological services in dispute.
iii. The applicant is not entitled to interest, or an award.
iv. The application is dismissed.
Released: October 23, 2025
Lisa Holland
Adjudicator