Licence Appeal Tribunal File Number: 23-014378/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:
Meng Fei Wu
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Sareena Samra, Counsel
For the Respondent: Shari Hatfield, Counsel
HEARD: By way of written submissions
OVERVIEW
1Meng Fei Wu, the applicant, was involved in an automobile accident on June 24, 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, The Dominion of Canada 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 a non-earner benefit (“NEB”) of $185.00 per week from July 23, 2022 to November 27, 2023?
ii. Is the applicant entitled to $1,923.08 for physiotherapy services, proposed by Easy Health Centre (“EHC”) in a treatment plan/OCF-18 (“plan”) dated March 16, 2023?
iii. Is the applicant entitled to $1,407.20 ($3,701.74 less $2,294.54 approved) for psychological therapy services, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated November 24, 2022?
iv. Is the applicant entitled to $1,047.34 ($3,701.88 less $2,654.54 approved) for psychological therapy services, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated April 13, 2023?
v. Is the applicant entitled to $1,047.34 ($3,701.88 less approved $2,654.54) for psychological therapy services, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated August 14, 2023?
vi. Is the applicant entitled to $1,047.34 ($3,701.88 less $2,654.54 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated February 14, 2024?
vii. Is the applicant entitled to $22.24 for medication, submitted on a claim form (OCF-6) dated July 7, 2022?
viii. Is the applicant entitled to $57.66 for medication, submitted on a claim for (OCF-6) dated January 16, 2023?
ix. Is the applicant entitled to $52.84 for medication, submitted on a claim for (OCF-6) dated February 13, 2023?
x. Is the applicant entitled to interest on any overdue payment of benefits?
xi. Is the respondent liable to pay an award under section 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant is not entitled to a NEB of $185.00 per week from July 23, 2022 to November 27, 2023.
4The applicant is not entitled to the OCF-18 for physiotherapy services in a plan dated March 16, 2023.
5The applicant is not entitled to the outstanding balance of the remaining OCF-18s.
6The applicant is not entitled to the OCF-6s.
7The applicant is not entitled to interest.
8The respondent is not liable for an award.
ANALYSIS
Is the applicant entitled to a NEB?
9I find the applicant has not met her burden to prove her entitlement to a NEB.
10Section 12(1) of the Schedule provides that an insurer shall pay a 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) of the Schedule 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 (“Heath”), which generally focusses on a comparison of an applicant’s pre- and post-accident activities.
11The applicant submits she suffered injuries to her shoulder, lower back and neck, as well as psychological impairments that affect her daily activities. The applicant submits she is not engaging in her pre-accident activities. The applicant relies on the OCF-3/Disability Certificate completed by Mr. Santhosh Michael, physiotherapist, the clinical notes and records (“CNRs”) of Dr. Luke Cui, family physician, Dr. Shuo Xiang, psychiatrist, and the section 25 psychological assessment report prepared by Dr. Sharleen McDowall, psychologist, and the section 25 occupational therapy in-home assessment report prepared by Mr. Raymond Wong, occupational therapist.
12In the OCF-3 dated July 14, 2022 in “Part 6 Disability Tests and Information”, “Yes” was selected to indicate the applicant has suffered a complete inability to carry on a normal life with soft tissue injuries listed as a result of the accident. In the OCF-3, the applicant indicated she was not working at the time of the accident, she was not a primary caregiver, and she was not enrolled in an educational program. The recovery time is indicated as 9 – 12 weeks and lists soft tissue injuries. However, I was not directed to evidence of how these impairments result in a complete inability to carry on a normal life in accordance with the Heath factors.
13I have also reviewed the CNRs of the family doctor, Dr. Cui, and Dr. Xiang and find they do not establish a complete inability to lead a normal life as a result of the accident. The CNRs reveal a pre-accident history with chronic pain in the left shoulder, lower back, and knees, and schizophrenia that may be in remission, sleep disturbances, anxiety and depression. The Emergency Room notes from Trillium Health Partners at the time of the accident note her accident-related injuries as “soft tissue injury” with no restrictions or limitations to daily activities noted.
14The section 25 psychological assessment dated October 31, 2022, prepared by Dr. McDowall, states the applicant’s pre-accident activities include working full-time, exercising, maintaining her household, and socializing. Dr. Xiang’s CNRs state after the accident the applicant was unable to work, could no longer exercise, stopped driving and diagnosed the applicant with major depressive disorder with anxious distress and phobia. I find the section 25 psychology report and Dr. Xiang’s CNRs are inconsistent with the OCF-3 that states the applicant was not working full or part time at the time of the accident. In my view, this inconsistency does not support the applicant’s position that her accident-related impairments have resulted in a complete inability to carry on a normal life.
15The section 25 occupational therapy report dated November 4, 2022 states the applicant was independent in her pre-accident activities such as her self-care and she was responsible for household duties such as cleaning of bathroom and kitchen space, laundry and changing of linens. Mr. Wong states that post-accident these activities “make her feel fatigued.” In my view, this does not meet the threshold of a complete inability to carry on a normal life in accordance with the Heath factors.
16The respondent submits the applicant does not suffer a complete inability to carry on a normal life and that her shoulder, lower back and neck pain are pre-existing conditions. The respondent argues that the applicant was not engaged in pre-accident social, or volunteering activities and she continues to perform her pre-accident activities of daily living. The respondent relies on the section 44 insurer’s examinations dated November 4, 2022, prepared by Dr. Alfonse Marchie, physiatrist, Dr. Jonathan Siegel, psychologist, and Ms. Gitta Ankomah, occupational therapist.
17I have reviewed each of the section 44 reports and the applicant self-reported that she was not working and her pre-accident activities included walking in her backyard, no time spent on household duties, or the gym, she did not engage in volunteer activities socially or with any religious organization, nor did she disclose any hobbies. I find this is inconsistent with the OCF-3, as discussed above, and she is able to engage in her pre-accident activities such as walking in her backyard.
18Dr. Marchie’s section 44 physiatry assessment notes “I do not believe the claimant has sustained an impairment that continuously prevents her from engaging in substantially all activities engaged before the accident.” In addition to this, Ms. Ankomah’s section 44 occupational therapy assessment notes the applicant demonstrates adequate abilities to complete the majority of her pre-accident tasks and “she does not suffer a complete inability to carry on a normal life”.
19In Dr. Siegel’s section 44 psychology assessment the applicant also self-reported that she was not working. The applicant states her pre-accident activities include sleeping and browsing on her mobile phone. Dr. Siegel notes the applicant’s post-accident activities include independent self-care, and cleaning but only for limited periods possibly due to pain restrictions in her arms and her legs, that is, pain from her previous accidents. Dr. Siegel notes the applicant does not have a substantial psychological disability as a direct result of the accident that would prevent her from engaging in substantially all of the activities which she was performing prior.
20In my view, the applicant is engaging in her pre-accident activities, such as walking in her backyard, sleeping, browsing on her mobile phone, and she remains independent with her self-care routines. I am not persuaded by the applicant’s evidence that suggests a change in her ability to engage in a normal life, nor do her submissions support her entitlement to the benefit under Heath.
21In my view, the applicant’s self-reporting is not consistent, and this is demonstrated in the OCF-3, the section 25 psychology report, and the section 44 insurer’s examination reports. I find the applicant has not demonstrated how her pre- and post-accident activities were impacted or if her accident-related injuries affected her ability to engage in these activities.
22I find the applicant’s reports are outweighed by the section 44 insurer’s examination reports that include the applicant’s disclosure that she was not working prior to this accident and in a comparison of her pre- and post-accident life she has not demonstrated that she suffered a complete inability to carry on a normal life in the majority of her pre-accident activities of daily living.
23I assign more weight to the section 44 reports because these reports are corroborated by her family doctor. The family doctor’s CNRs and the section 44 assessments establish that her injuries are from a previous accident, and she has not suffered a complete inability to carry on normal a life as a result of her injuries from this accident. I find the applicant was inconsistent in the reporting of her pre-accident activities, and she has not demonstrated how her injuries prevent her from engaging in the majority of her pre-accident activities. In my view, based on the findings of Dr. Marchie, Ms. Ankomah and Dr. Siegel, she is able to engage in the majority of her pre-accident activities of daily living.
24In sum, I find the applicant has not suffered a complete inability to carry on a normal life and is therefore not entitled to a NEB.
25I find on a balance of probabilities that the applicant is not entitled to a NEB.
26To receive payment for an OCF-18 under sections 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 the 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 the treatment plan in the amount of $1,923.08 for physiotherapy services
27I find on a balance of probabilities the applicant has not demonstrated the physiotherapy services treatment plan is reasonable and necessary. The applicant is not entitled to the disputed treatment plan for physiotherapy services.
28The physiotherapy treatment plan dated March 16, 2023 prepared by Mr. Santhosh Michael, physiotherapist, intends to address whiplash, sprain and strain of thoracic spine, ribs and sternum, lumbar spine, shoulder joint, hip, sacroiliac joint, injury of muscle and tendon at forearm, cervicalgia, low back, myalgia, headache, and PTSD. The provider proposed sixteen sessions including eight sessions for physical rehabilitation, and eight sessions for therapy at multiple unspecified body sites, over a period of four weeks. The goals for this plan are pain reduction, increased range of motion, increase in strength, and return to activities of daily living. The provider notes progress will be evaluated through objective range of motion testing and the subjective visual analogue scale testing.
29The applicant submits the physiotherapy treatment plan has been incurred and it is reasonable and necessary because the applicant has not achieved her pre-accident aspect of daily living. The applicant relies on the CNRs of Trillium Health Emergency and Dr. Cui, family doctor, and the section 25 occupational therapy report prepared by Mr. Wong.
30Dr. Cui, family doctor, notes in July and December 2022 that the applicant’s accident-related injuries are neck, back and shoulder pain, and this is consistent with the Emergency Room CNRs. The family doctor’s CNRs note the MRI, CT head scan, CT spine scan, and an x-ray show there was no acute abnormality, injury or fracture resulting from the accident and there is no recommendation for physiotherapy. Also, the section 25 report does not recommend physiotherapy treatment for her injuries. Based on the evidence, the applicant’s physiotherapy treatment plan is not supported by the CNRs.
31The respondent submits the applicant failed to meet her onus as to why this treatment plan is reasonable and necessary. The respondent relies on the section 44 insurer’s examination report prepared by Dr. Marchie. The respondent argues the applicant would not benefit from further clinic-based rehabilitation treatment.
32Dr. Marchie’s report suggests the applicant has experienced pain resulting from the accident, and the re-aggravation of injuries sustained from previous accidents. However, Dr. Marchie opines that the physiotherapy treatment is not reasonable and necessary from a musculoskeletal perspective in the case of her soft tissue injuries. I place weight on this because it is consistent with the CNRs of the family doctor calling into question what benefit this treatment plan could provide for the applicant.
33I find on a balance of probabilities the treatment plan in dispute for physiotherapy services is not reasonable or necessary.
The applicant is not entitled to the unapproved amount of $1,407.20 ($3,701.74 less $2,294.54 approved) for psychological services dated November 24, 2022
34I find the applicant is not entitled to the unapproved amount of $1,407.20 for the treatment plan for psychological services.
35The treatment plan for psychological services dated November 24, 2022 prepared by Dr. McDowall was partially approved by the respondent. At issue is the remaining $1,407.20 for brokerage, planning, and documentation.
36The applicant submits the treatment plan for psychological services is reasonable and necessary and the insurer has withheld all payments towards these treatments. However, the insurer has not withheld all payments. In a letter dated December 1, 2022, this treatment was partially paid in the amount of $2,294.54. In her submission, the applicant has not addressed her entitlement to the outstanding amount for the brokerage and planning service, or the additional documentation services that total $1,407.20.
37The respondent submits the applicant has not met her onus and the treatment plan was partially approved in a letter dated December 1, 2022 in the amount of $2,294.54, including the therapy sessions and documentation fees. The respondent did not approve the brokerage, planning, and documentation/support activity in accordance with the FSCO Professional Fee Guideline. The FSCO Professional Fee Guideline states, “Insurers are not liable for any administrative or other costs … that have the result of increasing the effective hourly rate.” The respondent notes these charges are administrative in nature and not payable.
38The applicant is silent on the outstanding charges and has not directed me to evidence that these charges are not administrative.
39I find on a balance of probabilities that the applicant is not entitled to the remaining amount of $1,407.20.
The applicant is not entitled to the unapproved amount of $1,047.34 ($3,701.88 less $2,654.54 approved) for psychological services dated April 13, 2023
40I find the applicant is not entitled to the unapproved amount of $1,047.34 for the treatment plan for psychological services.
41The treatment plan for psychological services dated April 13, 2023 prepared by Mr. Raymond Wang, occupational therapist, was partially approved by the respondent. At issue is the hourly rate outlined in the FSCO Professional Fee Guideline for the remaining therapy sessions that were not approved. The insurer approved 1-hour sessions and the $1,047.34 is for the additional treatment time for the psychological therapy treatment sessions.
42The applicant submits the treatment plan for psychological services dated April 13, 2023 is reasonable and necessary. The applicant relies on the CNRs of Dr. Cui, family physician, and her visits in July 2022 and August 2022 where the family doctor notes the applicant complained of “frequent panic attacks and anxiety” due to the accident. However, I find the CNRs do not establish that the additional treatment is reasonable or necessary for the applicant.
43The respondent states the remainder of the sessions “appear to be excessive and not supported by way of objective and clinical documentation.” The respondent relies on ML v. Zenith Insurance Company, 2020 CanLII 34474 (ON LAT) and P.K. v. Aviva Insurance Canada, 2020 CanLII 14478 (ON LAT).
44The respondent submits that in P.K. v. Aviva and in ML v. Zenith the adjudicator determined psychological treatment should be billed at the per-hour rate. The distinguishing feature here is that the applicant’s treatment plan is not ambiguous in the duration of the sessions, whereas in P.K. v. Aviva and in ML v. Zenith the dispute was regarding the lack of clarity with respect to the length of the treatment session.
45I place more weight on the family doctor’s CNRs because it notes the applicant’s self-reported psychological symptoms, however, I am not persuaded the remaining sessions are reasonable and necessary because, in my view, a singular self-reported complaint in the family doctor’s CNRs do not establish the need for additional treatment.
46I find on a balance of probabilities that the unapproved psychological services are not reasonable and necessary, and the applicant is not entitled to $1,047.34 for psychological services in the treatment plan dated April 13, 2023.
The applicant is not entitled to the unapproved amount of $1,407.34 ($3,701.88 less $2,654.54 approved) for psychological services dated August 14, 2023
The applicant is not entitled to the unapproved amount of $1,407.34 ($3,701.88 less $2,654.54 approved) for psychological services dated February 14, 2024
47I find the applicant is not entitled to the unapproved amounts of $1,407.34, for each of the treatment plans for psychological services.
48The treatment plans for psychological services were prepared by Mr. Raymond Wong, occupational therapist, and partially approved by the respondent based on the section 44 insurer’s examination report prepared by Dr. Siegel. The respondent’s letters dated November 17, 2023 and February 26, 2024 notified the applicant the treatment plan was partially reasonable and necessary and partially approved $2,654.54 for each treatment plan leaving $1,407.34 in dispute. At issue is the remaining $1,407.34 for the additional time of the psychological therapy sessions in each of the disputed plans.
49The applicant submits the treatment plans for psychological services are reasonable and necessary because the respondent failed to reassess the claims as new information became available. The applicant relies on the psychological counselling and session reports, the section 25 psychological assessment report prepared by Mandy Feng, psychotherapist, supervised by Dr. Sharleen McDowall, psychologist, dated October 31, 2022, and the CNRs of Dr. Cui, family doctor.
50I find the section 25 psychological assessment report dated October 31, 2022 is not supported by the CNRs of the family doctor because the applicant complained of accident-related anxiety one time in August 2022. The family doctor’s CNRs also note the applicant was diagnosed with sleep disturbances, anxiety/depression, and schizophrenia prior to the accident in June 2022. The applicant did not direct me to accident-related medical evidence that note her psychological complaints or that warrant additional treatment.
51The respondent relies on the section 44 insurer’s examination psychological report prepared by Dr. Siegel, dated November 10, 2023. Dr. Siegel notes the applicant’s psychological treatment sessions are one hour in length, and not 90 minutes in duration as stated in the treatment plan.
52I find the family doctor’s CNRs are not supportive of the remaining treatment because the applicant self-reported accident-related sleep disturbance and anxiety in August 2022, that was over a year before these treatment plans were submitted. In my view, the family doctor’s CNRs do not support the need for the additional treatment time.
53As the medical evidence before me does not support the need for the additional psychological treatment sessions, I find the applicant has not met her burden.
54I find on a balance of probabilities the applicant is not entitled to the remaining amount of psychological therapy sessions in the amount of $1,407.34 submitted August 14, 2023, and $1,407.34 submitted February 14, 2024.
The applicant is not entitled to the OCF-6 in the amount of $22.24
The applicant is not entitled to the OCF-6 in the amount of $57.66
The applicant is not entitled to the OCF-6 in the amount of $52.84
55I find the applicant has not established entitlement to the OCF-6 for the cost of prescribed medicines.
56The applicant states the prescribed medication is required to manage her ongoing accident-related symptoms that the applicant summarized include chronic pain in her neck, shoulders, lower back, anxiety, depression, and schizophrenia. The applicant relies on the family doctor’s CNRs.
57The respondent submits that the OCF-6 for $22.24 was not submitted, the OCF-6 for $57.66 was denied in a letter dated January 27, 2023 because it was for asthma and cough medication and that it is not accident-related, and the OCF-6 for $52.84 was denied in a letter dated March 1, 2023 because the receipt is illegible and the applicant did not follow up with the insurer’s request for a clear copy of the receipt.
58The family doctor’s CNRs note the prescription was for another illness and not accident related. In my view, the CNRs do not support the applicant’s claim that the prescriptions are required as a result of the accident or her accident-related impairment.
59The applicant has not directed me to evidence of the OCF-6 for $22.24 being submitted to the insurer. The applicant’s OCF-6 for $57.66 is for two medicines, one for $39.01 for asthma and the other for $18.65 for cough suppressant that are not as a result of the accident. The applicant has not directed me to evidence of a clear copy of the receipt for the OCF-6 in the amount of $52.84.
60As such, I find that the applicant has not met her burden of proof to demonstrate the cost of these prescribed medications is reasonable and necessary.
Are the respondent’s denial letters compliant with section 38(8) of the Schedule?
61I find the explanation of benefits are compliant with section 38(8) of the Schedule.
62Under section 38(8), an insurer has the obligation to, within ten business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary.
63The applicant submits the denials for treatment from the respondent did not provide reasonable explanation of why they refused to pay for the benefit and proposed treatments. However, the applicant did not explain what the error in the letters was, and the applicant did not direct me to any particular letters from the respondent that support the applicant’s claim.
64The respondent is silent on this matter; however, I find the explanation of benefits submitted by the respondent dated August 2, 2022 to February 26, 2024 are compliant with section 38(8) of the Schedule because each letter clearly refers to the applicant’s impairments, the specific treatment plan, and provides sufficient reason for the denials, and it allows an unsophisticated person to understand the denial and make an informed decision.
65Accordingly, I find the applicant has not established that the treatment plans in dispute are payable.
Interest
66As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
Award
67The applicant sought an award under section 10 of Reg. 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
68The applicant submits the insurer’s denials were not reasonable and the insurer acted in a “high-handed manner.”
69The respondent submits that payments were not withheld or delayed and that there is no basis for an award.
70I find that the applicant has not led evidence to demonstrate that the respondent’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The respondent partially approved treatment plans and did not withhold payments. The respondent is not liable to pay an award.
71I find the applicant has not met the threshold to demonstrate the respondent’s behaviour merits an award.
ORDER
72The applicant is not entitled to a NEB of $185.00 per week from July 23, 2022 to November 27, 2023.
73The applicant is not entitled to the OCF-18 for physiotherapy services in a plan dated March 16, 2023.
74The applicant is not entitled to the outstanding balance of the remainder of the OCF-18s.
75The applicant is not entitled to the OCF-6s in dispute.
76As there are no overdue benefits, the applicant is not entitled to interest.
77The respondent is not liable to pay an award.
78The application is dismissed.
Released: December 8, 2025
Aric Bhargava
Adjudicator