Licence Appeal Tribunal File Number: 24-000925/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:
Cheng Cheng Ren
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Leo Demarce
APPEARANCES:
For the Applicant:
Anil Hampole, Counsel
For the Respondent:
Elisa Cogan, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Cheng Cheng Ren, the applicant, was involved in an automobile accident on November 23, 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, Unifund Assurance 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 $1,190.53 ($1,417.64 less $227.11 approved) for physiotherapy services, proposed by Easy Health Centre in a treatment plan/OCF-18 (“plan”) submitted April 10, 2023?
ii. Is the applicant entitled to $3,725.00 for a concussion assessment, proposed by Total Recovery Rehab Centre in a plan submitted December 28, 2022?
(a) This issue was originally listed as “nursing services” in the application and the Case Conference Report and Order (“CCRO”) and was dated April 10, 2023. The OCF-18 from Total Recovery Rehab Centre (“TRRC”) itemizes this treatment plan as a concussion assessment and it is dated December 28, 2022. The applicant’s written submissions also state that the treatment plan is for a concussion assessment.
iii. Is the applicant entitled to $50.39 ($2,200.00 less $2,149.61 approved) for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan submitted March 3, 2023?
(a) This issue was partially approved after the CCRO was released.
iv. Is the applicant entitled to $1,865.61 for physiotherapy services, proposed by Easy Health Centre in a plan submitted January 23, 2024?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant applied to the Tribunal to be removed from the Minor Injury Guideline (“MIG”) but was removed from the MIG by way of correspondence on December 9, 2024 based on a s.44 psychological IE by Dr. Saghatoleslami dated November 27, 2024. The applicant was diagnosed with Adjustment Disorder Unspecified.
RESULT
4The applicant is entitled to the following treatment plans:
i. $1,190.53 ($1,417.64 less $227.11 approved) for physiotherapy services, proposed by Easy Health Centre in a treatment plan/OCF-18 (“plan”) submitted April 10, 2023.
ii. $2,200.00 partially approved for a concussion assessment proposed by Total Recovery Rehab Centre in a plan submitted December 28, 2022.
iii. $1,865.61 for physiotherapy services, proposed by Easy Health Centre in a plan submitted January 23, 2024.
5The applicant is not entitled to $50.39 for a psychological assessment proposed by Somatic Assessments & Treatment Clinic in a plan submitted March 3, 2023.
6The respondent is not liable to pay an award under s. 10 of Reg. 664.
7The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Physiotherapy services dated April 10, 2023, and January 23, 2024 approved
8The treatment plans for physiotherapy are approved. The applicant has persuaded me on a balance of probabilities that these treatment plans are reasonable and necessary.
9To receive payment for a treatment plan under 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, as per section 15 of the Schedule. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall osts of achieving same are reasonable.
10The applicant points to various clinical notes and records (“CNR”) to establish the need for physiotherapy treatment in that there are references to complaints and resulting recommendations from multiple medical doctors.
11The applicant relies on the following evidence to establish that the physiotherapy treatment plans are reasonable and necessary:
i. CNR from Dr. Monica Toma, Emergency Medicine of Oakville Trafalgar Memorial hospital, dated November 24, 2022. The notes indicate that the applicant made complaints of pain and headaches.
ii. CNR from Dr. Dayal Nushin, GP of Postmaster Medical Clinic dated November 28, 2022. The notes indicate that the applicant was diagnosed with pain in the neck and back and was prescribed Advil and referred the applicant to a concussion clinic.
iii. The applicant also demonstrates that in the report from Dr. McDowall, C. Psych, dated December 15, 2022, she stated that in her clinical opinion the applicant’s pain and psychological challenges are affecting her daily activities and work performance.
12The respondent submits that the applicant’s injuries are unremarkable from a musculoskeletal perspective, that the applicant experiences a full range of motion and that her strength was within normal limits, as stated by the s.44 Insurer’s Examination (IE) report of Dr. Mohammed dated June 13, 2023.
13The respondent further submits that the applicant has not pointed to any contemporaneous evidence to support the need for the treatment plan, and that an OCF-18 without objective evidence is not enough to establish treatment is reasonable and necessary. The respondent relies on the case Janette Blas v Aviva Insurance Canada, 2021 CanLII 127471 (ON LAT).
14The respondent partially approved the treatment plan dated April 10, 2023 up to the MIG limits, prior to the applicant being elevated out of the MIG in a letter dated April 13, 2023. In this letter the respondent approved $199.50 for physical therapy treatment, and $27.61 for other exercise of multiple body sites. The respondent found a portion of the treatment plan to be reasonable and necessary, up to the MIG limits.
15The respondent denied the treatment plan dated January 23, 2024 in a letter dated December 9, 2024, citing that despite the applicant being elevated out of the MIG, the physical injuries are considered minor, based on the s.44 assessment of Dr. Isa Mohammed dated June 13, 2023, that the applicant did not identify any residual or ongoing musculoskeletal or neurological accident-related injury or impairment.
16I find that the applicant has proven on a balance of probabilities that the treatment plans for physiotherapy are reasonable and necessary because she points to evidence that supports the need for these treatment plans including CNR from Dr. Toma, Dr. Nushin and Dr. McDowall, all of which report that the applicant is suffering from pain.
17The physiotherapy treatment plans point to pain reduction as a goal and progress will be monitored with objective and subjective testing. I agree with this objective because three medical doctors have confirmed that the applicant suffers from pain and headaches, and that the physiotherapy services aim to reduce that pain. These treatment plans identify testing methods to verify their validity, and I find that the plans are both reasonable and necessary.
Concussion assessment dated December 28, 2022 partially approved for $2,200.00
18The treatment plan for the concussion assessment is partially approved for $2,200.00. The applicant has persuaded me on a balance of probabilities that a portion of the treatment plan is reasonable and necessary.
19The applicant points to various clinical notes and records (“CNR”) to establish the need for the concussion assessment in that there are references to complaints and resulting recommendations from multiple medical doctors.
20The applicant relies on the following evidence to establish that the concussion assessment is reasonable and necessary:
i. CNR from Dr. Monica Toma, Emergency Medicine of Oakville Trafalgar Memorial hospital, dated November 24, 2022. The notes indicate that the applicant made complaints of pain and headaches.
ii. CNR from Dr. Dayal Nushin, GP of Postmaster Medical Clinic dated November 28, 2022. The notes indicate that the applicant was diagnosed with pain in the neck and back and was prescribed Advil, and referred the applicant to a concussion clinic.
iii. The applicant also demonstrates that in the report from Dr. McDowall, C. Psych, dated December 15, 2022, she stated that in her clinical opinion the applicant’s pain and psychological challenges are affecting her daily activities and work performance.
21The concussion assessment identifies the following regarding Post-Concussion Syndrome:
i. Post-Concussion Syndrome (PCS) according to ICD-10, is defined if the patient sustains 3 of the following symptoms list of symptoms in the span of 4 weeks after the injury: headache, dizziness, fatigue, irritability, sleep problems, concentrations problems, memory loss, problems tolerating stress/emotion or alcohol.
22I find that the applicant has demonstrated that she has made complaints of headaches in CNR of Oakville Trafalgar Memorial, as well as anxiety, irritability, and fatigue as noted by the clinical opinion of Dr. McDowal.
23The respondent submits that the applicant’s injuries are unremarkable from a musculoskeletal perspective, that the applicant experiences a full range of motion and that her strength was within normal limits, as stated by the s.44 Insurer’s Examination (IE) report of Dr. Mohammed dated June 13, 2023.
24The respondent further submits that the applicant has not pointed to any contemporaneous evidence to support the need for the treatment plan, and that an OCF-18 without objective evidence is not enough to establish treatment is reasonable and necessary. The respondent relies on the case Janette Blas v Aviva Insurance Canada, 2021 CanLII 127471 (ON LAT).
25I find that the applicant has proven on a balance of probabilities that the concussion assessment is partially reasonable and necessary because she points to evidence that supports the need for these treatment plans. Three separate medical doctors; Dr. Toma, Dr. Nushin and Dr. McDowall, all report that the applicant is suffering from pain. Furthermore Dr. Nushin recommends that the applicant attend a concussion clinic.
26The concussion assessment lists that its goal is to have the applicant be evaluated by a medical specialist (M.D.) and assess her concussion injuries and evaluate the extent of the injury and to develop a treatment plan to help rehabilitate as needed. It would be prudent to determine if, and to what degree, the claimant has sustained a concussion, so appropriate advice, treatment options and recommendations can be made. I find that the goals of the concussion assessment are both reasonable and necessary and that the applicant is entitled to the treatment plan.
27The assessment amounts are approved as per s.25 of the Schedule:
i. Assessment $2,000.00 approved, $475.00 denied.
ii. Documentation $200.00 approved.
iii. Involvement in subsequent dispute resolution denied.
iv. Interpretation services denied.
v. Provider travel time denied.
Psychological Assessment - denied
28The applicant is not entitled to $50.39 for the denied portion of the psychological assessment. The psychological assessment was approved prior to the written hearing except for $50.39 for documentation, which the insurer denied. The applicant made no submissions on this remaining balance and therefore hasn’t met their burden of proof regarding this outstanding amount.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
30The 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.
31The applicant submits that the insurer acted unreasonably by denying her access to benefits and treatment. The applicant states that they provided medical documentation with regards to her whole impairment and need for the treatment plans in dispute.
32The applicant notes that she visited the hospital the day after the accident and attended medical clinics to address her pain and psychological impairments. The applicant pursued treatment plans to remedy these issues and argues that she should have been removed from the MIG, that the insurer is taking a high-handed approach with this vulnerable individual.
33I agree that the applicant provided the insurer with evidence to prove her need for treatment, however I also agree that the insurer was acting reasonably based on the medical evidence that it was provided with from its assessors. In fact, the insurer removed the applicant from the MIG and approved psychological treatment as a result.
34It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. Although the applicant submits that the respondent acted “in an unreasonable and high-handed approach,” she does not direct me to any examples of such conduct, nor do I find any. For these reasons, I find that there is no basis for ordering an award under Reg. 664
ORDER
35If find that:
i. The applicant is entitled to $1,190.53 ($1,417.64 less $227.11 approved) for physiotherapy services, proposed by Easy Health Centre in a plan submitted April 10, 2023.
ii. The applicant is entitled to $2,200.00 for a concussion assessment, proposed by Total Recovery Rehab Centre in a plan submitted April 10, 2023.
iii. The applicant is not entitled to $50.39for a psychological assessment.
iv. The applicant is entitled to $1,865.61 for physiotherapy services, proposed by Easy Health Centre in a plan submitted January 22, 2024.
v. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
vi. The applicant is entitled to interest on the overdue payments.
Released: December 31, 2025
Leo Demarce
Adjudicator