Citation: Zhuge v. Intact Insurance, 2025 ONLAT 23-004294/AABS

Licence Appeal Tribunal File Number: 23-004294/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:

Lequn Zhuge

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nadia Mauro

SUBMISSIONS BY:

For the Applicant:

Sareena Harpreet Samra, Counsel

For the Respondent:

Maya Krishnaratne, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Lequn Zhuge, the applicant, was involved in an automobile accident on January 21, 2020, 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, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2I find that that the preliminary issue raised by the respondent in its written submissions has not been raised properly before the Tribunal. Therefore, I am not adding a preliminary issue to this hearing.

3In its submissions, the respondent raises a “preliminary issue” submitting the amounts in dispute are not payable even if found to be reasonable and necessary because the applicant has exhausted his medical rehabilitation limits. The respondent provides further information relating to this matter demonstrating that on December 17, 2023, it sent a Standard Benefit Statement to the applicant which indicated that he had $26.09 remaining under his medical, rehabilitation, and attendant care policy.

4While the respondent positioned this as a preliminary issue, it is not identified on the case conference report and order (“CCRO”) released December 19, 2023 and there is no indication that the respondent requested to add it as an issue in dispute before the hearing.

ISSUES

5The issues in dispute are:

1. Is the applicant entitled to $508.78 ($2,994.13 less $2,485.35 approved) for Physiotherapy Services, proposed by Prime Plus Care Health Centre in a treatment plan (“OCF-18”) dated March 23, 2023?

2. Is the applicant entitled to $3,491.48 for Psychological Services proposed by Chaolun Medical and Health Services Inc., in an OCF-18 dated March 14, 2022?

3. Is the applicant entitled to $1,546.42 ($3,491.48 less $1,945.06 approved) for Psychological Services proposed by Chaolun Medical and Health Services Inc., in an OCF-18 dated December 15, 2021?

4. Is the applicant entitled to $4,090.40 for Occupational Therapy Services proposed by Chaolun Medical and Health Services Inc., in an OCF-18 dated March 15, 2022?

5. Is the applicant entitled to $948.11 ($3,491.48 less $2,543.37 approved) for Psychological Services proposed by Chaolun Medical and Health Services Inc., in an OCF-18 dated September 20, 2021?

6. Is the applicant entitled to $3,491.48 for Psychological Services proposed by Chaolun Medical and Health Services Inc., in an OCF-18 dated May 19, 2021?

7. Is the applicant entitled to attendant care benefits in the amount of $4,247.37 per month from September 1, 2022, to date and on-going?

8. Is the applicant entitled to $680.00 ($4,387.20 less $3,707.20 approved) for Chiropractic Services, proposed by UHeal Rehab Centre in an OCF-18 dated May 19, 2023?

9. Is the applicant entitled to $597.19 ($4,217.20 less $3,620.01 approved) for Chiropractic Services, proposed by UHeal Rehab Centre in an OCF-18 dated July 21, 2023?

10. Is the applicant entitled to $3,897.20 for Chiropractic Services, proposed by UHeal Rehab Centre in an OCF-18 dated September 1, 2023?

11. Is the applicant entitled to $2,144.93 for Psychological Services, proposed by Somatic Assessments and Treatment Clinic in an OCF-18 dated June 28, 2023?

12. Is the applicant entitled to $5,833.00 for Occupational Therapy Services, proposed by Somatic Assessments and Treatment Clinic in an OCF-18 dated August 18, 2023?

13. Is the applicant entitled to $639.34 for Medication, submitted on a claim form (OCF-6) dated September 6, 2023?

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

15. 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

6The applicant is entitled to the treatment plan for psychological services dated March 14, 2022.

7The applicant is entitled to that the following treatment plans, in part:

1. Physiotherapy services dated March 23, 2023;

2. Psychological services dated September 20, 2021, and December 15, 2021; and

3. Chiropractic services dated July 21, 2023.

8The applicant is not entitled to the following treatment plans:

1. Psychological services dated May 19, 2021, and June 28, 2023;

2. Chiropractic services dated May 19, 2023, and September 1, 2023;

3. Occupational therapy services dated March 15, 2022, and August 18, 2023;

4. Attendant care benefits; and

5. Medication expenses.

9The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.

10The respondent is not liable to pay an award.

ANALYSIS

Physiotherapy Services

11I find that the applicant has proven, on a balance of probabilities, that the treatment plan for physiotherapy services dated March 23, 2023, is reasonable and necessary, in part.

12The dispute focuses on line 5 and 6 in the OCF-18 dated March 23, 2023, which sought funding for:

i. Line 1 – Initial physiotherapy assessment, in the amount of $99.75;

ii. Line 2 – 16 one-hour sessions of physical rehabilitation, in the amount of $99.75 per session;

iii. Line 3 – Four sessions of therapy, in the amount of $112.81 per session;

iv. Line 4 – Four half-hour sessions of active therapy/acupuncture, in the amount of $56.41 per session;

v. Line 5 – Initial assessment report, in the amount of $350.00; and

vi. Line 6 – Completion of the OCF-18, in the amount of $200.00.

13The OCF-18 identified treatment goals of pain reduction, increased range of motion, increase in strength, and to return to activities of normal living.

14The applicant submits that he reported on multiple occasions that physiotherapy treatments were helpful. The applicant argues that despite this, the respondent has denied continued physiotherapy.

15The respondent submits that the unapproved $508.78 was for the cost of a proposed progress report. The respondent argues that it is the applicant’s onus to prove that the entirety of the treatment plan, including the progress report is reasonable and necessary. The respondent submits that the applicant made no arguments with respect to this specific treatment plan, or the reasonableness and necessity of the progress report.

16I find that the respondent’s denial letter dated April 10, 2023, indicates that the treatment plan was partially approved in the amount of $2,485.35, and that Line 5 – Initial assessment report was denied in the amount of $350.00 plus HST, and Line 6 – Completion of the OCF-18 was denied in the amount of $100.25 plus HST.

17I find neither the denial letter, nor the respondent’s submissions, are clear as to why it denied Line 6 in the amount of $100.25, rather than the full requested amount of $200.00 plus HST. I find that the Guideline stipulates that a health practitioner may charge a maximum fee of $200.00 to complete an OCF-18, I therefore find that the full amount of Line 6 to be reasonable and necessary.

18With respect to Line 5, while the respondent indicates in its submissions that the denial is for a “progress report” it is clear from the denial letter that what was denied was an initial assessment report. However, the applicant does not make submissions with respect to the reasonableness or necessity of this line item, and I am not pointed to evidence that would confirm the purpose of this line item. As such, I find that there is insufficient information to make a determination with respect to whether this line item is reasonable and necessary.

19As such, I find that the applicant has proven, on a balance of probabilities, that he is entitled to part of the unapproved amount in the treatment plan. The applicant is entitled to the unapproved amount of $99.75 for Line 6 – Completion of the OCF-18 subject to the statutory non-catastrophic monetary limits on medical and rehabilitation benefits set out in s. 18(3)(a) of the Schedule. He is not entitled to Line 5 – initial assessment report.

Psychological Services

20The applicant addressed his claim for these treatment plans together in his submissions, and relied upon the same evidence and arguments to establish that these treatment plans are reasonable and necessary.

21The applicant submits that the “medical records” reveal his continued struggle with everyday tasks as a result of psychological and cognitive difficulties. The applicant further submits that he has reported ongoing difficulties and improvement with therapy, however, the respondent has withheld payment toward psychological services. The applicant argues that the respondent has not provided any reasons for its continued denial of psychological support.

a) The OCF-18 for psychological services dated May 19, 2021

22I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for psychological services dated May 19, 2021, is reasonable and necessary.

23The OCF-18 dated May 19, 2021, for psychological services completed by Dr. Sharleen McDowall, psychologist, sought funding for 12 sessions of mental health counselling, treatment review and progress note, and completion of the OCF-18. The OCF-18 identified treatment goals of reducing anxiety, depression, and phobic symptoms.

24The respondent submits that this treatment plan was submitted to a different insurer prior to the respondent accepting priority for the applicant’s claim. The respondent submits that the treatment plan, as evidenced at Tab 14 of the applicant’s hearing brief, confirms that the prior insurer partially approved the denial.

25I find the evidence shows that the treatment plan was partially approved by adjuster Lili Zheg of Pembridge Insurance on June 9, 2021, however, there is no indication of how much was approved. The applicant does not make any submissions with respect to the partial approval of this treatment plan, nor does the applicant confirm what goods or services were partially approved. As such and given that the applicant has not made specific submissions with respect to this partial approval, I find that there is a lack of information to substantiate whether the unapproved portions of the treatment plan are reasonable and necessary.

26Given the above, I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for psychological services dated May 19, 2021, is reasonable and necessary.

b) The OCF-18 for psychological services dated September 20, 2021

27I find that the applicant has proven, on a balance of probabilities, that the treatment plan for psychological services dated September 20, 2021, is reasonable and necessary, in part.

28The OCF-18 dated September 20, 2021, for psychological services completed by Dr. Sharleen McDowall, psychologist, sought funding for:

i. Line 1 – 12 1.5-hour sessions of mental health counselling, in the amount of $224.42 per session;

ii. Line 2 – preparation service (review and progress note writing), in the amount of $598.44; and

iii. Line 3 – completion of the OCF-18, in the amount of $200.00.

29The OCF-18 identified treatment goals of reducing anxiety, depression, and phobic symptoms.

30The respondent submits that the treatment plan dated September 20, 2021 was partially approved in the amount of $2,543.37. The respondent submits that the treatment plan was approved for one-hour sessions as opposed to 1.5-hour sessions of psychological services.

31I find that the respondent’s denial letter dated October 4, 2021, also indicates that the good and service listed as Line 3 – completion of the OCF-18 was denied in the amount of $50.39.

32Neither the denial letter, nor the respondent’s submissions, are clear as to why it denied Line 3 in the amount of $50.39, rather than the full requested amount of $200.00 plus HST. The Guideline stipulates that a health practitioner may charge a maximum fee of $200.00 to complete an OCF-18, I therefore find that the full amount of Line 3 to be reasonable and necessary.

33With respect to the length of the psychological treatment, the applicant has not made any submissions in regard to the reasonableness or necessity of 1.5-hour long sessions as opposed to one-hour sessions. The applicant has also not directed me to any compelling evidence that would substantiate the need for the longer psychological treatment sessions. The applicant has the onus to prove, on a balance of probabilities, and in this case, I find that the applicant has fallen short of his burden in establishing the need for the 1.5 hour long psychological treatment sessions.

34Given the above, I find that on a balance of probabilities that the applicant is entitled to Line 3 – completion of the OCF-18 in the amount of $200.00 subject to the statutory non-catastrophic monetary limits on medical and rehabilitation benefits set out in s. 18(3)(a) of the Schedule. I find that the applicant is not entitled to the unapproved portion of Line 1 – mental health counselling.

c) The OCF-18 for psychological services dated December 15, 2021

35I find that the applicant has proven, on a balance of probabilities, that the treatment plan for psychological services dated December 15, 2021, is reasonable and necessary, in part.

36The OCF-18 dated December 15, 2021, for psychological services completed by Dr. Sharleen McDowall, psychologist, sought funding for:

i. Line 1 – 12 1.5-hour sessions of mental health counselling, in the amount of $224.42 per session;

ii. Line 2 – preparation service (review and progress note writing), in the amount of $598.44; and

iii. Line 3 – completion of the OCF-18, in the amount of $200.00.

37The OCF-18 identified treatment goals of reducing anxiety, depression, and phobic symptoms.

38The respondent submits that the treatment plan dated December 15, 2021, was partially approved in the amount of $1,546.42. The respondent submits that the treatment plan was approved for one-hour sessions as opposed to 1.5-hour sessions of psychological services. The respondent submits that it would consider longer sessions if the applicant provided further information to support that the longer sessions were reasonable.

39As I have found in my reasoning for psychological services dated September 20, 2021, the applicant has not made any submissions nor provided any evidentiary support to establish that longer treatment sessions, as listed in Line 1, are needed. Given same, I find that the applicant has not proven that the unapproved portion of this good and service is reasonable and necessary.

40I also find that the respondent’s denial letter dated January 21, 2022, indicates that the good and service listed as Line 2 – preparation was denied in the amount of $598.44, and Line 3 – completion of the OCF-18 was denied in the amount of $50.38.

41With respect to Line 2, the applicant does not make submissions with respect to the reasonableness or necessity of this line item, nor am I pointed to evidence that would confirm the purpose of this line item. As such, I find that there is insufficient information to make a determination with respect to whether this good or service is reasonable or necessary.

42Moreover, the denial letter, nor the respondent’s submissions, are clear as to why it denied Line 3 in the amount of $50.38, rather than the full requested amount of $200.00 plus HST. The Guideline stipulates that a health practitioner may charge a maximum fee of $200.00 to complete an OCF-18, I therefore find that the full amount of Line 3 to be reasonable and necessary.

43Given the above, I find that on a balance of probabilities that the applicant is entitled to Line 3 – completion of the OCF-18 in the amount of $200.00 subject to the statutory non-catastrophic monetary limits on medical and rehabilitation benefits set out in s. 18(3)(a) of the Schedule. I find that the applicant is not entitled to the unapproved portion of Line 1 – mental health counselling, and Line 2 – preparation.

d) The OCF-18 for psychological services dated March 14, 2022

44I find that the applicant has proven, on a balance of probabilities, that the treatment plan for psychological services dated March 14, 2022, is reasonable and necessary.

45The OCF-18 dated March 14, 2022, for psychological services completed by Dr. Sharleen McDowall, psychologist, sought funding for 12 sessions of psychological services. The OCF-18 identified treatment goals of reducing anxiety, depression, and phobic symptoms.

46The respondent submits that the treatment plan was denied in full on the basis of s. 44 psychological assessment of Dr. Terra Seon, dated May 11, 2022, in which she found that the applicant had no ongoing psychological impairment warranting treatment.

47I find that the weight of the evidence shows that the applicant had an ongoing psychological impairment warranting the need for the proposed treatment plan. While Dr. Seon opined that there were no objective findings to support a psychological diagnosis in relation to the subject accident, the applicant reported ongoing psychological symptoms to his family practitioner, Dr. Liu, on a number of occasions contemporaneously with the treatment plan. For example, from January to March of 2022, the applicant reported anxiety, insomnia, and low mood, and Dr. Liu prescribed the psychotropic Auro-Mirtazapine. Moreover, progress notes of psychologist Dr. Sharleen McDowall dated September 2, 2021, indicate that the applicant continued to face challenges associated with the accident that affect him psychologically, such as depression, anxiety, and feelings of frustration. Dr. McDowall recommended a further 12 psychological treatment sessions.

48What is more, the ‘documents reviewed’ section of Dr. Seon’s report is devoid of Dr. Liu’s CNRs and the progress notes of Dr. McDowall at or around the date of the disputed treatment plan. As such, I give little weight to the psychological report of Dr. Seon and find that the treatment plan, on a balance of probabilities, is reasonable and necessary.

49Given the above, I find that the applicant has proven, on a balance of probabilities that the proposed psychological treatment is reasonable and necessary subject to the statutory non-catastrophic monetary limits on medical and rehabilitation benefits set out in s. 18(3)(a) of the Schedule.

e) The OCF-18 for psychological services dated June 28, 2023

50I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for psychological services dated June 28, 2023, is reasonable and necessary.

51The OCF-18 dated June 28, 2023, completed by Dr. Svetlana Gabidulina, psychologist, sought funding for a psychological assessment. The OCF-18 sought to conduct an in-depth clinical interview to determine the presence and extent of the applicant’s psychological impairments.

52The respondent submits that the applicant has not adduced evidence of the need for the proposed treatment plan and that his medical rehabilitation limits have been exhausted. The respondent argues that as a result, this issue ought to be dismissed.

53The applicant does not make submissions with respect to medical rehabilitation limits being exhausted. The applicant also does not make any submissions specifically with respect to the need for a psychological assessment. While I find that the CNRs of Dr. Liu show that the applicant continued to make psychological complaints at or around the date of the proposed treatment plan, I also find that the CNRs of Dr. Liu show that the applicant was referred to a psychologist by Dr. Liu and underwent a psychological assessment with Dr. Hung Tat Lo on July 12, 2023. Despite neither party indicating same, I find that because the applicant underwent a psychological assessment through his family practitioner, the proposed psychological assessment would therefore be duplicative.

54In the absence of further evidence and or submissions with respect to the need for the proposed treatment plan for a psychological assessment, I find that the applicant has not proven, on a balance of probabilities, that it is reasonable and necessary.

Occupational Therapy Services

a) The OCF-18 for Occupational Therapy Services dated March 15, 2022

55I find that the applicant has not proven, on a balance of probabilities, that the unapproved portion of the treatment plan for occupational therapy services is reasonable and necessary.

56The OCF-18 completed by Yun Bei Long, occupational therapist, dated March 15, 2022, sought funding for:

i. Line 1 – Therapy, 1.5 hours per session biweekly for 12 weeks, in the amount of $149.63 per session;

ii. Line 2 – Provider travel time, in the amount of $1,197.00

iii. Line 3 – Treatment planning, 15 minutes per session, in the amount of $24.94;

iv. Line 4 – Document support activity (preparation of sessions progress note), in the amount of $598.56; and

v. Line 5 – Preparation of OCF-18 claim form, in the amount of $200.00.

57The OCF-18 identified treatment goals of pain reduction, increased range of motion, increase in strength, an increase in the client’s participation and safety in respect to his activities of daily living, and to return to activities of normal living.

58The applicant submits that the treatment was incurred, and the chronicity of his symptoms support the need for occupational therapy services. The applicant relies on the s. 25 occupational therapy report of Yunbei Long, dated January 5, 2022.

59The respondent submits that the treatment plan dated March 15, 2022, was partially approved in the amount of $1,496.61. The respondent’s denial letter dated May 18, 2022, indicates that it denied eight sessions of Line 1 – Therapy, Line 2 – provider travel time, Line 3 – Treatment planning, and Line 4 – Documentation support activity, for a total amount of $2,593.79. The respondent relies on the s. 44 occupational therapy report of Ms. Jeena Abraham, dated May 5, 2022. The respondent argues that the applicant has not provided any evidence to support that the amounts were improperly denied.

60While I appreciate that the applicant submits that the chronicity of his symptoms support his need for occupational therapy services, I do not find that satisfies his burden to prove, on a balance of probabilities, that the unapproved portion of the treatment plan is reasonable and necessary. The applicant has not made any specific submissions with respect to the unapproved portions of Line 1, 2, or 3, nor has he directed me to evidence that would endorse the unapproved portions. While the s. 25 report of Yunbei Long recommends 12 sessions of occupational therapy, the report is silent with respect to the other partially unapproved line items. I also find that a recommendation for a certain number of therapy sessions from the author of the treatment plan in dispute, without contemporaneous evidence or submissions with respect to the need for the amount of therapy sessions, is not enough to support that the proposed good or service is reasonable and necessary.

61As such, I find that the applicant has not proven, on a balance of probabilities, that the unapproved portion of the treatment plan is reasonable and necessary.

b) The OCF-18 for Occupational Therapy Services dated August 18, 2023

62I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for occupational therapy services dated August 18, 2023 is reasonable and necessary.

63The applicant did not provide the treatment plan for the proposed occupational therapy services dated August 18, 2023. Therefore, this treatment plan was not before me to consider its goals, whether they would be met to a reasonable degree, and the overall costs of the OCF-18.

64The respondent denies that the treatment plan dated August 18, 2023, exists. The respondent argues that it received a treatment plan from Somatic Assessments for catastrophic assessments on August 30, 2023, but this treatment plan is not an issue in dispute.

65In any event, even if the OCF-18 were in evidence, I find that the applicant has not met his burden.

66I find that the applicant has not directed me to contemporaneous evidence that would support the proposed treatment plan is reasonable and necessary. While the applicant relies on the s. 25 occupational therapy assessment report of Yun Bei Long, dated January 5, 2022, I find that this does not support the need for continued occupational therapy services over a year later, in August of 2023.

67Given that the applicant has not put forward this OCF-18 into evidence, nor has he made any compelling submissions with respect to same, I find that the applicant has not proven, on a balance of probabilities, that this treatment plan is reasonable and necessary.

Chiropractic Services

68The applicant addressed his claim for these treatment plans together in his submissions, and relied upon the same evidence and arguments to establish that these treatment plans are reasonable and necessary.

69The applicant submits that the clinical notes and records (“CNRs”) from the hospitals, clinics, and assessors he has attended confirm that he continues to suffer from lower back pain, neck pain, and general body pain. The applicant further submits that he has not achieved his pre-accident state as he continues to experience the impact of the accident through physical pain which impairs his ability to complete both his household and workplace duties.

a) The OCF-18 for chiropractic services dated May 19, 2023

70I find that the applicant has not proven, on a balance of probabilities, that the unapproved portion of the treatment plan for chiropractic services dated May 19, 2023, is reasonable and necessary.

71The OCF-18 completed by Dr. Richard Tavares, chiropractor, dated May 19, 2023, sought funding for:

i. Line 1 – Initial physiotherapy assessment (includes reassessment and completion of OCF-18), in the amount of $200.00;

ii. Line 2 – Documentation support activity (initial report), in the amount of $360.00;

iii. Line 3 – 16 one-hour sessions of chiropractic treatment, in the amount of $112.81 per session;

iv. Line 4 – 16 half-hour sessions of active therapy, in the amount of $56.41 per session;

v. Line 5 – 16 one-hour sessions of acupuncture, in the amount of $49.98 per session; and

vi. Line 6 – 16 hours of provider travel time, in the amount of $320.00.

72The OCF-18 identifies treatment goals of pain reduction, increased range of motion, increase in strength, and to reduce swelling and inflammation/increase neuro-muscular endurance. The OCF-18 also seeks a return to activities of normal living, return to pre-accident work activities, return to modified work activities, and a return to pre-accident exercise and social activities.

73The respondent submits that the treatment plan dated May 19, 2023, was partially approved in the amount of $3,707.20, denying only the cost of Line 2: Documentation support activity and Line 6: Provider transportation. The respondent argues that the applicant has not provided any evidence to support that the amounts were improperly denied.

74I agree with the respondent in that the applicant does not make submissions with respect to the reasonableness or necessity of these line items. I am not pointed to evidence that would confirm the purpose of Line 2 – Document support activity. As such, I find that there is insufficient information to make a determination with respect to whether this good or service is reasonable or necessary.

75With respect to Line 6 – Provider transportation, I also find that there is no requirement in the Schedule for an insurer to pay for the travel time of treatment providers. Section 25(4) of the Schedule states that the insurer shall pay reasonable expenses incurred by or on behalf of an insured person for authorized transportation expenses incurred in transporting the insured person to and from an assessment or examination. There is no obligation for the respondent to pay for the treating practitioner’s travel expense.

76Given the above, I find that applicant has not proven, on a balance of probabilities, that the unapproved portion of the treatment plan is reasonable and necessary.

b) The OCF-18 for chiropractic services dated July 21, 2023

77I find that the applicant has proven, on a balance of probabilities, that the unapproved portion of the treatment plan for chiropractic services dated July 21, 2023, is reasonable and necessary, in part.

78The OCF-18 completed by Dr. Richard Tavares, chiropractor, dated July 21, 2023, sought funding for:

i. Line 1 – Assessment (includes reassessment and completion of OCF-18), in the amount of $200.00;

ii. Line 2 – Documentation support activity (summary of findings and proposed treatment), in the amount of $190.00;

iii. Line 3 – 16 one-hour sessions of chiropractic treatment, in the amount of $112.81 per session;

iv. Line 4 – 16 half-hour sessions of active therapy, in the amount of $56.41 per session;

v. Line 5 – 16 one-hour sessions of acupuncture, in the amount of $49.98 per session; and

vi. Line 6 – 16 hours of provider travel time, in the amount of $320.00.

79The OCF-18 identifies treatment goals of pain reduction, increased range of motion, increase in strength, and to reduce swelling and inflammation/increase neuro-muscular endurance. The OCF-18 also seeks a return to activities of normal living, return to pre-accident work activities, return to modified work activities, and a return to pre-accident exercise and social activities.

80The respondent submits that the treatment plan dated July 21, 2023, was partially approved in the amount of $3,620.01, denying Line 1 – Assessment (examination), total body, in the amount of $87.19, Line 2 – Documentation, support activity, in the amount of $190.00, and Line 6 – Transportation, in the amount of $320.00. The respondent argues that the applicant has not provided any evidence to support that the amounts were improperly denied.

81The denial letter, nor the respondent’s submissions, are clear as to why it denied Line 1 in the amount of $87.19, rather than the full requested amount of $200.00 plus HST. The Guideline stipulates that a health practitioner may charge a maximum fee of $200.00 to complete an OCF-18, I therefore find that the full amount of Line 1 to be reasonable and necessary.

82With respect to Line 2 – Document support activity, in that the applicant does not make submissions with respect to the reasonableness or necessity of this line item. I am also not pointed to evidence that would confirm the purpose of this good or service. As such, I find that there is insufficient information to make a determination with respect to whether it is reasonable or necessary.

83With respect to Line 6 – Provider transportation, and for the same reasons I have mentioned above, I also find that there is no requirement in the Schedule for an insurer to pay for the travel time of treatment providers.

84Given the above, I find that applicant has proven, on a balance of probabilities, that the unapproved portion of Line 1 – Assessment of the treatment plan is reasonable and necessary subject to the statutory non-catastrophic monetary limits on medical and rehabilitation benefits set out in s. 18(3)(a) of the Schedule. I find that the applicant is not entitled to Line 2 – Document support activity and Line 6 – Transportation.

c) The OCF-18 for chiropractic services dated September 1, 2023

85I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for chiropractic services dated September 1, 2023, is reasonable and necessary.

86The OCF-18 completed by Dr. Richard Tavares, chiropractor, dated September 1, 2023, sought funding for 16 sessions of chiropractic treatment, active therapy, and acupuncture, assessment, and completion of the OCF-18. The OCF-18 identifies treatment goals of pain reduction, increased range of motion, increase in strength, and to reduce swelling and inflammation/increase neuro-muscular endurance. The OCF-18 also seeks a return to activities of normal living, return to pre-accident work activities, return to modified work activities, and a return to pre-accident exercise and social activities.

87The respondent submits that the treatment plan dated September 1, 2023, was denied on the basis that the applicant’s medical rehabilitation limits has been met. The respondent further argues that the applicant has not provided any evidence that supports that the treatment plan was improperly denied.

88The applicant does not make submissions with respect to medical rehabilitation limits being exhausted. In any event, I find that the applicant has not directed me to contemporaneous evidence at or around the time the treatment plan was submitted for consideration by the respondent that would support that it is reasonable and necessary. While I acknowledge that the applicant has reported various accident-related pain complaints to his family practitioner, Dr. Chongen Liu, I am not directed to a medical opinion or recommendation from Dr. Liu for chiropractic services. The applicant has also not directed me to any other treating practitioner that endorses the need for the proposed chiropractic treatment in the later part of 2023.

89As such, I find that the applicant has not proven, on a balance of probabilities, that the proposed treatment plan for chiropractic services dated September 1, 2023, is reasonable and necessary.

Attendant Care Benefits (“ACB”)

90I find that the applicant is not entitled to receive ACBs.

91Section 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”).

92The applicant submits that the “medical records”, Form 1, and his family doctor CNRs support the claim for ACBs. The applicant argues that the respondents s. 44 occupational therapist assessor, Ms. Jeena Abraham, stated that the need for attendant care is required in her report dated May 5, 2022. The applicant submits that invoices have been provided and the treatment has been incurred, however, the respondent is improperly withholding payment despite it being approved.

93While the applicant states in his own submissions that ACBs are limited to $3,000.00 per month pursuant to s. 19(3)(1) of the Schedule, if the insured person did not sustain a catastrophic impairment, he is seeking $4,247.37 per month from September 1, 2022, to date and ongoing.

94The respondent submits that the applicant incorrectly stated that Ms. Abraham reported the applicant needs ACBs. The respondent further submits that s. 44 paper review conducted by Ms. Abraham, dated January 16, 2023, found the applicant was demonstrably capable of engaging in activities of daily living without the need for personal care. The respondent further relies on s. 44 psychological report of Dr. Terra Seon, dated January 16, 2023, wherein Dr. Seon found there were no psychological limitations that would prevent him from engaging in personal care activities. The respondent submits that pursuant to s. 42(5) of the Schedule, it is not required to pay an ACB incurred before the date on which an assessment of attendant care needs (“Form 1”) was submitted, which in this case was May 2, 2022.

95The onus is on the applicant to establish entitlement to ACBs on a balance of probabilities, and in this case, I find that the applicant has fallen short of meeting his onus for the following reasons.

96First, the applicant has not provided any contemporaneous compelling evidence that the attendant care expenses are reasonable and necessary. While the applicant directs me to a personal support worker (“PSW”) certificate and invoice/sign-in sheets, neither document itemises the type of service provided to the applicant. The sign-in sheets only identify the date and duration of service. As such, I find that these documents do not speak to whether the purported attendant care services are reasonable and necessary.

97Second, I do not agree with the applicant that the s. 44 report of OT Ms. Abraham, dated May 5, 2022, states the applicant requires attendant care. While Ms. Abraham notes that the applicant reported receiving help from a PSW eight hours per week, Ms. Abraham also notes that the applicant reports continued independence with self-care, community mobility, and light housekeeping/home maintenance. Additionally, while Ms. Abraham found an unrelated treatment plan for occupational therapy services to be partially necessary within her report, she does not opine on the need for attendant care services.

98Lastly, the applicant has not established nor directed me to evidence that would establish that the ACBs were incurred after the date the Form 1 was submitted to the respondent for consideration. The applicant has not made submissions with respect to the date the Form 1 was submitted. Even if it is the case that a Form 1 was submitted to the respondent for consideration on May 2, 2022, the applicant has only provided invoice/sign-in sheets from June 1, 2021, to June 28, 2021. Given this, I agree with the respondent that it is not required to pay an ACB incurred before May 2, 2022, pursuant to s. 42(5) of the Schedule.

99In conclusion, I find that the applicant has not established attendant care services to be reasonable and necessary. Further, he has not demonstrated that attendant care services were incurred. Accordingly, I find that on a balance of probabilities he is not entitled to ACBs.

Medication (OCF-6)

100I find the expenses listed on the OCF-6 are not reasonable and necessary.

101The applicant submits that the expenses for medication were properly submitted on an OCF-6 with supporting receipts. The applicant submits that he used the prescriptions listed and the expenses are therefore payable by the insurer.

102The OCF-6 does not identify each prescription expense, rather it groups the total amount paid by the applicant for a variety of prescriptions. While I find that some of the CNRs of the applicant’s family practitioner, Dr. Liu, coincide with the dates of the prescription summary, the applicant has not provided submissions that speak to whether these prescriptions are accident related. Moreover, the applicant has also not made submissions or provided evidence to support that the entirety of the amounts listed on the OCF-6 are accident-related expenses.

103As such, I find that the applicant has not proven, on a balance of probabilities, that the expenses listed on the OCF-6 are reasonable and necessary.

Interest

104The applicant is entitled to interest on any payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

105The 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.

106The applicant must prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed payments or that there was unreasonable conduct by the respondent. More specifically, the applicant must prove that benefits were unreasonably withheld or that there was conduct that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate in addressing the issues in dispute.

107The applicant argued, citing Liberty Mutual Insurance Company v. Molly R. Persofsky, 2003 ONFSCDRS 9, that the respondent ‘categorically ignored’ the medical records of the applicant’s treating practitioners and assessors, that the applicant is vulnerable, and he has sustained serious injuries as a result of the accident. I find the applicant’s arguments to be vague and lacking supportive evidence. The applicant does not direct me to any evidence to substantiate that the respondent ‘categorically ignored’ his medical evidence, nor am I pointed to evidence to suggest the respondent took advantage of the applicant’s vulnerabilities.

108For these reasons, I find that the applicant has not proven on a balance of probabilities that the respondent acted unreasonably in its denials, such that the respondent’s conduct rose to a level that would substantiate the request for an award. As such, I do not find that the applicant is entitled to an award.

ORDER

109I find that:

i. The applicant is entitled to the treatment plan for psychological services dated March 14, 2022, subject to the statutory non-catastrophic monetary limits on medical and rehabilitation benefits.

ii. The applicant is entitled to that the following treatment plans, in part, subject to the statutory non-catastrophic monetary limits on medical and rehabilitation benefits:

1. Physiotherapy services dated March 23, 2023;

2. Psychological services dated December 15, 2021;

3. Psychological services dated September 20, 2021; and

4. Chiropractic services dated July 21, 2023.

iii. The applicant is not entitled to the following treatment plans:

1. Occupational therapy services dated March 15, 2022;

2. Psychological services dated May 19, 2021;

3. Chiropractic services dated May 19, 2023;

4. Chiropractic services dated September 1, 2023;

5. Psychological services dated June 28, 2023;

6. Occupational therapy services dated August 18, 2023; and

7. Medication submitted on an OCF-6 dated September 6, 2023.

iv. The applicant is not entitled to Attendant Care Benefits in the amount of $4,247.37 per month from September 1, 2022, to date and ongoing.

v. The applicant is entitled to interest on any overdue benefit pursuant to s. 51 of the Schedule.

vi. The respondent is not liable to pay an award.