Licence Appeal Tribunal File Number: 22-008564/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:
Yu Qun Li
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Anil Hampole, Counsel
For the Respondent: Ricky Shen, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yu Qun Li (the “applicant”) was involved in an automobile accident on August 7, 2017, 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 Security National Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
[2] The issues in dispute are: i. Is the applicant entitled to psychiatric treatment in the amount of $3,981.88, proposed by Somatic Assessments and Treatment Clinic in a treatment plan (“OCF-18”) submitted on November 9, 2022, and denied on November 15, 2022? ii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant? iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the disputed OCF-18 or interest. The respondent is not liable to pay an award.
ANALYSIS
The applicant’s entitlement to psychiatric treatment
4The applicant failed to demonstrate entitlement to the disputed OCF-18.
5To 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 treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
6The applicant submits that she continues to suffer physical pain that contributes to psychological symptomology. She says the counselling progress reports by Dr. Sharleen McDowall (psychologist) clearly demonstrate an ongoing need for treatment to assist with her recovery, and that the respondent’s unfair and unreasonable handling of her claim (i.e., the denial of the OCF-18) has impeded her progress.
7The respondent argues that sections 20(1) and 38(4) of the Schedule apply, and therefore reasons that the applicant is barred from a hearing on the disputed OCF-18.
8I agree the applicant is barred from applying to the Tribunal to dispute the OCF-18. Section 20(1) of the Schedule provides that medical benefits are not payable for expenses incurred more than 260 weeks after the accident in the case of an insured person who was at least 18 years of age at the time of the accident. The parties agree the accident occurred on August 7, 2017, and the OCF-1 in evidence establishes that the applicant was more than 18 years old at the time of the accident.
9Further, the 260-week period (i.e., five years) from the time of the accident ends August 7, 2022, and the OCF-18 was submitted on November 9, 2022, according to the time/date stamp (re: HCAI document number 22110900868) on the OCF-18 in evidence. Given that section 38(2) of the Schedule provides that the respondent is not liable to pay a medical benefit expense that is incurred prior to the applicant submitting an OCF-18, it follows that the respondent is not liable to pay any of the services proposed in the OCF-18 because they could not be incurred until after the time limitation set out at section 20(1) of the Schedule. While I recognize there are exceptions to sections 20(1) and 38(2), the applicant has not led evidence or made arguments that persuade me any of these exceptions apply in this case.
10Even if I were to disagree that sections 20(1) and 38(4) apply in this matter, I would find the applicant failed to demonstrate entitlement to the disputed OCF-18. The parties agreed at the case conference that this dispute pertained to psychiatric services, and the applicant reiterated this in her submissions. However, I am not directed to a referral for psychiatric services from Dr. McDowall or pointed to where in the OCF-18 that psychiatric services are proposed. Parts 11 and 12 of the OCF-18, which identify the proposed goods and services requiring approval as well as the health care provider of those goods and services indicate a recommendation for 14 sessions of therapy provided by Ms. McDowall, who is not a psychiatrist and is therefore unable to provide psychiatric services. While the applicant‘s submissions point to ongoing psychological treatment of her symptomology between November 2020 and January 2022, she has not led evidence that persuades me psychiatric treatment would reasonably meet the OCF-18s goals of challenging and reducing negative thought patterns by using cognitive restructuring techniques to deal with anxiety and depressive feelings. In any event, I disagree with the applicant’s position that the respondent’s denial of the disputed OCF-18 had hindered her progress, as she directed me to little evidence of therapeutic gains over more than four-dozen sessions she reportedly completed up to 2022.
Interest
11Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no overdue benefits in this case, so interest is not payable.
Award
12The applicant seeks an award under section 10 of Regulation 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.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
13The applicant’s submissions do not lead evidence or make arguments to support her award claim. She therefore has not met her onus to show the respondent is liable to pay an award.
ORDER
14The applicant is not entitled to the disputed OCF-18 or interest. The respondent is not liable to pay an award. The application is dismissed.
Released: February 26, 2025
Michael Beauchesne Adjudicator