Licence Appeal Tribunal File Number: 22-012914/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:
Wenwen Hu Applicant
and
Co-operators General Insurance Company Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Yu Denise Jiang, Paralegal
For the Respondent: Emily Schatzker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Wenwen Hu, the applicant, was involved in an automobile accident on January 26, 2021, 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 Co-operators General Insurance Company, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue(s) in dispute are:
i. Is the applicant entitled to the amount of $606.63 for chiropractic services proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 17, 2021?
ii. Is the applicant entitled to $4,303.90 for chiropractic services proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated November 3, 2021?
iii. Is the applicant entitled to $3,700.00 for a concussion assessment proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 17, 2021?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Somatic Assessment and Treatment Clinic in a treatment plan/OCF-18 (“plan”) dated March 22, 2021?
v. Is the applicant entitled to the amount of $700.00 for an attendant care assessment proposed by Somatic Assessment and Treatment Clinic in a treatment plan/OCF-18 (“plan”) dated July 27, 2021?
vi. Is the applicant entitled to $2,200.00 for an attendant care assessment proposed by Somatic Assessment and Treatment Clinic in a treatment plan/OCF-18 (“plan”) dated February 1, 2022?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the disputed treatment plans, interest, or an award.
ANALYSIS
The applicant is not entitled to the unapproved portion of the February 17, 2021 OCF-18 in the amount of $606.63
4I find that the applicant has not demonstrated that the OCF-18 for $606.63 is reasonable and necessary on a balance of probabilities.
5To receive payment for a treatment and assessment plan 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. 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’s treatment plan dated February 17, 2021 by Total Recovery Rehab Centre for total cost $4,416.71 was submitted September 16, 2021. The respondent partially approved the treatment plan on September 17, 2021 for $3,810.08. Reviewing the OCF-18, the remaining amount of $606.63 was for transportation fees ($240.00) and initial assessment report documentation ($366.63).
7The applicant submits that the insurer has an “ongoing duty to assess and reassess a claim as new information is available.” However, I note that the applicant was not referred to and did not provide any specialist/referral reports during the same time period to support the need for updated information. The applicant made no submissions as to why the denied expenses were reasonable and necessary. I find the applicant did not support the need for the additional assessment and related cost.
8The respondent’s letter dated September 27, 2021 states “for each roundtrip, a 50 km deductible is applied. As such, this does not qualify.” The respondent also submits a map identifying the distance traveled by the applicant. The distance is shown as 11 km. Section 3(1)(b) of the Schedule states that the first 50 km of a trip is not payable to claimants who have not sustained a catastrophic impairment. Accordingly, I am not persuaded that this portion of the expense is reasonable or necessary.
9In the OCF-18 dated February 17, 2021 the documentation fee is $366.63. The applicant states the occupational therapist, Mr. Raymond Wong, provided an original assessment and a follow up assessment stating the patient had not returned to work at this time and not returned to activities of daily living. The respondent’s letter dated September 27, 2021 states that the assessment report is duplicative of the OCF-18. No reason was provided for the reassessment, and I am persuaded by the respondent’s submission that this portion of the expense is duplicative and therefore not reasonable or necessary.
The applicant is not entitled to the November 3, 2021 OCF-18 in the amount of $4,303.90
10I find the applicant has not proven on a balance of probabilities that the OCF-18 for $4,303.90 is reasonable and necessary.
11The OCF-18 dated November 3, 2021 was completed by Dr. Georgia Palantzas, chiropractor, of Total Recovery Rehab Centre and sought chiropractic treatment, exercise and balance training, acupuncture and travel assistance for a total cost of $4,303.90. The treatment plan stated the goal of pain reduction, increase in strength, increased range of motion, minimize compensatory strain, return to activities of daily living, return to pre-work activities, promote soft tissue healing.
12Dr. Palantzas’ treatment plan noted the applicant injuries included a rib fracture and decreased range of movement in cervical, thoracic, lumbar, spine, shoulder, and hip region. The applicant had difficulty standing, sitting, walking, lifting and was unable to work or perform activities of daily living. The goal of the treatment was pain reduction, increase strength, increase range of motion, return to activities of daily living, and to promote soft tissue healing.
13The applicant relies on the OCF-18 dated February 17, 2021, and the OCF-18 dated November 3, 2021 each prepared by Dr. Palantzas in support of her claim for this treatment plan, as well as the medical notes from Markham Stouffville. The notes from Markham Stouffville state the applicant sought treatment for neck and back pain 18 days following the accident. The notes state “neck pain” as the reason for the visit with complaints of nausea and fatigue. X-rays from the visit indicate an acute fracture to the rib and notes state the applicant “fell recently [and] re-aggravated” an injury. The applicant did not submit medical reports from her doctor or medical specialists regarding the impairments. The applicant returned to work around September 2021 as her injuries did not prevent her return to activities of daily living. According to Dr. Palantzas’ OCF-18, the applicant accomplished the listed goal of returning to activities of daily living, and a return to pre-work activities.
14The respondent submitted a s. 44 physiatry assessment report prepared by Dr. Raymond John Zabieliauskas, specialist in the field of physical medicine and rehabilitation, dated December 15, 2021. The purpose of Dr. Zabieliauskas’ report was to determine whether the applicant suffered a substantial inability to perform essential tasks of her employment and whether the treatment plan dated November 3, 2021 is reasonable and necessary.
15Dr. Zabieliauskas’ report noted the applicant “demonstrated full range of motion of all upper extremity joints” and “full range of motion of the neck”. Dr. Zabieliauskas noted, although the applicant did not want to move her “lumbosacral spine more than 15 degrees in forward flexion or back extension”, compression of the lower lumbar joints “failed to cause her to report any pain.”.
16Dr. Zabieliauskas report states the applicant’s “pains have resolved particularly in the neck and she only complains of lower back pain and some intermittent pain over the lower right posterior rib cage. This appears to be related to the fall at home.”.
17While I am alive to the applicant’s concerns it is the applicant’s onus to prove that their injuries are accident-related, and they did not reply to the respondent’s evidence attributing the applicant’s condition to a separate incident. I also find there is inconsistency in the applicant’s submissions and the applicant did not provide supporting documentation to distinguish whether the pain is resulting from the accident, or the fall suffered at home.
18I am persuaded by Dr. Zabieliauskas’ finding “that [the applicant] sustained primarily cervical strain WAD2 in the motor vehicle accident of January 26, 2021 and all of her other injuries appear to be related to the fall at her door … in mid February of 2021.” The report further states “she sustained uncomplicated soft tissue strain injuries in this motor vehicle accident of January 26, 2021 that would have healed in the ensuing two to three months, and certainly within six months of the time of the motor vehicle accident in question.” For this and reasons stated above I find the treatment plan for $4,303.90 dated November 3, 2021 is not reasonable and necessary.
The applicant is not entitled to the February 17, 2021 OCF-18 for a concussion assessment in the amount of $3,700.00
19I find that the applicant has not suffered a concussion as a result of the accident and the concussion assessment for $3,700.00 is not reasonable and necessary.
20The applicant submitted a treatment plan dated February 17, 2021 by Dr. Bradley James Hubbard of Total Recovery Rehab Centre for a total cost of $3,700.00. The concussion assessment cost is $2,475.00, completion of the OCF-18 for $200.00, file review for $450.00, travel assistance for $50.00, and translation for $525.00.
21The applicant relies on the OCF-18 and clinical notes and records from Total Recovery Rehab Centre, the medical notes of Dr. Hubbard, physician, in support of her argument. The treatment plan is to determine whether the applicant has sustained a concussion. The goal of the treatment plan is for the applicant to be evaluated by a medical specialist and to develop a related treatment plan.
22In response, the respondent submits that no medical evidence was provided to support a concussion assessment.
23The medical records from Markham Stouffville Hospital do not show a diagnosis of concussion. Dr. Ge, the applicant’s family doctor, did not list a head injury or concussion as a result of the accident. For this reason, I find the treatment plan for $3,700.00 is not reasonable and necessary.
The applicant is not entitled to the March 22, 2021 OCF-18 for a psychological assessment in the amount of $2,200.00
24I am not persuaded by the applicant’s submission and find that the psychological assessment for $2,200.00 is not reasonable and necessary.
25The applicant relies on the OCF-18 and clinical notes dated March 22, 2021, prepared by Dr. Sharleen McDowall, psychologist, of Somatic Assessments and Treatment Clinic for a total cost of $2,200.00. The treatment plan is to determine the presence of psychological impairments. The goal of the treatment plan is pain reduction and return to activities of daily living. Dr. McDowall relied on the applicant’s self-reporting and no psychometric testing was relied upon for the diagnosis.
26The OCF-18 states the goals of the treatment are pain reduction and returning to activities of daily living. This treatment was denied by the insurer on April 6, 2021 as there was no medical evidence of a psychological impairment stemming from the accident.
27The respondent submits that the applicant’s family doctor, Dr. Ge, has no record of psychological impairment. Dr. Ge’s records from the date of the accident to August 16, 2023 do not refer to the applicant’s psychological impairment relating to the accident. I am not persuaded the applicant has met the burden or demonstrated a connection to the accident. I find the treatment plan for $2,200 is not reasonable and necessary.
The applicant is not entitled to the July 27, 2021 OCF-18 for the attendant care assessment plan in the amount of $700.00
28I find the attendant care reassessment plan for $700.00 is not reasonable and necessary.
29The applicant relies on the OCF-18 and clinical notes dated July 27, 2021 prepared by Mr. Raymond Wong, occupational therapist, of Somatic Assessments and Treatment Clinic for a total of $700.00. The original submission of $2,200.00 was partially approved for $1,500.00 The remaining $700.00 was for planning, service and counselling. No reason was provided for the reassessment and no additional goals were stated. The goal of the original treatment plan was return to activities of normal living.
30The applicant submits that an attendant care assessment dated July 27, 2021 provides confirmation that the applicant has not returned to pre-accident levels of activity due to limitations and restrictions. However, the applicant has not submitted a basis for this assessment such as the applicant’s condition or any related treatment goals.
31The respondent submits that the medical notes from Dr. Ge from 2021, 2022, and 2023 show no material change in the applicant’s health. I have reviewed Dr. Ge’s notes and find no basis for the reassessment and accordingly find the attendant care reassessment plan for $700.00 is not reasonable and necessary.
Interest
32As there are no benefits owing, no interest is payable pursuant to s. 51 of the Schedule.
Award
33The applicant sought an award under s. 10 of Reg. 664. I find no evidence that Co-operators unreasonably withheld or delayed the payment of benefits to the applicant.
ORDER
34For the reasons outlined above I find the applicant has not met the burden to demonstrate that treatment beyond the MIG is required. The applicant is not entitled to the treatment plan, interest or an award.
Released: March 7, 2025
Aric Bhargava Adjudicator