Licence Appeal Tribunal File Number: 23-007043/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:
Zheng Bin Liang
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Paralegal
For the Respondent:
Catherine Zingg, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Zheng Bin Liang, the applicant, was involved in an automobile accident on November 6, 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 the respondent, Aviva 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 12, 2022 to February 2023?
ii. Is the applicant entitled to psychological services, proposed by Somatic Assessments and Treatment Clinic in treatment plans/OCF-18s (“plan”) as follows:
(a) $1,556.80 ($4,150.56 less $2,593.76 approved) in a plan dated May 30, 2022;
(b) $448.80 ($3,252.92 less $2,804.12 approved) in a plan dated October 14, 2022;
(c) $659.20 ($2,355.28 less $1,696.08 approved) in a plan dated April 24, 2023, and;
(d) $374.00 ($1,682.05 less $1,308.05 approved) in a plan submitted October 12, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3Although the amended Case Conference Summary and Report (“CCRO”) dated July 22, 2024, indicates that the applicant is claiming an IRB for the period from July 12, 2022 to February 2023, in his written hearing submissions, the applicant states he is claiming an IRB for the period from August 8, 2021 to February 2023. This timeframe must be incorrect since August 8, 2021 pre-dates the accident. Therefore, I have considered the issue as set out in the CCRO.
RESULT
4The applicant is not entitled to an IRB.
5The applicant has not demonstrated on a balance of probabilities that the amounts owing for the treatment plans for psychological services are reasonable and necessary.
6The applicant is not entitled to interest or an award.
ANALYSIS
The applicant is not entitled to an IRB
7The applicant seeks an IRB for the period of July 12, 2022 to February 2023 which covers the period within 104-weeks after the accident.
(a) Pre-104 Week IRB
8I find that the applicant has not met his onus to identify his pre-accident job duties as a manager of a global customer technical support team, or whether he is able to substantially perform these duties after the accident.
9To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which asks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
10The applicant submits that he was employed full-time in merchant technology on the date of the accident, and he submitted income documentation to the respondent in support of his claim for an IRB. The applicant relies on his Employer’s Confirmation of Income (“OCF-2”) dated October 13, 2022, completed by Jing Gao, HR Director; his paystubs from November 30, 2021 to March 15, 2022; and his record of employment (“ROE”) from Citcon Canada Corporation (“Citcon”) dated November 10, 2022.
11I find that the applicant’s OCF-2 and ROE indicate that he was employed at Citcon as an executive director, with the job title of head of merchant technology, with job duties as manager of global customer technical support team from November 1, 2021 to July 12, 2022. I further find that the reason listed by Citcon for issuing the ROE is shortage of work or end of contract.
12The applicant also relies on a Disability Certificate (“OCF-3”) dated November 10, 2021, completed by Dr. Georgia Palantzas, chiropractor at Total Recovery Rehab Centre and an OCF-3 dated September 2, 2022, completed by Ahmed Afifi, physiotherapist at Total Recovery Rehab Centre. Dr. Palantzas and Mr. Afifi indicate that although the applicant returned to work as an information technologist after the accident, he subsequently stopped working on July 12, 2022. The applicant submits that he was unable to continue working after the accident for the period from July 12, 2022 to February 2023, due to his accident-related injuries.
13I find that in progress report dated January 12, 2024, Janice Lui indicates the applicant had been looking for a new job due to economic downturns before securing one at Manulife in February 2023. The applicant made no submissions to explain any medical reason for his inability to continue working from July 12, 2022 to February 2023.
14The respondent submits that the applicant was employed in a senior management position at the time of the accident. The applicant completed an Application for Accident Benefits (OCF-1) dated November 10, 2021, which indicates he was able to return to modified duties and hours, however, his employment information was not provided. The respondent submits that it requested an Employer’s Confirmation of Income form (OCF-2), pursuant to section 33 of the Schedule, which was due before December 10, 2021. The respondent further submits that it suspended payment of benefits on February 9, 2022, since the applicant did not provide the documents requested under s.33.
15The respondent submits that it denied benefits by letter dated May 11, 2022, based on Insurer Examination (“IE”) reports dated May 11, 2022 by Dr. Seung-Jun Lee, general practitioner and Shari Schwartz, psychologist. Both Dr. Lee and Ms. Schwartz concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment. The respondent further submits that it did not receive the OCF-2 until November 22, 2022, after the IRB was denied.
16The respondent further submits that the applicant received regular employment insurance benefits after he was laid off from Citcon for shortage of work on July 12, 2022. Although the applicant submits that he has not returned to work, it is the respondent’s position that his paystubs and tax records show post accident income until he was laid off. The respondent further submits the applicant was denied an IRB before he was laid off, based on the IE reports of Dr. Lee and Ms. Schwartz.
17I find that the applicant has not met his burden or produced evidence that indicates he has suffered a substantial inability to perform the essential tasks of his employment in merchant technology within 104 weeks after the accident. The applicant makes no submissions regarding the name of his employer or the duties of his pre-accident employment, other than he worked long hours with prolonged concentration and focus.
18Further, the applicant provided contradictory information to assessors regarding his employment status. On April 25, 2022, the applicant reported to IE assessor, Shari Schwartz, psychologist, that he was a director at a payment company at the time of the accident, and he took 3-4 days off work after the accident, then he returned to regular duties and hours. During an assessment on May 24, 2022, the applicant advised Dr. Sedigheh Naisi, psychologist that he is self employed at his own company, called “Open Decision Payment Technologies,” and he has returned to work on a part-time basis. In a progress reports dated September 12, 2023 and January 12, 2024, Janice Lui, registered psychotherapist, indicates that since February 2023, the applicant started working full-time, in a senior position at Manulife, after closing his business. Janice Lui further indicates that the applicant is able to drive long distances to work at Manulife located in Waterloo.
19I find that the applicant has not met his burden of proving on a balance of probabilities that he had a substantial inability to perform the essential tasks of his pre-injury employment at Citcon after July 12, 2022 as a result of his accident-related injuries, because he applied for regular employment insurance benefits due to a shortage of work. As a result, the applicant has not established his entitlement to an IRB based on his pre-accident employment in merchant technology at Citcon.
20In addition, the applicant has not produced any medical evidence that he was substantially unable to perform the essential tasks of his pre-accident employment in merchant technology from July 12, 2022 to February 2023 as a result of the accident.
21As a result, I find on a balance of probabilities that the applicant has not met his burden of establishing entitlement to an IRB.
(b) Quantum of IRB
22Although the applicant submits that he is entitled to an IRB in the amount of $400.00 per week from July 12, 2022 to February 2023, he has made no submissions in support of a calculation of an IRB.
23The respondent submits that the applicant has not produced sufficient employment documentation to calculate an IRB. The tax information produced from Citcon suggests the applicant continued to work after the accident until he was laid off for a shortage of work on July 12, 2022.
24I find that the applicant has not provided evidence of income documentation from his employment in merchant technology. As the applicant did not meet the test for an IRB, there is no need to calculate the quantum of an IRB and there is insufficient documentation to make a calculation.
Issue ii (a)-Plan dated May 30, 2022 for the outstanding amount of $1,556.80
25I find that the applicant has not established that the outstanding balance of the plan dated May 30, 2022 is payable.
26To receive payment for a treatment plan 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. 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 same are reasonable.
27Under s.25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No.03/14 (“Guideline”).
28The May 30, 2022 plan sought sixteen 1-hour sessions of mental health therapy, with documentation support activity, planning and brokerage services in the amount of $2,804.10. The respondent partially approved the treatment plan in the amount of $1,197.50 for sixteen 1-hour sessions at a rate of $149.61, plus the cost of completion of the OCF-18 for $200.00. The outstanding amount of $1,606.60 consisted of:
i. Brokerage services - 4 hours at a rate of $149.61 per hour at 0.25 hour each, totalling $598.40;
ii. Planning services - 4 hours at a rate of $149.61 per hour, at 0.25 hour each, totaling $598.40; and,
iii. Documentation support activity - 1 hour at a rate of $360.00 per hour.
Brokerage services
29I find that the applicant has not made any submissions to establish that the outstanding amount for brokerage services of $598.40 is reasonable and necessary.
30I agree with the respondent that the applicant has not provided an explanation for the additional brokerage services beyond the amounts which have already been paid. There is no explanation to distinguish between the additional time of 4 hours for brokerage services where the respondent had already approved documentation support activities for $200.00.
31Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $548.40 for brokerage services of the May 30, 2022 plan.
Planning services
32I find that the applicant has not made any submissions to establish that the outstanding amount for planning services of $548.40 is reasonable and necessary.
33I agree with the respondent that the applicant has not provided an explanation for the additional planning services beyond the amounts which have already been paid.
34Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $548.40 for planning services of the May 30, 2022 plan.
Documentation support activity
35I find that the applicant has not made any submissions to establish that the outstanding amount for documentation support activity of $360.00 is reasonable and necessary.
36I agree with the respondent that the applicant has not provided an explanation for the additional 1 hour of documentation support activity beyond the amounts which have already been paid.
37Therefore, I find that the applicant has not established on a balance of probabilities that he is entitled to the unapproved portion of $360.00 for documentation support activity of the May 30, 2022 plan.
38In sum, for the reasons stated above, I find that the applicant has not established on a balance of probabilities that the balance of the May 30, 2022 plan of $1,556.80 is reasonable and necessary and, therefore, the applicant is not entitled to the remaining amount of this plan.
Issue ii (b)- Plan dated October 14, 2022 for the outstanding amount of $448.80
39I find that the applicant has not established that the outstanding balance of the plan dated October 14, 2022 is payable.
40The October 14, 2022 plan sought twelve 1-hour sessions of mental health therapy, with documentation support activity, planning and brokerage services in the amount of $3,252.90. The respondent partially approved the treatment plan in the amount of $2,804.12 for twelve 1-hour sessions at a rate of $149.61, plus brokerage services for $448.80, documentation support activity for $360.00, and the cost of completion of the OCF-18 for $200.00. The outstanding amount of $448.80 consisted of 3 hours of planning services at a rate of $149.61 per hour, at 0.25 hour each, totaling $448.80.
41I find that the applicant has not made any submissions to establish that the outstanding amount for planning services of $448.8 is reasonable and necessary.
42I agree with the respondent that the applicant has not provided an explanation for the additional planning services beyond the amounts which have already been paid.
43Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $448.80 for planning services of the October 14, 2022 plan.
Issue ii (c)-Plan dated April 24, 2023 for the outstanding amount of $659.20
44I find that the applicant has not established that the outstanding balance of the plan dated April 24, 2023 is payable.
45The April 24, 2023 plan sought ten 1-hour sessions of mental health therapy, with documentation support activity, planning and brokerage services in the amount of $2,355.28. The respondent partially approved the treatment plan in the amount of $1,696.08 for ten 1-hour sessions at a rate of $149.61, plus brokerage services or communication with others for $299.20, and the cost of completion of the OCF-18 for $200.00. The outstanding amount of $659.20 consisted of:
i. Planning services, or ongoing evaluation and modification of treatment - 2 hours at a rate of $149.61 per hour, at 0.25 hour each, totaling $299.20; and,
ii. Documentation support activity - 1 hour at a rate of $360.00 per hour.
Planning services, or ongoing evaluation and modification of treatment
46I find that the applicant has not made any submissions to establish that the outstanding amount for planning services, or ongoing evaluation or modification of treatment of $299.20 is reasonable and necessary.
47I agree with the respondent that the applicant has not provided an explanation for the additional planning services, or ongoing evaluation and modification of treatment beyond the amounts which have already been paid for mental health therapy sessions and brokerage services or communication with others.
48Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $299.20 for planning services, or ongoing evaluation and modification of treatment of the April 24, 2023 plan.
Documentation support activity
49I find that the applicant has not made any submissions to establish that the outstanding amount for documentation support activity of $360.00 is reasonable and necessary.
50I agree with the respondent that the applicant has not provided an explanation for the additional 1 hour of documentation support activity beyond the amounts which have already been paid.
51Therefore, I find that the applicant has not established on a balance of probabilities that he is entitled to the unapproved portion of $360.00 for documentation support activity of the April 24, 2023 plan.
52In sum, for the reasons stated above, I find that the applicant has not established on a balance of probabilities that the balance of the April 24, 2023 plan of $659.20 is reasonable and necessary and, therefore, the applicant is not entitled to the remaining amount of this plan.
Issue ii (d)- Plan dated September 26, 2023 for the outstanding amount of $374.00
53I find that the applicant has not established that the outstanding balance of the plan dated September 26, 2023 is payable.
54The September 26, 2023 plan sought five 1-hour sessions of mental health therapy, with communication with others, ongoing evaluation and modification, and progress report in the amount of $1,682.05. The respondent partially approved the treatment plan in the amount of $1,308.05 for five 1-hour sessions at a rate of $149.61, plus a progress report for $360.00, and the cost of completion of the OCF-18 for $200.00. The outstanding amount of $374.00 consisted of:
i. Communication with others (brokerage services) – 1.25 hours at a rate of $149.61 per hour at 0.25 hour each, totalling $187.00; and,
ii. Ongoing evaluation and modification of treatment (planning services)– 1.25 hours at a rate of $149.61 per hour, at 0.25 hour each, totaling $187.00.
Communication with others (brokerage services)
55I find that the applicant has not made any submissions to establish that the outstanding amount for communication with others of $187.00 is reasonable and necessary.
56I agree with the respondent that the applicant has not provided an explanation for the additional communication with others (brokerage services) beyond the amounts which have already been paid. There is no explanation to distinguish between the additional time of 1.25 hours for communication with others (brokerage services) where the respondent had already approved five 1-hour mental therapy sessions.
57Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $187.00 for communication with others (brokerage services) of the September 26, 2023 plan.
Ongoing evaluation and modification of treatment (planning services)
58I find that the applicant has not made any submissions to establish that the outstanding amount for ongoing evaluation and modification of treatment (planning services) of $187.00 is reasonable and necessary.
59I agree with the respondent that the applicant has not provided an explanation for the additional ongoing evaluation and modification of treatment (planning services) beyond the amounts which have already been paid.
60Therefore, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $187.00 for ongoing evaluation and modification of treatment (planning services) of the September 26, 2023 plan.
The applicant is not entitled to interest and an award
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits have been unreasonably withheld or delayed, there is no interest payable.
62Under 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.
63Since the applicant isn’t owed any benefits, there is no basis for an award.
ORDER
64For the reasons set out above, I find that:
i. The applicant is not entitled to an IRB.
ii. The applicant is not entitled to the outstanding amounts of the treatment plans in dispute.
iii. The applicant is not entitled to interest, or an award.
iv. The application is dismissed.
Released: March 24, 2025
Lisa Holland
Adjudicator