Citation: Shen v. Co-operators General Insurance Company, 2025 ONLAT 23-005212/AABS

Licence Appeal Tribunal File Number: 23-005212/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:

Xiao Min Shen

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Peter Durant, Counsel

HEARD: By way of written submissions

OVERVIEW

1Xiao Min Shen, the applicant, was involved in an automobile accident on February 14, 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, Co-operators General 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 a non-earner benefit ("NEB") of $185.00 per week from April 8, 2022 to present and ongoing?

ii. Is the applicant entitled to $212.81 for chiropractic services, proposed by UHeal Rehabilitation Centre in a treatment plan/OCF-18 ("treatment plan") submitted April 28, 2022?

iii. Is the applicant entitled to $4,377.20 for chiropractic services, proposed by UHeal Rehabilitation Centre in a treatment plan submitted June 18, 2022?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

3Issues 1, 5 and 6, as set out in the Case Conference Report and Order dated December 22, 2023, were withdrawn.

RESULT

4I find:

i. The applicant is not entitled to an NEB;

ii. The applicant is not entitled to payment of the treatment plan dated April 28, 2022;

iii. The applicant is not entitled to payment of the treatment plan dated June 16, 2022;

iv. The applicant is not entitled to an award under s. 10 of Reg. 664; and

v. As there are no overdue benefits, the applicant is not entitled to interest.

ANALYSIS

The applicant is not entitled to an NEB

5I find that the applicant is not entitled to an NEB.

6Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a "complete inability to carry on a normal life" as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant's pre- and post-accident activities.

7The applicant submits that she sustained both physical and psychological impairments in the accident, including a vision impairment, back pain with numbness and tingling in her arms and legs, Post-Traumatic Stress Disorder (PTSD) and Specific phobia, situational (travel), which have caused her to suffer a complete inability to carry on a normal life. In support of her position, she relies on the OCF-3, completed by Dr. Travaers, chiropractor, and dated February 22, 2022, the CNRs of Dr. Chan, Dr. Tang and Dr. Cheskes, the pre-screening report of Dr. McDowall, psychologist, which is attached to the treatment plan dated April 19, 2022, and the psychological assessment report of Dr. Svetlana Gabidulina, psychologist, dated April 22, 2024 and the Psychiatric Insurer's Examination (IE) of Dr. Ariel Zielinsky, psychiatrist, dated March 21, 2024.

8The respondent submits that the applicant's accident-related injuries did not result in a complete inability to carry on a normal life. The respondent also submits that the applicant has not proven that her vision impairment is accident-related. In support of its position, the respondent relies on the neurological/neuro ophthalmological IE of Dr. Paul Ranalli, dated March 1, 2024, the Occupational Therapy In-home Assessment of Reema Shafi dated March 21, 2024, the Physiatry IE of Dr. Zabielauskas dated March 21, 2024 and the Psychiatric IE of Dr. Zielinsky, dated March 21, 2024. The respondent also referred me to the decision of Hormis v. Aviva General Insurance, 2022 CanLII 53760 (ON LAT), in which the Tribunal found that an applicant must provide evidence of the frequency and time commitments of the applicant's pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident in order to discharge their burden of proof.

9The OCF-3 dated February 22, 2022 indicates that the applicant suffered a complete inability to carry on a normal life. Dr. Travaers' explanation for this was that the patient was unable to perform their pre-accident activities of daily living without exacerbating their symptomatology. IDr. Travaers indicated that the anticipated duration of the applicant's disability was 9-12 weeks. I find that the OCF-3 is not sufficient to prove the applicant's entitlement to an NEB, particularly as Dr. Travaers provides little analysis to support his opinion.

10I find that the evidence to which the applicant directed me, in particular the CNRs of Dr. Tang, Dr. Xiang and Dr. Cheskes, contained many references to the applicant's symptoms, including the pain and psychological symptoms, that the applicant suffered after the accident. However, I find that the evidence contained relatively few references to how those symptoms resulted in an inability to engage in the activities she engaged in prior to the accident.

11I find that the CNRs of Dr. Chang are largely illegible and I give them little weight.

12However, the CNRs of Dr. Xiang mention that the applicant's sister helps her with chores, that her son drives her and that she is "unable to do anything at home." The psychological assessment report of Dr. Gabidulina reports that the applicant has difficulty completing household duties and that her daily functioning has been adversely affected by her impairments, that she stopped driving and avoids travel in vehicles. I give less weight to this evidence because it is vague, both in terms of the amount of time she spent on various activities before the accident and the amount of help she requires after the accident. I find that the evidence does not specify the extent to which the applicant's sister helps her, either in terms of which chores the applicant is unable to perform without help or the amount of time the applicant's sister spends helping the applicant with chores since the accident. While I accept that the applicant has stopped driving after the accident, the evidence does not indicate how often the applicant drove prior to the accident or how often her son drives her after the accident.

13The pre-screen report of Dr. McDowall reports that the applicant used to love socializing and exercising but cancelled social activities after the accident due to anxiety respecting driving. I give less weight to this evidence because the references to social activities and exercising lack details both in terms of which activities she ordinarily engaged in before the accident, those she is unable to engage in after the accident and the importance of those activities to the applicant's life.

14The psychiatric IE of Dr. Zielinsky reports that the applicant is uncomfortable leaving the house unaccompanied, and that she is unable to attend the cinema, watch television or travel to China once per year. However, I give less weight to this evidence because, with the exception of travel to China, which the applicant reported to Dr. Zielinsky was an annual event prior to the accident, the applicant's evidence did not indicate how often she engaged in activities such as going to the cinema, or watching tv prior to the accident, or the importance of these activities in her life. In addition, Dr. Zielinsky opined that the applicant did not meet the test for an NEB at the time of her assessment.

15In contrast, I give more weight to the Occupational Therapy In-home Functional Assessment Report of Reema Shafi, dated March 21, 2024 and based on an assessment performed January 17, 2024, in which Ms. Shafi opines that the applicant does not meet the test for entitlement to an NEB. I prefer the opinion of Ms. Shafi because she considered the applicant's subjective reports, the results of a physical examination and her observations of the applicant's performance in a series of functional tests as the basis for her opinion respecting the applicant's ability to perform a variety of activities related to self-care, mobility and household activities after the accident. I find that Ms. Shafi opined that the only activities the applicant was unable to or had not resumed after the accident were driving, light snow removal and she remained partially reliant on family members for grocery shopping.

16For the foregoing reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that her accident-related impairments have continuously prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.

The treatment plans are not reasonable and necessary

17I find that the treatment plans for chiropractic and acupuncture services are not reasonable and necessary. The parties' submissions addressed entitlement to both treatment plans together, so I have considered them the same way.

18To 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.

19The treatment plan dated April 28, 2022 was completed by Dr. Richard Travaers, and sought funding for $1,300.00 for chiropractic services. The respondent partially approved the treatment plan in the amount of $1,087.19 under the MIG, leaving $212.81 in dispute. The goals of the treatment plan were listed as pain reduction, increased range of motion, increase in strength, reduce swelling and inflammation, increase neuro-muscular endurance and return to pre-accident exercise and social activity.

20The treatment plan dated June 18, 2022 was completed by Dr. Travaers and sought funding for $4,377.20 for chiropractic and acupuncture services. The goals of the treatment plan were listed as pain reduction, increased range of motion, increase in strength, reduce swelling and inflammation, increase neuro-muscular endurance and return to pre-accident exercise and social activity.

21The applicant submits that the chiropractic and acupuncture services proposed in the treatment plans are reasonable and necessary as a result of the accident because the applicant was experiencing pain in her neck, chest and waist, dizziness and headaches. In support of her position, the applicant relies on the CNRs of Dr. Chan, Dr. Tang, Dr. Xiang, a note from Dr. Tang dated August 30, 2023 providing a referral to a physiotherapist, and the pre-screen interview conducted by Dr. McDowall for the treatment plan dated April 19, 2022.

22The respondent submits that the treatment plans are not reasonable and necessary and, in support of its position, it relies on the physiatry assessment report of Dr. Zabielauskas, dated March 21, 2024, in which Dr. Zabielauskas opines that the applicant showed no residual physical impairment or physical disability that would require any facility-based treatment of any kind.

23The CNRs of Dr. Chan demonstrate that the applicant attended at Dr. Chan's office three times in February 2022 after the accident, twice in March 2022 and once in April 2022. The notes themselves are in handwriting and are largely illegible. I find that they are not helpful to me in determining this issue.

24The CNRs of Dr. Tang and Dr. Xiang demonstrate that the applicant reported feeling pain in her neck and back in June and July 2023. However, I find that the applicant was not a patient of Dr. Tang or Dr. Xiang in April 2022, and so their CNRs do not provide contemporaneous medical evidence to support the treatment plan. I therefore give them little weight. Similarly, I give little weight to the note from Dr. Tang dated August 30, 2023, which provides the applicant with a referral to a physiotherapist because it is dated over a year after the treatment plan, and because Dr. Tang recommends physiotherapy, not chiropractor or acupuncture services.

25The pre-screen interview of Dr. McDowall, based on her interview of the applicant on February 23, 2022, demonstrates that the applicant reported suffering from pain in her neck, chest and waist, along with headaches and dizziness at around the time of the treatment plan. However, I find that Dr. McDowall, as a psychologist, is not qualified to recommend appropriate treatment for the applicant's physical complaints, nor did she do so.

26I find that the applicant has not directed me to evidence from a medical professional recommending chiropractic and acupuncture treatment for the applicant's injuries, other than the treatment plans themselves.

27As the applicant has not directed me to evidence from a medical professional corroborating the recommendations set out in the treatment plans or otherwise addressing how the goals of the treatment plans will be reasonably met, I find that the applicant has not proven, on a balance of probabilities, that the treatment plans are reasonable and necessary.

Compliance with Section 38

28The applicant submits that the respondent's letters of May 11, 2022, partially denying the treatment plan dated April 28, 2022, and June 30, 2022, denying the treatment plan dated June 16, 2022, did not comply with s. 38(8) of the Schedule because they did not give medical reasons for the denial.

29Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.

30If an insurer fails to comply with s. 38(8), the consequences are:

i. The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and

ii. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

31Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) ("Peel"), provides useful guidance on the meaning of "medical reasons." It found that such reasons should:

(i) Include specific details about the insured's condition that formed the basis for the insurer's decision or identify information about the insured's condition that the insurer does not have but requires; and

(ii) Should allow an unsophisticated person to make an informed decision to accept or dispute the insurer's decision.

A) Denial letter of May 11, 2022

32The applicant submits that the respondent's denial letter of May 11, 2022 did not comply with s. 38(8) of the Schedule because it did not contain medical reasons for the denial.

33The respondent makes no submissions on this issue.

34The letter of May 11, 2022 contains the following reasons for the denial:

As per your Treatment Confirmation Form (OCF-23), dated February 22, 2022, this OCF-18 and your Disability Certificate (OCF-3), dated February 22, 2022, all submitted by Uheal Rehab Centre, your accident-related injuries are predominantly soft-tissue in nature. As such, we have determined that your impairments meet the SABS definition of minor injury.

35I find that these reasons comply with s. 38(8) of the Schedule because it contains the following aspects, which should allow an unsophisticated person to make an informed decision about whether to accept of dispute the denial:

i. A reference to the specific documents relied on by the respondent;

ii. The details of the insured's condition according to those documents, specifically that the applicant's accident-related injuries are predominantly soft-tissue injuries; and

iii. The conclusion that the respondent drew from those details, specifically that the applicant's impairments met the definition of minor injury.

36Therefore, I find that the applicant is not entitled to payment of the disputed treatment from the treatment plan dated April 28, 2022.

B) Denial letter dated June 30, 2022

37The applicant submits that the respondent's denial letter of June 30, 2022 did not comply with s. 38(8) of the Schedule because it did not contain medical reasons for the denial.

38The respondent makes no submissions on this issue.

39The letter of June 30, 2022 includes the following reasons for the denial:

As per your Application for Accident Benefits (OCF-1), dated February 19, 2022, your accident-related injuries include:

• Soft tissue injuries to the neck and left side of the chest

• Headaches

• Fear of driving

As per your Treatment Confirmation Form (OCF-23), dated February 22, 2022, your Disability Certificate (OCF-3), dated February 22, 2022, and the subject OCF-18, all submitted by Uheal Rehab Centre, your accident-related injuries are predominantly soft-tissue in nature with some secondary psychological symptoms. All of these reported injuries can potentially be treated within the minor injury guideline.

40I find that these reasons comply with s. 38(8) of the Schedule because they contain the following aspects, which should allow an unsophisticated person to make an informed decision about whether to accept of dispute the denial:

i. A reference to the specific documents relied on by the respondent;

ii. The details of the insured's condition according to those documents, specifically the soft-tissue injuries, secondary psychological symptoms, headaches, and fear of driving; and

iii. The conclusion that the respondent drew from those details, specifically that the applicant's impairments can be treated within the MIG.

41Therefore, I find that the applicant is not entitled to payment of the disputed treatments from the treatment plan dated June 16, 2022.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that there are no overdue benefits, there is no interest due under s. 51.

Award

43The 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.

44The applicant submits that the respondent behaved unreasonably by ignoring the medical records of her treating practitioners and assessors in denying her benefits. As I have found that there are no overdue or unpaid benefits, an award under s. 10 of Reg. 664 is not appropriate.

ORDER

45I find:

i. The applicant is not entitled to an NEB;

ii. The applicant is not entitled to payment of the treatment plan dated April 28, 2022;

iii. The applicant is not entitled to payment of the treatment plan dated June 16, 2022;

iv. The applicant is not entitled to an award under s. 10 of Reg. 664; and

v. As there are no overdue benefits, the applicant is not entitled to interest.