Citation: Pan v. Unica Insurance Inc., 2025 ONLAT 23-006598/AABS

Licence Appeal Tribunal File Number: 23-006598/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:

Yi Zhong Pan

Applicant

and

Unica Insurance Inc.

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Aylina Dhanji, Counsel

For the Respondent:

Angela Comella, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Yi Zhong Pan, the applicant, was involved in an automobile accident on July 15, 2019, 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, Unica Insurance Inc., 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 December 17, 2021 to date and ongoing?

ii. Is the applicant entitled to $2,907.47 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 6, 2023?

iii. Is the applicant entitled to $4,632.81 ($14,750.81 less $10,118.00 approved) for catastrophic assessments, proposed by Somatic Assessments & Treatment Clinic in a plan dated February 1, 2023?

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?

RESULT

3I find that the applicant is not entitled to an IRB in the amount of $400.00 for the period from December 17, 2021 to date and ongoing;

4The applicant is not entitled to any expenses over and above the $10,118.00 approved listed in the $14,750.81 plan dated February 1, 2023, from Somatic Assessments & Treatment Clinic;

5The applicant is not entitled to the February 6, 2023 plan for chiropractic services, and;

6The applicant is not entitled to interest or an award.

ANALYSIS

Is the applicant entitled to an income replacement benefit?

7The applicant is claiming entitlement to an IRB post-104 weeks after the accident for the period from December 17, 2021 to date and ongoing. The applicant does not address how he has a complete inability to engage in any employment or self-employment for which he is suited by education, training or experience as a result of the accident. Therefore, I find that the applicant has not demonstrated entitlement to an IRB under s.6 of the Schedule.

8To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

9The applicant submits that he was employed as a driver for a cabinet company on the date of the accident. The applicant submits he was unable to return to work as a delivery driver after the accident because he was required drive, concentrate, perform heavy lifting and prolonged sitting, standing and walking as essential tasks of his pre-accident employment. The applicant submits that his injuries render him unable to competitively engage in his pre-accident employment for which he is suited by education, training or experience.

10The applicant relies on his Disability Certificate (OCF-3) dated August 14, 2019, completed by Dr. Georgia Palantzas, chiropractor of Vcare Rehab Center, reassessment reports dated October 15, 2020 and March 20, 2021 by Dr. Palantzas, clinical notes and records (“CNRs”) of Vcare Rehab Center, and a report dated July 5, 2023 by Dr. Joseph Wong, which indicate that the applicant suffered a substantial inability to perform the essential tasks of his employment within 104 weeks after the accident.

11The applicant does not address the question of whether he satisfies the test for post-104-weeks IRBs. The applicant has not demonstrated how he can discharge his onus. I find that his submissions on his pre-accident employment are not directly relevant to the point of whether the applicant has a complete inability to engage in any employment or self-employment for which he is suited by reason of education, training or experience.

12The respondent submits that the applicant was paid an IRB at a rate of $400.00 per week based on his inability to return to his pre-accident employment as a driver for Royal Classic Kitchens after the accident. The respondent further submits that it continued to pay an IRB post-104 to allow the applicant time to complete a graduated work hardening program approved on October 13, 2020, which was recommended by Dr. Sukhi Bhangu, physiatrist, in Insurer Examination (“IE”) report dated September 2, 2020.

13The respondent also relies on an IE report dated September 23, 2020, by Dr. Gary Challis, psychologist, IE report dated July 26, 2021 by Hagay Jalon, vocational evaluator, IE report dated August 11, 2021 by Dr. Seyed Hosseini, physiatrist, and a consultation report dated June 28, 2023, by Dr. Roy Baskind, treating neurologist, who recommends the applicant return to work to improve his sense of well being.

14The respondent submits that the evidence suggests that the applicant is able to return to work. Although the applicant submits that he has not returned to work, it is the respondent’s position that his tax records show post accident income.

15The respondent further submits that the applicant does not satisfy the post-104-week test because there is surveillance evidence that he performed tasks which demonstrate an ability to work, including driving, lifting objects, and delivering items to residences. The respondent further submits that Dr. Hosseini and Dr. Challis determined there is no physical or psychological impairment that would prevent the applicant from returning to work. The respondent submits that Hagay Jalon determined that the applicant has transferable skills, since he was able to complete a certificate program at George Brown College and obtain his AZ licence in English.

16I find that the applicant has provided contradictory evidence regarding his ability to drive and perform physical tasks. The applicant advised Dr. Challis in an IE report dated September 23, 2020 that he does not avoid driving and he agreed that he is able to perform light duties as a delivery driver. The applicant also advised Dr. Bhangu in an IE report dated September 2, 2020 that he has returned to driving. I find that Dr. Bhangu recommended that the applicant participate in a graduated return to work program. During a s.44 assessment on August 11, 2021, the applicant reported to IE assessor, Dr. Seyed Hosseini, physiatrist that he had not returned to any outdoor maintenance tasks, and he has not returned to driving. In a report dated July 5, 2023, the applicant reported to Raymond Wong, occupational therapist that he does not leave his home except to attend medical appointments, and he has not returned to driving.

17I find that investigation reports dated May 22, 2020, August 30, 2022, October 1, 2022, and August 13, 2023, by King International Advisory Group, include photographs taken by Ken O’Sullivan, investigator, which depict the applicant’s activity level to include driving, grocery shopping, gardening, riding a bicycle, jogging, lifting multiple items, and making deliveries.

18I find that the applicant has not met his burden of proving on a balance of probabilities that he has a complete inability to engage in any employment for which he is suited by reason of education, training or experience. As a result, the applicant has not established his entitlement to an IRB under the post-104-week test from December 17, 2021 to date and ongoing.

The applicant is not entitled to the treatment plan for chiropractic services from Total Recovery Rehab Centre

19I find that the applicant is not entitled to the plan dated February 6, 2023 for chiropractic services.

20To 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.

21The plan dated February 6, 2023 for chiropractic services was completed by Dr. Georgia Palantzas, chiropractor, at Total Recovery Rehab Centre, for 12 sessions of graduated work hardening, an assessment and documentation support activity, in the amount of $2,907.47. The goals of the plan are for pain reduction, increase strength and range of motion and return the applicant to work and his activities of daily living.

22The applicant submits that the plan is reasonable and necessary for his continued recovery since he has not returned to his pre-accident activity level.

23The respondent submits that it approved a similar plan for a work hardening program dated October 8, 2020 which the applicant completed, and the proposed plan is a duplication of services.

24I find that the applicant is not entitled to the plan dated February 6, 2023 for chiropractic services, because the evidence indicates that the respondent approved a similar plan dated October 8, 2020 by Dr. Palatzas at Vcare Rehab Center for a graduated work hardening program, which was completed on November 4, 2020. In addition, after completion of the program, Dr. Bhangu found that the applicant was able to return to his pre-accident duties and he has not suffered a complete inability to engage in any employment for which he is qualified by reason of education, training or experience.

25I find that on a balance of probabilities, the applicant has not demonstrated that the proposed plan dated February 6, 2023 for chiropractic services is reasonable and necessary.

Section 38(8) of the Schedule

26I find that the respondent’s denial of the February 6, 2023 plan is complaint with s.38(8) of the Schedule, and therefore, the applicant is not entitled to payment of this plan under s.38(11) of the Schedule.

27As an alternative argument, the applicant submits that the respondent failed to provide medical and relevant reasons for its denial of the February 6, 2023 plan.

28Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

29If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred 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 notice as described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

30The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

Sufficiency of the Respondent’s Denial of plan for chiropractic services

31The applicant argues that the plan dated February 6, 2023 for a chiropractic services by Dr. Palantzas in the amount of $2,907.47, was improperly denied by the respondent. The respondent wrote to the applicant on February 13, 2023 denying the benefits, within 10 business days of receiving the plans on February 7, 2023.

32The applicant submits that the respondent’s denial failed to provide “medical and relevant reasons”. I find that the February 13, 2023 was a valid denial letter. The letter identifies the plan is for a work hardening program over a period of four weeks, which is a duplication of previously approved treatment.

33The respondent states that it previously approved a plan dated October 8, 2020, by Dr. Palantzas for a work hardening program, which was completed on November 4, 2020. The respondent further states that in an IE report dated August 11, 2021, Dr. Hosseini determined that the applicant was physically able to return to the essential tasks of his pre-accident employment, and he did not suffer a complete inability to engage in any employment for which he is qualified by reason of education, training or experience. The respondent further stated that the applicant’s income tax returns for tax years 2019 and 2020 declare gross business income, and surveillance depict the applicant performing employment type activities.

34I find that the respondent provides reasons for the denial to allow the applicant to make a decision whether or not to dispute his claim. The respondent identified the applicant’s completion of a work hardening program, reported post-accident income, and his demonstrated physical ability to engage in employment type activities.

35Given that the respondent provided proper notice, I find that the applicant has not met his burden to establish this plan is payable.

Is the applicant entitled to expenses over and above the $10,118.00 approved listed in the $14,750.81 treatment plan dated February 1, 2023 from Somatic Assessments & Treatment Clinic?

36The applicant is seeking payment in the sum of $4,000 for the following additional costs of assessments to determine whether the applicant has sustained a catastrophic impairment:

a. Clinic file review by Dr. Joseph Wong, physiatrist for $2,000.00;

b. Clinic file review by Raymond Wong, occupational therapist for $1,000.00, and;

c. Clinic file review by Dr. Sedigheh Naisi, psychologist for $1,000.00.

37The applicant also seeks an additional amount of $112.81 for claimant transportation to an in-home assessment.

38The treatment plan was divided into different assessments and additional amounts for file review as part of a particular assessment. The request for each assessment is a request for a medical benefit on behalf of the applicant and the test for a medical benefit falls under the reasonable and necessary test.

39The applicant is seeking additional charges for clinic file reviews used as a part of the approved physiatry assessment, occupational therapy in-home assessment, and psychological assessment. The applicant also seeks an additional amount of $112.81 in transportation expenses to attend an in-home assessment.

40The onus is on the applicant to prove on a balance of probabilities that each of additional costs for the file reviews and transportation within the treatment plan are reasonable and necessary and if so, whether the fee reasonable. I find on a balance of probabilities that the applicant has not established that the additional costs for file reviews and transportation listed in the treatment plan are reasonable and necessary for the following reasons.

Is the applicant entitled to a clinic file reviews by Dr. Joseph Wong, Raymond Wong and Dr. Sedigheh Naisi?

41The applicant has not addressed the question of whether the clinic file reviews are reasonable and necessary.

42As a result, I find on a balance of probabilities that the applicant has not established that the proposed costs of $4,000.00 for clinic file reviews are reasonable and necessary and they are therefore denied.

Is the applicant entitled to additional transportation costs?

43The applicant has not addressed the question of whether the additional transportation costs of $112.81 are reasonable and necessary.

44The respondent submits that the additional transportation costs for the applicant to attend an in-home assessment are not reasonable and necessary since the assessment takes place at the applicant’s home.

45I find on a balance of probabilities that the applicant has not met his burden of proof in establishing that the additional charges for claimant transportation to an in-home assessment are reasonable and necessary and they are therefore denied.

The applicant is not entitled to interest and an award

46Interest 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.

47Under s.10 of Reg.664, 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.

48Since the applicant isn’t owed any benefits and there is no evidence of unreasonable withholding or delay, there is no basis for an award.

ORDER

49For the reasons set out above, I find that:

i. The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from December 17, 2021 to date and ongoing;

ii. The applicant is not entitled to any expenses over and above the $10,118.00 approved listed in the $14,750.81 treatment plan dated February 1, 2023, of Somatic Assessment & Treatment Clinic;

iii. The applicant is not entitled to the February 6, 2023 treatment plan for chiropractic services;

iv. As there are no benefits owing or delayed, the applicant is not entitled to interest or an award; and,

v. The application is dismissed.