Licence Appeal Tribunal File Number: 22-008205/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:
You Luan Gao
Applicant
and
The Dominion of Canada General Insurance Company (Travelers)
Respondent
DECISION
ADJUDICATOR:
Kieffer Norton
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Paralegal
For the Respondent:
Lisa Armstrong, Counsel
HEARD:
By way of written submissions
OVERVIEW
1You Luan Gao, the applicant, was involved in an automobile accident on September 11, 2020, 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, The Dominion of Canada 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 the amount of $4595.12 for physiotherapy services set out in the OCF-18/treatment plan (OCF-18) dated April 5,2022 from Total Recovery?
ii. Is the applicant entitled to the amount of $2200.00 for an attendant care assessment set out in the OCF-18 dated February 9, 2021 from Somatic Assessments?
iii. Is the applicant entitled to an award under s. 10 of Regulation 664?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant is not entitled to the OCF-18 dated April 5, 2022 for physiotherapy services.
4I find the applicant is not entitled to the OCF-18 dated February 9, 2021 for an attendance care assessment.
5The applicant is not entitled to an award.
6The applicant is not entitled to interest.
ANALYSIS
Is the applicant entitled to a treatment plan of $4595.12 for physiotherapy services from Total Recovery?
7To 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.
8The applicant submits that following the accident they experienced physical pain, specifically in the neck and lower back. Mr. Ahmed Afifi, Physiotherapist, submitted a treatment plan to address the applicant’s ongoing physical pain on April 5, 2022.
9The goals of the treatment plan were to achieve pain reduction, increase motion, increase strength and return to activities of a normal living and modified work activities. The OCF-18 covers eight weeks, consisting of 16 at home visits of 90 minutes.
10The applicant submits that this treatment plan is reasonable and necessary.
11The respondent submits that OCF-18 for physical therapy is not reasonable or necessary. The respondent’s position is that the physical therapy is not supported by any medical evidence. It notes that the applicant has attended their family doctor on a regular basis since the accident and has not made any references to accident-related pain.
12I find the applicant has not met their burden of proof on balance of probabilities.
13Upon reviewing the clinical notes and records of Dr. Lau, family physician, I find that they do not support entitlement to the OCF-18. The notes and records begin some six months after the accident, and do not mention the accident at all. They do not recommend physiotherapy. Furthermore, the entry dated December 30, 2021 specifically states that the applicant is not experiencing any musculoskeletal pain.
14The examination of the applicant by the respondent’s examiner also shows that that the applicant is not suffering from any musculoskeletal impairments. The respondent’s examiner, Dr. Dilkas, opined in an insurer examination on December 23, 2020 that from a musculoskeletal perspective the applicant suffered cervical and lumbar sprain/strain injuries but that the applicant had also reached maximal medical recovery.
15I find that on balance of probabilities the applicant has not demonstrated that the treatment plan is reasonable and necessary.
Is the applicant entitled to an attendant care assessment?
16I find the applicant is not entitled to an attendant care assessment.
17The applicant’s position is that they are entitled to an attendant care assessment as it is reasonable and necessary given the physical symptoms and impairments of the applicant. They also submit that the respondent failed to provide sufficient medical reasons to satisfy the requirements under 38(8) of the Schedule.
18The respondent’s position is that the attendant care assessment is not reasonable or necessary. It argues there is no evidence to demonstrate any physical limitations, and that the applicant is independent with all personal tasks. They note that the applicant has returned to work and continues to drive.
19Upon reviewing the clinical notes and records of Dr. Lau, I find they do not support the conclusion that an attendant care assessment is necessary because the applicant has not proven that they are suffering from any physical limitations and are independent in their daily living. Furthermore, I am not directed to any evidence that directly attributes the need for an attendant care assessment to the accident.
20I find that the applicant has failed to prove on a balance of probabilities that the attendant care assessment is reasonable or necessary. Both the clinical notes and records of the applicant’s family doctor and the examinations of the respondent’s examiner show that the applicant does not have an impairment as result of the accident that would make an attendant care assessment reasonable or necessary.
Did the respondent fail to provide sufficient medical reasons to satisfy 38(8) of the schedule?
21The applicant also submits that the respondent failed to provide sufficient medical reasons to satisfy s. 38(8) of the Schedule.
22The respondent’s submissions are that its position was clear in its letter, that the denial of the OCF-18 was based upon the lack of medical documents submitted by the applicant, and that its denial was based on the finding of its s.44 assessors.
23I find the respondents arguments to be compelling as the February 23, 2021 letter denying the OCF-18 states there is no supporting medical evidence in in the record to support an attendant care assessment. Therefore, I find the respondent’s denial letter to be sufficient.
Interest
24The applicant is not entitled to interest as no amount is payable.
Award
25The 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.
26The applicant is not entitled to an award as no payment has been unreasonably held or delayed.
ORDER
27For the above reasons, I find:
i. The applicant is not entitled to the OCF-18s in dispute; and
ii. The applicant is not entitled to interest or an award.
iii. The application is dismissed.
Released: May 1, 2025
Kieffer Norton
Adjudicator