Licence Appeal Tribunal File Number: 23-008502/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 Ying Lin
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Diana Oliveira, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Xiao Ying Lin, the applicant, was involved in an automobile accident on January 14, 2023, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2A case conference took place on January 8, 2024, and the Case Conference Report and Order (“CCRO”) dated January 15, 2024, detailed the matter for a three-day video conference hearing starting on August 27, 2024.
3On August 8, 2024, the applicant filed a Notice of Motion with the Tribunal, on consent, requesting:
- The withdrawal of the issue listed in the CCRO: Is the applicant entitled to an income replacement benefit of $350.00 per week from January 22, 2023, to date and ongoing? and
- That the videoconference hearing be converted to a written hearing.
4The Motion Order dated August 9, 2024, vacated the videoconference hearing dates and converted it to a written hearing and clarified the issues in dispute as set out below.
ISSUES
5The issues in dispute are:
- Is the applicant entitled to $3,989.56 for physiotherapy, proposed by Total Recovery Rehab Centre in a treatment plan (“plan”) submitted May 1, 2022?
- Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Somatic Assessment and Treatment Clinic in a plan submitted July 4, 2023?
- Is the applicant entitled to interest on any overdue payment of benefits?
- Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
6For the reasons that follow, I find:
- The applicant is not entitled to the treatment plans in dispute.
- The applicant is not entitled to an award or interest.
ANALYSIS
7To receive payment for an OCF-18 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. 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.
The applicant is not entitled to the treatment plan, dated April 28, 2023, for physiotherapy services.
8I find that the applicant is not entitled to the treatment plan for physiotherapy services.
9The OCF-18, for $3,989.56, dated April 28, 2023, and signed by Mr. Ahmed Afifi, aims to achieve pain reduction, increased range of motion, enhanced strength, and a return to normal activities. The treatment plan includes an assessment (examination), 48 therapy sessions for multiple body sites (16 sessions x 3), documentation support activities, and 16 provider travel times.
10The applicant submits that the proposed physiotherapy was both reasonable and necessary to address the physical injuries sustained in the accident, including neck and arm pain, and was recommended by her treating physician, Dr. Kris Cheng, and physiotherapist Mr. Ahmed Afifi at Total Recovery Rehab Centre (“TRRC”). Additionally, the clinical notes and records (“CNR”s) indicate continued symptoms and document improvement with physiotherapy. Moreover, the applicant contends that even minor pain relief warrants treatment under the Schedule.
11The respondent claims that neither CNRs from TRRC nor any contemporaneous documentation of treatment progress exists. The respondent relies on the insurer examination report from Dr. Alborz Oshidari, which concluded that the treatment was neither reasonable nor necessary.
12I notice that the applicant's submissions highlight symptomatic complaints, but she fails to meet the evidentiary standard required to prove that the treatment is both reasonable and necessary.
13Firstly, Dr. Cheng’s CNRs do not support the need for physiotherapy. Dr. Cheng’s CNRs indicate multiple contusions and an acute stress reaction (e.g., CNRs from January 20, 2023, and February 24, 2023) or PTSD, whiplash injury, and multiple contusions (CNR of April 28, 2023).
14Secondly, in the Section 44 report from Dr. Oshidari, dated June 23, 2023, it is stated that, “Today, when I asked her if there is any further discomfort or pain, " she reported none. He also added that, “Stress to the rotator cuff muscle did not produce any discomfort or pain in the left shoulder.” Dr. Oshidari concluded that, as a result of the accident, the applicant experienced a sprain/strain of the cervical trapezius and a contusion of the right upper extremity with tension headaches, which qualifies as a minor injury. I place significant weight on this report because it is the only expert opinion available to me. The assessment was conducted by a physical and rehabilitation doctor who can clearly diagnose physical conditions and determine the need for physiotherapy. Also, the contusion noted by Dr. Oshidari aligns with the CNRs of the family doctor, Dr. Cheng.
15Lastly, the applicant did not clarify in her submissions why she considers the treatment plan for physiotherapy services necessary and reasonable. She did not identify the treatment goals, demonstrate how these goals would be met to a reasonable degree, or show that the overall costs of achieving them are reasonable. Additionally, the applicant did not explain why she would need 48 sessions of therapy.
16Consequently, I conclude that the applicant did not show, on a balance of probabilities, that the treatment plan is reasonable and necessary.
The applicant is not entitled to the Attendant Care Assessment dated July 4, 2023
17I find that the applicant is not entitled to the treatment plan for an attendant care assessment.
18The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
19The OFC-18, for $2,200.00, is for the attendant care assessment dated July 4, 2023, and signed by Mr. Raymond Wong. It aims to provide a complete Form 1 for the attendant care assessment and facilitate a return to normal daily activities.
20The applicant asserts that this assessment is reasonable and necessary due to the physical and psychological limitations resulting from the accident. She references Dr. Mehrdad Pojhan’s psychological report and comments about relying on family members for basic tasks to argue that assessing her needs through occupational therapy is essential for accurately determining attendant care needs.
21The respondent argues that the OCF-18 form itself undermines the rationale for the assessment, as it indicates "unknown" regarding whether the injuries impact daily living activities. Furthermore, Dr. Pojhan’s report did not include the expert acknowledgment required, and the applicant’s overall clinical picture lacked objective corroboration of substantial attendant care needs.
22I agree with the respondent, as the treatment plan itself indicates that it is unclear whether the applicant’s impairments from the identified injuries affect her ability to perform her employment tasks and engage in her normal activities of daily living.
23Additionally, on one hand, Dr. Pojhan indicated in his report dated July 20, 2023, that the applicant needs to develop alternative coping strategies to address her current mood problems and that this would support her in resuming normal life activities. The report does not identify valid grounds for the applicant to seek further investigation.
24On the other hand, Dr. Mehdi Lotfalizadeh’s Section 44 report dated June 23, 2023, clearly states that based on his psychological assessment, there is no need for any additional assessments or examinations to identify impairments or facilitate recovery from any impairment. I place weight on this report because it provides more details about the applicant's current psychological status by covering all aspects of her life (work, personal care, etc.). Moreover, Dr. Lotfalizadeh also administered the necessary objective tests to reach his conclusions. In summary, his report offers a more comprehensive analysis of the applicant's psychological state.
25Consequently, I conclude on a balance of probabilities that the contradictions in the OCF-18, the limited supporting documentation, and the absence of persuasive objective medical records to support the assessment indicate that this expense is not reasonable and necessary.
Interest
26Since no benefits are awarded, the issue of interest under section 51 does not arise.
Award
27The applicant seeks an award on the grounds that the insurer acted unreasonably in denying benefits. She contends that the insurer ignored her treating practitioners’ opinions and failed to act reasonably.
28The respondent submits that all denials were based on independent assessments conducted with due process, supported by medical opinions, and that the threshold for a special award has not been met.
29As I found that the applicant is not entitled to any benefits, no benefits were unreasonably withheld. Consequently, the applicant is not entitled to an award.
ORDER
30For the above reasons, it is ordered that:
- The applicant is not entitled to the treatment plans in dispute.
- The applicant is not entitled to an award or interest.
Released: May 21, 2025
__________________________
Harouna Saley Sidibé
Adjudicator