Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-002221/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 Li
Applicant
and
The Co-operators
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Anil Hampole, Counsel
For the Respondent: Jonathon Kahane-Rapport, Counsel
HEARD: By way of written submissions
OVERVIEW
1Xiao Li, the applicant, was involved in an automobile accident on September 7, 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, 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 $4,383.90 for chiropractic services, proposed by Total Recovery Rehab Services in a treatment plan/OCF-18 (“plan”) dated January 15, 2022?
ii. Is the applicant entitled to $1,398.92 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a plan dated September 8, 2022?
iii. Is the applicant entitled to $3,981.88 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a plan dated November 11, 2022?
iv. Is the applicant entitled to $111.41 for medication, submitted on a claim form/OCF-6 dated April 20, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the proposed treatment plans or claim form expense.
4The applicant is not entitled to interest or an award.
ANALYSIS
5I find, on a balance of probabilities, that the applicant is not entitled to $4,383.90 for chiropractic services.
6To 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.
7The treatment plan, proposed by Somatic Assessments & Treatment Clinic calls for $200.00 for a re-assessment, 16 1-hour sessions of chiropractic treatment, 16 30-minute sessions of exercise, 16 30-minute sessions of acupuncture, 16 hours of travel assistance because the applicant was unable to drive on his own, and $253.82 for a progress report. The goals of treatment include pain reduction, increased range of motion, increased strength, a return to normal activities of daily living, and a return to modified/pre-accident work.
8The applicant submits that chiropractor, Dr. Georgia Palantzas, who proposed the treatment plan found that the applicant had decreased ranges of motion in the cervical, thoracic, lumbar spine, and shoulders, as well as persistent neurological symptoms in both upper extremities, headaches 3-4 times per week, and difficulty with standing, sitting, walking, and lifting. The applicant submits that this is corroborated by his family physician, Dr. Alton Wong, who noted the applicant’s persistent neck and back pain on October 18, 2021.
9The respondent relies on the s.44 physiatry assessment report of Dr. Mohammed Khan dated February 25, 2022 which found that no further physical treatment was reasonable and necessary. The respondent submits that Dr. Khan found no restrictions in ranges of motion apart from a slight reduction in cervical extension and lumbar flexion. He concluded that from a physical perspective the applicant’s injuries were considered minor.
10The respondent also relies on the psychiatric assessment report of Dr. Velan Sivasubramanian and the vocational assessment report of Ruth Billet, vocational assessor, both dated January 9, 2024 to support that the proposed treatment is not reasonable and necessary.
11I am not persuaded by the applicant’s submissions. I find that on October 18, 2021 Dr. Wong noted that the applicant’s pain and headaches had improved with acupuncture, and he did not need or want pain medication. The applicant also did not visit Dr. Wong between October 18, 2021 and March 22, 2022, and there was no mention in Dr. Wong’s clinical notes about accident-related pain in March 2022, or anytime after. I find that Dr. Wong’s clinical notes and records do not corroborate Dr. Palantzas’ recommendation for ongoing facility-based physical treatment.
12I prefer the specialist physiatry assessment report of Dr. Khan for the following reasons. The assessment report was dated around the time of the proposed treatment. Dr. Khan found that the applicant had already undergone a course of facility-based treatment, specifically the type of treatment being proposed, and that the applicant had no objective accident-related physical impairments. Dr. Khan also recommended self-directed exercises for the applicant’s residual sprains and strains because further facility-based treatment would not be expected to provide subjective or objective improvement.
13I have also given limited weight to the applicant’s self-report. According to the assessment report of Ms. Billet dated January 9, 2024, the applicant submitted that he had not returned to work since April 2023. According to surveillance footage, however, I find that the applicant was captured on camera at his employer’s place of business in July 2023. The applicant did not provide an explanation for this in his submissions.
14For these reasons, I find on a balance of probabilities that the proposed chiropractic treatment is not reasonable and necessary.
15I find, on a balance of probabilities, that the applicant is not entitled to psychological services in the amounts of $1,398.92 and $3,981.88.
16The applicant did not make any specific submissions related to the treatment plan dated September 8, 2022 in the amount of $1,398.92, but rather provided general submissions related to whether ongoing psychological treatment was reasonable and necessary.
17Both treatment plans proposed by Somatic Assessments & Treatment Clinic call for 1.5-hour sessions of psychological treatment by Dr. Sharleen McDowall, psychologist. The goal of the treatment is cognitive restructuring and reducing negative thought patterns to return the applicant to normal activities of daily living.
18The applicant submits that on March 21, 2022, Dr. McDowall diagnosed him with major depressive disorder with anxious distress, as well as specific phobia (travel) based on his significant emotional and psychological distress since the accident.
19The respondent relies on the psychiatric assessment reports of Dr. Robert Weinstein dated January 25, 2022 and January 25, 2023. The respondent submits that Dr. Weinstein’s initial assessment report found that the applicant was suffering from major depressive disorder and specific phobia (vehicular) and recommended psychological treatment. However, since Dr. Weinstein’s first assessment report of January 2022, the applicant had undergone 28 sessions of cognitive behavioural therapy. The respondent argues that Dr. Weinstein’s January 25, 2023 assessment report notes that the applicant’s mood functioning had deteriorated despite psychological treatment between January 2022 and January 2023. As such, Dr. Weinstein found that further psychological treatment was not warranted and recommended that the focus of treatment should be on pharmacotherapy.
20The respondent also relies on the assessment report of Dr. Sivasubramanian dated January 9, 2024. The respondent submits that Dr. Sivasubramanian found the applicant to be uncredible with respect to work-related impairments, particularly related to driving anxiety, work ability, and subjective emotional impairments.
21I prefer the assessment reports of Dr. Weinstein because he has had the benefit of assessing the applicant both before and after he participated in 28 sessions of psychological treatment. Specifically, I find that Dr. Weinstein’s conclusion that the applicant’s mood function had deteriorated despite treatment does not support that continuing with the same psychological treatment is reasonable and necessary. As a psychiatrist, I find that Dr. Weinstein is in a better position than Dr. McDowall, as a psychologist, to comment on both pharmacological and non-pharmacological ways to best manage the applicant’s accident-related psychological condition.
22Based on applicant’s lack of progress and mood function deterioration after 28 sessions of psychological treatment, as well as Dr. Weinstein’s recommendation for alternative pharmacological approaches, I find, on a balance of probabilities, that the proposed treatment plans for additional psychological treatment are not reasonable and necessary.
Claim form expense
23I find that the applicant is not entitled to $111.41 for medication expenses, as it has already been reimbursed by the respondent.
24The respondent provided payment confirmation by way of a cashed cheque in its submissions. The applicant did not provide any responsive submissions that would contradict the respondent’s position.
25Based on the respondent’s evidence, I accept that the expense claim for medication has been paid and I find that the $111.41 for medication expenses is no longer owing.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to any benefits, it follows that no payment of benefits went overdue and the applicant is not entitled to interest.
Award
27The 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.
28Although it was listed as an issue in dispute on the Case Conference Report and Order dated September 26, 2023, neither party made submissions related to the applicant’s entitlement to a s. 10 award. Accordingly, I find that the respondent is not liable to pay an award.
ORDER
29The applicant is not entitled to the proposed treatment plans or claim form expense.
30The applicant is not entitled to interest or an award.
Released: January 7, 2025
Tyler Moore
Vice-Chair