Licence Appeal Tribunal File Number: 23-010316/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:
Fei Gao
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
A. Bryn Copp, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Fei Gao, the applicant, was involved in an automobile accident on September 3, 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, Allstate Insurance Company of Canada, 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 $358.31 per week from July 20, 2022, to date and ongoing?
ii. Is the applicant entitled to $320.00 ($4,069.56 less $3,749.56 approved) for physiotherapy services, proposed by Total Recovery Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) submitted December 14, 2021?
iii. Is the applicant entitled to $4,972.00 ($14,750.81 less $9,778.81 approved) for catastrophic assessments, proposed by Somatic Assessments and Treatment Clinic in a plan submitted September 14, 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?
3The respondent submits that the OCF-6 dated December 7, 2021, was approved on September 13, 2024, and the issue is no longer in dispute. The applicant makes no submissions, nor provided any evidence to refute the approval. Therefore, I have removed this item from the issues in dispute.
4The respondent also submits that the outstanding amount of $33.36 for the OCF-6 dated July 26, 2022, was approved on September 13, 2024, and this issue is no longer in dispute. The applicant does not refute this in her reply. Since the applicant makes no submissions, nor provide any evidence to refute the approval, I have removed this item from the listed issues in dispute.
RESULT
5The applicant is not entitled to an IRB in the amount of $358.31 per week from July 20, 2022, to date and ongoing.
6The applicant is not entitled to the unapproved amount of $320.00 in the treatment plan dated December 14, 2021, for physiotherapy services.
7The applicant is not entitled to the unapproved amount of $4,972.00 in the treatment plan dated September 14, 2023, from Somatic Assessments and Treatment Clinic.
8The applicant is not entitled to interest or an award.
ANALYSIS
The applicant is not entitled to an IRB
9The applicant seeks an IRB for the period of July 20, 2022, to date and ongoing which covers periods that are both pre-104-weeks and post-104 weeks after the accident.
a) Pre-104 Week IRB
10For the reasons set out below, I find the applicant is not entitled to pre-104-week IRBs.
11I find that the applicant has not met her onus to demonstrate that she is substantially unable to perform the duties of her pre-accident job as a general labourer within 104-weeks after the accident, because she advised employment insurance benefits (“EI”) in April 2021 that she is able to return to full-time work.
12To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
13The applicant submits that she was employed full-time as a general labourer at Maple Leaf Foods, and she was collecting EI at the time of the accident due to COVID-19. The applicant submits that her pre-accident job duties were preparing, chopping and cutting chicken, which was physically demanding and required extensive stamina and concentration. The applicant submits that she is unable to work due to incontinence, sleep disturbance and pain. The applicant relies on a Disability Certificate (“OCF-3”) dated September 14, 2021, completed by Ahmed Afifi, physiotherapist at Total Recovery Rehab Centre; a psychological report dated June 10, 2022, by Dr. Mehrdad Pojhan, psychologist; and an occupational therapy report dated May 21, 2022 by Raymond Wong, occupational therapist.
14The applicant submits that she had no pre-existing conditions that would impact her ability to complete the essential tasks of her employment, and she was unable to return to work after the accident due to her accident-related injuries of incontinence, sleep disturbance and pain.
15The respondent submits that the applicant was on EI benefits at the time of the accident as a result of her pre-existing insomnia and anxiety related to her stressful work environment. The respondent submits that the applicant reported issues of insomnia and bladder infection to Dr. Kaiyan Su, family physician, before the accident. The respondent further submits that Dr. Su prescribed medication and support for the applicant’s sick leave from work in the year before the accident, and Dr. Su advised EI on March 8, 2021 that the applicant needs to find another job.
16The respondent further submits that it denied benefits by letter dated May 11, 2022, based on Insurer Examination (“IE”) paper review reports dated July 14, 2022 by Dr. Berbrayer, physiatrist, and Dr. Amena Syed, psychologist. Dr. Berbrayer concluded that the applicant’s accident-related injuries of headaches, neck strain and mechanical low back pain would not prevent her from returning to her pre-accident job. The respondent further submits that the applicant did not disclose her pre-accident psychological concerns and medication use to assessors. Dr. Syed diagnosed the applicant with adjustment disorder on the assumption that she did not have a pre-existing psychological condition. Both Dr. Berbrayer and Dr. Syed concluded that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.
17I find that in the OCF-3 dated September 14, 2021, Ahmed Afifi indicates that the applicant last worked on October 24, 2020, and she was collecting EI at the time of the accident. Dr. Pojhan concluded that the applicant has accident-related psychologicaI problems related to her headaches, insomnia, incontinence, and driving phobia. I find that the applicant reported to Dr. Pojhan that she was on EI before the accident due to sickness, she planned to return to work before the accident, and she was unable to return to work after the accident due to incontinence, sleep disturbance and pain. However, I find that the medical evidence suggests that Dr. Su supported the applicant’s sick leave from work before the accident because she could not sleep during the day while on night shift.
18I find that the applicant has not met her burden to establish that she has suffered a substantial inability to perform the essential tasks of her employment as a general labourer within 104 weeks after the accident. The applicant makes no submissions regarding the reason she is unable to perform the essential duties of her pre-accident employment, other than her job required stamina and concentration. In addition, the evidence supports that the applicant did not intend to return to her pre-accident employment. I find that the applicant’s EI file indicates that her benefits were converted from sickness to regular benefits on January 31, 2021, because the applicant told EI that she had no intention of returning to Maple Leaf Foods, and she was available for unrestricted full-time work.
19Further, the applicant provided contradictory information to assessors regarding her pre-accident employment status. On June 10, 2022, the applicant reported to Dr. Pojhan psychologist, that she is on EI for sickness, and Dr. Su prescribed her medication for urinary incontinence, sleep disturbance and inflammation after the accident.
20In addition, the applicant has not produced compelling medical evidence that she was substantially unable to perform the essential tasks of her pre-accident employment as a general labourer from July 12, 2022 to February 2023 as a result of the accident. I find that the medical evidence suggests that the applicant was not working at Maple Leaf Foods before the accident because of her insomnia, anxiety and incontinence, and in early 2021, she advised EI that she did not plan to return to her general labourer position at Maple Leaf Foods. I find that the applicant has not pointed to medical evidence to support her inability to return to her pre-accident position at Maple Leaf Foods after the accident. As a result, the applicant has not established her entitlement to an IRB based on her pre-accident employment as a general labourer at Maple Leaf Foods.
21For the foregoing reasons, I find on a balance of probabilities that the applicant has not met her burden of establishing entitlement to an IRB. The applicant has not demonstrated that she was substantially unable to perform the essential tasks of her pre-accident employment as a general labourer from July 20, 2022 to September 3, 2023.
b) Post-104 Weeks IRB
22For the reasons set out below, I find the applicant is not entitled to post-104-week IRBs.
23The applicant is claiming entitlement to an IRB post-104 weeks after the accident for the period from September 4, 2023 to date and ongoing. The applicant does not address how she has a complete inability to engage in any employment or self-employment for which she 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.
24To 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. For example, the applicant has not provided information or evidence to support her education, training or previous work experience such that she would be unable to work as a result of her accident-related impairments.
25The applicant does not address the question of whether she satisfies the test for post-104-weeks IRBs in her submissions, and instead, focusing on the merits of her pre-104-week claim only. Therefore, the applicant has not demonstrated how she can discharge her onus. I find that her submissions on her pre-accident employment are not directly relevant to the question of whether the applicant has a complete inability to engage in any employment or self-employment for which she is suited by reason of education, training or experience. The applicant has not provided information or evidence to support her education, training or previous work experience such that she would be unable to work as a result of her accident-related impairments.
26The respondent submits that the applicant was paid an IRB at a rate of $358.31 per week until July 20, 2022, totaling $14,921.04, based on her inability to return to her pre-accident employment as a general labourer after the accident.
27The respondent submits that the evidence suggests that the applicant is able to return to work because there is no medical evidence in support of her inability to return to work as a result of the accident. The respondent further submits that Dr. Berbrayer and Dr. Syed concluded that the applicant’s accident-related injuries do not prevent her from returning to work at her pre-accident position at Maple Leaf Foods. Although the applicant submits that she has not returned to work, it is the respondent’s position that the applicant has not produced any medical records in support of her inability to work.
28I find that the applicant has not met her burden of proving on a balance of probabilities that she has a complete inability to engage in any employment for which she is suited by reason of education, training or experience because there is . As a result, the applicant has not established on a balance of probabilities that she is entitled to an IRB under the post-104-week test from September 4, 2023 to date and ongoing.
Issue #2 – OCF-18 dated December 14, 2021 for the outstanding amount of $320.00
29I find that the applicant has not established that the outstanding balance of the OCF-18 dated December 14, 2021 is payable.
30To 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.
31Sections 15(1)(g) and s.16(3)(k) of the Schedule provide for medical and rehabilitation benefits that are reasonable and necessary which include transportation for the insured person to and from treatment sessions, including transportation for an aide or attendant. Sections 15(2)(c) and 16(4)(f) provide that the insurer is not liable to pay medical and rehabilitation benefits for transportation expenses other than authorized expenses.
32The December 14, 2021 OCF-18 completed by Ahmed Afifi, physiotherapist, of Total Recovery Rehab Centre sought sixteen 3.5 hour sessions of physiotherapy, with travel time, documentation support activity and completion of the OCF-18 in the amount of $4,069.56. The respondent partially approved the treatment plan in the amount of $3,749.56. The outstanding amount of $320.00 was comprised of provider travel time of -16 trips at a rate of $20.00 per hour at 1.0 hours each, totalling $320.00.
33I find that the applicant is not entitled to the provider’s travel time.
34The applicant relies on the CNRs of Dr. Su, and the reports of Dr. Pojhan and Raymond Wong, which all recommended physiotherapy. However, the applicant makes no submissions to address the issue of how provider travel time is payable under the Schedule. The only document that recommends that the applicant take part in at home physiotherapy sessions is the disputed plan.
35The respondent submits that pursuant to s. 15(2)(c) of the Schedule, the insurer is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses. The respondent further submits that s. 3(1) of the Schedule defines “authorized transportation expenses” as expenses related to transportation (a) that are authorized by, and calculated by applying the rates set out in the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario, and (b) that unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the first 50 kilometres of a trip.
36I agree with the respondent. The applicant has not established how the provider travel time is payable.
37I find that the applicant has not demonstrated on a balance of probabilities, that she is entitled to the unapproved portion of $320.00 for the December 14, 2021 OCF-18.
Issue #3 – Is the applicant entitled to expenses over and above the $9,778.81 approved listed in the $14,750.81 treatment plan dated September 14, 2023 from Somatic Assessments and Treatment Clinic?
38I find that the applicant has not established that the outstanding balance of the OCF-18 dated September 14, 2023 is payable.
39The applicant is seeking payment in the sum of $2,000 for the following cost of examinations to determine whether the applicant has sustained a catastrophic impairment:
a. Comprehensive file review;
b. Transportation expenses
40The cost of examinations to determine whether the applicant has a catastrophic impairment is addressed under section 25 of the Schedule. Pursuant to s. 25(1)(5), the insurer must pay for reasonable fees charged for preparing an application under section 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose. Section 25(5)(a) states that the insurer shall not pay more than $2,000.00 plus applicable taxes for any one assessment or examination and for preparing any report connected to it.
41To determine entitlement, the applicant must prove on a balance of probabilities that each constituent element that makes up the multidisciplinary CAT determination assessment is reasonable and necessary.
42The treatment plan was divided into different examinations by Dr. Joseph Wong, physician, Raymond Wong, occupational therapist and Sedigheh Naisi, psychologist, and additional amounts for comprehensive file reviews by each assessor.
43The applicant is seeking additional charges for comprehensive file reviews by Dr. Wong in the amount of $2,000.00; by Raymond Wong in the amount of $3,000.00; and by Sedigheh Naisi, in the amount of $1,000.00, in addition to claimant transportation expenses.
44The onus is on the applicant to prove on a balance of probabilities that each of the examinations and additional amounts for comprehensive file reviews within the treatment plan are reasonable and necessary and if so, whether the fee reasonable.
Is the applicant entitled to a comprehensive file reviews?
45The applicant submits that the comprehensive file reviews are separate assessments or examinations. The applicant has made no submissions regarding whether the comprehensive file reviews are reasonable and necessary separate and apart from the approved examinations.
46The respondent submits that the comprehensive file reviews are included in each type of assessment or examination.
47I find that the applicant makes no submissions to explain how the comprehensive file reviews are separate assessments or examinations. The Tribunal has consistently found that a file review and report is included in the cost of each examination and, unless the assessor is preparing the final CAT determination report, this does not garner separate payments. As a result, on a balance of probabilities, I find the applicant is not entitled to the additional amounts for comprehensive file reviews.
Is the applicant entitled to transportation expenses?
48The applicant makes no submissions regarding whether the amounts for claimant transportation are payable.
49The respondent submits that pursuant to s. 15(2)(c) of the Schedule, the insurer is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses. The respondent further submits that s. 3(1) of the Schedule defines “authorized transportation expenses” as expenses related to transportation (a) that are authorized by, and calculated by applying the rates set out in the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario, and (b) that unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the first 50 kilometres of a trip.
50I find that the applicant has not met her burden of proof in establishing that the additional charges for transportation expenses are reasonable and necessary.
51I find on a balance of probabilities that the applicant is not entitled to the transportation expenses in dispute.
The applicant is not entitled to interest or an award
52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.
53Under 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. Since no benefits have been unreasonably withheld or delayed, an award is not payable.
ORDER
54The application is dismissed, and I find that the applicant is not entitled to the following:
i. The applicant is not entitled to an IRB from July 20, 2022 to date and ongoing.
ii. The unapproved amount of $320.00 in the treatment plan dated December 14, 2021, of Total Recovery Rehab Centre;
iii. The unapproved amount of $4,972.00 in the treatment plan dated September 14, 2023, of Somatic Assessments and Treatment Clinic; and,
iv. Interest, or an award.
Released: June 12, 2025
__________________________
Lisa Holland
Adjudicator