Citation: Zhu v. Co-operators General Insurance Company, 2025 ONLAT 23-003306/AABS

Licence Appeal Tribunal File Number: 23-003306/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:

Le Rong Zhu

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Anil Hampole, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Le Rong Zhu, the applicant, was involved in an automobile accident on November 6, 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, 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 to be decided are:

1. Is the applicant entitled to $14,750.81 for a catastrophic assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated March 14, 2022?

2. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant is partially entitled to the treatment plan in dispute, in the amount of $8,400.00 plus HST and interest in accordance with the Schedule; and

ii. The respondent is not liable to pay an award.

LAW

4Section 25(1)5 of the Schedule provides that an insurer shall pay reasonable fees incurred by or on behalf of an insured person charged for preparing an application under s. 45 for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment necessary for that purpose. Section 45(1) provides that an insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.

5Section 25(1)5 is to be read in conjunction with s. 25(5)(a) which limits the cost of any one assessment or examination to $2,000.00.

6The applicant bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

ANALYSIS

Parties’ positions

7The applicant submits that he sustained ongoing physical impairments, chronic pain and psychological impairments as a result of the accident, which have worsened over time. At the time of the accident, he reported pain in his neck, back, shoulders, chest, right lower leg, headaches and dizziness. An X-ray of the right fibula found a minimally displaced fracture. The applicant further submits that over the following months, his family physician, Dr. Xiao, diagnosed him with a concussion and the applicant reported worsening pain in his neck, shoulders, bilateral legs, and back. On December 9, 2019 Dr. Xiao noted the applicant’s insomnia resulting from the pain of the accident, as well as PTSD. Various pain medications were prescribed by Dr. Xiao.

8The applicant argues that his chronic pain and psychological impairments worsened over time, and that in 2022 he was diagnosed with major depressive disorder and generalized anxiety disorder. A 2022 ultrasound of his shoulder revealed a partial thickness tear on the left supraspinatus tendon. As such, in March 2022 the applicant submitted a treatment plan (“OCF-18”) recommending a catastrophic (“CAT”) assessment on Criteria 6 and 7.

9The applicant relies on a s. 25 CAT assessment report prepared by Dr. Joseph Wong, physiatrist. Dr. Wong conducted an assessment, reviewed medical documentation, and diagnosed the applicant with myofascial injury of the cervical, thoracic and lumbar spine and gluteal muscles, post-traumatic headaches, bilateral shoulder rotator cuff tendinitis, insomnia, chronic pain, chronic pain syndrome and right fibular fracture. While Dr. Wong noted that the bone had healed, the applicant was left with reduced sensation in his calf area, which Dr. Wong opined was due to a local cutaneous nerve injury. He also noted that the applicant had been “diagnosed with psychological problems according to the psychologist’s report”.

10Dr. Wong conducted a Criterion 6 CAT analysis and found that the combined whole person impairment (WPI) of the applicant’s physical accident-related impairments, taking into account the medication adjustment, was 40%. For psychological impairments, Dr. Wong noted that this was to be addressed by a psychological assessor, but that the applicant was likely to reach the CAT threshold for Criterion 7.

11The respondent submits that the proposed CAT assessment is not reasonable and necessary, as there is no reasonable possibility that the applicant has sustained a catastrophic impairment. It argues that the applicant’s fibular fracture healed, and that he did not report ongoing pain relating to this orthopedic injury to Dr. Xiao. The respondent further submits that the applicant had reported identical chronic pain complaints in the years pre-accident.

12With respect to the applicant’s chronic pain, the respondent raises the issue of res judicata. It submits that the Tribunal had already adjudicated the majority of the applicant’s medical evidence and in a prior Tribunal decision, Zhu v. The Co-operators General Insurance Company, 2023 CanLII 139 (ONLAT), the Tribunal expressly determined that the applicant had not established chronic pain as a result of the accident. Adjudicator Neilson noted that she was unable to find that the applicant’s neck, shoulder, upper back and bilateral leg pain were caused by the accident and that the applicant had not established that he suffered from a complete inability to carry on a normal life.

13The respondent cites the Tribunal decision Ramphal v. the Co-operators Insurance Company, 2023 CanLII 42600 (ONLAT), to argue that the Tribunal had previously considered the applicant’s evidence and that the adjudicator’s findings on causation of the chronic pain and that the applicant does not suffer from a complete inability to carry on a normal life, are binding on the Tribunal. It argues that the medical evidence Dr. Wong considered in rendering his CAT assessment, was the same medical evidence previously considered by the Tribunal.

14With respect to the applicant’s psychological impairments, the respondent argues that the medical record clearly establishes that they are not related to the accident. Rather, the respondent argues that the applicant’s psychological symptoms stemmed from COVID-related agoraphobia and other causes unrelated to the accident.

15The applicant did not provide any reply submissions and as such, did not address the issue of res judicata.

Res judicata

16The doctrine of res judicata prevents a party from relitigating an issue that has already been decided. The Tribunal has held that four preconditions must be established before the adjudicator can determine whether to exercise discretion to apply res judicata (16-003909 v. Aviva Insurance Canada, 2017 CanLII 59502 (ON LAT)).:

i. The parties must be the same in both actions;

ii. The prior claim must be within the jurisdiction of the Tribunal;

iii. The prior adjudication must have been on the merits; and

iv. The prior decision must have been a final judgement.

17As noted in Toronto (City) v. CUPE Local 79, 2003 SCC 63 at para 52, res judicata can be waived in the following situations:

i. The first proceeding is tainted by fraud or dishonesty;

ii. Fresh, new, evidence is submitted that was previously unavailable that would conclusively impeach the original results; or

iii. When fairness dictates that the original result should not be binding in the new context.

18I do not find that the four preconditions for res judicata are satisfied. The previous decision between the parties addressed the issues of a non-earner benefit, treatment plans for chiropractic, physiotherapy, psychological and dental services, a functional abilities assessment and an occupational therapy assessment. The current application is for the cost of a catastrophic assessment. The issues in the two applications are different, and the Tribunal has not already made a determination on the issue of the cost of a catastrophic assessment.

19Although the respondent relies on the Tribunal decision, Ramphal v. the Co-operators, I find that this decision is distinguishable. In Ramphal, the same issue was before the Tribunal in both applications. Namely, whether the applicant’s injuries were predominantly minor and therefore subject to the treatment limits of the Minor Injury Guideline. This is not the case in the present matter.

20In the current proceedings, the respondent argues that the concept of res judicata applies to specific findings of fact. However, it does not direct me to any authority or caselaw in support of the position that prior factual findings are binding on future adjudicators in the context of a different dispute. As such, I find that the respondent has not established that res judicata applies to the Tribunal’s prior findings on chronic pain or whether the applicant suffers from a complete inability to carry on a normal life

The OCF-18 for catastrophic assessments is partially reasonable and necessary

21The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that the recommended assessments are reasonable and necessary for the purpose of determining whether he has sustained a catastrophic impairment.

22The breakdown of the goods and services proposed in the CAT assessment treatment plan are as follows:

i. $2,000.00 for a physiatry assessment;

ii. $2,000.00 for a psychology assessment;

iii. $2,000.00 for an in-home occupational therapy (OT) assessment;

iv. $2,000.00 for a clinic file review assessment by Dr. Wong (physiatry);

v. $1,000.00 for a clinic file review assessment by Raymond Wong (OT);

vi. $1,000.00 for a clinic file review assessment by Dr. Naisi (psychologist)

vii. $2,000.00 for an overall assessment summary, analysis

viii. $200.00 for completion of initial OCF-18

ix. $200.00 for completion of OCF-19

x. $200.00 for translation

xi. $400.00 for transportation

xii. $112.81 for travel time

23I find that the applicant has established that the cost of the proposed CAT physiatry assessment, psychology assessment, OT in-home assessment, and the overall assessment and summary are reasonable and necessary, along with the costs of the form completion. The applicant has not established entitlement to the remainder of the listed costs.

$2,000.00 for a physiatry assessment

24I find that the proposed physiatry assessment is reasonable and necessary. The applicant submits that as a result of the accident, he has suffered from ongoing physical symptoms and chronic pain for over four years. He cites the hospital X-rays confirming his right fibula fracture, subsequent ultrasound revealing a partial thickness tear of the left supraspinatus tendon, and his ongoing complaints to Dr. Xiao of chronic pain in his neck, shoulder, upper back and legs. Dr. Xiao also prescribed a variety of pain medication over the years. The applicant further relies on Dr. Wong’s CAT physiatry assessment, who diagnosed the applicant with impairments including: myofascial injury of the cervical, thoracic and lumbar spine and gluteal muscles, post-traumatic headaches, bilateral shoulder rotator cuff tendinitis, insomnia, chronic pain, and healed right fibular fracture, which may have resulted in a local cutaneous nerve injury.

25The respondent did not conduct updated s. 44 assessments, but rather, relies on its previous s. 44 orthopaedic assessment of Dr. Gharsaa dated August 4, 2020. Dr. Gharsaa found that the applicant’s fibular fracture and soft tissue injuries sustained in the accident had healed and that there were no ongoing organic or orthopaedic impairments that could be attributed to the accident.

26The respondent argues that any ongoing chronic pain complaints preceded the accident, and that the applicant did not report ongoing pain due to his fibular fracture. The respondent further submits that Dr. Wong’s CAT assessment should be given limited weight, as Dr. Wong’s report contained inconsistencies with respect to the applicant’s health history and current medications, and that Dr. Wong did not consider any medical evidence beyond what was considered by the Tribunal in the previous hearing. The respondent reiterates its res judicata argument, that the Tribunal had previously made factual findings about the applicant’s chronic pain and that he did not suffer from a complete inability to carry on a normal life.

27I am not persuaded by the respondent’s argument. As previously noted, I have found that the doctrine of res judicata has not been met in the present case. Further, although the respondent cites inconsistencies in Dr. Wong’s CAT assessment report about the applicant’s health history and medication, no specific details of such inconsistencies have been provided. The respondent also states that Dr. Wong did not consider any new evidence outside of what was considered by the prior adjudicator, but no evidence was led in support of this claim. Dr. Wong’s CAT assessment was conducted in December 2023, well after the previous Tribunal decision. The respondent did not specify the timeframe of clinical notes and records (“CNRs”) that were considered by the Tribunal in the earlier proceedings vs. what was considered by Dr. Wong. The previous adjudicator also did not have the benefit of reviewing Dr. Wong’s report.

28Further, even if I accept the respondent’s argument that the prior Tribunal’s findings on chronic pain and entitlement to NEBs are binding upon me, Dr. Wong still identified additional impairments that were not simply chronic pain related. Dr. Wong also diagnosed the applicant with post-traumatic headaches, bilateral shoulder rotator cuff tendinitis, a possible nerve injury stemming from the healed fibular fracture and insomnia. The respondent has not submitted an updated s. 44 orthopaedic assessment, subsequent to Dr. Gharsaa’s s. 44 assessment conducted in July 2020. As such, Dr. Wong’s December 5, 2023 assessment is the most current physical assessment of the applicant. While I agree with the respondent that the medical record establishes pre-accident chronic pain complaints, Dr. Wong also considered the applicant’s prior medical history when rendering his diagnoses.

29Although I agree with the respondent that Dr. Wong only found a 40% WPI under Criterion 6, this is prior to any psychological assessment. I am persuaded by the applicant’s evidence that there is a reasonable possibility of catastrophic impairment, warranting the proposed physiatry assessment.

$2,000.00 for a psychological assessment

30I find that the applicant is entitled to the proposed psychological assessment.

31The respondent submits that the proposed assessment is not reasonable and necessary, as the applicant’s psychological symptoms are unrelated to the subject accident. It argues that the medical record establishes that in 2021 the applicant developed COVID related agoraphobia. In 2022 the applicant was assessed by Dr. Malcolm Chan, psychiatrist, and in a January 26, 2022 reporting letter Dr. Chan confirmed that the applicant’s accident-related fear lasted for up to 8 months and improved. The respondent further argues that the December 21, 2019 s. 25 report the applicant claims was prepared by Dr. Sharleen McDowell, was in fact prepared by Mr. Bruce Cook, psychological associate.

32I find that the medical record establishes accident-related psychological impairments warranting further investigation. While I agree with the respondent that some of the causes of the applicant’s psychological symptoms are unrelated to the accident, the evidence establishes that some of the applicant’s impairments can be linked to the accident.

33Although I agree with the respondent that the applicant’s s. 25 psychological report does not appear to have been prepared by Dr. McDowell, psychologist, even the respondent’s s. 44 psychiatric assessor Dr. Aladetoyinbo found some accident-related psychological impairments. In his October 1, 2020 report Dr. Aladetoyinbo diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and unspecified trauma and stressor related disorder, but qualified the diagnoses stating that they were not solely attributed to the accident. However, Dr. Aladetoyinbo did find that the applicant’s history of distressing dreams and the avoidance of driving “and other symptoms” appear to be chronologically related to the subject accident, and that the applicant’s history of sleep apnea, if untreated, could potentially negatively impact the progress of recovery. The respondent’s assessor had recommended a course of cognitive behavioural therapy.

34The CNRs of Dr. Xiao reveal that in the month after the accident, the applicant was diagnosed with insomnia due to pain and PTSD and psychotherapy was advised. The applicant was eventually referred to Dr. Chan, psychiatrist, who in a January 26, 2022 reporting letter diagnosed the applicant with major depressive disorder and generalized anxiety disorder. While I agree with the respondent that Dr. Chan noted the applicant’s reports that his accident-related fear symptoms had improved after eight months and noted unrelated causes, Dr. Chan still identified some psychological effects from the accident.

35Dr. Chan noted that the applicant identified the primary causes of his low mood as being the ongoing COVID pandemic, and pain from his accident. Dr. Chan also found that the applicant continued to experience altered states of arousal, in particular sleep impairment and exaggerated startle reflexes that “may have lingered from his MVA”. Dr. Chan further queried whether the applicant had sustained a traumatic brain injury in the accident, which could be contributing to worsened mood and anxiety.

36Given that some of the applicant’s ongoing psychological symptoms can be linked to the accident, I find that the applicant has established that a psychological assessment is reasonable and necessary for the purpose of determining whether he has sustained a catastrophic impairment.

$2,000.00 for in-home occupational therapy assessment

37I find that the applicant is entitled to the OT assessment.

38In his December 5, 2023 physiatry report, Dr. Wong noted that during the examination the applicant was demonstrating pain avoidance behaviour and physical deconditioning. Dr. Wong further found restricted ranges of motion in the neck, spine and shoulders. The applicant reported concentration issues to his family physician in August 2021, where he would ask his daughter to help him clean, “in case he forgets”. The respondent points to the fact that Dr. Chan found in his January 2022 psychiatric consultation report that the applicant was ADL independent. However, in January 2022 the applicant also reported to his family physician that his bilateral shoulder pain limits optimal hygiene, including that the applicant reported he did not brush his teeth any more, would soak his feet rather than shower and his children did his cleaning and grocery shopping.

39As such, I find that the medical evidence establishes that an in-home occupational therapy assessment is reasonable and necessary.

$4,000.00 for clinic file review assessments

40I find that the applicant has not established that the proposed clinic file review assessments are reasonable and necessary.

41The OCF-18 for a catastrophic assessment proposed three clinic file review assessments for a total cost of $4,000.00. The respondent cites Tribunal decision C.A. v. Intact Insurance Company, 2018 CanLII 130861 (ONLAT) to argue that it is unreasonable to bill for a file review in addition to an individual assessment. The applicant did not provide any submissions on the reasonableness and necessity of the proposed file review assessments.

42I agree with the respondent and its cited decision that file reviews are included in the $2,000.00 limit per assessment specified in s. 25(5)(a) of the Schedule. Accordingly, the applicant is not entitled to the three proposed clinic file review assessments.

Transportation and Interpretation Services

43The applicant is not entitled to the requested amounts for transportation and interpretation services.

44The respondent submits that the proposed interpretation services are not reasonable, necessary or payable under the Schedule. It further argues that it is not liable to pay for transportation expenses outside of the first 50 km in a round trip for an assessment.

45The applicant did not provide any submissions on the reasonableness and necessity of interpretation services or provide any particulars on the distance and cost of travel. Without submissions or details from the applicant on these costs I find that the applicant has not established entitlement to the transportation or interpretation amounts.

Remainder of OCF-18

46I find that the applicant is entitled to the remaining items specified in the OCF-18, being $200.00 each for the OCF-18 and OCF-19 form preparation, and the $2,000.00 for an overall assessment summary, analysis and final rating.

Interest

47Given that I have found that the applicant is partially entitled to the treatment plan for a catastrophic assessment, the applicant is entitled to interest on those amounts, payable in accordance with s. 51 of the Schedule.

Award

48I find that the applicant has not established a basis for an award. Under s. 10 of Regulation 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.

49Although I have found that the applicant is partially entitled to the OCF-18 in dispute, it is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. I note that insurers are not held to a standard of perfection. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award is payable.

ORDER

50For the reasons outlined above, I find that the applicant is entitled to partial payment of the OCF-18 for CAT assessments, plus HST and interest in accordance with the Schedule, as follows:

i. $2,000.00 for a physiatry assessment;

ii. $2,000.00 for a psychology assessment;

iii. $2,000.00 for an in-home OT assessment;

iv. $2,000.00 for an overall assessment summary, analysis;

v. $200.00 for completion of initial OCF-18; and

vi. $200.00 for completion of OCF-19.

51The applicant is not entitled to the remaining balance of the OCF-18.

52The respondent is not liable to pay an award.