Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-005006/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:
Tian Ren Chen
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Matthew Owen, Counsel
HEARD:
In Writing
OVERVIEW
1Tian Ren Chen, the applicant, was involved in an automobile accident on October 5, 2017, 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, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The applicant cites the case conference report and order ("CCRO") dated December 13, 2023, to outline the main issues in dispute. However, in reviewing the file, a motion order dated May 28, 2024, narrowed the issues.
3The following are to be decided:
i. Is the applicant entitled to $4,520.00 ($14,750.81 less $10,230.81 approved) for catastrophic impairment assessments, proposed by Somatic Assessments & Treatment Clinic in a treatment plan submitted April 20, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant is not entitled to the outstanding fees claimed, nor interest.
ANALYSIS
Is the treatment plan reasonable and necessary?
5Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
6The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment plans are reasonable and necessary on a balance of probabilities.
Catastrophic impairment assessments in the amount of $4,520.00
7I find that the outstanding amount for the catastrophic impairment assessments proposed by Somatic Assessments & Treatment Clinic, in the amount of $4,520.00 is not reasonable and necessary.
8In a letter dated April 22, 2022, the respondent partly approved funding for the catastrophic impairment assessments in the amount of $10,230.81. It approved $2000.00 each for three in-person assessments with three different health practitioners: a physiatrist, an occupational therapist and a psychologist; the overall assessment summary analysis, final rating report, interpretation services, and transportation. The total value of the approved reports and ancillary services paid by the respondent is $10,230.81.
9The respondent approved all medical assessments sought by the applicant in the treatment plan. However, the respondent denied a $2000.00 fee for each of the medical professionals, a physiatrist, an occupational therapist and a psychologist to conduct a clinical file review assessment. It also denied payment of HST on the transportation services approved.
10The respondent submits that under section 25(5)(a) of the Schedule, it is not liable to pay for more than $2000.00 for any fees or expenses related to any one assessment and preparation of the associated cost. It is the respondent's position that a "file review assessment" is simply an extra fee designed to increase the cost of each assessment beyond what is permitted under section 25(5) of the Schedule. The respondent relies on Zhang v. The Co-operators General Insurance Company, 2022 CanLII 14954, where Adjudicator Norris found that the fees associated with reviewing files in preparation for an assessment or in respect to preparing a report are included in the $2000.00 cap under the Schedule.
11The applicant submits that the catastrophic impairment assessments have already been incurred, and the file review assessment is reasonable and necessary. The applicant suggests that he is entitled to reimbursement because he should be allowed an opportunity to prepare in-depth and complete report to assess his injuries and substantiate his claim. The applicant relies on VK v. Unica Insurance Inc., 2019 CanLII 43885 (ON LAT) to suggest that the respondent is required to pay reasonable fees for preparing an application for determination of catastrophic assessment.
12Section 25(5)(a) of the Schedule states:
(5) Despite any other provision of this regulation, an insurer shall not pay,
(a) more than a total of $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer;
13I find that the applicant provides no persuasive submissions or evidence on why the clinical file review assessments are reasonable and necessary. I find that a file review is something that is done as part of any other examination and should be treated as part of the assessment's expense. In reviewing section 25(5) of the Schedule, I agree with the respondent specifically that the Schedule establishes that medical practitioners conduct an assessment and file review within the $2000.00 limit. While I am not bound by them, I do agree with the Tribunal's previous interpretations of s. 25(5)(a) of the Schedule including Zhang, where the adjudicators found that the fees associated with reviewing files for an assessment are included in the $2000.00 cap. The applicant does not provide caselaw, including VK, to suggest otherwise.
14I find that the clinical file review assessment is not reasonable and necessary over the $2000.00 limit.
INTEREST
15Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.
ORDER
16For the reasons outlined above, I find that the applicant is not entitled to:
i. $4,520.00 ($14,750.81 less $10,230.81 approved) for catastrophic impairment assessments, proposed by Somatic Assessments & Treatment Clinic in a treatment plan submitted April 20, 2022; and
i. Interest.
17The application is dismissed.
Released: January 28, 2025
Monica Ciriello
Vice-Chair