Zhen Feng Lei v. The Dominion of Canada General Insurance Company, 2025 CanLII 61163

Citation and File Number

Citation: Feng Lei v. The Dominion of Canada General Insurance Company, 2025 ONLAT 23-008776/AABS Licence Appeal Tribunal File Number: 23-008776/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:

Zhen Feng Lei Applicant

and

The Dominion of Canada General Insurance Company Respondent

Decision

Adjudicator: Brian Norris

Appearances: For the Applicant: Ryan Olson, Paralegal For the Respondent: Sarah Scott, Counsel

Heard: By way of written submissions

OVERVIEW

1Zheng Feng Lei (“the Applicant”) was involved in an automobile accident on November 6, 2021, and sought benefits from The Dominion of Canada General Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant entitled to the treatment plans proposed by Somatic Assessments & Treatment Clinic, as follows: (i) $448.80 for psychological services, in a treatment plan dated April 6, 2022; and (ii) $584.39 for psychological services, in a treatment plan dated May 31, 2023?

2. Is the applicant entitled to the treatment plans proposed by Easy Health Centre, as follows: (i) $1,295.58, less $1,049.43 approved by the Respondent for physiotherapy services, in a treatment plan dated January 10, 2022; (ii) $2,291.37, less $1,216.59 approved by the Respondent, for physiotherapy services, in a treatment plan dated September 9, 2022; (iii) $2,100.79 for physiotherapy services, in a treatment plan dated December 2, 2022; (iv) $2,094.04 for chiropractic services, in a treatment plan dated January 27, 2023; and (v) $1,846.15 for chiropractic services, in a treatment plan dated April 29, 2023?

3. Is the applicant entitled to $3,207.00 for dental services, proposed by Easy Health Centre in a treatment plan dated January 16, 2023?

4. Is the Applicant entitled to $84.00 for medication, sought via OCF-6, dated June 21, 2022?

5. Is the Applicant entitled to $67.15 for medication, sought via OCF-6, dated February 23, 2023?

6. Is the applicant entitled to the assessments proposed by Somatic Assessments & Treatment Clinic, as follows: (i) $2,200.00 for an attendant care assessment, in a treatment plan dated March 9, 2022; and (ii) $2,200.00, less $1,870.00 approved by the Respondent, for an attendant care assessment, in a treatment plan dated January 5, 2023?

7. Is the applicant entitled to the treatment plans proposed by iScope Concussion & Pain Clinics, as follows: (i) $1,708.95 ($3,691.34 less $1,982.39 approved) for occupational therapy services, in a treatment plan dated January 3, 2023; (ii) $1,995.51 for physiotherapy services, in a treatment plan dated January 10, 2023; (iii) $1,097.25 ($3,392.00 less $2,294.75 approved) for occupational therapy services, in a treatment plan dated April 28, 2022; (iv) $1,550.00 for botox injections, recommended in a treatment plan dated June 12, 2023? (v) $1,655.23 ($2,453.73 less $798.50 approved) for occupational therapy services, in a treatment plan dated September 26, 2023;

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

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

RESULT

3The Applicant is not entitled to the unapproved balance of the psychological treatment plans, proposed by Somatic Assessments & Treatment Clinic, dated April 6, 2022 and May 31, 2023.

4The Applicant is entitled to the unapproved balance of the physiotherapy treatment plan proposed by Easy Health Centre, dated January 10, 2022.

5The Applicant is not entitled to the physiotherapy treatment plans proposed by Easy Health Centre, dated September 9 and December 2, 2022.

6The Applicant is entitled to the chiropractic treatment plans proposed by Easy Health Centre, dated January 27, and April 29, 2023.

7The Applicant is entitled to the dental services treatment plan proposed by Easy Health Centre.

8The Applicant is entitled to $50.13 in medication expenses in total.

9The Applicant is not entitled to the attendant care assessment plans proposed by Somatic Assessments.

10The Applicant is entitled to the occupational therapy plan proposed by iScope Concussion & Pain Clinics, dated January 3, 2023.

11The Applicant is not entitled to the physiotherapy and occupational therapy plans from iScope Concussion & Pain Clinics, dated January 10, and April 28, 2023.

12The Applicant is not entitled to the botox injections proposed by iScope Concussion & Pain Clinics dated June 12, 2023, and

13The Applicant is not entitled to the occupational therapy plan proposed by iScope Concussion & Pain Clinics, dated September 26, 2023.

14Interest is payable on the overdue payment of benefits.

15No award is payable.

BACKGROUND

16The Applicant was the driver of a vehicle which was struck on the driver’s side by another vehicle as part of a three-vehicle collision in a suburban intersection. Paramedics attended at the scene of the accident, but the Applicant declined care and returned home.

17The Applicant had a telephone consultation with her physician a few days later and complained of headaches, as well as neck, shoulder, and back pain. She was diagnosed with a concussion and referred to a concussion clinic. The nurse practitioner at the concussion clinic also diagnosed the Applicant with a concussion.

18The Applicant started to complain of dizziness and balance issues to her family physician, Dr. M. Mak, in early 2022. She fell on May 27, 2022, and attributes the fall to her balance issues stemming from the accident. She had a second fall on December 2, 2022, while walking her dog, in which she struck her face and fractured her front teeth.

19Compounding the issue is the fact that post-accident investigations of the Applicant’s head injury led to the discovery of a benign tumor. However, a March 6, 2023 consultation with Dr. E. Marmor, neurosurgeon, concluded that the Applicant’s ongoing headaches and cognitive dysfunction was unrelated to her brain tumor.

ANALYSIS

20The Applicant bears the onus of demonstrating that the goods and services claimed are reasonable and necessary as a result of the accident.

Somatic Assessments psychological treatment plans, dated April 6, 2022 and May 31, 2023

21I find that the Applicant has not demonstrated that the unapproved balance of the psychological treatment plans is reasonable and necessary as a result of the accident.

22At issue for these plans is whether the Applicant is entitled to treatment sessions at a length of 1.25 hours, rather than at the length of one hour, as approved by the Respondent. Additionally, the May 31, 2023 plan seeks an additional $360.00 for “documentation, support activity”.

23I find that the Applicant has not demonstrated that 1.25-hour sessions are reasonable and necessary as a result of the accident because she has not provided any reason why she requires a treatment session longer than what was approved. I recognize the Applicant’s position that the treating psychologist is in the best position to determine the details of the treatment necessary to address her symptoms but find it unsatisfactory. This is because the service provider has not given any reasons for the length of sessions – either in the plan, or by way of clinical notes and records.

24I find that the Applicant has not demonstrated that the $360.00 fee for “documentation, support activity” is reasonable and necessary. The Applicant never addressed the additional fees in her submissions thus, she has not met her onus to demonstrate that the fees are reasonable and necessary as a result of the accident. Additionally, I direct the parties to the Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”). The PSG provides that the Respondent is not liable for any administration of other costs that have the result of increasing the effective hourly rate. Accordingly, the Applicant has not demonstrated that the “documentation, support activity” fees are reasonable and necessary as a result of the accident.

Easy Health physiotherapy plan, dated January 10, 2022

25I find that the Applicant is entitled to the unapproved balance of the plan, dated January 10, 2022. The respondent found this plan to be reasonable and necessary as a result of the accident. The sole reason to deny any portion of this plan was due to the $3,500.00 MIG funding limit.

26However, the Applicant is no longer subject to the MIG. Additionally, the Respondent approved ongoing therapies from the same provider thereafter. Approving further treatment suggests that the unapproved balance of the January 10, 2022 plan is reasonable and necessary. Accordingly, I find that the Applicant is entitled to the unapproved balance of this plan, plus interest pursuant to section 51 of the Schedule.

Easy Health physiotherapy plan, dated September 9, 2022

27I find that the Applicant has not demonstrated that the unapproved balance of the plan, dated September 9, 2022, is reasonable and necessary as a result of the accident.

28The Respondent partially approved this plan, following an insurer’s examination, and I am unable to find the balance of the plan to be reasonable and necessary because the details of the plan are not before me. This plan is not in evidence and there is insufficient information in the hearing record to determine the goods and services proposed in it. While the Applicant submits that the goal of the plan is to provide pain relief, I note that submissions are not evidence and I am unable to rely on this statement. Having never included this plan, and not provided submissions why the unapproved balance is reasonable and necessary as a result of the accident, the Applicant has not met her burden to demonstrate entitlement to the plan.

Easy Health physiotherapy plan, dated December 2, 2022

29I find that the Applicant has not demonstrated that the unapproved balance of the plan, dated December 2, 2022, is reasonable and necessary as a result of the accident.

30I am unable to find this plan to be reasonable and necessary because the details of the plan are not before me. Like the September 9, 2022 plan, this plan is not in evidence and there is insufficient information in the hearing record to determine the goods and services proposed in it. I am unable to find that the goods and services proposed are reasonable and necessary as a result of the accident because it is unclear what the goods and services proposed are.

Easy Health chiropractic plans dated January 27 and April 29, 2023

31I find these plans to be reasonable and necessary as a result of the accident.

32The Applicant experienced ongoing back and neck pain in late 2022 and into 2023. This is noted in the CNRs of Dr. Mak, which include various entries where the Applicant complained of neck and back pain. Notably, on October 6, 2022, the Applicant was referred for a neck and back MRI due to ongoing pain, indicative that her neck and back pain persisted and rose to a level to warrant an MRI. A physical medicine consultation with Dr. S. Paleksic, on May 15, 2023, suggests that the Applicant engage in therapies such as massage therapy a physiotherapy. Further, a consultation with Dr. I. M. Bhaskar, neurologist, on June 25, 2023, resulted in a recommendation to continue with physical therapy.

33I find that the IE report of Dr. A. Marchie, physiatrist, dated March 23, 2022, does not upset my findings from the other evidence. The Respondent relied on Dr. Marchie’s report, which concluded that the Applicant had ongoing symptoms and required 9-12 months to reach maximal medical recovery. It used this information partly to deny funding for this treatment plan. However, Dr. Marchie’s finding that the Applicant has not reached maximal medical recovery is consistent with the information in Dr. Mak’s CNRs and the opinion that her injuries should resolve in 9-12 months is speculative. Accordingly, I find the plans to be reasonable and necessary as a result of the accident.

Easy Health Dental Expenses

34I find the dental expenses proposed in the pre-determination forms to be reasonable and necessary as a result of the accident.

35The dental expenses stem from a fall the Applicant experienced in December 2022 while walking her dog. From various records, it appears that the Applicant fell when her dog pulled on the leash, and she was unable to maintain her balance. As a result, the Applicant fell and fractured her two front teeth. The expenses were denied due to a lack of information connecting the fall to balance issues that arose following the accident.

36I find the Applicant’s fall to be causally connected to the accident. Dr. Mak’s CNRs include entries dated May 25, 27, and December 14, 2022, and January 4, 2023, where the Applicant reported dizziness or balance issues. Dr. Mak also issued a letter, dated January 4, 2023, which unequivocally states that the Applicant had no balance issues or falls prior to the accident and that following the accident she developed balance problems and had falls in May and December 2022.

37Other records also indicate that the falls the Applicant experienced are accident related. As noted earlier, Dr. Marmor, met with the Applicant, and on March 6, 2023 concluded that her ongoing symptomology was not related to her benign brain tumor. Given that the Applicant reports no other trauma, I find Dr. Marmor’s opinion excluding her tumor as a cause of her balance issues to suggest that the issues are as a result of the accident. Similarly, a physical medicine consultation with Dr. S. Paleksic, physician, confirmed that the Applicant sustained a concussion in the accident and experiences related cognitive dysfunction.

38Accordingly, I find on a balance of probabilities that the Applicant’s balance issues arise from the accident and that she would not have fallen while walking her dog had she not been experiencing such issues.

Medication Expenses

39I find that the Applicant has not demonstrated that she is entitled to $84.00 for medication expenses, submitted June 21, 2022. The Applicant never submitted these expenses for this hearing and made no submissions specific to the issue. Accordingly, she has not met her onus to demonstrate that the expenses are reasonable and necessary as a result of the accident.

40I find that the Applicant has not demonstrated that the expense for amoxicillin in the amount of $17.02 is reasonable and necessary as a result of the accident.

41The Applicant met with Dr. S. Augla, family physician, on May 27, 2022, following her fall in May 2022. During that visit, the Applicant relayed that she fell and went to the hospital following the event. However, more important to her claim for amoxicillin, she also complained of a sinus congestion and fever and was prescribed amoxicillin for sinusitis. There is nothing in the evidence to suggest that amoxicillin was prescribed as a result of the accident, or as a result of accident-related balance issues.

42I find that the Applicant has demonstrated that the expense for Fucidin cream in the amount of $42.63 is reasonable and necessary as a result of the accident.

43I find, on a balance of probabilities, that Dr. Augla prescribed Fucidin cream for the Applicant as a result of the accident. It is noted in the records for the May 27, 2022 visit with Dr. Augla, that the Applicant has bruising on the right side of her face following the fall. As well, the Applicant provided a copy of the prescription receipt for Fucidin cream, prescribed by Dr. Augla. Oddly, the CNRs from Dr. Augla do not record that Fucidin cream was prescribed for the Applicant, unlike the amoxicillin prescription. However, I find that this administrative oversight is outweighed by the combination of the prescription receipt stating that it was prescribed by Dr. Augla, that Fucidin cream is a topical ointment used to treat skin infections, and the timing – that the clinical visit and prescription pickup occurred on the same day following the Applicant’s fall.

44I find that the Applicant has demonstrated that the expense for Aventyl in the amount of $7.50 is reasonable and necessary as a result of the accident. Dr. Mak prescribed Aventyl for the Applicant to treat her depression. The timing of the prescription coincides with an uptick in the Applicant’s psychological symptoms, as documented by Dr. Mak in an encounter on January 4, 2023. The Applicant’s depressive symptoms are regularly attributed to the accident by herself and various other healthcare professionals. Thus, I find that the Aventyl was prescribed as a result of the accident.

Attendant Care Assessments by Somatic Assessments & Treatment Clinic

45I find that the Applicant has not met her onus to demonstrate that the attendant care assessments are reasonable and necessary as a result of the accident.

46The assessment plan dated March 9, 2022 is not reasonable and necessary because it is duplicative of the January 27, 2022 assessment, approved by the Respondent. The January 27, 2022 plan includes time allocated for the completion of a Form 1. The Respondent approved the January 27, 2022 plan by letter dated March 3, 2022. The Applicant has not given any reason for another attendant care assessment in such short time. It is not reasonable and necessary to conduct a second attendant care assessment in light of the approval of the January 27, 2022 plan.

47The Applicant has not demonstrated that the unapproved balance of the attendant care assessment, dated January 5, 2023, is reasonable and necessary. The unapproved balance of the plan relates to planning and counselling services, which the Respondent concluded was an administrative or other costs that has the result of increasing the effective hourly rate of the service provider. The Applicant’s submissions for the assessments focus on her impairments and do not address why or how the planning and counselling services are required to conduct the assessment. Accordingly, I find that the Applicant has not met her onus to demonstrate that the assessment plan is reasonable and necessary as a result of the accident.

iScope Occupational Therapy Treatment Plans dated April 28, 2022, January 3, 2023 & September 26, 2023

48I find that the Applicant has not demonstrated that the unapproved amounts in the occupational therapy treatment plans, dated April 28, 2022 and September 26, 2023.

49The unapproved balance in the April 28, 2022 plan relates to $798.00 for planning services and $299.25 for preparation services. The unapproved balance in the plan, dated September 26, 2023, relates to mileage, education costs, and a dispute over whether the service provider requires 4 hours per session versus 1 hour per session.

50The Applicant submits that the unapproved balances are payable because a subsequent IE assessor found similar fees payable and that the 4-hour sessions are a necessary part of providing occupational therapy services. The Respondent disagrees and submits that the expenses are not payable pursuant to the PSG and that the expenses are akin to administrative and other costs that have result of increasing the effective hourly rate.

51I find that the Applicant has not demonstrated that the planning services and extended therapy sessions are reasonable and necessary as a result of the accident. Payment or approval of subsequent expenses that are similar in nature does not render prior costs to be reasonable and necessary. The onus remains with the Applicant to demonstrate that the fees are reasonable and necessary. Having not addressed this, or why 4-hour sessions are required instead of 1 hour sessions, I conclude that the Applicant has not demonstrated entitlement to the unapproved balance of the plan.

52I find that the Applicant has demonstrated entitlement to the unapproved balance of the occupational therapy plan, dated January 3, 2023.

53The Report of H. Sharma, occupational therapist, dated April 18, 2023, supports the need for ongoing occupational therapy. Occupational therapist Sharma agreed that the Applicant required ongoing intervention but concluded that funding for 4 of the 8 sessions proposed in the plan is not reasonable and necessary. The reason for this is, according to occupational therapist Sharma, the Applicant never completed a formal cognitive assessment and may be better served following the opinion from that assessment. To me, this is an insufficient reason to deny services which are found to be reasonable and necessary. While a formal cognitive assessment may benefit the Applicant, it cannot be said that it is a requirement in order to secure funding for the balance of the treatment plan.

iScope Physiotherapy Treatment Plans, Dated January 10, and June 12, 2023

54I find that the Applicant has not demonstrated that the physiotherapy plans are reasonable and necessary as a result of the accident.

55The Applicant made no submissions specific to these plans and the plans are not in evidence before me. Having made no submissions and tendering no evidence on the issues, I find that the Applicant has not met her onus to demonstrate entitlement to these plans.

Interest

56Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to certain benefits, it follows that she is also entitled to interest, pursuant to section 51 of the Schedule.

Award

57The Applicant sought an award under section 10 of Regulation 664. Under section 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.

58The Applicant claims entitlement to an award on the grounds that, according to her, the Respondent acted in a high-handed manner and that an investigation into the reasonableness of the denials is required. She provided no amount of award claimed. The Respondent denies that the Applicant is entitled to an award and submits that it adjusted her claim in accordance with the Schedule, considered the medical and other evidence as a whole, and relied upon medical expert opinions.

59I find no award payable because the Applicant has not demonstrated that the Respondent unreasonably withheld or delayed payment of benefits. Indeed, the Respondent denied benefits that were found to be reasonable and necessary in this hearing. However, the decisions were rooted in the opinions and recommendations of the IE assessors and the causal connection between the Applicant’s balance issues and the accident was difficult to determine. Thus, I find no unreasonable withholding or delay of payment.

CONCLUSION AND ORDER

60The Applicant is not entitled to the unapproved balance of the psychological treatment plans by Somatic Assessments and Treatment Clinic, dated April 6, 2022 and May 31, 2023.

61The Applicant is entitled to the unapproved balance of the physiotherapy plan by Easy Health Centre, dated January 10, 2022.

62The Applicant is not entitled to treatment plans from Easy Health Centre, dated September 9 and December 2, 2022.

63The Applicant is entitled to the treatment plans from Easy Health Centre, dated January 27, and April 29, 2023.

64The Applicant is entitled to $50.13 in medication expenses in total.

65The Applicant is entitled to the dental services plan proposed Easy Health Centre, dated January 16, 2023, in the amount of $3,207.00.

66The Applicant is not entitled to the attendant care assessment plans.

67The Applicant is entitled to the occupational therapy plan by iScope Concussion and Pain Clinics, dated January 3, 2023.

68The Applicant is not entitled to the physiotherapy plans from iScope Concussion and Pain Clinic, dated January 10, and June 12, 2023.

69The Applicant is not entitled to the occupational therapy plans proposed by iScope Concussion & Pain Clinics, dated April 28, 2022, and September 26, 2023.

70Interest is payable on the overdue payment of benefits.

71No award is payable.