Zang v. Pembridge Insurance Company, 2025 CanLII 62744

Citation: Zang v. Pembridge Insurance Company, 2025 ONLAT 23-012181/AABS

Licence Appeal Tribunal File Number: 23-012181/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.

Parties

Between:

Xianbin Zang

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Jessica Telfer, Counsel

HEARD: By way of written submission

OVERVIEW

1Xianbin Zang, the applicant, was involved in an automobile accident on October 18, 2022, 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, Pembridge 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 a non-earner benefit (“NEB”) of $185.00 per week from April 25, 2023 to October 18, 2024?

ii. Is the applicant entitled to $4,537.20 for physiotherapy, proposed by Uheal Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated August 11, 2023?

iii. Is the applicant entitled to the treatments and assessments proposed by Somatic Assessments & Treatment Clinic, as follows:

(i) $2,200.00 for an occupational therapy assessment, in a treatment plan dated April 21, 2023;

(ii) $3,701.88 for occupational therapy services, in a treatment plan dated October 10, 2023; and

(iii) $2,200.00 for an attendant care assessment, in a treatment plan dated November 21, 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?

RESULT

3The applicant is not entitled to an NEB.

4The applicant is not entitled to the treatment plans in dispute.

5As no benefit payments are overdue, no interest is owing.

6As no benefit payments have been unreasonably withheld or delayed, no award is owing.

ANALYSIS

Non-Earner Benefit

7Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

8The applicant argues that he suffers a complete inability to carry on a normal life. He relies on the OCF-3 submitted by Ahmed Afifi, physiotherapist, on November 17, 2022, and a pre-discharge report prepared by Raymond Wong, occupational therapist, on October 20, 2022.

9The respondent argues that the applicant does not suffer a complete inability to carry on a normal life. It relies on the clinical notes and records (“CNRs”) of Sunnybrook Hospital, the CNRs of the applicant’s family doctor, Dr. Tan, and an occupational therapy in-home assessment by Ms. Korman from August 17, 2023.

10I place little weight on the OCF-3 by Mr. Afifi. The OCF-3 does not provide any insight into how Mr. Afifi came to the conclusions that the applicant suffers a complete inability to carry on a normal life. There is no indication that Mr. Afifi, performed any testing or reviewed any existing medical documentation which would support his conclusion.

11I also find that the pre-discharge report by Mr. Wong does not support the applicant’s claim either. The pre-discharge report states that the applicant requires assistance to walk, an inability to change his sitting position on the bed to standing, and that he requires total care. The conclusions by Mr. Wong are not supported by any other medical documentation, and they are refuted by the contemporaneous CNRs of Sunnybrook Hospital that do not show the applicant suffers from any of the listed issues with mobility or completion of activities of daily living.

12I find that the CNRs from Sunnybrook Hospital do not support the applicant’s NEB claim. The CNRs indicate in the discharge of the applicant that “he has been completing his ADLs independently” and “he is presenting close to functional baseline”.

13I find that the CNRs of Dr. Tan do not support the applicant’s claim that he suffers from a complete inability to carry on a normal life. The CNRs show very few references to the subject accident, and the applicant does not report any issues that he has with his activities of daily living.

14Finally, I find that the occupational therapy in-home assessment by Ms. Korman does not support the applicant’s NEB claim. Ms. Korman’s assessment did not find that the applicant suffered a complete inability to carry on a normal life. The applicant’s own self-reporting during the assessment indicates that he does not suffer a complete inability to carry on a normal life and that he has returned to a “vast majority” of his pre-accident activities.

15I find that the applicant has not proven, on a balance of probabilities, that he is entitled to an NEB. The applicant’s claim of not being able to carry on a normal life is not supported by the evidence provided. The discharge documents note that the applicant had returned to completing his activities of daily living. This is corroborated by the occupational therapy in-home assessment that found that the applicant had returned to most of his pre-accident activities. Additionally, I do not find any reporting of limitations by the applicant in the CNRs of Dr. Tan.

16The applicant is not entitled to an NEB from April 25, 2023 to October 18, 2024.

17To receive payment for a treatment and assessment plan under s. 15 and s. 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.

Physiotherapy

18The applicant has not proven, on a balance of probabilities, that the physiotherapy treatment plan is reasonable and necessary.

19The goals of the plan are pain reduction, increased range of motion, increase in strength, reduce swelling and inflammation, increase neuro-muscular endurance, return to activities of normal living, and return to pre-accident exercise and social activities. The treatment plan consists of 16 sessions of manipulation, exercise, and acupuncture of multiple body sites, travel time, and documentation.

20The applicant argues that he is entitled to this treatment plan as a result of the physical injuries suffered due to the subject accident.

21The applicant has not led me to evidence that would establish that this treatment plan is reasonable and necessary. An OCF-18 itself is not sufficient to prove a treatment plan is reasonable and necessary. Beyond the treatment plan itself, I have not been directed to evidence that establishes that there are physical injuries that would substantiate the treatment plan as reasonable and necessary.

22In review of the evidence provided, I do not find support that the treatment plan would be reasonable and necessary in the CNRs of the applicant’s family doctor, Dr. Tan, in the CNRs of Sunnybrook Hospital, nor would it be supported by the s. 44 occupational therapy in-home assessment by Ms. Korman. All of this medical evidence does not point to physiotherapy as being reasonable and necessary.

23The applicant is not entitled to the physiotherapy treatment plan.

Occupational therapy services

24The applicant has not proven, on a balance of probabilities, that the occupational therapy services treatment plan is reasonable and necessary.

25The goals of the occupational therapy services are to challenge and reduce negative thought patterns and return to activities of normal living. The plan proposes 14 sessions of therapy, mental health and addictions, and documentation.

26The applicant argues that he is entitled to this treatment plan as a result of the psychological injuries suffered due to the subject accident. The applicant relies on a psychological assessment report by Dr. McDowall, C. Psych, completed on November 17, 2022.

27I place little weight on this psychological assessment report. The conclusions presented in this report are not corroborated by any other medical documentation. There is no other source of evidence presented that speaks to any psychological issues the applicant suffers from.

28Additionally, Dr. McDowall outlines treatment recommendations that include “a gradual return to activities of daily living despite feeling chronic pain”. As detailed above, all other evidence provided indicates that the applicant is completing his activities of daily living. Additionally, there is no compelling evidence provided that mentions the presence of chronic pain being suffered by the applicant.

29The applicant has not proven, on a balance of probabilities, that the occupational therapy services are reasonable and necessary. The applicant has not put forward medical evidence that substantiates that he suffers from a psychological issue that would make this treatment plan reasonable and necessary. No corroborating evidence has been provided, outside of the psychological assessment report, showing that the applicant suffers from any psychological issues.

30The applicant is not entitled to the occupational therapy services treatment plan.

Occupational therapy assessment

31The respondent has provided evidence which shows they have approved an occupational therapy assessment treatment plan on April 20, 2023. The respondent argues that this treatment plan from April 21, 2023 would be a duplication of services, and, as such, it is not reasonable and necessary.

32The applicant does not make a submission regarding this prior approval by the respondent, nor does he indicate why this additional assessment would be reasonable and necessary. I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for an occupational therapy assessment is reasonable and necessary.

Attendant care assessment

33I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for an attendant care assessment is reasonable and necessary.

34The applicant argues that he is entitled to the treatment plan as a result of the physical and psychological injuries resulting from the accident.

35The applicant has not provided a copy of the OCF-18 outlining the goals of the assessment or what this specific assessment would include. The applicant has not directed me to specific evidence that would support this treatment plan as reasonable and necessary.

36Furthermore, the respondent argues that the applicant is not entitled to the attendant care assessment based on the occupational therapy in-home assessment from August 17, 2023. I find that this report by Ms. Korman does not support the applicant’s claim. Ms. Korman’s assessment was completed through physical testing, observation, and a clinical interview. She found that, from an occupational therapy/function perspective, there was no evidence to substantiate a disability, limitation, or restriction that the applicant suffered from.

37Taken together, I find that the applicant has not proven, on a balance of probabilities, that the attendant care assessment is reasonable and necessary. As such, he is not entitled to the treatment plan.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.

Award

39The 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. As no benefit payments were unreasonably withheld or delayed, no award is owing.

ORDER

40I find that:

i. The applicant is not entitled to an NEB.

ii. The applicant is not entitled to the treatment plans at issue.

iii. No interest or award is owing.

iv. The application is dismissed.