Citation: Li v. Pembridge Insurance Company, 2025 ONLAT 23-012048/AABS

Licence Appeal Tribunal File Number: 23-012048/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:

Wei Nan Li

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Ryan Kirshenblatt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Wei Nan Li, the applicant, was involved in an automobile accident on November 13, 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, 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:

1. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from December 11, 2021 to November 13, 2023?

2. Is the applicant entitled to $5,589.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) dated April 1, 2022?

3. Is the applicant entitled to the remaining $1,556.80 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated September 21, 2022?

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

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

RESULT

3I find that:

1. The applicant is not entitled to an NEB.

2. The applicant is not entitled to $5,589.56 for physiotherapy services in a treatment plan dated April 1, 2022.

3. The applicant is not entitled to the remaining $1,556.80 for phycological services in a treatment plan dated September 21, 2022.

4. The applicant is not entitled to an award.

5. As no payments are owing, no interest is due.

6. The application is dismissed.

ANALYSIS

Is the applicant entitled to a non-earner benefit of $185.00 per week from December 11, 2021, to November 13, 2023?

4I find that the applicant has not established his entitlement to an NEB.

5Section 12(1) of the Schedule 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.

6The applicant submits that he is entitled to an NEB of $185.00 per week from December 11, 2021 to November 13, 2023 because he is unable to carry out his normal pre-accident activities including cooking, cleaning and maintenance duties due to pain from his accident-related injuries.

7The applicant relies on the disability certificate (“OCF-3”) of Ahmed Afifi, physiotherapist, dated September 7, 2021, the Activities of Normal Life form (“OCF-12”) dated April 7. 2022, the occupational therapy in home assessment report of Raymond Wong, dated August 3, 2022, and the psychological assessment of Dr. Sedigheh Naisi, psychologist, dated August 22, 2022.

8The respondent argues that the applicant has not met his onus to prove that he is entitled to an NEB. The respondent relies on the multidisciplinary s.44 report dated July 4, 2022, which includes the physiatry report of Dr. Tonya Ballard, physiatrist, and the psychological report of Dr. Johan Reis, psychologist.

9The applicant submits that he is entitled to an NEB because he has experienced a “severe diminution” of his overall quality of life. However, I find that the applicant has not led sufficient evidence to support such a finding. In the OCF-3, Mr. Afifi identified soft tissue injuries to the applicant’s back, neck and extremities, as well as psychological symptoms, and checked the box marked “complete inability to carry on the activities of daily life.” However, Mr. Afifi provided little additional detail, opining only that the applicant’s injuries affected most of his activities of daily living, and the OCF-3 is not corroborated by any medical evidence. As such, I assign little weight to the OCF-3.

10Neither Dr. Naisi, in her psychological assessment, nor Mr. Wong, in his occupational therapy assessment, opined that the applicant suffered a complete inability to carry on a normal life. Further, as the respondent notes, Dr. Ballard and Dr. Reis opined that the applicant did not suffer from an inability to carry on the activities of normal life from a musculoskeletal or psychological perspective in their respective s. 44 reports.

11I find that the evidence reveals significant discrepancies in the applicant’s reports to his assessors related to his employment history, treatment after the injury, social function, and post-accident function. For instance, at his respective assessments, the applicant told Dr. Ballard and Dr. Naisi that he had been unemployed at the time of the accident, but had resumed working full-time as a self-employed mortgage broker in January, 2022. At his June 15, 2022 s.44 examination, the applicant told Dr. Reis that he had previously owned a marketing and social media company which had been closed during the pandemic, and that he had not worked since the accident. Finally, at his August 2, 2022 occupational therapy assessment, the applicant told Mr. Wong that he was “still on sick leave” from his job as a real estate agent.

12Additionally, the applicant told Dr. Naisi and Mr. Wong that he attended a walk-in clinic two weeks after the accident. However, he told Dr. Ballard and Dr. Reis that he did not see a doctor after the accident. Further, while the applicant consistently reported that he was independent in his personal care, the applicant’s reports to his assessors were inconsistent with respect to his participation in cooking and household and maintenance chores and his social function prior to and after the accident.

13Based on the evidence before me, I am unable to determine whether the applicant was working before or after the accident, or the impact of his injuries on his ability to carry out his pre-accident household responsibilities. Absent any medical or other evidence to corroborate the applicant’s submissions, I find the OCF-3 and the applicant’s self-reports to his assessors are an insufficient basis for a finding that the applicant’s accident-related injuries prevent him from engaging in substantially all of his pre-accident activities.

14For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a complete inability to carry on the activities of daily life. Accordingly, I find that the applicant is not entitled to an NEB.

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

Is the applicant entitled to $5,589.56 for physiotherapy services, in a treatment plan dated April 1, 2022?

16The treatment plan was prepared by Ahmed Afifi, physiotherapist, of Total Recovery Rehab Centre.

17The goals of the treatment plan are pain reduction, increase in strength, increased range of motion and a return to the activities of daily living and sets out physiotherapy services including an assessment, sixteen sessions each of physiotherapy treatment, active therapy, and massage, as well as travel time for the treatment provider, and documentation or a total amount of $5,589.56.

18The applicant submits that the treatment plan is reasonable and necessary as he was experiencing ongoing back pain and headaches as a result of his accident-related soft tissue injuries, and that pain relief is a valid goal for treatment. He complained of accident-related pain to Dr. Ballard at his June 2022 s.44 physiatry examination, and Dr. Naisi and Mr. Wong at his August 2022 psychological and occupational therapy assessments.

19The respondent counters that the applicant has not met his onus to prove that the treatment plan is reasonable and necessary, because the applicant did not provide any evidence from a treating physician to corroborate the treatment plan, and in her s.44 report, Dr. Ballard opined that the treatment plan was not reasonable and necessary.

20The applicant submits that Dr. Ballard’s physiatry assessment should be afforded little weight, because she opined that the treatment plan was not reasonable and necessary, even though she found that the applicant was experiencing pain.

21I disagree. I afford the most weight to Dr. Ballard’s report, because Dr. Ballard is a physiatrist, and her s.44 report is the only evidence of a physical examination by a medical doctor submitted for this hearing, and the only evidence that addresses the treatment plan in dispute. Dr. Ballard conducted a thorough physical examination, as well as a review of the applicant’s medical records. She opined that the applicant suffered soft tissue injuries to his cervical spine, left shoulder, and lumbar spine as a result of the accident and noted that he experienced pain during the examination. Dr. Ballard further opined that the applicant’s prognosis was “excellent,” and that the treatment plan was not reasonable and necessary. She recommended that applicant continue with home exercise.

22I afford Dr. Naisi’s psychological report less weight because Dr. Naisi interviewed the applicant virtually and, as a psychologist, physical medicine is outside her area of practice. Further, I assign less weight to Mr. Wong’s occupational therapy report, because he did not address the treatment plan in question, or physiotherapy in his report.

23Further, while I agree with the applicant that pain relief is a valid goal of treatment, I find that the applicant has not addressed how the goals of the treatment plan will be met, nor has the applicant made any submissions with respect to the cost of the treatment plan.

24For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary. Accordingly, the applicant is not entitled to $5,589.56 for the treatment plan for physiotherapy services.

Is the applicant entitled to the remaining amount of $1,556.80 for psychological services, in a treatment plan dated September 21, 2022?

25I find that the applicant has not established that he is entitled to the remaining amount of $1,556.80 treatment plan dated September 21, 2022.

26The treatment plan was prepared by Dr. Naisi of Somatic Assessments and Treatment Clinic, and set out 16 sessions of psychotherapy, and $200.00 in documentation and support costs, which were approved by the respondent. The remaining amount in dispute consists of:

1. Brokerage service (described as “communication with others”) for 16 sessions of 0.25 hours totalling $598.00,

2. Planning service (described as “ongoing evaluation and modification of treatment’) totalling of $598.00, and

3. Document support activity (described as “progress report”) in the amount of $360.00

27The applicant submits that the brokerage service and planning service items are reasonable and necessary because they entail communication with the applicant and team members to determine whether the treatment requires modification. However, this rationale is not set out in the treatment plan, and the applicant has not directed me to any evidence or further detail from the treatment provider to corroborate his submissions.

28Further, the applicant has not made any submissions or directed me to any evidence or further detail about the purpose or content of the progress report.

29As such, I find insufficient basis to support a finding that the line items in the treatment plan for brokerage fees, planning services, or a progress report are reasonable and necessary.

30Accordingly, I find that the applicant is not entitled to the remaining amount of $1,556.80 for the treatment plan dated September 21, 2022.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

32The 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 payments were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

33I find that:

1. The applicant is not entitled to an NEB.

2. The applicant is not entitled to $5,589.56 for physiotherapy services in a treatment plan dated April 1, 2022.

3. The applicant is not entitled to the remaining $1,556.80 for phycological services in a treatment plan dated September 21, 2022.

4. The applicant is not entitled to an award.

5. As no payments are owing, no interest is due.

6. The application is dismissed.