Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-013217/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:
Xuezhen Liu
Applicant
and
Wawanesa Mutual
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Sareena Samra, Counsel
For the Respondent: Christopher Gallo, Counsel Sophia Souffront, Counsel
HEARD: By way of written submissions
OVERVIEW
1Xuezhen Liu, the applicant, was involved in an automobile accident on February 13, 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, Wawanesa Mutual, 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 the services proposed by UHeal Rehab Centre ("UHeal"), as follows:
a. $800.00 ($4,592.79 less $3,792.79 approved) for chiropractic services, in a treatment plan dated June 9, 2022;
b. $800.00 ($4,592.72 less $3,792.72 approved) for chiropractic services, in a treatment plan dated June 29, 2022;
c. $4,592.72 for chiropractic services, in a treatment plan dated August 9, 2022; and
d. $4,592.72 for chiropractic services, in a treatment plan dated October 26, 2022?
ii. Is the applicant entitled to the assessments and services proposed by Somatic Assessments and Treatment Clinic ("Somatic"), as follows:
a. $1,645.78 ($3,701.88 less $2,056.10 approved) for psychological services, in a treatment plan dated April 1, 2022;
b. $1,047.34 ($3,701.88 less $2,64.54 approved) for psychological services, in a treatment plan dated June 27, 2022;
c. $3,701.74 for psychological services, in a treatment plan dated November 9, 2022; and
d. $2,200.00 for an Occupational Therapy ("OT") in-home assessment, in a treatment plan dated March 21, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The Case Conference Report and Order ("CCRO"), dated April 23, 2024, lists issue 1 as, "Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from May 1, 2023 to date and ongoing?" The applicant in her submissions has stated that this issue is withdrawn. Therefore, I have not included this issue in the issues in dispute.
RESULT
4I find that the applicant is not entitled to the unapproved balance of the treatment plans for chiropractic services, dated June 9, 2022 and June 29, 2022.
5I find that the applicant is entitled to the treatment plans for chiropractic services, dated August 9, 2022 and October 26, 2022, plus interest.
6I find that the applicant is entitled to the unapproved balance of the treatment plans for psychological services, dated April 19, 2022 and June 27, 2022, plus interest.
7I find that the applicant is not entitled to the treatment plan for psychological services, dated November 9, 2022.
8I find that the applicant is not entitled to the treatment plan for an OT in-home assessment, dated March 21, 2023.
9I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.
ANALYSIS
Entitlement to medical and rehabilitation benefits
10To 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 that the goals of treatment are reasonable, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
The applicant is not entitled to the unapproved balance of the treatment plans for chiropractic services, dated June 9, 2022 and June 29, 2022
11The applicant has not established that the unapproved balance of the treatment plans dated June 9, 2022 and June 29, 2022, are reasonable and necessary.
12The applicant claims entitlement to $800.00 ($4,592.79 less $3,992.79) for chiropractic services, proposed by UHeal, in the treatment plans dated June 9, 2022 and June 29, 2022.
13The respondent submits that the dispute concerning the treatment plans dated June 9, 2022 and June 29, 2022, relate to travel time to and from treatment. The treatment plans recommend one hour of travel time at the rate of $50.00 for 16 sessions, for a total of $800.00 per treatment plan. The respondent submits that s. 3(1)(b) "authorized transportation expense" of the Schedule, provides that there is a 50 km deductible per round trip for travel expenses and transportation is payable at $0.40 per each extra kilometer after the deductible. The respondent argues that as the applicant resides 12.3 km away from the UHeal clinic, she does not meet the deductible and is not entitled to the transportation expenses.
14I find that the applicant has not provided any submissions or directed me to any supporting evidence on her entitlement to the travel expenses claimed. Therefore, I find that the applicant has not met her onus of proving on a balance of probabilities that she is entitled to the unapproved balance of the treatment plans dated June 9, 2022 and June 29, 2022, for chiropractic services.
The applicant is entitled to the treatment plans for chiropractic services dated August 9, 2022 and October 26, 2022
15The applicant has established that the treatment plans dated August 9, 2022 and October 26, 2022, are reasonable and necessary.
16The applicant claims entitlement to $4,592.72 for chiropractic services, proposed by UHeal, in the treatment plans dated August 9, 2022 and October 26, 2022. The treatment plans recommend the following:
Assessment (Examination), Total Body: $200.00
16 manipulation sessions, multiple body sites - $112.81 per session: $1,805.96
16 exercise sessions, multiple body sites - $49.88 per session: $798.08
16 acupuncture sessions, multiple body sites - $49.98 per session: $799.68
Documentation, Support Activity: $190.00
16 travel time trips (Provider to Treatment) - $50.00 per trip: $800.00
17The goals of the treatment plans are pain reduction, increase in strength, increase range of motion, reduce swelling and inflammation, increase neuro-muscular endurance, return to pre-accident exercise, and return to social activities.
18The applicant submits that she sustained a fractured ankle in the subject accident which has required a significant amount of rehabilitation. She submits that the proposed goals of pain relief and improvement in mobility in the treatment plans in dispute, are both reasonable and necessary, given her ongoing symptoms and limitations.
19The applicant relies upon the clinical notes and records ("CNRs") of her family physician, Dr. Xu Xia Chen, which note her ongoing pain complaints and physical limitations after the accident. She further relies upon the multiple OT reports prepared by Raymond Wong, occupational therapist, which indicate consistent impairments due to dizziness and pain in the applicant's neck, lower back, right knee and right ankle. The applicant also submits that the prescription summary shows that the applicant relies upon numerous prescription medications to address her physical pain symptoms, including Diclofenac, Naproxen and Celecoxib.
20The applicant submits that the Insurer's Examination ("IE") report of Dr. Michael Martin, orthopaedic surgeon, dated November 7, 2022, which denied the two treatment plans in dispute, should be given little to no weight. She submits that pain complaints to her neck, mid to lower back, right leg and right ankle are noted throughout Dr. Martin's report. The applicant submits that Dr. Martin denied the treatment plans without a sufficient explanation for his reasoning.
21The respondent submits that there is no persuasive evidence to support that the treatment plans dated August 9, 2022 and October 13, 2022, are reasonable and necessary as a result of the accident. It submits that the subject treatment plans are not reasonable and necessary given the applicant's recovery and the evidence of possible symptom magnification.
22The respondent relies upon the IE report of Dr. Alfonse Marchie, physiatrist, dated April 18, 2022, which concluded that there were no diagnostic study reports to indicate any accident-related pathologies that would explain the applicant's pain symptoms and that her injuries were uncomplicated, soft tissue injuries. The respondent further relies upon the IE report of Dr. Martin, dated November 7, 2022, who opined that the applicant had achieved maximum benefit from facility-based rehabilitation. He also noted that he would expect a "more complete recovery" by this point in time and that the applicant's symptoms of ongoing pain were not supported by the medical documentation reviewed. He found that there was no physiological explanation for why her ankle should have only minimally improved despite several months of physical therapy.
23I find that the applicant is entitled to the chiropractic treatment recommended in the treatment plans dated August 9, 2022 and October 26, 2022, for the following reasons.
24I find upon review of the CNRs of Dr. Chen, that the applicant made ongoing physical complaints consistently post-accident and Dr. Chen made recommendations for ongoing treatment. On October 13, 2022, Dr. Chen assessed the applicant with right ankle ROM limited, mild tenderness on BL aspect and recommended physiotherapy. On December 10, 2022, the applicant complained of right buttock and right hip intermittent ache and again Dr. Chen recommended ongoing physiotherapy. I find that the applicant's complaints and the recommendations for ongoing treatment are made contemporaneously with the treatment plans in dispute.
25I further find that the OT reports of Mr. Wong, specifically the report dated September 9, 2022, supports that the applicant continued to have complaints of headaches, pain in her neck, lower back, right knee and right ankle. The report further supports that she has not resumed performing any in-home tasks. Mr. Wong notes that the applicant's limitations and pain were observed and assessed. I find that this report is also contemporaneous to the treatment plans in dispute.
26I give little weight to the IE report of Dr. Marchie. In his report, he stated that he did not have a copy of any radiographic investigations that confirm a fracture of the right ankle. He therefore concluded that the applicant suffered a "right ankle contusion". I do not find his conclusions that the applicant only suffered soft tissues as a result of the accident persuasive, because it is clear from the medical evidence that she suffered a fracture of her ankle.
27I also give little weight to the report of Dr. Martin. I find that his conclusions that the treatment plan in dispute is not reasonable and necessary because the applicant has reached maximum benefit from facility-based physical rehabilitation is inconsistent with his findings. Dr. Martin notes the applicant's ongoing complaints and also finds that the applicant's most significant musculoskeletal diagnosis is an undisplaced fracture of the medial malleolus. He states that he would normally expect this to return to normal function within the first six months with some residual symptomatology for the first-year post-accident. He then finds that she has not met those expectations and the reason is unclear. He then suggests that it is possible that her recovery is complicated by a regional pain syndrome. He concludes that the prognosis for recovery from her ankle fracture is therefore uncertain. Dr. Martin's findings in his report of the applicant's ongoing complaints and that he does not know why her ankle injury is not healed, is contradictory to his conclusion that she has reached maximum benefit from facility-based physical rehabilitation. I find that there is no rationale as to why he found that she had reached maximum benefit or why additional treatment would not help her on an ongoing basis when she had not recovered.
28With respect to the cost of the treatment plans, I find that the applicant is not entitled to the travel expenses in the amount of $800.00, pursuant to s. 3(1)(b) of the Schedule. I agree with the respondent's submissions that as the applicant resides 12.3 km away from the UHeal clinic, she does not meet the deductible and is not entitled to the transportation expenses. I therefore find that the applicant is entitled to $3,792.79 for each of the treatment plans in dispute.
29For the reasons set out above, I find that the applicant has met her onus of demonstrating on a balance of probabilities that the treatment plans for chiropractic treatment, dated August 9, 2022 and October 26, 2022, are reasonable and necessary.
The applicant is entitled to the unapproved balance of the treatment plans for psychological services dated April 19, 2022 and June 27, 2022
30The applicant has established that the unapproved balance of the treatment plans dated April 19, 2022 and June 27, 2022, are reasonable and necessary.
31The applicant claims entitlement to the following unapproved balance of the treatment plans proposed by Somatic:
i. $1,645.78 ($3,701.88 less $2,056.10 approved) for psychological services, in a treatment plan dated April 1, 2022;
ii. $1,047.34 ($3,701.88 less $2,64.54 approved) for psychological services, in a treatment plan dated June 27, 2022;
32The issue in dispute is that the respondent approved 1.0 hour per session when the treatment plans recommend 1.5 hour per session.
33The applicant submits that following an in-depth psychological assessment, Dr. Sharleen McDowall, psychologist, diagnosed her with major depressive disorder with anxious distress, as well as specific phobia (travel). Dr. McDowall concluded that the applicant required cognitive-behavioural therapy sessions to address her psychological needs. Psychological progress reports were completed by Ishi Wang, social worker, under the supervision of Dr. McDowall which outline the applicant's progress with treatment and recommend further treatment.
34The applicant submits that on June 21, 2022 and July 13, 2022, the respondent provided letters to the applicant partially approving the treatment plans. The respondent approved 1.0-hour sessions of treatment rather than the recommended 1.5-hour sessions. The respondent's position was based on the IE report completed by Dr. Shulamit Mor, psychologist, dated June 14, 2022.
35The applicant submits that a treating practitioner who has provided treatment and has completed a detailed assessment of the applicant, is in a better position to determine the details of the treatment necessary to address the applicant's symptoms over an IE assessor. The applicant relies on the Tribunal decision in C.M. v. Intact Insurance Company, 2020 CanLII 14419 (ON LAT) ("C.M. v. Intact"), where the adjudicator determined that 1.5-hours per session for psychological treatment, proposed by the applicant's treating psychologist was reasonable and necessary and the time approved at 1.0-hour per session recommended by the IE assessor was rejected. The applicant further relies on the Tribunal decision in Qu v. Allstate Insurance Company of Canada, 2022 CanLII 2658 (ON LAT) ("Qu v. Allstate"), where the adjudicator concurred with the reasoning in C.M. v. Intact.
36The respondent submits that the applicant has failed to show that the 1.5-hour sessions are reasonable and necessary. It relies upon the IE report of Dr. Mor, which determined that 1.0-hour sessions was warranted and which found that no rationale had been provided for the provision of the proposed 1.5-hour sessions. It submits that part of Dr. Mor's reasoning included that during the assessment the applicant estimated 70% overall improvement in her emotional state since the subject accident. As such, the treatment plan was partially approved for the recommended treatment sessions for 1.0-hour only.
37The respondent submits that the decision in C.M. v. Intact is distinguishable from the subject matter. It submits that the applicant in C.M. v. Intact was diagnosed with ongoing severe PTSD, chronic pain, insomnia, severe depression and anxiety. In comparison, the applicant in the subject matter has been diagnosed with mild depressive disorder, anxiety and travel phobia and has been noted as having made considerable progress since her first initial assessment.
38While I am not bound by previous Tribunal decisions, I find the decision in C.M. v. Intact and Qu v. Allstate, persuasive. I find these decisions are directly on point. I accept that the applicant's psychological treatment provider possesses a strong understanding of her psychological impairments based on her history of treating her. I find the recommendation regarding the treatment time per session is based on her knowledge and expertise in addressing the applicant's specific impairments.
39I find that there are two competing opinions before me regarding the length of time the applicant needs for psychological treatment. Neither report explains why 1.0 or 1.5 hours of treatment is recommended. Both psychologists simply make their recommendation as to the length of time required for each psychological therapy sessions. I find that Dr. Mor in her report simply states that there has been no rationale provided for provision of the proposed 1.5-hour sessions and in her opinion, 1.0-hour sessions are sufficient. I do not accept that simply because the applicant is improving and finds the sessions helpful that this is a rationale for opining that the sessions be only 1.0-hour. I find that the progress reports of Dr. McDowall state that the applicant is progressing with treatment and the applicant has stated that the psychological treatments with the treating psychologist were helpful. Therefore, I find that the applicant has proven on a balance of probabilities that the 1.5-hour sessions of psychological treatment are reasonable and necessary.
40For the reasons set out above, I find that the applicant has met her onus of demonstrating on a balance of probabilities that the balance of the treatment plans for psychological treatment, dated April 19, 2022 and June 27, 2022, are reasonable and necessary.
The applicant is not entitled to the treatment plan for psychological services dated November 9, 2022
41The applicant has not established that the treatment plan dated November 9, 2022, is reasonable and necessary.
42The applicant claims entitlement to $3,701.74 for psychological services proposed by Somatic, in the treatment plan dated November 9, 2022. The plan recommends 14 1.0-hour sessions of psychological treatment.
43The applicant submits that the treatment plan is reasonable and necessary based on the psychological assessment report of Dr. McDowall and the progress reports of Ms. Wang.
44The respondent submits that the treatment plan in dispute was denied pending a s. 44 IE which was scheduled for January 4, 2023 with Dr. Karen Spivak, psychologist. The respondent submits that the applicant was notified of the s. 44 assessment by letter dated November 29, 2022. The applicant did not attend. The respondent submits that the applicant is barred from proceeding with this issue under s. 55(1)(2), for failing to attend the scheduled IE assessment without a reasonable explanation.
45The applicant in her reply submissions submits that this is the first time the respondent has raised the issue of her failing to attend the scheduled IE. It submits that if the respondent wanted to add a preliminary issue based on s.55(1)(2), it could have done so either at the case conference or by way of motion. The applicant submits that by bringing this issue for the first time in the respondent's submissions, the applicant is seriously prejudiced as she was not able to address the issue.
46Section 55(1)(2) of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied with its request for attendance.
47With respect to the applicant's argument that the respondent must raise this issue at the case conference or bring a motion, I find that the respondent raised this issue in its submissions and the applicant had the opportunity to reply to the respondent's position in her reply submissions. Rather than addressing the respondent's submissions, the applicant only provided submissions that the respondent did not have a right to raise the s. 55(1)(2) argument. I am therefore not persuaded of any prejudice to the applicant in addressing the argument from the respondent.
48I find upon review of the respondent's letter to the applicant dated November 29, 2022, that the treatment plan was denied, and a s. 44 assessment was scheduled. I further accept the respondent's submission that the applicant did not attend the scheduled assessment on January 4, 2023, and did not provide a reasonable explanation for her failure to attend. Therefore, pursuant to s. 55(1)(2), the applicant's failure to attend this assessment bars her from proceeding with her claim for this treatment plan.
49I further find that even if I had found that the respondent is not allowed to raise this issue, the applicant has not proved on a balanced of probabilities that the treatment plan is reasonable and necessary. I find that the applicant provided very limited submissions on this issue. I find that she has not addressed the key elements to establishing entitlement to the disputed treatment plan. She has not provided any submissions on the disputed treatment plan's therapeutic goals, whether they are being met or the proposed costs. The applicant has not established whether and how the services proposed are reasonable and necessary.
50For the reasons set out above, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that the treatment plan for psychological treatment, dated November 9, 2022, is reasonable and necessary.
The applicant is not entitled to the treatment plan for an OT in-home assessment dated March 21, 2023
51The applicant has not established that the treatment plan dated November 9, 2022 is reasonable and necessary.
52The applicant claims entitlement to $2,200.00 for an OT in-home assessment, proposed by Somatic, in a treatment plan dated March 21, 2023.
53The applicant submits that given her ongoing physical limitations noted in the assessment reports completed by Mr. Wong, occupational therapist, that the treatment plan in dispute is both reasonable and necessary.
54The respondent submits that as of December 16, 2022, any OT treatment was deemed no longer reasonable and necessary based on the IE report completed by Faye Perreras, occupational therapist, dated November 25, 2022.
55I find that the applicant has provided limited submissions and evidence in support of the reasonableness and necessity of the treatment plan in dispute. I find that the applicant has not set out what the treatment plan recommends in her submissions or made specific submissions in respect to this treatment plan. I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plan in her submissions. She has not provided any submissions on the treatment plan's therapeutic goals, whether they are being met, or the proposed cost. The applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable, other than to state that it is reasonable given her ongoing physical limitations noted in the assessment reports. I find that simply attaching a treatment plan and assessment reports is not sufficient to meet the test.
56For the reasons set out above, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that the treatment plan for an OT in-home assessment, dated March 21, 2023, is reasonable and necessary.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to the treatment plans dated April 19, 2022, June 27, 2022, August 9, 2022, and October 26, 2022, interest is payable in accordance with s. 51 of the Schedule, from the date payment became overdue to the date that payment was made.
Award
58The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
59The applicant submits that the respondent is required to pay an award based on the following factors:
a. The respondent categorically ignored the medical records of the applicant's treating practitioners and assessors;
b. The applicant is vulnerable and has sustained serious injuries as a result of the accident;
c. The Tribunal needs to set precedents to ensure deterrence to insurer's; and
d. The respondent acted in a highhanded manner.
60The respondent submits that just because the Tribunal finds that an insurer was wrong in its denial of a benefit, does not automatically entitled the applicant to an award. An insurer is not held to a standard of perfection, but rather, it is held to a standard of reasonableness. The respondent submits that its conduct has not been excessive, imprudent, stubborn, inflexible, unyielding or immoderate, as it has consistently adjusted the file, notably through the obtainment of medical opinions.
61I find that while the respondent denied the treatment plans in dispute, the applicant has not directed to me to any evidence that the respondent disregarded evidence which resulted in the respondent unreasonably withholding or delaying payment of the disputed treatment plans. I further find that the respondent was entitled to rely on its expert reports and to follow the recommendations in these reports. I find that, despite giving less weight to some of these reports in reaching my decision, the respondent's reliance on these reports does not meet the standard of unreasonable conduct necessary to justify an award.
62For the reasons set out above, I find no award payable.
ORDER
63For the reasons set out above, I find:
i. The applicant is not entitled to the unapproved balance of the treatment plans for chiropractic services, dated June 9, 2022 and June 29, 2022;
ii. The applicant is entitled to the treatment plans for chiropractic services dated August 9, 2022 and October 26, 2022, plus interest;
iii. The applicant is entitled to the unapproved balance of the treatment plans for psychological services dated April 19, 2022 and June 27, 2022, plus interest;
iv. The applicant is not entitled to the treatment plan for psychological services dated November 9, 2022;
v. The applicant is not entitled to the treatment plan for an OT in-home assessment dated March 21, 2023; and
vi. The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: August 11, 2025
Melanie Malach
Adjudicator