Licence Appeal Tribunal File Number: 23-008312/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:
Shao Hua Zhang
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Jan Dymond
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Paralegal
For the Respondent:
Michael Courneyea, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Shao Hua Zhang, the applicant, was involved in an automobile accident on July 4, 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, Intact 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 $1,358.00 for physiotherapy services, proposed by Easy Health Centre (“Easy Health”) in a treatment plan/OCF-18 (“treatment plan”) dated March 21, 2023?
ii. Is the applicant entitled to the treatment plans proposed by Somatic Assessments & Treatment Clinic (“Somatic”), as follows:
(a) $2,271.70 ($3,701.88.00 less $1,430.18 approved) for psychotherapy services in a treatment plan dated January 4, 2023;
(b) $2,484.30 ($3,701.88 less $1,217.58 approved) for psychotherapy services in a treatment plan dated August 14, 2023; and
(c) $3,701.88 for psychological services in a treatment plan dated December 13, 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?
3Issue 2.ii.(c) above in the amount of $3,701.88 for psychological services in a treatment plan dated December 13, 2023 was added by way of a motion dated June 24, 2024.
RESULT
i. The applicant is not entitled to $1,358.00 for physiotherapy services, proposed by Easy Health.
ii. The applicant is not entitled to the following treatment plans:
(a) $2,271.70 for psychotherapy services; and
(b) $2,484.30 for psychotherapy services.
iii. The applicant is entitled to $1,088.89 for psychological services in a treatment plan dated December 13, 2023.
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.
v. The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUES
4The respondent submits in its hearing brief dated August 29, 2024 that it had approved the full amount of a treatment plan listed as issue 2.i. in the Case Conference Report and Order and that the issue is no longer in dispute. The respondent submitted a copy of a letter dated August 9, 2024 confirming its agreement to pay the full cost submitted by the Somatic Assessments for a psychological treatment plan in the amount of $2,200.00. The applicant had an opportunity to disagree with the respondent’s submission that the treatment plan be withdrawn by way of a reply submission but did not file a submission disputing the respondent’s position. I, therefore, accept the respondent’s position that the treatment plan was paid in full and is no longer in dispute. I have reflected this in the list of issues in dispute set out in paragraph 2. above.
ANALYSIS
The applicant is not entitled to the treatment plan for physiotherapy services.
5I find that the applicant is not entitled to the treatment plan in the amount of $1,358.00 for physiotherapy services proposed by Easy Health because the applicant has not demonstrated, on a balance of probabilities, that this treatment plan is reasonable and necessary.
6To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving, 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.
7The applicant seeks $1,358.00 for physiotherapy services proposed by Easy Health in a treatment plan submitted March 21, 2023. The plan seeks the following:
Documentation = $200.00
8 - one-hour sessions of physical rehabilitation = $798.00
8 - one-half hour sessions of exercise, multiple body sites = $360.00
8The goals of the treatment plan are listed as:
pain reduction
increase in strength,
increased range of motion, and
return to activities of daily living.
9The applicant submits that I should give more weight to the recommendations of the “treating practitioners”, rather than the opinion of the independent assessor which I interpret to mean the insurer’s independent assessor. The applicant has only submitted the clinical notes and records of Easy Health Clinic (“Easy Health”) as evidence of the reasonableness and necessity of this plan. The applicant has not submitted corroborating independent medical evidence in support of the need for the treatment plan.
10The applicant reports that he was not transported to hospital immediately following the accident but attended London Health Sciences Centre the following day, July 5, 2022. His injuries were recorded as a contusion over the left upper eyebrow with a mild headache in the area of the contusion, contusions to the right elbow and right shin. He was diagnosed with a mild head injury and advised to return if his symptoms worsened. There is no record of his having returned. The applicant denied experiencing any weakness, numbness or neurological concerns. He also reported no midline C-spine tenderness.
11On July 12, 2022, the applicant attended Easy Health. The clinical notes and records (“CNRs”) of Easy Health report the applicant as experiencing sprain and strain of the neck and upper back as well as tension headaches. Easy Health recommended he attend two physiotherapy sessions per week for six to eight weeks and to begin a home exercise program. The CNRs up to June 23, 2023 report compliance with the home exercise program, a reduction in pain and improved mobility. The handwritten notes of the CNRs are largely illegible; however, the typed notes do not offer an updated diagnosis.
12The CNRs of Easy Health are consistent with the original diagnoses falling under the category of soft tissue injuries. They do not offer any explanation as to why ongoing treatment almost a year after the subject motor vehicle accident (“MVA”) is reasonable and necessary under s.16 of the Schedule. As a result, I am not persuaded by the applicant’s argument that I should accept the treatment recommendation of Easy Health without corroborating medical evidence of the need for physiotherapy treatment.
13Further, I agree with the respondent who submits that the applicant has filed minimal medical evidence regarding his physical injuries and relies on the Insurer’s Examination (“IE”) report of Dr. Pankaj Bansal, Family Physician.
14The applicant attended an IE with Dr. Bansal on June 1, 2023, to determine the reasonableness and necessity of the above treatment plan. Based on a physical examination of the applicant and the applicant’s self-reporting, Dr. Bansal opined that the treatment plan was not reasonable and necessary. Dr. Bansal’s physical examination of the applicant found no valid signs of musculoskeletal, orthopaedic, or neurological injury. Dr. Bansal opines that such a finding is not unreasonable, as eleven months had passed since the subject MVA. In his opinion, soft tissue injuries such as those reportedly sustained by the applicant should be expected to resolve within three months. The applicant reported to Dr. Bansal that he continued to experience “very mild” neck pain lasting approximately ten minutes every one to two days and “mild” headaches for a couple of minutes one to two times per week. The applicant was back at work full time and reported no residual functional impairments.
15I put weight on Dr. Bansal’s opinion because, as a family physician, he is qualified to give this opinion and because he personally examined the applicant before issuing his report. I am persuaded that the plan is not reasonable or necessary because of Dr. Bansal’s finding on examination that the applicant showed no valid signs of musculoskeletal, orthopaedic, or neurological injury. The applicant’s self-reports of very mild neck pain and mild headaches and his report that he was back at work fulltime two weeks post accident and with no residual effects at the time of the examination support Dr. Bansal’s opinion that the applicant does not have musculoskeletal, orthopaedic, or neurological injuries requiring treatment as a result of the accident.
16For the reasons stated above, I find that the applicant has not established, on a balance of probabilities, that the proposed treatment plan is reasonable and necessary because he has not established that he currently suffers from musculoskeletal or orthopaedic injuries as a result of the accident that require ongoing physiotherapy treatment.
17I find that the proposed treatment plan is not reasonable and necessary and the applicant is not entitled to $1,358.00 for physiotherapy services proposed by Easy Health in a treatment plan submitted March 21, 2023.
The applicant is not entitled to the treatment plans for $2,271.70 and $2,484.30 for psychotherapy services
18I find that the applicant is not entitled to the treatment plans for $2,271.70 and $2,484.30 for psychotherapy services (issues 2.ii (a) and (b) above).
19The applicant claims $2,271.70 ($3,701.88 less $1,430.18 approved) for psychotherapy services proposed by Somatic Assessments (“Somatic”) in an OCF-18 dated January 4, 2023 and $2,484.30 ($3,701.88 less $1,217.58 approved) in an OCF-18 submitted August 14, 2023.
20The applicant’s submissions identify psychological injuries of Major Depressive Disorder with Anxiety Distress as well as Specific Phobia (Travel) as a result of the accident. He does not address how the unapproved amounts are reasonable and necessary.
January 4, 2023 Treatment Plan for $2,271.70
21The respondent submits that the decisions to reduce the hourly rate and partially approve the January 4, 2023 OCF-18 were based on supplementary information received from Somatic pursuant to a request by the respondent.
22The OCF-18 submitted by Somatic proposed fourteen one-and one-half hour sessions of psychotherapy with a psychological services provider. The OCF-18 dated January 4, 2023, listed the provider as Dr. Sharleen McDowall, a registered psychotherapist. The OCF-18 estimate was based on the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”) hourly rate for a registered psychologist of $149.61. In a letter dated January 16, 2023, the respondent requested that Somatic confirm the names and designations of the providers of the proposed services in the OCF-18 dated January 4, 2023.
23The respondent submits that the details received from Somatic in response to their request were not consistent with those submitted in the OCF-18 and that the respondent re-adjudicated the OCF-18 accordingly. The respondent submitted a copy of Somatic’s response indicating that the provider would be Haiying Bai, a Registered Psychologist (Qualifying) (“RP(Q)”). The respondent submits that the RP(Q) designation is not listed in the Guideline and that the Guideline indicates that the amounts payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. The respondent set the hourly rate as $58.19 consistent with the Guideline’s rate for unregulated professionals.
24The OCF-18 dated August 14, 2023 also lists Haiying Bai as the provider with a rate of $149.61. The respondent reduced the hourly rate to $58.19 based on the Guideline.
25I am persuaded that the respondent’s evidence has established that the provider was not covered under the Guideline and that its decision to adjust the hourly rate to that of unregistered professionals was reasonable. The applicant has not provided submissions to support that the rate proposed for Haiying Bai should be $149.61.
26I find on a balance of probabilities that the applicant has not established that the unapproved amounts for the treatment plan dated January 4, 2024 are reasonable and necessary.
August 14, 2024 Treatment Plan for $2,484.30
27By way of a letter dated August 29, 2023, the respondent requested additional information with respect to the nature and type treatments and proposed length of session in the August 14, 2024 treatment plan. No additional information was submitted.
28The respondent approved fourteen psychotherapy sessions for one-hour sessions as opposed to 90-minute sessions proposed in the OCF-18. In its letter to the applicant dated August 29, 2023, the respondent expressed the opinion that “a psychotherapy/counselling session can be provided in one hour, in most cases.” The respondent’s approval of one-hour psychological counselling sessions is consistent with the October 18, 2022 IE report of Dr. Peter Cobrin, Psychologist, who recommended an initial series of eight one-hour sessions.
29The applicant provides no submissions as to why 90-minute sessions are reasonable and necessary, nor any detail as to what the 90-minute sessions were to consist of.
30Based on the evidence provided, I find that the applicant has not established the reasonableness and necessity of the 90-minute sessions.
31I find on a balance of probabilities that the applicant has not established that the unapproved amounts for the treatment plan dated August 14, 2024 are reasonable and necessary.
The applicant is entitled to $1,088.98 for psychological services proposed in a treatment plan dated December 13, 2023
32The applicant’s entitlement to an OCF-18 in the amount of $3,701.88 for psychological services proposed by Somatic, dated December 13, 2024, is partially granted. The OCF-18 seeks the following:
i. Therapy - $3,141.88
ii. Documentation – $360.00
iii. Documentation - $200.00
33The goals of the treatment plan are identified as being to:
i. Challenge and reduce negative thought patterns by utilizing cognitive restructuring techniques to deal with anxiety and depressive feelings and cognitions, and
ii. Return to activities of normal living.
34The applicant submits that he should be entitled to the treatment plan for psychological services. He submits that he was removed from the MIG because of psychological injuries sustained as a result of the accident and continues to struggle with ongoing psychological and cognitive issues.
35He relies on Somatic’s progress reports between December 2022 and November 2023. The December 21, 2022 report diagnosed the applicant as suffering Major Depressive Disorder with Anxiety Distress, as well as Specific Phobia (Travel). Subsequent reports dated July 30, 2023 and November 5, 2023 report the applicant as responding positively to treatment with a reduction in anxiety, irritability, and an improvement in overall psychological well-being.
36Somatic’s progress report dated November 5, 2023, completed by Haiying Bai, covers the period of September 23, 2023, to November 5, 2023 during which time the applicant is reported as having attended four psychotherapy sessions. Ms. Bai reports that, “Mr. Zhang demonstrated a positive attitude and commitment to improving his psychological well-being during the entire treatment period. Overall, his levels of anxiety and irritability have decreased.” She concludes that further psychological treatment may be beneficial. The subject treatment plan proposing a program of 14 additional psychological sessions was submitted on December 13, 2023.
37The respondent submits that it denied the treatment plan based on Dr. Cobrin’s finding in a report dated February 13, 2024 that the applicant is not motivated to continue psychological treatment. This was Dr. Cobrin’s second assessment of the applicant. In his first assessment report dated October 27, 2022, Dr. Cobrin recommended that the applicant be removed from the MIG for psychological reasons and that he would benefit from a course of psychological treatment.
38In his February 13, 2024, Dr. Cobrin concludes: “Similar to what was written at the time of my previous assessment of Mr. Zhang in October 2022, it continues to be my opinion that Mr. Zhang is suffering from a specific phobia with respect to travelling in vehicles and subclinical symptoms with an adjustment disorder, with these psychological difficulties being directly related to the index accident.” However, he recommends against the proposed treatment plan because, during the interview portion of the assessment, the applicant reported that he no longer found the psychological treatment he was receiving to is no longer helpful. As a result, Dr. Cobrin reports that he found the applicant “is not presently motivated for psychological treatment”.
39The question before me is whether the treatment plan was reasonable and necessary at the time it was proposed.
40The progress reports and assessments of Somatic’s practitioners and Dr. Cobrin’s October 2022 assessment are consistent in their opinion that the applicant suffers from psychological injuries that are a direct result of the subject MVA. The Somatic progress report of November 5, 2023 indicates that the applicant is making progress, is committed to improving his psychological well-being, and is recommended for additional treatment.
41I considered Dr. Cobrin’s February 13, 2024 recommendation; however, it is the result of an assessment that took place more than three months after the November 5, 2023 Somatic progress report and two months after the December 13, 2023 treatment plan. In considering whether the treatment plan was reasonable and necessary at the time it was proposed, I prefer the November 5, 2023 Somatic progress report because of its proximity to the issuance of the December treatment plan.
42I find, on a balance of probabilities, that the applicant has established that the treatment plan dated December 13, 2023 is reasonable and necessary and is partially approved in the amount of $1,088.89 for the reasons that follow.
43The treatment plan’s stated goals of helping the applicant deal with anxiety and depressive feelings and cognitions are consistent with the applicant’s diagnoses by both Somatic and Dr. Cobrin. I find that the proposed treatment plan represents a reasonable continuation of the treatment plan that Somatic’s progress reports indicate have resulted in improvement. I do not, however find the costs of the proposed treatment plan to be reasonable.
44The treatment provider is listed as Haiying Bai who, as indicated above, was an RP(Q) at the time the treatment plan was submitted. I have adjusted the amount of the treatment plan to reflect the Guideline rate. The treatment plan proposes 14 one-and-a-half hour sessions. As I have already determined that the applicant has not demonstrated a basis for one-and-a-half hour sessions and no basis for longer sessions is included in the December 13, 2023 treatment plan, I am limiting the applicant’s entitlement to 14 one-hour sessions. The proposed treatment plan is granted in the following amounts:
i. Therapy – $814.66
ii. Documentation – $174.57
iii. Documentation - $99.75
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
46The 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. The applicant’s submission does not provide particulars relevant to the applicant’s case. Indeed, some of the factors he relies on in paragraph 31 of his submission appear to be related to a different applicant:
i. The insurer categorically ignores the medical records of all of the applicant’s practitioners and assessors (no applicant assessor reports submitted);
ii. The applicant is vulnerable and she has sustained serious injuries as a result of this accident (applicant is male);
iii. The weekly benefit has never been paid (not an issue in dispute);
47I find that the applicant has not established that the insurer unreasonably withheld or delayed the payment of benefits and no award is payable.
ORDER
48I find that:
i. The applicant is entitled to $1,088.89 for psychological services in a treatment plan dated December 13, 2023.
ii. The applicant is not entitled to the remaining amounts for the treatment plans in dispute.
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
iv. Interest is payable in accordance with s. 51 of the Schedule.
Released: August 22, 2025
Jan Dymond
Vice-Chair