Licence Appeal Tribunal File Number: 24-008631/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:
Xiao Min Shen
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Peter Durant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Xiao Min Shen, the applicant, was involved in an automobile accident on February 14, 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, Co-operators General 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 $1,861.72 ($3,701.74 less $1,840.02 approved) for psychological services proposed by Somatic Assessments & Treatment Clinic (“Somatic”) in a treatment plan/OCF-18 (“plan”) submitted on June 17, 2024?
ii. Is the applicant entitled to $14,750.81 for a catastrophic (“CAT”) assessment proposed by Somatic in a plan submitted on July 5, 2024?
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?
RESULT
3The applicant is not entitled to the unapproved balance of the plan for psychological services, the plan for a CAT assessment, or interest.
4The respondent is not liable to pay an award.
5The application is dismissed.
ANALYSIS
The applicant is not entitled to the unapproved balance of the plan for psychological services
6For the following reasons, I find that the applicant is not entitled to the unapproved balance of the plan for psychological services.
7The plan was proposed by Dr. Svetlana Gabidulina, psychologist, and Li Wen Mandy Fang, social worker. The plan proposes fourteen sessions of psychology treatment ($2,094.54), communication with others – fourteen times ($523.60), “Ongoing Evaluation and Modification of” – fourteen times ($523.60), progress report ($360.00), and completion of OCF-18 ($200.00). The goals of the plan are to challenge and reduce negative thought patterns by utilizing cognitive restructuring techniques to deal with anxiety and depressive feelings and cognitions, and to return to activities of normal living.
8The respondent refers to its letter to the applicant dated June 26, 2024 (“denial letter”), indicating that the disputed plan was partially approved for psychology treatment ($1,280.02), progress report ($360.00), and OCF-18 completion ($200.00). The letter indicates that the brokerage, service ($523.60) and planning, service ($523.60) were denied in full.
Section 38(8) argument
9The applicant has not met her onus to prove on a balance of probabilities that the respondent’s denial letter did not comply with the requirements set out under s. 38(8) of the Schedule.
10Section 38(8) of the Schedule provides that the insurer must reply to a plan within 10 business days after receipt of the treatment plan, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, if the plan was incurred during the period of non-compliance.
11The applicant relies on the Supreme Court of Canada decision of Smith v. Co-operators General Insurance Co., 2002 SCC 30 in submitting that the Schedule is consumer protection legislation, and its provisions should be liberally construed in favour of the insured.
12The applicant submits that the respondent failed to meet the requirements set out under s. 38(8) of the Schedule by not giving medical and relevant reasons for the denial. The applicant argues that the respondent’s reasoning for the partial approval and full denial lacks a detailed explanation/justification because it does not provide an explanation why the brokerage service and planning service were denied. The applicant also submits that the denial is unclear because the language of the OCF-18 is different from the denial letter, and the denial letter does not point to a specific amount/category on the OCF-18.
13The applicant also argues that the onus is on the respondent to establish that the applicant has received the proper notice of denial, and that the denial was clear and unequivocal.
14The respondent refers to the denial letter, which indicates that the psychological treatment in the disputed plan was partially approved because of the hourly rate of $149.61 that was proposed for Mandy Fang, a social worker. The denial letter states that the respondent approved the plan at the hourly rate of $91.43, which is commensurate with the established hourly rate for a social worker and/or registered nurse or nurse practitioner, based on the Financial Services Commission of Ontario’s Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”).
15The respondent points out that, according to the Guideline, $149.61 is the maximum hourly rate that can be charged by psychologists and psychological associates, and that no rate is set out for social workers, who therefore must actually fall under the category of “unregulated providers” with a maximum hourly rate of $58.19. The respondent agreed to pay $91.43, which exceeded the Guideline amount.
16The respondent submits that its denial letter clearly sets out the five line items from the OCF-18 and that the letter makes specific reference to the items that were approved in full, the items that were partially approved, and the items that were denied in full.
17The respondent also submits that the proposed “brokerage, service” and “planning, service” fees were arrived at by multiplying fourteen sessions of each by .25 of an hour at $149.61 per hour, which the respondent argues is an inflated rate for a social worker.
18The respondent refers to the denial letter, which indicates that the brokerage or planning services listed on the disputed plan are not payable based on the Guideline. The letter explains that the Guideline sets out that expenses related to professional services include all administration or other costs, overhead, fees, expenses, charges, or surcharges and that insurers are not liable for any of these items that have the result of increasing the effective hourly rates beyond what is permitted under the Guideline. The letter goes on to explain that planning and preparation services should be included in the cost of each treatment session/ service as they have been considered in the development of the hourly rate assigned to the applicant’s provider.
19Although I note that different wording was used on the denial letter for two of the services than on the disputed plan, I find that the respondent’s denial was nevertheless clear.
20In the denial letter, the respondent listed the five services that were proposed on the disputed plan as follows:
i. Psychology treatment: $2,094.54
ii. Brokerage, service: $523.60
iii. Planning, service: $523.60
iv. Progress report: $360
v. OCF-18 Completion: $200
21The OCF -18 lists the services as follows:
i. Psychology treatment ($2,094.54)
ii. Communication with others ($523.60)
iii. Ongoing Evaluation and Modification of ($523.60)
iv. Progress report ($360.00)
v. Completion of OCF-18 + initial ($200.00)
22I find that it is clear from a quick comparison that the “brokerage, service,” and “planning, service” refer to “communication with others” and “Ongoing Evaluation and Modification of”, respectively, because of the order they are listed in the denial letter and the OCF-18, and the fact that the dollar amount of the services (i.e., $523.60) match. In these circumstances, I find that an unsophisticated person would understand which services have been denied.
23Further, I find that the respondent’s denial letter clearly explains why the brokerage service and planning service were denied, i.e., these services are included in the provider’s professional services under the Guideline, and they have been considered in the development of the hourly rate assigned to the applicant’s provider.
24In addition, I find that the respondent’s denial letter clearly provides reasons why the psychological treatment was partially approved, i.e. the plan was approved at the lower hourly rate of $91.43, which is the established hourly rate for a social worker, registered nurse or nurse practitioner, based on the Guideline.
25For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the respondent’s denial letter did not comply with the requirements set out under s. 38(8) of the Schedule.
Reasonable and necessary
26The applicant has not met her onus to prove on a balance of probabilities that the unapproved balance of the plan for psychological services is reasonable and necessary.
27To 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.
28The applicant takes the position that these expenses are a part of the OCF-18 and are reasonable and necessary expenses charged by the treatment clinic to complete the treatment. The applicant submits that the “OCF-18 itself and medical professionals agree that the full treatment plan needs to be paid by the insurer.” The applicant further submits that “communication with others” and “ongoing evaluation and modification of treatment” is directly connected/necessary for the proposed treatment for the applicant’s injuries.
29The respondent submits that it is trite law that the burden of proof rests with the applicant to establish on a balance of probabilities that the goods and services proposed, including their costs, are reasonable and necessary.
30The respondent submits that the applicant has not led any evidence to substantiate Ms. Fang’s qualifications, such as her CV, evidence of her certifications or additional professional education that she may have received to justify her charging a higher rate than that of an unregulated provider. The respondent also argues that the applicant has not provided any explanation as to why the denied brokerage or planning expenses are reasonable and necessary.
31I find that the applicant has made general submissions with respect to the unapproved services being reasonable and necessary but has not directed me to evidence as to why. The applicant does not make submissions with respect to why the proposed provider, a social worker, should be paid at the maximum hourly rate that can be charged by psychologists and psychological associates under the Guideline.
32Further, the plan proposes fourteen sessions each of communication with others and “Ongoing Evaluation and Modification of,” presumably one of each in relation to the fourteen sessions of psychological treatment. The applicant has not directed me to particulars with respect to who would need to be communicated with after each treatment session or why this would be necessary. I also find that a medical evaluation after each treatment session to determine whether modification of treatment is necessary is excessive. In any event, in my view, the hourly rate for professional services includes things like communicating with others and evaluation and modification of treatment. The applicant does not address whether the claimed fees would have the prohibited result of increasing maximum hourly rates. I find that they would.
33For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the unapproved balance of the plan for psychological services is reasonable and necessary.
Assessment
34The purpose of an assessment is to determine whether a condition exists. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
35Section 25(1)5 of the Schedule requires the insurer to pay reasonable fees charged for preparing an application for determination of CAT impairment under s. 45, including any assessment or examination necessary for that purpose.
The applicant is not entitled to a CAT assessment
36The applicant has not met her onus to prove on a balance of probabilities that the CAT assessment is reasonable and necessary.
37The plan dated April 5, 2024 was proposed by Raymond Wong, occupational therapist. The plan proposes a physiatry assessment, an in-home occupational therapy assessment, a psychology assessment, a clinical file review assessment by Dr. Joseph Siu-Wah Wong, overall assessment summary and analysis (final rating), a clinical file review assessment by Raymond Wong, a clinical file review assessment by Dr. Sedigheh Naisi, completion of OCF-18, completion of OCF-19, translation, transportation, and travel time.
38The applicant submits that the plan for a CAT assessment is both reasonable and necessary given the severity of her symptoms and the reasonable potential that she meets the threshold.
39The applicant refers to the OCF-19 dated April 14, 2024, completed by Dr. Shuo Xiang, psychiatrist, indicating that Dr. Xiang believes that because of the accident, criteria 7 and 8 are applicable to the applicant. Criterion 7 is a mental or behavioural impairment, excluding traumatic brain injury, combined with a physical impairment which results in 55 percent or more impairment of the whole person. For criterion 8, there must be a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning or a class 5 impairment (extreme impairment) in one or more areas of functioning, due to a mental or behavioural disorder.
40The applicant submits that Dr. Xiang recommended CAT testing due to the severity of her injuries.
41The applicant refers to medical evidence that she suffered from the following accident-related injuries:
i. Clinical notes and records (“CNRs”) of Dr. Paul Chan, physician, and Dr. Gordon Tang, physician, indicate that the applicant reported symptoms such as back and neck pain and insomnia in February and November of 2022, June and July of 2023. Dr. Tang’s CNRs dated July 10, 2023 indicate that a lumbar spine x-ray revealed L1 scoliosis 5-7.
ii. An OCF-3 dated February 22, 2022 completed by Dr. Richard Tavares, chiropractor, indicates that the applicant suffers a complete inability to carry on a normal life. Injuries are listed as dislocation, sprain and strain of joints and ligaments at neck level, of thorax, of lumbar spine and pelvis, and shoulder girdle, radiculopathy, chronic post-traumatic headache, malaise and fatigue, nausea, abnormalities of gait and mobility, slowness and poor responsiveness, nonorganic sleep disorder (unspecified), disturbance of activity and attention, nervousness, phobic anxiety disorders, symptoms and signs involving emotional state, other symptoms and signs involving cognitive functions and awareness, noise effects on inner ear, myalgia, and pain in throat and chest.
iii. During a pre-screening by Dr. Sharleen McDowall, psychologist, on February 23, 2022, the applicant reported neck, chest and waist pain, headaches, and dizziness from the accident.
iv. On May 25, 2022, Dr. Jordan Cheskes, ophthalmologist, diagnosed her with right full thickness macular hole OD (medium) with associated VMT. During a s. 44 assessment on February 27, 2024, Dr. Paul Ranelli, ophthalmologist, indicates that the traumatic macular hole in the right eye is accident related. Dr. Ranelli further opines that this has resulted in permanent low central vision, reaching a level of central blindness, that peripheral vision is preserved, and that left eye vision is unchanged and normal.
v. The applicant reported that she had insomnia, headaches, body aches and pains since the accident (letter dated June 14, 2022 from Dr. Christopher Li, physician). Dr. Li noted that “it sounds like there may be some component of anxiety.” Dr. Li also indicated that the applicant was not taking any medications. The applicant reported being scared and depressed since the accident (Dr. Tang’s CNRs dated April 28, 2023).
vi. On July 15, 2023, the applicant reported to Dr. Xiang, that she was unable to do chores at home, her son drives her, she feels like “an invalid,” she had extreme pain and difficulty seeing, and she had pain in her neck, back and waist, felt fear and anxiety, and had difficulty sleeping. Dr. Xiang diagnosed the applicant with PTSD. On November 17, 2023, the applicant reported fear, panic, anxiety and nightmares, and Dr. Xiang reconfirmed his diagnosis. Dr. Xiang reconfirmed the diagnosis again on July 5, 2024, although the applicant reported mild improvement. The applicant also submits that Dr. Tang diagnosed her with PTSD on April 15, 2024. I find that this was not Dr. Tang’s diagnosis, but rather Dr. Tang’s indication in the CNRs that Dr. Xiang provided this diagnosis.
vii. On August 30, 2023, when the applicant reported being dizzy, headaches, neck and back pain, depression, nightmares and sleeping difficulty, Dr. Tang referred the applicant to physiotherapy. On March 13, 2024, Dr. Tang recommended more physiotherapy when the applicant reported lower back pain from the accident.
viii. During a s. 44 assessment on January 30, 2024, Dr. Ariel Zielinsky, psychiatrist, diagnosed the applicant with Trauma Associated Disorder. Physically, the applicant reported pain in her back which is intermittent and travels to both legs, causing tingling and numbness.
ix. On April 22, 2024, after a s. 25 assessment, Dr. Svetlana Gabidulina, psychologist, diagnosed the applicant with PTSD and specific phobia, situational. The applicant reported physical symptoms such as pain in her neck, back, and numbness and tingling radiating from her shoulders to her hands and her back to her legs. She reported that her physical pain has greatly restricted her mobility, range of motion, and ability to complete tasks.
42The applicant submits that she has suffered from physical and psychological symptoms for over three years, and that the severity of her documented impairments is comparable to that in Tetruashvili v. Toronto Transit Commission, 2021 CanLII 134542 (ON LAT), where the Tribunal held that a CAT assessment was reasonable and necessary. The applicant also refers to the decision of Lara Hassani v. Guarantee Company of North America, 2018 ONFSCDRS 5, where the Financial Services Commission of Ontario (“FSCO”) held that fairness must operate as a guiding principle and that, to deny the applicant reasonable fees to conduct her own assessments would be unfair. I am not bound by other decisions of the Tribunal or decisions of the FSCO, and I find that I must decide here based on s. 25(1)5 of the Schedule, and in accordance with the accepted principle that the applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. To do this, I must consider the unique facts in this case.
43The applicant also refers to the decision of Monks v. ING Insurance Company of Canada, 2008 ONCA 269 at para. 52, where the Ontario Court of Appeal stated that a policy objective under the Schedule is that accident victims promptly receive the statutory accident benefits to which they are entitled under the Schedule. The Court interpreted the word “incurred” broadly, stating that this would prevent an insurer from benefitting from an insured’s lack of financial resources. The Court went on to state that the Schedule was designed for the protection of the insured.
44The respondent relies on the s. 44 in-home functional assessment completed by Reema Shafi, occupational therapist, on January 17 and 19, 2024, where Ms. Shafi indicates that the applicant reported being independent with self care tasks and most of her indoor housekeeping, albeit with reduced frequencies, modification and assistance. The respondent submits that after an examination and thorough observation, Ms. Shafi determined that the applicant had necessary strength, range of motion, and physical tolerance to perform most of her pre-accident tasks.
45The respondent also relies on the physiatry assessment conducted by Dr. Raymond John Zabieliauskas, specialist in physical medicine and rehabilitation, on February 6, 2024. Although Dr. Zabieliauskas notes that the applicant may continue to have some residual pain, he indicates that normal healing times for her soft tissue strain injuries have long passed. Dr. Zabieliauskas opines that the applicant’s physical examination is devoid of any ongoing physical impairment or physical disability attributable to the accident, and she is safe to resume all aspects of her life that she was engaged in without any physical restrictions or functional limitations. He also notes that there is no residual impairment requiring any treatment.
46The respondent further points to Dr. Ranelli’s s. 44 assessment on February 27, 2024, where he opines that, from a visual and neuro-ophthalmological perspective, the applicant is not subject to restrictions on employment that depend on good binocular vision, and she is not disabled from performing household chores and activities of daily living, although she needs to exercise care when depth perception is a consideration.
47The applicant does not direct me to evidence or make submissions challenging the s. 44 assessments.
48The respondent points out that the Tribunal has already determined that the applicant does not have a complete inability to carry on a normal life (see Shen v. Co-operators General Insurance Company, 2025 CanLII 35919 (ON LAT). I have reviewed the Tribunal’s decision, and I note that the Tribunal based its decision on the same evidence the applicant relies on in this case.
49The respondent also points out that in Part 8 of the disputed plan, Mr. Wong indicated that the impairment affected the applicant’s activities of normal life, but in response to a question in the plan, Mr. Wong did not describe the activities limited by the impairment and the impact on the applicant’s ability to function. Instead, he stated that the applicant sustained severe physical injuries and psychological distress since the accident.
50The respondent relies on the decision of Wang v. Co-operators General Insurance Company, 2022 CanLII 30682 (ON LAT) at para. 6, where the Tribunal held that to establish entitlement to receive funding for CAT impairment assessments, an insured person must establish that they are reasonable and necessary. At para. 13, the Tribunal held that the applicant must show that her impairments warrant investigation that she possibly has a CAT impairment. I agree with the reasoning in this decision.
51The respondent further submits that, while assessments are speculative by nature, there must be some evidence suggesting that the specified condition to be assessed exists, and that further investigation into that condition is reasonable and necessary. The respondent takes the position that this should be established with persuasive medical evidence, and not mere speculation in legal submissions.
52The parties do not provide any indication with respect to how much funding has been exhausted to date.
53I find that the disputed plan proposing the CAT assessment provides no explanation for the assessments, other than what assessments are to be performed. There is nothing in this document identifying what the underlying reasons are, and how they relate to the accident in question. I find that the indication in Part 8 that “Client sustained severe physical injuries and psychological distress since the accident” is vague and unhelpful. There are no additional comments, and no preliminary assessment reports were included for support.
54I acknowledge that Dr. Xiang completed an OCF-19 dated April 14, 2024, indicating that Dr. Xiang believes that because of the accident, criteria 7 and 8 are applicable to the applicant. However, I find that the applicant does not direct me to evidence that she may have a mental or behavioural impairment combined with a physical impairment which results in 55 percent or more impairment of the whole person, nor did the applicant provide specific submissions on which accident-related impairments could result in a WPI of 55%. The applicant has further not directed me to evidence to support a reasonable possibility that she may have a marked impairment in three or more areas of function that precludes useful functioning or an extreme impairment in one or more areas of functioning, due to a mental or behavioural disorder.
55While I accept that the applicant did suffer some accident-related impairments, I find the medical evidence falls significantly short of establishing those impairments warrant further investigation that she may possibly be CAT-impaired. I note that the applicant refers exclusively to evidence of her accident-related impairments, as well as self-reporting, without reference to medical opinions explaining how a physiatry assessment, an in-home occupational therapy assessment, and a psychology assessment could reasonably reveal a WPI of 55% or three or more marked impairments. Conversely, IE reports concluded that the applicant had necessary strength, range of motion, and physical tolerance to perform most of her pre-accident tasks, that she can resume all aspects of her life that she was engaged in prior to the accident without any physical restrictions or functional limitations, and that from a visual and neuro-ophthalmological perspective, she is not subject to restrictions on employment that depend on good binocular vision, and she is not disabled from performing household chores and activities of daily living.
56For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that the CAT assessment is reasonable and necessary.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
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 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
59For the above reasons, I find:
i. The applicant is not entitled to the unapproved balance of the plan for psychological services, the plan for a CAT assessment, or interest.
ii. The respondent is not liable to pay an award.
iii. The application is dismissed.
Released: March 17, 2026
Laura Goulet
Adjudicator