Licence Appeal Tribunal File Number: 24-010876/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:
Zixin Lin
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Kathleen Wells
APPEARANCES:
For the Applicant: Ryan Olson, Counsel
For the Respondent: Saghar Hosseini, Counsel
HEARD: By way of written submissions
OVERVIEW
1Zixin Lin, the applicant, was involved in an automobile accident on November 10, 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, Certas Home and Auto 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:
- Is the applicant entitled to $4,217.20 for chiropractic services, proposed by Uheal Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) dated April 10, 2023?
- Is the applicant entitled to $3,774.50 for physiotherapy services, proposed by UHeal Rehab Centre in a treatment plan dated June 17, 2024?
- Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
- Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew the treatment plan for $448.80 for psychological services set out as issue #3 in the Case Conference Report and Order (“CCRO”).
RESULT
4I find that:
- The applicant is not entitled to $4,217.20 for chiropractic services in the treatment plan dated April 10, 2023.
- The treatment plan for $3,774.50 for physiotherapy services dated June 17, 2024 is payable in accordance with s. 38(11) of the Schedule.
- Interest is payable on any outstanding amount in accordance with s. 51 of the Schedule.
- The applicant is not entitled to an award.
ANALYSIS
5To 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.
Section 38
6Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
7If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
- The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
- The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
Is the applicant entitled to $4,217.20 for chiropractic services in a treatment plan dated April 10, 2023?
Reasonable and necessary
8I find that the applicant has not established on a balance of probabilities that the April 10, 2023 treatment plan for chiropractic services is reasonable and necessary.
9The goals of the treatment plan, prepared by Dr. Richard Tavares, chiropractor, are: pain reduction, increased range of motion, increase in strength, reduce swelling and inflammation, increase neuro-muscular endurance, as well as a return to activities of normal living, pre-accident work and modified work activities and pre-accident exercise and social activities.
10The treatment plan seeks $1,804.96 for 16 sessions of chiropractic treatment, $902.56 for 16 sessions of active therapy, $799.68 for 16 sessions of acupuncture, $200.00 for a reassessment, $190.00 for a progress report, and $320.00 for travel assistance for a total of $4,217.20.
11The applicant submits that the treatment plan is reasonable and necessary because the applicant has ongoing pain and difficulty performing his work and household responsibilities. The applicant relies on the treatment plan, the clinical notes and records (“CNRs”) of the applicant’s family doctors, Dr. Arulanantham Raveendran and Dr. Yi Liu of myHealth Medical Clinic, and the July 17, 2024 s.25 psychological report of Dr. Sedigheh Naisi, psychologist.
12The respondent argues that the applicant has not met his burden to prove that the treatment plan is reasonable and necessary, because the CNRs of myHealth Medical Clinic do not corroborate the treatment plan.
13The evidence reveals that the applicant first visited his family doctor on December 17, 2022, more than one month after the accident, and complained of sleeplessness and accident-related nightmares. Dr. Raveendran prescribed sleeping medication for the applicant, and although the applicant complained of psychological symptoms related to the accident at subsequent appointments, there are no mentions of accident-related physical injuries in or any referrals for physiotherapy in the CNRs of Dr. Raveendran or Dr. Liu.
14While I agree with the applicant that pain relief is a legitimate goal of treatment, I find that the applicant has not established that he experienced pain as a result of the accident. I acknowledge that the applicant told Dr. Naisi, at his psychological assessment 20 months after the accident, that he had ongoing pain in his neck, shoulder, lower back and knee, which had impacted his quality of life. However, the assessment took place more than one year after the treatment plan was submitted and the CNRs of the applicant’s family doctors do not corroborate the applicant’s self-reports to Dr. Naisi, as there are no complaints of accident-related pain to Dr. Raveendran or Dr. Liu in the two years after the accident.
15As the applicant has not directed me to any contemporaneous, corroborating evidence to support the treatment plan, 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.
Section 38
16The applicant also submits that the treatment plan is payable under s. 38(11) because the respondent’s April 21, 2023 Explanation of Benefits (“EOB”) is not compliant with s. 38(8). The applicant submits that the denial letter is confusing because it refers to “your list of injuries” in explaining the determination that the applicant falls within the MIG, without providing the list or the source of the list.
17I agree with the applicant. I find the EOB confusing because it states that the treatment plan has not been approved because the applicant’s injuries fall within the MIG and because “recommendations must address your diagnosis.” However, the EOB did not explain whether the treatment recommendations addressed the applicant’s diagnosis. It also refers to “your list of injuries,” without identifying the applicant’s injuries, or noting the source of the applicant’s list. Further, the EOB requested CNRs from the applicant’s family doctor, followed by a separate paragraph requesting “additional information about your injuries,” which I found unclear. As a result, I find that the denial notice is not sufficiently clear or detailed for an unsophisticated person to make an informed decision whether to dispute the denial.
18As such, I find that the EOB is not compliant with s. 38(8), and s. 38(11) is engaged.
19The applicant received a subsequent denial notice, dated May 22, 2024, after the applicant had been removed from the MIG. The applicant contends that the second denial was also non-compliant with s. 38(8) because it did not identify the documentation relied on in maintaining the denial.
20I find the May 22, 2024 EOB complies with s. 38(8) because it is a clear and unequivocal denial. It identifies the treatment plan and the denied goods and services. Further, it explains that the medical records received indicate that the applicant did not report any accident-related physical impairments to his physician, and that the treatment plan was not reasonable and necessary as a result of an accident-related impairment. In my view, referring to the lack of complaints of physical impairments in his physician’s CNRs, is sufficiently specific. For these reasons, I find that the EOB is sufficiently clear and understandable for an unsophisticated person to make an informed decision whether to dispute the denial.
21The applicant is entitled to the treatment plan if incurred during the period of non-compliance. As the applicant has not directed me to evidence that the treatment plan was incurred, I find that the treatment plan is not payable under s. 38(11).
22Accordingly, the applicant is not entitled to $4,217.20 for chiropractic services in the treatment plan dated April 10, 2023.
Is the applicant entitled to $3,774.50 for physiotherapy services in a treatment plan dated June 17, 2024?
Reasonable and necessary
23I find that the applicant has not established on a balance of probabilities that the June 17, 2024 treatment plan for physiotherapy services is reasonable and necessary.
24The goals of the treatment plan, prepared by Ahmed Afifi, physiotherapist are pain reduction, increased range of motion, increase in strength, and a return to the activities of normal living. It seeks a total of $3,774.50, inclusive of 16 sessions of physiotherapy, 16 sessions of active therapy, $200.00 for an initial assessment, and $249.38 for an initial assessment report.
25The applicant submits that the treatment plan is reasonable and necessary because the applicant suffers from pain as a result of his accident-related injuries. The applicant relies on the CNRs of myHealth Medical Clinic, and the July 17, 2024 s.25 psychological report of Dr. Naisi, psychologist.
26As noted above, the CNRs of the applicant’s family doctors reveal no complaints of accident-related pain, no diagnosis of physical injuries as a result of the accident, and no referrals to physiotherapy. Further, I find that the applicant’s reports of pain to Dr. Naisi, psychologist, are not sufficient to overcome the absence of contemporaneous medical evidence from his family doctors to support the treatment plan.
27As a result, 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.
Section 38
28The applicant also submits that the respondent’s June 25, 2024 EOB is not compliant with s.38(8), because it does not identify the applicant’s injuries or identify the records on which it relies.
29I find that the June 25, 2024 EOB is not compliant with s. 38 because it lacks the specificity required by s. 38(8). The EOB identifies the treatment plan and the goods and services requested, and states:
I have reviewed the medical records which have been provided and they do not support the need for any further facility-based treatment. For this reason, I do not believe this treatment plan is reasonable and necessary and am not able to approve it.
30The EOB does not describe the medical records reviewed or what they said about the applicant’s injuries, and I am not persuaded that the term “facility-based treatment” is understandable to an unsophisticated person. As a result, I find that the EOB is not compliant with s.38(8), and s. 38(11) is triggered.
31As neither party has submitted a subsequent denial notice, the applicant is entitled to $3,774.50 for the treatment plan for physiotherapy services, once incurred and properly invoiced to the respondent.
Interest
32Interest is payable on any outstanding amount in accordance with s.51 of the Schedule.
Award
33The 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
34As the applicant has not made submissions or directed me to evidence that the respondent’s behaviour rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an award.
ORDER
35I find that:
- The applicant is not entitled to $4,217.20 for chiropractic services in the treatment plan dated April 10, 2023.
- The treatment plan for $3,774.50 for physiotherapy services dated June 17, 2024 is payable in accordance with s. 38(11) of the Schedule.
- Interest is payable on any outstanding amount in accordance with s. 51 of the Schedule.
- The applicant is not entitled to an award.
Released: April 16, 2026
__________________________
Kathleen Wells
Adjudicator