Licence Appeal Tribunal File Number: 24-004397/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:
Jie Zhen He
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Caley Howard
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Heena Kapoor, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jie Zhen He, the applicant, was involved in an automobile accident on January 12, 2023, 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, Allstate Insurance Company of Canada, 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 $5,286.58 for a hospital bed rental, proposed by Somatic Assessments and Treatment Clinic in a treatment plan/OCF-18 (“plan”) dated August 23, 2023?
ii. Is the applicant entitled to $14,750.81 for a catastrophic assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated February 2, 2024?
iii. Is the applicant entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a plan dated May 17, 2024?
iv. Is the applicant entitled to $1,047.20 ($3,701.74 less $2,654.54 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated May 13, 2024?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3Issue number i. above was amended from the Case Conference Report and Order, which indicated that the treatment plan dated August 23, 2023 was for psychological services. The treatment plan dated August 23, 2023 seeks $5,286.58 for a hospital bed rental.
RESULT
4I find that:
i. The treatment plan for a hospital bed rental is payable pursuant to s. 38 of the Schedule;
ii. The applicant is not entitled to the treatment plan for a catastrophic assessment;
iii. The applicant is entitled to the treatment plan for physiotherapy services;
iv. The applicant is not entitled to the remainder of the partially approved treatment plan for psychological services;
v. The applicant is entitled to interest on the treatment plans for the hospital bed rental and physiotherapy services; and
vi. The applicant is not entitled to an award.
ANALYSIS
The treatment plan for a hospital bed dated August 23, 2023 is payable pursuant to s. 38
5I find that the appellant has proven, on a balance of probabilities, that the respondent has not complied with s. 38(8) of the Schedule.
6The treatment plan in question was completed by Raymond Wong, occupational therapist, and seeks $5,286.58 for a hospital bed rental for 12 weeks. The goals of the plan are to assist in activities of daily living and request assistive devices.
7Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.
8If an insurer fails to comply with s. 38(8), the consequences are:
(i) The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and
(ii) The insurer must pay for any proposed treatments or assessments set out in the plan that are incurred in the period starting on the 11th day after the insurer receives the plan and ending on the date when the insurer provides the insured with a response that complies with s. 38(8).
16Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:
(i) include specific details about the insured’s condition that formed the basis for the insurer’s decision; and
(ii) should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.
9The applicant submits that the respondent did not provide the applicant with firm and clear “medical and all of the other reasons” why they refused to pay for the hospital bed rental and that the mandatory payment provisions under s. 38(11) were triggered as a result.
10The respondent submits that the Explanation of Benefits (EOB) dated September 5, 2023 complies with s. 38(8).
11The additional comments attached to the EOB indicate as follows:
At this time it is unclear as to the medical reasoning for the need for a 12 month rental of a hospital bed. In order to ensure your medical/rehabilitation and attendant care policy limits are being utilized for what is most reasonable and necessary to your recovery, we will be arranging for a Section 44 Insurers Examination Paper Review to determine same. You are not obligated to attend this review.
12I find that these comments do not satisfy the requirements of s. 38(8) because they do not include the specific details about the condition of the applicant that formed the basis of the decision. The respondent indicates that it is arranging for a paper review insurer’s examination (IE), which tells me that the respondent had, at the time it submitted the EOB, received some medical documents in relation to the applicant’s condition. I find that the respondent’s vague statement that the medical reasoning for the benefit sought is “unclear”, without additional details about what information the insurer has considered and what conclusions it has reached to date, would not be helpful to an unsophisticated person trying to determine whether to accept or dispute the denial.
13I have not been referred to a subsequent letter that complies with s. 38(8) of the Schedule. In Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”), the Divisional Court held that where the insurer does not provide a denial that complies with s. 38(8) and does not cure the deficiency before the Tribunal adjudicates the dispute in favour of the insured, the insured can proceed to incur the items listed in the subject treatment plan and the insurer is liable to pay for them once properly invoiced.
14Therefore, I find that the benefits set out in the treatment plan submitted August 23, 2023 are payable once incurred and properly invoiced.
The applicant is not entitled to the treatment plan for a CAT assessment
15I find that the applicant is not entitled to the treatment plan for a CAT assessment.
16To receive payment for an assessment proposed in a plan, the applicant has the onus to prove there are reasonable grounds to believe that a condition exists that would warrant further investigation.
17The treatment plan in question was submitted on February 2, 2024 by Raymond Wong, occupational therapist and requested $14,750.81 for CAT assessments as follows:
i. $2,000.00 for a physiatry assessment;
ii. $2,000.00 for an OT Assessment (In-home);
iii. $2,000.00 for a psychology assessment;
iv. $2,000.00 for a clinic file review assessment by Dr. Joseph Siu-Wah Wong;
v. $2,000.00 for an overall assessment summary, analysis and final rating;
vi. $1,000.00 for a clinic file review assessment by Raymond Wong;
vii. $1,000.00 for a clinic file review assessment by Dr. Sedigheh Naisi;
viii. $200.00 for the completion of an OCF-18;
ix. $200.00 for the completion of an OCF-19;
x. $200.00 for translation services;
xi. $400.00 for transportation; and
xii. $112.81 for travel time for the occupational therapist.
18The applicant submits that the severity of her physical and psychological injuries at the time the treatment plan was submitted make the fees charged for a CAT assessment reasonable and necessary. In addition, the applicant submits that the respondent’s denial of the treatment plan did not comply with s. 38 of the Schedule.
19The respondent submits that the applicant submitted duplicative treatment plans for a CAT assessment and that an identical treatment plan submitted March 3, 2025, was partially approved. The respondent further submits that the portions of the treatment plan that were denied were properly denied in compliance with s. 38(8) of the Schedule. The respondent relies on the EOB dated March 27, 2024, the treatment plan submitted March 3, 2025 and the corresponding EOB dated March 25, 2025.
20I find that the applicant submitted duplicative treatment plans for CAT assessments, dated February 2, 2024 and March 3, 2025.
21I find that the respondent accepted that the proposed CAT assessments were reasonable and necessary in March 2025. The amounts of the treatment plan that were denied were the additional fees for file review and transportation costs. I find that the applicant has not made any submissions on the reasonableness or necessity of the denied portion of the fees, nor has she directed me to evidence relating to these denied fees.
22I find that the respondent has approved the core of the CAT assessments proposed in the March 2025 treatment plan. I find that the applicant has made no submissions that two sets of CAT assessments are necessary in her circumstances. I therefore find that the applicant has not proven on a balance of probabilities that the earlier February 2, 2024 treatment plan, which proposed identical CAT assessments, is reasonable and necessary.
23In addition, I find that the EOB dated March 27, 2024, in response to the February 2, 2024 treatment plan, complies with s. 38(8) of the Schedule.
24I find that the additional comments attached to the March 27, 2024 EOB are comprehensive and clear. They set out a list of the applicant’s injuries sustained in the accident, specify the medical documents that the respondent has reviewed in coming to a decision and explains the respondent’s conclusion that there appears to be no indication that the applicant’s injuries fall within one of the CAT criteria, making reference to the specific criteria.
25As a result, I find that the applicant is not entitled to the February 2, 2024 treatment plan for a CAT assessment and the plan is not payable pursuant to s. 38 of the Schedule.
The applicant is entitled to the treatment plan for physiotherapy
26I find that the applicant is entitled to the treatment plan for physiotherapy.
27To 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.
28The treatment plan in question was submitted May 17, 2024 by Ahmed Afifi, physiotherapist, and sought funding of $4,069.56 for physiotherapy, active therapy and massage therapy for a period of 16 weeks. The goals of the treatment plan are: pain reduction; increase in strength; increased range of motion; and return to activities of normal living.
29The applicant submits that she continues to suffer pain from her injuries and continues to need a cane to walk as she has not returned to her pre-accident condition. The applicant relies on the treatment plan and the CNRs of Dr. Cheng.
30The respondent submits that the applicant has not met her onus of proof as she has provided no medical evidence to support her claim that the goals of the treatment plan were being reached to a reasonable degree or that the cost of treatment, both financial and the investment of time, was reasonable.
31The CNRs of Dr. Cheng show that the applicant reported to Dr. Cheng in June 2023 that physiotherapy was helping with her pain. On June 8, 2024, Dr. Cheng noted that the applicant still has chronic pain from her previous sacral fracture and was still walking with a cane. On that date, which was approximately three weeks after the date of the treatment plan, Dr. Cheng recommended that the applicant continue to receive physiotherapy. I give significant weight to Dr. Cheng’s recommendation, because she is the applicant’s family doctor and has provided the applicant’s primary care both before and after the accident and her note of June 8, 2024 is contemporaneous with the treatment plan. I find that Dr. Cheng is best placed to understand the benefits that the applicant has received from physiotherapy to date and whether the additional physiotherapy proposed in the treatment plan would be worthwhile.
32I find that the cost of the proposed treatment is reasonable because the hourly rates charged for physiotherapy and massage therapy conform with the maximum rates set out in the Professional Services Guideline - Superintendent’s Guideline No. 03/14 (the “Professional Services Guideline”).
33Therefore, I find that the applicant is entitled the treatment plan for physiotherapy dated May 17, 2024.
The applicant is not entitled to the remainder of the partially approved treatment plan for psychological services dated May 13, 2024
34I find that the applicant is not entitled to the remainder of the partially approved treatment plan for psychological services dated May 13, 2024.
35The treatment plan in question was submitted May 13, 2024 by Svetlana Gabidulina, psychologist, and sought funding of $3,701.74 for psychological services. The respondent approved $2,654.56, leaving $1,047.20 in dispute.
36The applicant submits that she sustained psychological injuries in the accident and that while she has responded positively to the psychological treatment she has received, she would benefit from further treatment. She made no submissions respecting the proposed cost of the treatment.
37The respondent agrees that the treatment proposed in the plan is reasonable and necessary and submits that the approved amount of the plan is in line with the applicable rates related to professional services as set out in the Professional Services Guideline.
38The Professional Services Guideline provides that insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates or maximum fees payable, beyond what is permitted under the Professional Services Guideline.
39The respondent’s EOB, dated May 28, 2024, indicates that the respondent denied a request for $523.60 for a brokerage service and $523.60 for a planning service, citing the Professional Services Guideline. The applicant directed me to no evidence and made no submissions respecting the reasonableness or necessity of these brokerage and planning services or their relation to the goals of the treatment plan. As a result, I find that the applicant has not proven, on a balance of probabilities, that the denied fees are reasonable and necessary.
40I further find that the EOB complies with s. 38 of the Schedule because it clearly sets out the reason for the partial denial, which was not a medical reason in this case. As set out above, the respondent denied the fees for brokerage service and a planning service in accordance with the Professional Services Guideline, the relevant provision of which was included in the EOB.
41Therefore, I find that the applicant is not entitled to the denied portion of the treatment plan for psychological services.
Interest
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the treatment plans for the hospital bed rental and for physiotherapy.
Award
43The 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. Provide the basis for the award. Identify the response. Make a finding and provide reasons to support it. 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.
44The applicant submits that the respondent ignored the applicant’s medical records and acted in a high-handed manner in denying her benefits.
45The respondent submits that at each stage of the process, the respondent considered the medical evidence available as a whole and denies that there is any evidence that it behaved unreasonably.
46I find that the applicant’s submissions respecting the award are limited to vague statements and do not direct me to any evidence to demonstrate that the respondent ignored the applicant’s medical evidence or that the respondent acted in a high-handed manner. Therefore, I find that the applicant has not proven, on a balance of probabilities, that the respondent is liable to pay an award under s. 10 of Reg. 664.
ORDER
47I find that:
i. The treatment plan for a hospital bed rental is payable pursuant to s. 38 of the Schedule;
ii. The applicant is not entitled to the treatment plan for a catastrophic assessment;
iii. The applicant is entitled to the treatment plan for physiotherapy services; and
iv. The applicant is not entitled to the remainder of the partially approved treatment plan for psychological services;
v. The applicant is entitled to interest on the treatment plans for the hospital bed rental and physiotherapy services; and
vi. The applicant is not entitled to an award.
Released: January 20, 2026
Caley Howard
Adjudicator