Lin v. Aviva Insurance Canada, 2020 CanLII 94772

Citation: Lin vs. Aviva Insurance Canada, 2020 ONLAT 19-009107/AABS

Released Date: November 24, 2020

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:

Yang Xi Lin

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Danielle Wilkinson, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1The applicant, Yang Xi Lin (“Lin”), was injured in an automobile accident on July 20, 2015 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva Insurance Canada (“Aviva”), the respondent.

2Aviva denied Lin’s claim for physiotherapy and, as a result, Lin submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on April 7, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

1. Is Lin entitled to $1,966.30 for physiotherapy recommended by Total Recovery Rehabilitation Centre in a treatment plan (“OCF-18”) dated July 10, 2018, and denied on July 18, 2018?
2. Is Lin entitled to interest on any overdue payment of benefits?

RESULT

5I find that Lin is not entitled to the proposed physiotherapy and, therefore, no interest is payable as there are no benefits owing.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7Lin bears the onus of proving entitlement to the claimed physiotherapy treatment by proving it is reasonable and necessary on a balance of probabilities.¹

8The OCF-18 in dispute was completed by Elli Luy, physiotherapist, and sought funding in the total amount of $1,966.30 for a total body initial assessment ($270.00), 10 one-hour sessions of therapy ($997.50), 10 thirty-minute sessions of exercise ($498.80) and $200.00 for the completion of the OCF-18. The goals of the treatment plan are as follows: pain reduction; increase in strength and range of motion; prevention of compensatory sprain/strain injury; return to activities of normal living and a return to satisfactory level of recreational activities. The OCF-18 also noted that Lin still had pain in his neck and back which was bothersome especially at night and caused sleep difficulties. The treatment plan stated that Lin reported aggravation of pain with prolonged postures, prolonged walking, sitting and standing.

9I find that Lin has failed to prove on a balance of probailities that the proposed physiotherapy is reasonable and necessary because Lin failed to submit any medical documentation as evidence for the hearing that was dated in or about the time that the treatment plan was submitted to Aviva for consideration. For example, the clinical notes and records (“CNRs”) of his family physician, Dr. Chao Wen Xiao, that were submitted ended on January 21, 2017.² The only entry in Dr. C.K. Yeung’s CNRs was dated December 20, 2016.³ Further, the only documents submitted from Perfect Physio & Rehab Centre were a Disability Certificate (“OCF-3”), dated July 29, 2015,⁴ and the Minor Injury Treatment Discharge Report (“OCF-24”), dated November 6, 2015.⁵ Both documents were dated well before the proposed treatment plan was submitted for consideration by Aviva. In sum, Lin failed to submit any medical evidence in addition to the treatment plan itself that was dated in or about the time that the OCF-18 was submitted to Aviva that would allow for any analysis of the reasonableness and necessity of the proposed physiotherapy.

10In contrast, Aviva relied upon the Insurer’s Examination (“IE”) Physiatry Assessment Report by Dr. Michael Ko, physiatrist, dated August 30, 2018.⁶ In his report, Dr. Ko opined that the disputed OCF-18 was not reasonable and necessary from a physical perspective as Lin did not suffer from an impairment at the time of his assessment and, therefore, further facility-based treatment would not be beneficial.⁷ Dr. Ko noted that Lin’s current complaint was right lower abdominal pain but that from a physical medicine perspective, there was no pathology found and that Lin’s clinical examination was “completely unremarkable.”⁸ The only recommendation made by Dr. Ko in his report was a referral to a gastroenterologist or a general surgeon to further discern Lin’s ongoing abdominal pain.⁹

11The only other medical evidence before me dated in or about the time of the proposed treatment plan is an IE Orthopaedic Surgery Assessment Report by Dr. Christopher Gallimore, orthopaedic surgeon, dated March 21, 2018.¹⁰ In his report, Dr. Gallimore noted Lin’s complaints of ongoing right lower quadrant abdominal pain, but his only recommendation at that time was for further investigation by a general surgeon.¹¹ Dr. Gallimore did not recommend any physical treatment for Lin.

12For all of the reasons set out above, I find that Lin has failed to prove the reasonableness and necessity of the treatment plan for physiotherapy on a balance of probabilities and, therefore, he is not entitled to this benefit.

Interest

13As there are no benefits owing, no interest is payable.

CONCLUSION

14For the reasons outlined above, I find:

(i) Lin is not entitled to the OCF-18 in the amount of $1,966.30 for physiotherapy;

(ii) No interest is payable as there are no benefits owing; and

(iii) This application is dismissed.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
2. 2Written Submissions of the Applicant, tab 1.
3. 3Written Submissions of the Applicant, tab 2.
4. 4Written Submissions of the Applicant, tab 3.
5. 5Written Submissions of the Applicant, tab 4.
6. 6Responding Submissions of the Insurer, tab 5.
7. 7Ibid. at page 5.
8. 8Ibid. at page 4.
9. 9Ibid.
10. 10Responding Submissions of the Insurer, tab 4.
11. 11Ibid. at page 5.