Citation: Wang vs. Aviva General Insurance Company, 2020 ONLAT 19-008296/AABS

Released Date: 11/27/2020

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:

Jun Qin Wang

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jun Qin Wang, Applicant

Philip Kai Kwong Yeung, Paralegal

For the Respondent:

Aviva General Insurance Company, Representative

April Snow, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, JQW, was involved in an automobile accident on April 7, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ JQW was denied certain benefits by the respondent, Aviva General Insurance Company (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2JQW submits that, as a result of injuries she sustained in the accident, the treatment she seeks is reasonable and necessary.

3Aviva argues that JQW has not established that the treatment plans are reasonable and necessary.

ISSUES

4The issues to be determined are:

i. Is the medical benefit in the amount of $2,819.08 for chiropractic treatment recommended by EZ Physio Inc. in a treatment plan (OCF-18) dated September 8, 2017, and denied on September 13, 2017, reasonable and necessary?

ii. Is the cost of an examination in the amount of $2,200.00 for a chronic pain assessment recommended by Total Recovery Rehab Centre in an OCF-18 dated August 3, 2018, and denied on August 24, 2018, reasonable and necessary?

iii. Is JQW entitled to interest on any overdue payment of benefits?

FINDING

5JQW is not entitled to the disputed OCF-18s, therefore no interest is payable.

LAW

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.² For the reasons set out below, I find that JQW has not met this onus.

ANALYSIS

Issue 4i – OCF-18 for chiropractic treatment

7JQW submits that she has reported improvement with physical treatment, and that the chiropractic OCF-18 is reasonable and necessary.

8JQW relies on the CNRs of her family physician, Dr. Jiang. The notes from a January 23, 2017 visit contain an impression from Dr. Jiang that JQW has chronic back pain and lumbar spondylolisthesis. I find this condition predates the accident, and in subsequent post-accident visits, JQW presents with similar complaints of back pain. There is no evidence that JQW’s pre-existing back issues were worsened by the accident.

9JQW’s position is that she has not reached her pre-accident state. She submits that her ongoing physical and emotional distress impairs her ability to carry out and complete her aspects of daily living. Despite this, I find the evidence shows she returned to work, is driving on a daily basis, is independent with her personal care tasks, and was still able to participate in some housekeeping tasks. It is unclear from the evidence what aspects of JQW’s daily living she is no longer capable of participating in. Statements made in submissions are not evidence, do not carry any evidentiary weight and therefore do not satisfy the requirement to establish that claimed treatment is reasonable and necessary.

10A treatment plan, on its own, is not enough to establish that the treatment sought is reasonable and necessary. I find that JQW has not satisfied the criteria for determining whether a treatment plan is reasonable and necessary, as she has not demonstrated that the treatment goals are reasonable, that the goals are being met to a reasonable degree, or that the overall costs (financial and time investment) of achieving the goals are reasonable, taking into consideration the degree of success and the availability of other treatment alternatives.³

11At the very least, there should be objective, supportive evidence that bolsters a claim for treatment in addition to the OCF-18. JQW has attended at EZ Physio Inc. for only three sessions of treatment. I find JQW’s submissions about her impaired ability to participate in aspects of daily living are not supported by the evidence and there is no evidence that she suffers from accident-related functional impairment or disability. Despite JQW’s claim for chiropractic treatment, there is no evidence aside from the OCF-18 that chiropractic treatment is recommended. There is no recommendation from Dr. Jiang for chiropractic treatment. JQW has not satisfied the reasonable and necessary criteria as set out in Esterreicher.

12I find that on a balance of probabilities, JQW has failed to establish that the OCF-18 for chiropractic treatment is reasonable and necessary.

Issue 4ii – OCF-18 for a chronic pain assessment

13One of the purposes of a chronic pain assessment, in my opinion, is to diagnose chronic pain or chronic pain syndrome. Therefore, in determining the reasonableness and necessity of a treatment plan proposing a chronic pain assessment, I must consider whether or not it is reasonably possible that JQW may have chronic pain syndrome. I find that the evidence does not support that JQW suffers from chronic pain or chronic pain syndrome. Consequently, I do not find that JQW is entitled to the cost of a chronic pain assessment for the reason that follow.

14JQW submits she has had back pain prior to the accident and that her pain has persisted for over a year (at the time of the OCF-18), which is beyond the six-month period accepted by medical practitioners in defining a chronic pain condition. However, JQW has not directed me to any medical documentation evidencing that her alleged chronic pain is caused by, or was exacerbated by the accident.

15JQW relies upon her self-reporting to her family physician, Dr. Jiang, that she continues to experience ongoing back and neck pain. However, Dr. Jiang’s post-accident records do not indicate that the chronic back pain is as a result of the accident. There is a May 12, 2017 entry that notes neck pain, and ‘MVA’ is mentioned, however, by the September 21, 2017 visit, Dr. Jiang’s records note that the neck pain has improved.

16I am not presented with medical evidence to support JQW’s assertion that her accident-related pain has developed into chronic pain or chronic pain syndrome. Her treating physician’s mention of the specific use of the term ‘chronic pain’ is not enough to establish that the accident has had an impact on JQW’s functionality. This opinion must be supported by medical evidence that establishes that JQW’s functionality is impaired and that the chronic pain is the cause of the disability. I am not directed to such evidence, nor am I persuaded by the evidence before me that JQW has met her onus that the OCF-18 for a chronic pain assessment is reasonable and necessary.

17As a result, I find that the chronic pain assessment is not reasonable and necessary.

Did JQW comply with s. 33 of the Schedule?

18Aviva raised a preliminary issue which alleges JQW did not comply with s. 33 of the Schedule. Under s. 33(1)1 of the Schedule, an insured person must provide on request any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. The time period for complying is 10 business days.

19Pursuant to s. 33(6), the insurer is not liable to pay a benefit during any period in which the applicant fails to provide the insurer with the requested information under s. 33(1). If the applicant eventually complies with the insurer’s request and has a reasonable explanation for the delay, the insurer must pay the withheld benefit under s. 33(8)(b).

20JQW did eventually comply with the s. 33 request, and although late, I do not find that the late compliance prejudiced Aviva. Even if I did find that Aviva was prejudiced, the s. 33 compliance issue is moot as I have found that the disputed OCF-18s are not reasonable and necessary.

CONCLUSION

21For the reasons set out above, I find that JQW is not entitled to the disputed OCF-18s.

22No interest is payable as there is no outstanding payment of benefits.

23JQW’s application is dismissed.

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.
3. 3Jennifer Esterreicher and Non-Marine Underwriters, Mbrs. of Lloyds, FSCO A04-001750, December 18, 2008. [Esterreicher].