Citation: Hu v. TD General Insurance Company. Co., 2021 ONLAT 20-009406/AABS

Licence Appeal Tribunal File Number: 20-009406/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:

Ye Hu

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Ye Hu, Applicant

Yu Jiang, Paralegal

For the Respondent:

TD General Insurance Company

Michael Silver, Counsel

HEARD:

By way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on August 6, 2018, and sought benefits from the respondent, TD, pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied the treatment in dispute on the basis that it was not reasonable and necessary. He applied to the Tribunal for resolution of the dispute.

ISSUES

2The following issues are in dispute:

i. Is the applicant entitled to $2,822.90 for chiropractic treatment, recommended by Point Grey Physio in a treatment plan (OCF-18) denied December 2, 2019?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the treatment plan in dispute or interest as he has not demonstrated that the benefit is reasonable and necessary.

ANALYSIS

4To receive payment for a treatment plan under 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. 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 same are reasonable.

5The applicant relies primarily on reassessment reports from April and June 2019 and the OCF-18 from Point Grey Physio, where it was determined that he had ongoing neck pain, middle and lower back pain, bilateral rotator cuff pain and bilateral hip pain, as well as reduce range of motion, classified by Dr. Palantzas as chronic pain. He also points to an in-home occupational therapy assessment from March 2019 that noted movement restrictions in his neck, shoulders and back and the notations from Dr. Lau, psychologist, indicating that he struggled with neck pain leading to interrupted sleep.

6The OCF-18 in dispute is dated August 20, 2019 and recommends additional chiropractic services with the goal of pain reduction, increased range of motion and strength, and a return to work and normal activities. He submits that pain relief is a legitimate goal for treatment and that previous treatment helped him, that the s. 44 report relied on by TD should be given little weight because it did not comment on chronic pain, and that TD failed to reassess his claim when new information became available.

7TD denied the claim based on the November 27, 2019 s. 44 report of Dr. Holland, chiropractor, who diagnosed the applicant with soft-tissue injuries to the neck, shoulders, back and knees, and who found that the applicant had only achieved 40-50% improvement after one year of treatment received under similar plans. Dr. Holland found that the OCF-18 was not reasonable and necessary.

8I agree with TD and find that the applicant has not demonstrated that further passive, facility-based treatment is reasonable and necessary at the cost proposed. While I am alive to Dr. Palantzas’ opinion that the applicant suffers from chronic pain, there is limited medical evidence to support that the applicant sustained anything other than uncomplicated soft-tissue injuries as a result of the accident, which is largely corroborated by the documentation he relies on, and the findings of Dr. Holland. I prefer the report and opinion of Dr. Holland, as it is more in line with the bulk of the medical evidence.

9The notes of the family physician that were provided are illegible, but the applicant offered no evidence of contemporaneous objective reporting to support the findings of the reassessment reports, or the recommendations in the OCF-18. In a similar vein, the OHIP summary in evidence does not reveal any visits that could be reasonably traced to impairments sustained in the accident. While the applicant is correct that pain relief is a legitimate goal for treatment, I agree with TD that the applicant has already received one year of uninterrupted treatment—which is in excess of clinical guidelines for the treatment of soft-tissue injuries—which calls into question the reasonableness of proposing more of the same treatment that has provided limited benefit to date.

10While the OCF-18 references chronic pain, the plan itself does not appear to be a chronic pain program tailored specifically to the applicant’s condition. The reassessment reports are largely identical despite the applicant receiving treatment from Dr. Palantzas at the time they were produced. The reports indicate severe range of motion and pain issues, which is not corroborated by the occupational therapy report, the applicant’s family physician notes, OHIP records or the applicant’s own reporting on the subjective pain scale in the s. 44 report. Further, as TD submits, for the purposes of the test under the Schedule, the plan identifies the goal of a return to daily activities and work activities—yet, in July 2019 the applicant reported independence with his personal care tasks and household duties, and there is seemingly no dispute that the applicant did not miss any time from work following the accident, and has worked in the same position since 2012.

11For these reasons, I find that the applicant has not demonstrated that the goals of the treatment are reasonable and necessary at the costs proposed. I agree with the findings of Dr. Holland, that it would not be reasonable to fund ongoing treatment for soft-tissue injuries where the applicant has seemingly shown limited progress to date from similar treatment and has returned to his daily and work activities. Accordingly, the applicant is not entitled to payment for the treatment plan in dispute. As no benefits are overdue, it follows that no interest is payable.

CONCLUSION

12The applicant is not entitled to the treatment plan in dispute or interest as he has not demonstrated that the benefit is reasonable and necessary.