Release date: 06/28/2021
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:
Rong Rong Zhou
Applicant
and
Aviva General Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Sandeep Johal, Vice Chair
APPEARANCES:
For the Applicant:
Nick Hamilton, Counsel
For the Respondent:
Danielle Ralph, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on November 23, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2As a result of the accident the applicant sustained a WAD 2 (whiplash associated disorder), soft tissue strain of the lumbar spine, contusions to each knee and a left radial distal fracture.
3The applicant applied for medical benefits and expenses that were denied by the respondent. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
4The respondent brought a motion to the Tribunal dated June 15, 2020, seeking to exclude the applicant’s reply submissions as the applicant did not include the treatment and assessment plan (OCF-18), the clinical notes and records of Dr. Yeung in her original submissions, and the reply submissions were in excess of the page limits imposed by the case conference Adjudicator in an Order released to the parties on March 31, 2020.
5By way of a decision released to the parties on September 29, 2020 the respondent’s motion was dismissed and in the interest of fairness and to cure any potential prejudice, the respondent was afforded the opportunity to provide a sur-reply to the applicant’s reply submissions.
ISSUES TO BE DECIDED
6The issues in dispute are as follows:
i. Is the applicant entitled to a medical benefit for $3,659.08 for chiropractic services recommended by Woodbine Perfect Rehabilitation Centre in a treatment plan (OCF-18) submitted August 2, 2017 and denied on August 14, 2017?
ii. Is the applicant entitled to medical benefit for $3,124.79 for various expenses set out in an OCF-6 including ambulance, doctor’s visit, and a wrist brace submitted on January 1, 2017? No denial date provided.
iii. Is the applicant entitled to a medical benefit for $100.00 for a doctor’s visit set out in an OCF-6 submitted on July 16, 2017? No denial date provided.
iv. Is the applicant entitled to an award for unreasonably withheld or delayed payments under s. 10 of Ontario Regulation 664?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7For the reasons outlined below, I find the benefits in dispute and the OCF-6 expenses are not reasonable and necessary. As a result, no award or interest is payable. The application is dismissed.
ANALYSIS
Is the applicant entitled to chiropractic treatment in the amount of $3,659.08?
8For the following reasons I find that the chiropractic treatment is not reasonable and necessary.
9The applicant submits and relies upon the family doctor, Dr. Yeung, and the insurer examination (“IE”) assessor, Dr. Martin, who both noted that the applicant was experiencing residual weakness in the left wrist. The applicant also relies upon the opinion of Dr. Martin who noted in his report that upon examination, the applicant showed deconditioning of the trunk and abdominal muscles. Which, according to the applicant is consistent with Dr. Yeung’s clinical notes and records, where several instances of neck and back pain complaints were noted including findings of functional limitations.
10The applicant submits that her orthopaedic surgeon, Dr. Dantzer, who noted that the applicant’s wrist fracture has healed, had also recommended that she participate in range of motion exercises.
11However, upon a review of the medical documentation the applicant relies upon, I find that they do not support the noted impairments and impacts on her functionability.
12The treatment plan,2 under Part 8 (Activity Limitations) states as follows:
The patient continues to present with difficulty with sustained postures, standing, walking, sitting, lifting, pushing/pulling, bending, & overhead reaching, which given the patient’s cervical, thoracic, lumbar and shoulder impairment, the presence of radicular, neurological and psychological symptomatology and their decrease in functional capacity results in difficulty performing their full work duties and difficulty performing their housekeeping responsibilities.
13The clinical notes and records of the applicant’s family doctor show three entries from one-month post accident in December 2016 and two entries in January 2017. There are no additional records past this date to support the treatment plan’s notation of impairments and limitation that include difficulty standing, walking sitting and cervical, thoracic, lumbar or shoulder impairments.
14The clinical notes and records of the family doctor note the applicant to have neck, shoulder, lower back, left hip, left leg, right knee, left forearm and right and left wrist injuries from a strain.3 The clinical notes and records from December 9, 2016 recommends the applicant apply Voltaren Emulgel-Joint Pain to the painful areas but there is no recommendation for any other sort of treatment. Furthermore, I am not directed to evidence in support of the treatment plan that the applicant’s diagnosed strains are impacting her work duties or her housekeeping responsibilities.
15The respondent relies upon the applicant’s treating orthopaedic surgeon who provided an opinion of an x-ray dated December 30, 2016 that the applicant’s wrist fracture had healed4 and that she required no further treatment.5
16The respondent further relies upon an IE by Dr. Martin, Orthopaedic Surgeon, who conducted an assessment of the applicant on September 27, 2017. In his report dated October 5, 2017,6 Dr. Martin notes that the applicant manages her own care, she has resumed homemaking tasks, she makes her own meals and that she stopped going to school in May 2017, because of “mental problems” and not due to musculoskeletal problems.7 Upon his physical examination of the applicant Dr. Martin noted the applicant had a full range of motion in her neck with no discomfort at the end ranges of motion. She had good power of the shoulder abduction and internal and external rotation. There was no swelling or deformity about the left wrist and her range of motion in her left wrist is identical to that in her right wrist. The applicant had full range of rotation of the lower spine with some discomfort with end ranges of motion and that she has tenderness in the midline of her lower back and below the iliac crest with some tenderness over the right sacroiliac area.
17In summary, Dr. Martin concludes that the applicant at this time shows some residual weakness in the left wrist and some deconditioning of the trunk and abdominal muscles but no other signs of impairment.8 Dr. Martin finds that she has simple soft tissue strains and he recommends the applicant continue with a self-directed program of stretching, core strengthening exercises and strengthening exercises for the left wrist.
18After a review of the evidence as mentioned above, I find that the treatment plans on their own are not sufficient or compelling evidence in support of treatment. There must be some sort of contemporaneous evidence around the time the treatment is being sought. Despite Dr. Martin’s notation of deconditioning of the trunk and abdominal muscles, the applicant has not persuaded me on a balance of probabilities that the deconditioned trunk and abdominal muscles cause any functional limitations to warrant the treatment plan.
19As a result of the above, I find that the chiropractic treatment plan is not reasonable and necessary.
20I will now turn to discuss the applicant’s request for various medical expenses.
Is the applicant entitled to $3,124.79 for OCF-6 expenses and $100 for a doctor’s visit?
21For the following reasons I find that the applicant’s request for expenses in the amount of $3,124.79 and $100.00 are not reasonable and necessary.
22The applicant takes the position that she applied for medical benefits under s. 15(1) for hospital visits, ambulance services, doctor’s fees, medications and transportation to and from treatment sessions. According to the applicant, the respondent did not respond and as a result of s. 38(8) of the Schedule which states that the respondent shall give a notice to the applicant of what goods and services the respondent agrees to and medical and other reasons for those it does not agree to pay. As a result, the applicant submits there has been no notice in accordance with s. 38(8) and the respondent must pay the disputed benefits.
23The respondent takes the position that s. 38 only applies to treatment and assessment plans (i.e. OCF-18s) and it does not apply to OCF-6’s and there is no relevant section in the Schedule which requires a response to an OCF-6.
24Furthermore, according to the respondent s. 47(2) of the Schedule requires an applicant to submit her medical expenses to her collateral benefits provider for coverage prior to making a claim from her accident benefits provider. It is the respondent’s position that the applicant was an international student enrolled in a second year Bachelor of Commerce program at York University and it is mandatory for international students to be enrolled in the University Health Insurance Plan (“UHIP”) which covers physician fees, emergencies and provides coverage to students for hospital visits.9
25On May 23, 2017 the respondent wrote a letter to the applicant denying the applicant’s OCF-6 expenses as the respondent required confirmation of any and all insurance plans the applicant may have access to through her school.10
26In support of its denial the respondent relies upon the Tribunal case of Q.Y.F. v. Aviva General Insurance,11 where the adjudicator held that an insurer is not required to pay any amount of a treatment plan until the applicant has provided the insurer with proof of submission to the collateral benefits provider. I would agree with that analysis and adopt it for the purposes of this hearing with respect to a claim on an OCF-6 expense form.
27Section 47(2) of the Schedule allows an insurer to deduct payments that are reasonably available under any insurance plan or law and in the present case, the respondent submits with supporting evidence,12 that the applicant is an international student at York University and as a result, she is eligible for the UHIP insurance plan.
28The respondent wrote to the applicant for information on the UHIP insurance plan and according to the Schedule, the applicant is required to submit a claim through any other insurance plan, or in the present case, the UHIP plan. The applicant has not refuted the respondent’s submission and evidence that the applicant is enrolled as an international student at York University and that she is eligible for the University’s UHIP insurance plan. As a result, I accept the respondent’s submissions and find that the respondent is not liable to pay the OCF-6 expenses in the amount of $3,124.79 and $100 for doctor’s fees.
29As there are no benefits that are payable, there is no award that is payable.
ORDER
30I find the benefits in dispute and the OCF-6 expenses are not reasonable and necessary. As a result, no award or interest is payable. The application is dismissed.
Date of Issue: June 28, 2021
________________________
Sandeep Johal, Vice Chair
Footnotes
- O. Reg. 34/10.
- Reply Submissions of the Applicant at Tab B. OCF-18 dated July 28, 2017
- Reply Submissions of the Applicant at Tab A. Clinical Notes and Records of Dr. Yeung dated December 1, 2016.
- Submissions of the Respondent at Tab 7. X-Ray dated December 9, 2016.
- Reply Submissions of the Applicant at Tab A. Clinical Note and Record of Dr. Dantzer, dated December 30, 2016.
- Submissions of the Respondent at Tab 8.
- Submissions of the Respondent at Tab 8 pg. 3.
- Submissions of the Respondent at Tab 8, at pg. 4.
- Submissions of the Respondent at Tab 4.
- Ibid at Tab 12. Letter dated May 23, 2017.
- 2020 CanLII 27412 (ON LAT) at para. 12.
- Supra Note 9.