Li Zhang v. Aviva General Insurance, 2022 CanLII 81520

Citation: Zhang v. Aviva General Insurance, 2022 ONLAT 20-008187/AABS

Licence Appeal Tribunal File Number: 20-008187/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.., in relation to statutory accident benefits.

Between:

Li Zhang Applicant

and

Aviva General Insurance Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal For the Respondent: Louise Kanary, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on February 6, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) ("Schedule"). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

2The Case Conference Report and Order listed three issues in dispute. However, in the applicant's written submissions, she indicated that issue number two related to the claim for an attendant care assessment was withdrawn.

ISSUES

3The issues to be decided are:

i. Is the applicant entitled to $4,656.71 for chiropractic treatment recommended by Total Recovery Rehab Centre in a treatment plan ("OCF-18") submitted on July 10, 2019?

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

RESULT

4The treatment plan for chiropractic treatment is not reasonable and necessary, pursuant to the Schedule. As a result, I will not order the respondent to pay for this treatment plan, nor is there any interest owing on an overdue payment of benefits.

ANALYSIS

5Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an insured person so long as the insured person sustains an impairment as a result of an accident, and the medical benefit is a "reasonable and necessary" expense incurred as a result of the accident.

6The applicant bears the onus of proving entitlement to the proposed treatment by proving the OCF-18 is reasonable and necessary on a balance of probabilities.¹

7The OCF-18 at issue was completed by Dr. Georgia Palantzas, Chiropractor, on July 10, 2019. The stated goals are pain reduction, increase in strength, minimizing compensatory strain, and increased range of motion. Dr. Palantzas recommended 16 sessions of chiropractic treatment, 16 sessions of exercise/strength and balance training, and 16 sessions of acupuncture, and included transportation costs. Dr. Palantzas noted significant radiculopathy and a marked decrease in the applicant's functional capacities.²

8However, this treatment plan alone is not compelling evidence in support of the proposed treatment. There must be compelling contemporaneous evidence in support of the treatment plan. Otherwise, in examining the clinical notes and treatment records provided, I find these records do not establish a consistent pattern of reporting physical impairments, and in turn, I find they do not demonstrate how the proposed treatment is reasonable and necessary to address the physical impairments related to the accident. Aside from the OCF-18, the applicant relies primarily on the clinical notes and records provided by her treatment providers.

9First, on the date of the accident, the applicant attended a walk-in clinic and was seen by Dr. Kiong Sen Liao. She reported pain on the top of her head, dorsal hand, left and right shoulder, left maxillary sinus area, neck, and upper back.³ He diagnosed her with a concussion, soft tissue injuries (contusions) and possible whiplash.

10X-rays conducted the next day on February 7, 2018 indicated there were no fractures, dislocations, or abnormalities in her shoulders, hand, nasal bones, facial bones/orbits, skull, thoracic spine, cervical spine, ankle, or wrist. However, there was mild scoliosis noted in her thoracic spine, unrelated to the accident.⁴

11The applicant also attended the Emergency Department at North York General Hospital on February 7, 2018. She reported headache, nausea with left-sided nasal pain and pressure on her eyes. She was prescribed Tylenol and discharged from the hospital.⁵ Notably, she did not report any additional physical pain or symptoms.

12On February 9, 2018, three days post-accident, she re-attended the walk-in clinic and was examined by Dr. Albert Yeung. He noted the x-rays were unremarkable, normal range of motion in the wrists, hands, fingers and thumb, no tenderness in her left ankle, normal gait, no spine tenderness, no paraspinal tenderness. He discussed muscle strains and tendonitis and advised her to rest.⁶

13The applicant also provided records of four visits to her family physician, Dr. Andy Lai, on February 14, 2018, February 28, 2018, July 3, 2019, and August 26, 2019. In February 2018, she reported musculoskeletal, upper back, neck pain, with dizziness and headache.⁷ In July 2019, she reported musculoskeletal pain, and pain in the upper/mid-back.⁸ In August 2019, there were no reports of physical pain, only dizziness with nausea when waking in the morning.⁹

14The applicant also relies on the treatment records of the physiotherapy providers, Easy Health Centre and Total Recovery Rehab Centre. The records indicate fourteen visits to Easy Health Centre between February and June 2018, and six visits to Total Recovery between July and August 2019. There is no explanation for the nearly twelve-month gap in the physiotherapy records between these two providers. However, the records of Easy Health Centre indicate that, by March 21, 2018, the applicant indicated she felt 30% better. By June 24, 2018, she felt 80% better.¹⁰ This is in direct contradiction to her self-reports to the respondent's Physical Medicine and Rehabilitation Specialist, Dr. Alborz Oshidari, in August 2019, when she indicated she had only experienced 10-20% improvement in her physical symptoms.¹¹

15The applicant was referred by her family physician to Dr. Gilbert Lee, Pain Specialist, who authored a report dated August 7, 2019. He indicated that her physical symptoms were consistent with myofascial strain of the shoulder joint, and recommended nerve block therapy injections.¹² The applicant later reported to Dr. Oshidari that she received nerve block injections on one occasion in her neck, back and head, but the pain was worse afterward and interrupted her sleep.¹³ Aside from vestibular testing on her ears related to reports of dizziness in December 2019,¹⁴ the applicant was not referred to any additional specialists related to her physical accident-related impairments between February 2018 and December 2019.

16Otherwise, the applicant reported to Dr. Shari Schwartz, Psychologist, who provided an Insurer's Examination ("IE") Report dated October 19, 2018, that she had resumed her pre-accident activities, was fully independent with her self-care, household chores, and was employed full-time.¹⁵ Similarly, the applicant reported to Dr. Oshidari, who conducted a physical medicine IE in August 2019, that she remained independent in all activities of daily living.¹⁶

17Aside from the records of her treatment providers, the applicant does not rely on any s. 25 assessments related to her physical impairments. The lone physical assessment was conducted on behalf of the respondent by Dr. Oshidari, as detailed in his s. 44 report dated August 29, 2019.¹⁷ As part of this examination, the applicant self-reported pain in her neck, lower back, and left ankle. Upon examination, Dr. Oshidari did not note any active tendonitis, bursitis, tenosynovitis, or laxity of a ligament in her upper and lower extremities. Nor did he detect any radiculopathy, myelopathy, plexopathy, lumbar stenosis, or sacroiliac joint dysfunction in her spine.¹⁸

18Dr. Oshidari diagnosed the applicant with sprain/strain of the cervicolumbar spine and contusion of the shoulder and left ankle, with tension headache. He was otherwise unable to detect any specific structural or physiological abnormality to warrant any further physical intervention and indicated there was no impairment.¹⁹ Specific to the treatment plan at issue, he noted the previous, extensive treatment provided little improvement, and she had otherwise reached maximum medical improvement related to her soft-tissue injuries. In sum, he stated that no further formal physical intervention was recommended.²⁰

19I place weight upon the conclusions and diagnoses rendered by Dr. Oshidari. He is the lone medical professional who provided an opinion directly with regard to the treatment plan at issue. The applicant otherwise relies on six clinical notes and records provided by either her family physician or from the walk-in clinic attended immediately post-accident. These records do not demonstrate an ongoing pattern of consistent reporting related to her physical symptoms. Similarly, the physiotherapy records tendered by the providers provide little evidence of her ongoing physical impairments, nor was there an explanation provided for the 12-month gap between these treatment records.

20While I do not dispute that the applicant may still experience physical pain as sequela of her soft-tissue, accident-related injuries, there is no explanation how 48 additional sessions of physical treatment will assist in reaching the treatment goals outlined in the OCF-18. The number of proposed sessions alone appears excessive, given that I only have evidence she attended a total of 20 physiotherapy sessions since the accident, and there is conflicting evidence regarding the effectiveness of these sessions.

21Taken together, I have been provided little compelling evidence to demonstrate that the applicant will obtain any therapeutic benefit from additional facility-based treatment for her physical accident-related impairments. Therefore, when I consider the totality of the evidence tendered, I remain unpersuaded (on a balance of probabilities) that the OCF-18 dated July 10, 2019 is reasonable and necessary, pursuant to the Schedule.

Interest

22Given there are no overdue payment of benefits, the applicant is not entitled to interest, pursuant to s. 51 of the Schedule.

ORDER

23The application is dismissed, and I find that:

i. The OCF-18 dated July 10, 2019 is not reasonable or necessary pursuant to the Schedule;

ii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

Footnotes

1. 1Scarlett v. Belair Insurance, 2015 ONSC 3635, at paras. 20-24.
2. 2Written Submissions of the Applicant, Treatment and Assessment Plan (OCF-18), July 10, 2019, Tab 10.
3. 3Written Submissions of the Applicant, Records of MCI The Doctor's Office, February 6, 2018, Tab 1.
4. 4Written Submissions of the Applicant, Quantum Medical Imaging Services Inc., February 7, 2018, Tab 1.
5. 5Written Submissions of the Applicant, Emergency Report North York General Hospital, February 7, 2018, Tab 2.
6. 6Written Submissions of the Applicant, Records of MCI The Doctor's Office, February 9, 2018, Tab 1.
7. 7Written Submissions of the Applicant, Records of Dr. Andy Lai, February 14 and 27, 2018, Tab 3.
8. 8Written Submissions of the Applicant, Records of Dr. Andy Lai, July 3, 2019, Tab 3.
9. 9Written Submissions of the Applicant, Records of Dr. Andy Lai, August 26, 2019, Tab 3.
10. 10Written Submissions of the Applicant, Records Total Health Centre, Tab 8.
11. 11Written Submissions of the Respondent, Physical Medicine and Rehabilitation Specialist Assessment Report, Dr. Alborz Oshidari, August 29, 2019, Tab 10, pg. 3.
12. 12Written Submissions of the Respondent, Report of Dr. Gilbert Yee, August 7, 2019, Tab 12.
13. 13Written Submissions of the Respondent, Physical Medicine and Rehabilitation Specialist Assessment Report, Dr. Alborz Oshidari, August 29, 2019, Tab 10, pg. 3.
14. 14Written Submissions of the Applicant, Stopfalls Canada – Balance and Dizziness Clinic, December 20, 2019, Tab 3.
15. 15Written Submissions of the Respondent, Psychological Assessment Report, Dr. Shari Schwartz, October 19, 2019, Tab 8, pg. 6.
16. 16Written Submissions of the Respondent, Physical Medicine and Rehabilitation Specialist Assessment Report, Dr. Alborz Oshidari, August 29, 2019, Tab 10, pg. 4.
17. 17Ibid. Tab 10.
18. 18Ibid. pg. 6.
19. 19Ibid.
20. 20Ibid. pg. 6-7.