Wu v. Aviva General Insurance, 2022 CanLII 92741

Citation: Wu v. Aviva General Insurance, 2022 ONLAT 20-011618/AABS

Licence Appeal Tribunal File Number: 20-011618/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:

Ning Chao Wu Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Applicant: Yu Jiang and Philip Kai Kwong Yeung, Paralegal

For the Respondent: Brian Yung, Counsel

HEARD: By way of written submissions

BACKGROUND

1Ning Chao Wu (“N.W.”) was involved in an automobile accident on October 20, 2015 and sought and received benefits pursuant to the Schedule.¹ N.W. subsequently requested Aviva General Insurance (“Aviva”) fund his catastrophic assessments. When Aviva only partially approved that request, and denied part of it, N.W. submitted an application to this Tribunal to dispute Aviva’s partial denial.

ISSUES

2The issues I must decide are:

1. Is N.W. entitled to $8,312.81 ($16,712.81 less $8,400.00 approved) for a Catastrophic Determination Assessment, proposed by Somatic Assessments and Treatment Clinic in a Treatment and Assessment Plan (OCF-18) (“the plan”) dated May 24, 2019 and denied August 29, 2019?
2. Is N.W. entitled to interest on any overdue payment of benefits?

RESULT

3N.W. is not entitled to the $8,312.81 portion of treatment plan which was denied by Aviva. N.W. is not entitled to interest.

BACKGROUND

4N.W. was struck by a vehicle while crossing an intersection. Hospital ER records indicate, “hit by car + fell to ground. Lt knuckle abrasion cut, cut on Rt top of head, bleeding under control, c/o Lt lower leg pain.” He denied losing consciousness, and paramedic records record witnesses also advised there was no loss of consciousness. A CT scan of his brain was negative. An x-ray of the toe revealed a small avulsion fracture of his big toe, but the report indicates it “probably represents an old fracture.”

5Several days later, on October 24, 2015, N.W. consulted at Point Grey Physio. A diagnostic report that same day also revealed the avulsion fracture, similarly noting it “could be” an old fracture.

6Since that time, N.W. had undergone a number of assessments – both at his request and the insurer’s which I discussed below – but not a lot of treatment. N.W. spends his time split between Canada and China. Thus, N.W. submits, that as he was not covered by OHIP, he received physical therapy in China. While the records have not been translated, it appears treatment occurred on a few occasions in 2017 and 2018. He also saw a family physician in Canada on a few occasions.²

7About three and a half years post-accident, Dr. Shobhan Vachhrajani, a Neurosurgeon with Somatic Assessments and Treatment (“Somatic”), submitted the plan dated May 24, 2019, seeking the $16,712.81 in funding for multidisciplinary Catastrophic Determination Assessments on behalf of N.W.

8After receiving Dr. Khaled’s IE opinion, Aviva approved $8,400.00 of the plan. That amount relates to four CAT assessments and certain expenses. The approved assessments were for a psychological, an Occupational Therapy, an orthopaedic, and an overall assessment, at $2,000 each. The expenses related to $200 for completing the OCF-18 form and $200 for an OCF-19 form.³ Subsequently, Aviva approved costs for interpretation services.

9Aviva, however, denied $8,312.81 of the plan based on Dr. Khaled’s IE review. The $8,312.81 relates to (1) four clinic file reviews ($5,000 in total), (2) transportation for $712.81, and (3) a neurological assessment for $2,000. Aviva believes these items are not reasonable and necessary.

Analysis

Is N.W. entitled to $5,000.00 for the four clinic file reviews?

10No. The parties’ dispute revolves around the proper reading of s. 25(5)(a) of the Schedule, which provides a $2,000 limit for an assessment. That section reads:

Despite any other provision of this Regulation, an insurer shall not pay,

(a) more than a total of $2,000 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer; …

11N.W. submits that the $2,000 limit applies to “any one assessment or examination and for preparing reports in connection” with that one assessment or examination. (Emphasis supplied). In other words, N.W. believes that per each assessment, there is a $2,000 limit for conducting the assessment, and then an additional $2,000 limit for reviewing documents and preparing the report, for a total of $4,000 per assessment.

12Aviva reads the section as providing a $2,000 total limit for each assessment, which covers all aspects of the assessment – including file reviews, preparation and reports. I agree with Aviva.

13The plain language refers to “a total of $2,000”, with clauses following that amount explaining what is included in that $2,000 total. N.W.’s reading requires the “and” to be read as disjunctive, but that does not make sense in the context of the sentence. Such reading also conflicts with the use of the word “total” and the phrase “in connection with it”.⁴

14To me, the section is clearly setting a total cap at $2,000 for all the parts of an assessment. Accordingly, the $5,000 for the file reviews are not payable.

Is N.W. entitled to $712.00 for the transportation fees?

15No. Aviva submits that Superintendent's Guideline No. 05/10 provides that transportation expenses are only payable after a 50 km deductible for each round trip. The round-trip distance between N.W.’s listed address and Somatic is under 7 km round trip. Thus, Aviva concludes, N.W. is within the deductible and not entitled to transportation expenses. N.W. appears to concede Aviva’s submission. N.W. does not assert an argument why it is payable or respond to Aviva’s argument that it is not payable. Accordingly, I find it is not payable.

Is N.W. entitled to $2,000.00 for the neurological assessment?

16No. N.W. submits a respondent is required to pay reasonable fees for preparing an application for determination of catastrophic assessment, apparently without showing it is necessary. N.W. relies on the wording of s. 25 of the Schedule and 18-007227 v Unica.⁵ Aviva submits that the correct standard that applies is that N.W. must show the neurological assessment is reasonable and necessary.⁶

17I find N.W.’s reasoning is incomplete. 18-007227 dealt with a different issue that’s not in dispute here. Importantly, however, that case was clear that when seeking payment for a catastrophic assessment, “it remains the applicant’s responsibility to show that any assessment is reasonable and necessary”.⁷

18In fact, the Tribunal has further explained that an applicant bears the onus of proving on a balance of probabilities that each item in a treatment and assessment plan is reasonable and necessary for the purpose of applying for a CAT determination under s. 45, or that that it’s reasonable and necessary to investigate if an applicant may be catastrophically impaired.⁸

19Applying that standard to this case, the neurological assessment is not reasonable and necessary.

20First, the plan – i.e., the OCF-18 form – does not contain any explanation why the neurological assessment is necessary for N.W.’s condition. The plan simply lists injuries and provides no narrative or attachments. It does not identify a barrier to recovery or concurrent treatment. The only endorsement is the impairments affect his ability to carry out a normal life and that he's “unable to perform pre-accident ADLs, work related or home responsibilities.” Yet, the check boxes relating to an inability to perform tasks of employment or pre-accident employment activity list “unknown.”

21Second, Dr. Khaled’s August 14, 2019 IE Paper Review opines that the neurological assessment is not reasonable and necessary. I find his report persuasive. It strikes me as balanced. Psychological and orthopedic IEs in April of 2017 opined that N.W has no ongoing impairments from the accident. Yet even though Dr. Khaled records those findings, he did not dismiss N.W.’s request for funding. Rather, he still found it necessary for assessors to investigate N.W.’s current conditions and to provide the applicable impairment ratings utilized by the Schedule. Dr. Khaled found, however, that no neurological issues are reasonably indicated in the file. His analysis is thorough, appears balanced and fits with the evidence. N.W. does not address his report.

22Third, N.W. relies on his psychological, occupational therapy, orthopaedic⁹ and neurological assessments to support the necessity of the neurological examination. Most of these took place after the OCF-18 and Dr. Khaled’s analysis. While N.W. lists the various findings of his assessors, N.W. does not submit why the findings make a neurological assessment necessary or why N.W. impairments are not sufficiently assessed by the other assessments. For instance, chiropractor Dr. Palantzas finds “right-sided nerve root irritation and radiculopathy”¹⁰, but there is no explanation why another assessment is necessary to further address it.¹¹ In fact, N.W.’s own neurological assessor, Dr. Vachhrajani, reports that a neurological examination was not necessary during his March 7, 2021 assessment noting, “A full systemic examination was deferred as it was deemed non-contributory to this assessment.”¹² Thus, N.W.’s conclusory statement that “in the face of all the medical evidence, the examinations are reasonable and necessary”, is not sufficient.

23Fourth, N.W. submits that “the CAT assessments have been incurred and should be paid. The Applicant should be allowed…to substantiate their claim.” Yet, establishing an assessment is incurred is not sufficient to establish necessity.

24Finally, the totality of the evidence – consistent with Dr. Khaled’s opinion – points to N.W. not having neurological issues, or at most issues so minor that do not rise to the level or requiring investigation for a catastrophic determination. N.W.’s later assessments do not change Dr. Khaled’s finding that the treatment records do not establish neurological issues. Moreover, Dr. Osinga’s IE Orthopaedic assessment found no evidence of radiculopathy, neurologic impairment or weakness a year and half after the accident. Dr. Campbell’s IE Psychological assessment found validity measures showed evidence of “significant symptom exaggeration (not necessarily intentional on Mr. Wu's behalf) across multiple objective measures.”¹³ Both of N.W.’s own psychological assessors also found validity concerns, albeit not to the same extent. Given all the evidence, I do not find that N.W. had established the necessity of the neurological assessment.

ORDER

25N.W. is not entitled to the denied portion of the requested treatment plan or interest on that denied portion of the plan. The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
2. 2Interestingly, records indicate that N.W. attended physiotherapy at Point Grey from October 21, 2015 to December 7, 2015 and then March 3, 2017 to July 14, 2017, but neither party discusses it.
3. 3See Aviva’s August 29, 2019 Explanation of Benefits letter. Aviva’s initial July 31, 2019 letter denying the request, but subject to the IEs, is listed as Exhibit 5 to the N.W.’s submissions, but a copy appears omitted. Nevertheless, the same letter appears in Aviva’s submissions as Tab 2.
4. 4The Tribunal also reached the same result in O.A. v TD Insurance Meloche-Mennox, 2020 CanLII 87965 (ON LAT), at paras 11, 13, and 14. See also, Wang v Co-operators Gen. Ins. Co., 2022 CanLII 30682 (ON LAT).
5. 518-007227 v Unica Insurance Inc., 2019 CanLII 43885 (ON LAT).
6. 6O.A. v TD, 2020 CanLII 87965 (ON LAT), at para 11; See also, Wang, 2022 CanLII 30682 (ON LAT).
7. 7Emphasis added. 18-007227, 2019 CanLII 43885 (ON LAT), at para 20.
8. 8O.A. v TD, 2020 CanLII 87965 (ON LAT) and Wang v Co-operators, 2022 CanLII 30682 (ON LAT).
9. 9N.W.’s orthopaedic assessment was conducted by a chiropractor.
10. 10N.W., Tab 2 (Records from Somatic), at page 123-128
11. 11Dr. Palantzas’ report also does not support her opinion that N.W. sustained the avulsion fracture in the accident (N.W. Tab 2, at pdf page 131) given two radiological reports opining it is an old fracture.
12. 12N.W., Tab 2 (Records from Somatic), p.3 of Dr. Vachhrajani’s report (PDF p. 87)
13. 13Aviva, Tab 4, p. 15-16.