Licence Appeal Tribunal File Number: 21-006810/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:
Hao Cai Cao
Applicant
And
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Sareena Samra, Counsel
For the Respondent:
Karanveer Padda, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Hao Cai Cao, the applicant, was involved in an automobile accident on May 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are as follows:
Is the applicant entitled to $4,734.52 for physiotherapy services, proposed by Total Recovery in a treatment plan (“OCF-18”) denied on November 25, 2019?
Is the applicant entitled to $4,383.90 for chiropractic services, proposed by Total Recovery in an OCF-18 denied on November 25, 2019?
Is the applicant entitled to $1,047.34 ($4,121.88 less $3,074.54 approved) for psychological treatment, proposed by Somatic Assessments in an OCF-18 denied on November 20, 2019?
Is the applicant entitled to various expenses for medications submitted in the following expense claims (OCF-6s):
a) $416.40 submitted on June 26, 2019;
b) $391.42 submitted on June 10, 2019;
c) $416.40 submitted on July 18, 2019;
d) $22.15 submitted on July 30, 2019;
e) $11.37 submitted on February 24, 2020;
f) $94.55 submitted on November 16, 2020; and
g) $142.90 submitted on July 7, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant is not entitled to any of the benefits in dispute, interest or an award. This application is dismissed.
ANALYSIS
The applicant is not entitled to the two treatment plans for physiotherapy and chiropractic treatment recommended by Total Recovery.
4To receive payment for a treatment and assessment plan under s. 14 and 15 of 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. To do so, 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 them are reasonable.
5Both OCF-18s are similar in that the goals are for pain reduction, increase strength and range of motion (“ROM”) to return the applicant to his activities of normal living and work. The first OCF-18 recommended 16 sessions of chiropractic treatment at a cost of $1,804.96, 16 sessions of active exercise at a cost of $902.56, 16 sessions of acupuncture at a cost of $902.56 and the balance for form completion and transportation for a total cost of $4,734.52. The duration of the treatment plan was 8 weeks. The second OCF-18 was submitted three weeks later and recommended 16 sessions of chiropractic treatment at a cost of $1,804.96, 16 sessions of active exercise at a cost of $902.56 and 16 sessions of acupuncture at a cost of $902.56 and the balance was for a progress report and transportation for a total cost of $4,383.90. The duration of this treatment plan was 6 weeks.
6The applicant argues that the disputed OCF-18s are reasonable and necessary because he suffers from ongoing back, neck, shoulder pain and headaches. Further, he claims that past treatment has resulted in temporary relief from pain which in itself is a legitimate goal of treatment. The applicant relies on the clinical notes of records (“CNRs”) of Total Recovery in support of his position that both OCF-18s are reasonable and necessary.
7The respondent submits that the applicant has failed to meet his onus in proving that the two OCF-18s for physical therapy are reasonable and necessary. It submits that he sustained soft-tissue injuries as a result of the accident and has achieved maximum medical recovery from facility-based treatment. It relies on the insurer examination (“IE”) reports of Dr. Nesterenko, general practitioner dated December 24, 2019, and addendum dated June 10, 2022, in support of its position. Finally, it submits that the applicant’s self reports about his impairments and post-accident function are unreliable. It relies on various surveillance reports and videos in support of same. I agree with the respondent.
8I find the CNRS of Total Recovery unhelpful in supporting that the two OCF-18s for physical treatment are reasonable and necessary because they are not legible. The appellant references a comment made on the first OCF-18 by Ahmed Afifi, physiotherapist that there were positive findings re: tests of disc integrity and nerve root tension suggesting significant radiculopathy. He submits that this diagnosis supports his position that his physical impairments are severe and require further therapy. I find the comment made by the physiotherapist unclear as to what testing Mr. Afifi was referring to or what impairment this relates to. In my view, the statement in an OCF-18 on its own does not support that the OCF-18s are reasonable and necessary. As a result, I give it little weight.
9Further, the applicant did not direct me to any evidence to support that the goals of the OCF-18s were being met as far as increasing his strength and ROM. What I find lacking in this case was any CNRs of the family doctor noting any ongoing accident-related physical impairments that require additional treatment. Further, he did not address the cost of the OCF-18s at all in his submissions. The OCF-18s significantly overlap with each other, and without further explanation, I find the recommended treatment excessive. Consequently, the applicant has not met his onus in proving that the goals of the treatment plan will likely be achieved or that the cost of same is reasonable. The case law is well established that treatment is reasonable and necessary if it alleviates an individual’s pain which improves their ability to function. I find the appellant has not proven that any past treatment received to date has resulted in any improvement in function.
10I prefer the reports and opinion of Dr. Nesteranko because I find the medical evidence (or lack thereof) supports that he sustained soft-tissue injuries as a result of the accident. Dr. Nesteranko conducted a physical examination which revealed functional ROM. Further, the doctor attributed any residual pain or limitations to degenerative changes which is unrelated to the accident. Moreover, the applicant has not submitted any reports or medical evidence refuting the doctor’s opinion. For these reasons, the applicant has not met his onus in proving on a balance of probabilities that the two OCF-18s for physical treatment recommended by Total Recovery are reasonable and necessary.
The applicant is not entitled to the balance of the OCF-18 for psychological treatment recommended by Somatic Assessments.
11The appellant has fallen short of meeting his onus in proving that the balance of this OCF-18 for psychological treatment is reasonable and necessary. Both parties agree that the applicant sustained a psychological impairment as a result of the accident which requires treatment. However, they disagree on the amount. The applicant relies on the psychological assessment of Dr. McDowall dated October 5, 2019, who recommended that the applicant receive 14 hour and a half sessions of psychotherapy.
12On November 20, 2019, the respondent sent the applicant an explanation of benefits advising him that the OCF-18 was partially approved in the amount of $3,074.54. It approved 14 one-hour sessions of psychotherapy at the hourly rate provided for in the Superintendent’s Guideline 03/14 Professional Services Guideline (“Guideline”). It submits that s. 15(2)(b) of the Schedule provides that it is not required to pay for services which exceed the Guideline. It also denied the additional amounts claimed for preparation and planning because they are included in the $200.00 fee for completion of the OCF-18. In addition, it requested additional information from the applicant about who would be conducting the counselling sessions because the Guideline provides different hourly rates for psychologists and psychotherapists.
13The applicant’s submissions did not address the partial approval of this OCF-18 at all or make any arguments to support why he needs one and a half hour sessions as opposed to the hour sessions approved by the respondent. Nor did he make any submissions to support that the balance of the OCF-18 is reasonable and necessary. As highlighted above, the onus is on the applicant to prove entitlement to the disputed benefits. He has not met his onus. Therefore, I find he is not entitled to the balance of the OCF-18 for psychological treatment.
The applicant is not entitled to any of the OCF-6s for prescription medication.
14The applicant has fallen short of meeting his onus in proving that any of the disputed OCF-6s for prescription medications are reasonable and necessary. The applicant’s submissions do not address what prescription medications were being sought in the OCF-6s, how any of the prescriptions relate to his accident- related impairments and he did not include the OCF-6s in his document brief. The applicant makes the blanket argument that all of the OCF-6s are reasonable and necessary and that the respondent did not reply to any of his claims. Further, there was reference to an affidavit in the applicant’s submissions, however, no affidavit was included in the document brief. Further, in paragraph [8] (ii) of the Tribunal’s case conference report and order it states that the parties agreed that no affidavits would be submitted, nor did the applicant seek permission from the Tribunal to rely on affidavit evidence. As a result of these factors, I am not considering any affidavit.
15The respondent submits that it approved and paid for the following OCF-6s: in the amount of $11.37 submitted February 24, 2020; $94.55 submitted November 16, 2020, and $142.90 submitted July 7, 2021. It relied on an explanation of benefits dated June 2, 2021, and a cheque dated June 3, 2021. The applicant did not file reply submissions refuting this fact. Therefore, I conclude that these OCF-6s are not in dispute. Further, the respondent submits that the balance of the OCF-6s are not reasonable and necessary because the prescription medication being sought were to treat other conditions that are not related to the accident such as his heart attack four days following the accident. The respondent submitted hospital records confirming that the applicant’s heart attack was due to a clogged artery which existed prior to the accident.
16Finally, the respondent submitted various explanations of benefits which conflict with the applicant’s submission that it did not respond to the OCF-6s at all. In the absence of submissions and evidence to support that the OCF-6s seeking payment for prescription medication are reasonable and necessary, I find that the applicant has not met his onus in proving his entitlement to these benefits.
The applicant is not entitled to payment of interest.
17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I do not find any benefits are overdue and owing.
The applicant is not entitled to an award.
18The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. In light of my decision, I find an award it not warranted in this case as I do not find the respondent unreasonably withheld or delayed payments of any of the disputed benefits.
ORDER
19For the above-noted reasons, the applicant has not established entitlement to any of the benefits in dispute, interest or an award. This application is dismissed.
Released: November 10, 2023
Rebecca Hines
Adjudicator