Licence Appeal Tribunal File Number: 21-002834/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:
Yang Song
Applicant
And
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Emily Morton
APPEARANCES:
For the Applicant:
Yang Song, Applicant David Tomovski, Counsel
For the Respondent:
Aviva General Insurance Company
Samuel Davies, Counsel
HEARD:
By way of Written Submissions
OVERVIEW
1The applicant, Yang Song, was injured in an accident on January 30, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) from Aviva Insurance Company of Canada, the respondent.
2The respondent denied a number of treatment plans submitted following the motor vehicle accident. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute. At a case conference at the Tribunal, the respondent indicated the applicant should be removed from the Minor Injury Guideline based on the applicant’s psychological injuries. The respondent continued to maintain treatment plans for physiotherapy, massage and vision therapy were not reasonable and necessary.
ISSUES IN DISPUTE
3The following issues are to be decided:
(i) Is the applicant entitled to a medical benefit in the amount of $3,689.06 for physiotherapy treatment proposed by Scarborough South Physio and Rehab centre in a treatment plan dated August 10, 2020?
(ii) Is the applicant entitled to a medical benefit in the amount of $2,065.00 for optometric services, proposed by Toronto Vision Therapy in a treatment plan dated February 3, 2020?
(iii) Is the applicant entitled to medical benefits proposed by various providers, submitted on OCF-6 expense forms?
(iv) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that, with respect to issues i and ii, the applicant has not met the burden of proving the treatment plans at issue are reasonable and necessary, and it is not necessary to consider whether he is entitled to interest.
5With respect to issue iii, I find the applicant has not met the onus of proving he is entitled to the medical benefits submitted on OCF-6 expense forms and it is therefore not necessary to address whether he is entitled to interest on overdue payments for these expenses.
ANALYSIS
The applicant has not met the burden of proving the proposed physiotherapy treatment in the amount of $3,689.06 is reasonable and necessary.
6To receive payment under a treatment and assessment plan under s. 15 and 16 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. I find the applicant has not met this burden of proof on the evidence before me.
7The August 10, 2020 treatment plan, submitted by Dr. Pascual, notes the applicant suffers from headaches, post-concussional syndrome, torticollis, rotator cuff syndrome, lumbago with sciatica, sprain of the lumbar spine, sacroiliac joint and shoulder joint, dislocation and strain of the ligaments of the knee and chest pain. The treatment plan identifies pain reduction, increased range of motion and strength as goals the treatment plan aims to achieve. It notes the applicant was unable to work and terminated from work due to the injuries from the motor vehicle accident. The treatment plan identifies a return to normal activities of living and modified work activity as further treatment goals.
8I was not provided or pointed to evidence of what Dr. Pascual considered. Pascual’s clinical notes and record and relies only on the treatment plan. There is no information as to whether Dr. Pascual was provided with any of the diagnostic imaging reports reviewed by Dr. Ko. There is also no information as to whether Dr. Pascual had the s. 44 reports of Dr. Czok, a physiatrist, that assessed the applicant before the treatment plan was prepared and denied ongoing objective impairments because of the accident.
9In an August 24, 2020 denial letter, the respondent indicated this treatment plan, along with a plan for a psychological assessment, was denied as it was unclear based on “the medicals received to date” the plans were required as a result of the accident. The respondent arranged an insurer’s examination. Dr. Yong-Kyong Michael Ko submitted a report on November 9, 2020 under s. 44 of the Schedule that concluded the August 10, 2020 treatment plan was not reasonable and necessary. Dr. Ko’s report itemizes the information on which he relied in forming his opinion. In addition to the self-report of the applicant, whom he met with, Dr. Ko reviewed diagnostic reports (MRI of the brain, CT scan of head EMG of the left leg) along with a s. 44 physiatry report by a different assessor (Dr. Czok), dated October 29, 2018 and a psychiatrist’s report, which he found was not pertinent to his physical examination report.
10Dr. Ko’s opinion was that there was no impairment sustained from a physical perspective, because of the motor vehicle accident. He concludes the applicant sustained soft tissue injuries because of the accident, including a sprain/strain to the spine and to his knees. Dr. Ko opines the injuries are predominantly minor from a physical perspective. He goes on to conclude the treatment plan submitted by Dr. Pascual proposing additional therapy “is not reasonable and necessary from a physical perspective as there was no objective evidence for ongoing organic pathology found.”
11I attach far greater weight to Dr. Ko’s report, and its conclusion, than to the treatment plan itself, which is the only record associated with Dr. Pascual submitted. The treatment plan itself is not evidence that it is reasonable and necessary. Dr. Ko’s report, on the other hand, records the reports made by the applicant during an in-person examination, confirms the findings of Dr. Czok that there is no clinical evidence of an ongoing organic pathology in the applicant’s neck, lower back and knees as a result of the accident, diagnosed the applicant with sprain/train injuries to his spine and knees and denies the applicant sustained an impairment. The basis for Dr. Ko’s conclusion the treatment plan is not reasonable and necessary is founded on multiple sources of information and sets out the bases of its conclusions. The treatment plan does not.
12I have considered each of the applicant’s further submissions the proposed treatment should be found reasonable and necessary despite the conclusions of Dr. Ko. First, the applicant submits the Tribunal should infer Dr. Pascual’s findings are more reliable as he has over a decade of experience and relies on Dr. Pascual’s “LinkedIn” profile to confirm this. It is not in dispute that Dr. Pascual had practiced as a chiropractor at physiotherapy and rehabilitation centres for a decade as of the date he prepared treatment plan. However, there is no documentation or basis for Dr. Pasual’s conclusions and recommendations in the treatment plan, unlike Dr. Ko’s report which sets out the bases for his conclusion the treatment is not reasonable or necessary. The applicant submits great weight should be submitted to Dr. Pascaul’s treatment plan as Dr. Pascual has practiced in this area for a decade. I find this does little to meet the burden of proof on the applicant in the specific facts of this case.
13Second, the applicant submits Dr. Ko’s report should be “disregarded” as the respondent received medical documentation after the date of the report, which was not reviewed by Dr. Ko. The applicant has failed to set out what the written materials he relies on for this submission are, and how they were germane to the treatment plan at issue in Dr. Ko’s report.
14I find the reports of other assessors referred to by the applicant in submissions do not assist him in meeting the burden of proving the plan is reasonable and necessary. One report is written by a psychiatrist, Dr. Waisman, dated August 26, 2021, recommends, along with psychotherapy case management and attendant care of psychiatric disorders “participation in a multidisciplinary neurocognitive and chronic pain management program.” Dr. Waisman is a psychiatrist. He does not refer to Dr. Ko’s report and only tangentially refers to Dr. Czok’s report, both of which find no evidence of physical pathology to support the applicant’s subjective pain complaints. The Tribunal gives no weight to this aspect of Dr. Waisman’s report in assessing whether the treatment plan at issue is reasonable and necessary.
15The applicant also relies on the March 29, 2019 report of Dr. Wilderman and points to the clinical notes and records and recommendations of Dr. Wildeman, a pain and addiction consultant, dated March 25 and May 29, 2019, which recommend, among a number of other treatments in a pain management plan “physiotherapy, chiropractic”. These notes and recommendations do not indicate what documents Dr. Wilderman reviewed and Dr. Wilderman’s direct report to the applicant’s family doctor on May 29, 2020 lists an impression of migraine only as a result of the history and physical examination. This report does little to assist the applicant with meeting the burden to prove the treatment plan at issue is reasonable and necessary.
16I give no weight to the reports from Dr. Schiffman, dated May 6, 2020 and November 4, 2020. These reports concern medical treatment for chronic pain associated with fibromyalgia and anxiety, but not physical impairments caused by the motor vehicle accident.
17As an alternative argument with respect to the treatment plan the applicant submits the respondent failed to provide medical and other reasons in its denial letters, thereby contravening the requirements in s. 38(8) of the Schedule. Section 38(8) of the Schedule requires an insurer to inform an insured person within ten business days after it receives a treatment plan, which goods, services, assessments and/or examinations it agrees to pay for and which it does not, as well as the medical and other reasons it considered, any of the goods and services to not be reasonable and necessary. The requirement of medical and other reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company, 2018 CanLII 29373 (ON LAT) which states:
The ultimate purpose underlying s. 38(8) is to require an insurer to respond to a treatment plan not only quickly but also reasonably, in a manner that respects the insured’s ability, when entitled, to access timely treatment. To that end, an insurer’s “medical reasons” for denying a plan should engage the specific details about the insured’s condition forming the basis for the insurer’s decision. They should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment.
18I find the November 9, 2020 denial letter provides sufficient medical and other reasons for denying the treatment plan. The respondent confirmed its denial based on the IE report by Dr. Ko which opined the treatment was not reasonable and necessary as there was no clinical evidence of an ongoing organic pathology in the applicant’s neck, lower back and knees as a result of the accident and diagnosed the applicant with sprain/strain injuries to his spine and knees and denies the applicant sustained an impairment.
19Finally, I disagree with the applicant’s submission that Yang v. Dominion , 2022 CanLII 23412 (ON LAT) applies because the applicant was removed from the MIG and the treatment plan should be re-evaluated as a result. In Yang the insurer denied the treatment plan as the insured was in the MIG. There, as here, the applicant was later removed from the MIG for psychological treatment. This Tribunal held the insurer had an obligation to re-evaluate the treatment plans denied because of the applicant’s injuries being minor and subject to the funding limit of the MIG. The plans are then considered based on whether they are reasonable and necessary. If an insurer does not evaluate the plans on this basis, s. 38(11) of the Schedule is triggered. This case is distinguishable as the treatment plan at issue was initially denied because it was not reasonable and necessary. The applicant was provided with Dr. Ko’s report which concludes the treatment plan is not reasonable and necessary. Therefore, it cannot be said the treatment plan was denied solely because the applicant was in the MIG; it was denied because Dr. Ko did not find it reasonable and necessary. Section 38(8) does not apply as it did in Yang (see also, Saied v. Intact Insurance Company, 2023 CanLII 44309 (ON LAT) at paras. 43-44).
20I find the applicant has not met the burden of proving the proposed physiotherapy treatment in the amount of $3,689.06 is reasonable and necessary.
The applicant has not met the burden of proving he is entitled to optometric services n the amount of $2,065.00
21I find the applicant has not met the burden of proving the proposed vision therapy is necessary and reasonable.
22Nearly two years post-accident, the applicant saw his regular optometrist to have the glasses he had used for years checked. The optometrist referred the applicant to a neuro-optometrist for optometric “vision therapy.” Dr. April F. Eryou Optometry Professional submitted a treatment plan in the amount of $2,065.00 on February 3, 2020. The treatment plan listed the applicant’s injuries as a concussion, intracranial injury, subjective visual disturbances and disorders of accommodation. Dr. Eryou proposed an assessment, training in sight and other senses as treatment for the applicant to address treatment goals of pain and diplopia reduction and reduction of headaches related to visual activities and light sensitivity. The plan proposes 12 sessions of optometric vision therapy and associated documentation.
23On February 24, 2020, the respondent wrote to the applicant denying the claim stating it is unclear if the treatments are required as a result of the accident and indicating an insurer’s examination would be arranged. The applicant attended for a neuro-ophthalmological assessment with Dr. Paul Joseph Ranalli who issued his IE report December 17, 2020. Dr. Ranalli’s report, which considers the December 17, 2019 of Dr. Yang and A.S. Ng, optometrists, concludes the proposed treatment is not necessary and reasonable.
24I conclude the findings in Dr. Ranalli’s report should be given greater weight than the evidence relied on by the applicant. The applicant has not submitted Dr. Eryou’s clinical notes and records as evidence on this application. He has submitted a December 18, 2019 report from Dr.s Yang and Ng of 2010 Eye Care Centre.
25I have reviewed the December 18, 2019 report in detail and note it is based on an assumption at the outset that the applicant suffered a concussion in the motor vehicle accident. As Dr. Ranalli puts it in his December 17, 2020 report: “[a] neuro-optometry assessment from December 2019 made an assumption that a significant closed-head injury occurred and made a number of diagnoses unique to that branch of optometry.” However, Dr. Yang’s report does not detail what information Dr. Yang had to conclude that the applicant has “persistent” symptoms related to a concussion caused by the motor vehicle accident. The applicant has not submitted Dr. Yang’s clinical notes and records as evidence nor is there any indication of hospital records or assessor reports, if any, Dr. Yang forms in reaching their conclusions and recommendations for treatment.
26Dr. Ranalli’s December 17, 2020 report observes that there was no report made by the applicant to previous assessors that he struck his head inside the car at the time of the accident. Dr. Ranalli had Dr. Czok, physiatrist’s, IE report of October 13, 2018 which was written 8.5 months after the accident and diagnosed the applicant with resolved cervical spine strain, lumbar spine strain and contusion of both knees. The report found the neurological component of the examination to be normal and, again, notes the applicant had not struck his head. His clinical findings and conclusions note the applicant himself “does not report a concussive closed-head injury within the car”. I give less weight to the recommendations of Dr. Yang, based on assumption there are pervasive post-concussive symptoms, as a result. Dr. Yang’s report is the evidence the applicant relies on to support the reasonableness and necessity of the treatment plan at issue. I therefore find he has not met the burden of proof with respect to the proposed treatment.
27I also find the denial letter meets the requirements of s. 38(8) of the Schedule. The respondent denied the treatment plan in a December 17, 2020 letter that appended Dr. Ranalli’s report. I find this complies with s. 38(8) of the Schedule in the circumstances of this case. I also find Yang, supra does not apply as the treatment plan was denied because it was not reasonable and necessary, and no re-evaluation of the plan was required by the respondent, for the reasons given above.
The applicant has not proved he is entitled to medical benefits (prescriptions) submitted on OCF-6 expense forms.
28The applicant has submitted, along with several Expenses Claim Forms (OCF-6), receipts for 17 prescriptions filled between March 2020 and February 2021. The prescriptions are for assorted medications. The applicant failed to make submissions regarding the expense claim forms/OCF-6s in dispute. As it is the applicant’s burden to demonstrate entitlement to the disputed benefits, and where the Tribunal was not presented with evidence from the applicant in support of this claim, it follows that the applicant cannot be successful in establishing entitlement to these expenses. I find the applicant is not entitled to the benefit in dispute.
Interest and Award
29As there are no benefits payable, the applicant is not entitled to interest or an award.
ORDER
30I find:
(i) The applicant is not entitled to a medical benefit in the amount of $3,689.06 for physiotherapy treatment proposed by Scarborough South Physio and Rehab centre in a treatment plan dated August 10, 2020.
(ii) The applicant is not entitled to a medical benefit in the amount of $2,065.00 for optometric services, proposed by Toronto Vision Therapy in a treatment plan dated February 3, 2020.
(iii) The applicant is not entitled to medical benefits proposed by various providers, submitted on OCF-6 expense forms.
(iv) The applicant is not entitled to interest on any overdue payment of benefits as there are no benefits owing.
Released: December 12, 2023
Emily Morton
Adjudicator