Citation: Wang v. Aviva Insurance Canada, 2023 ONLAT 20-010324/AABS and 2023 ONLAT 20-014352/AABS

Licence Appeal Tribunal File Number: 20-010324/AABS and 20-014352/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:

Wen Tao Wang

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Christopher K. Lamm, Counsel

HEARD:

BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant was involved in two automobile accidents: one on June 5, 2019 and another on October 22, 2019. He 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 applications to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

2The applicant initially filed a separate application for each accident. At case conferences held on June 7, 2021, the parties consented to combining the two applications and having the following substantive issues heard together.

ISSUES

3The issues to be decided in the hearing related to the June 5, 2019 accident are:

i. Is the applicant entitled to a non-earner benefit in the amount of $185.00 weekly from September 3, 2020 to June 5, 2021?

ii. Is the applicant entitled to $2,585.00 ($3,981.88 less $1,396.88 approved) for psychological services proposed by Somatic Assessments and Treatment Clinic in a treatment plan (“OCF-18”) dated October 2, 2020?

iii. Is the applicant entitled to $3,701.88 for psychological services proposed by Somatic Assessments and Treatment Clinic in an OCF-18 dated February 16, 2021?

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

4The issues to be decided in the hearing related to the October 22, 2019 accident are:

i. Is the applicant entitled to a non-earner benefit in the amount of $185.00 weekly from November 20, 2019 to October 22, 2021?

ii. Is the applicant entitled to $3,989.56 for physiotherapy services proposed by Total Recovery Rehab Centre in an OCF-18 dated October 23, 2020? [WITHDRAWN]

iii. Is the applicant entitled to $4,303.90 for chiropractic services proposed by Total Recovery Rehab Centre in an OCF-18 dated October 31, 2020? [WITHDRAWN]

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

5With respect to issues 4(ii) and (iii) listed above, the respondent provided submissions on the applicable physiotherapy and chiropractic treatment plans and raised a preliminary issue of the applicant’s non-attendance at insurer’s examinations pursuant to s. 44 of the Schedule. However, I note that in the applicant’s submissions for this written hearing, he labelled both of these issues as “Withdrawn” when listing the Issues in Dispute. In addition, the applicant did not provide any submissions on either of these treatment plans or the preliminary issue raised by the respondent. As such, I conclude that the applicant has withdrawn issues 4(ii) and (iii) listed above and I will not consider them as part of this written hearing.

result

6I find that:

i. The applicant is not entitled to a non-earner benefit with respect to both the June 5, 2019 and October 22, 2019 accidents;

ii. The applicant is not entitled to the outstanding balance of the treatment plan dated October 2, 2020 for psychological services;

iii. The applicant is entitled to partial funding of the treatment plan dated February 16, 2021 for psychological services, in the amount of $1,696.13, plus interest in accordance with s. 51 of the Schedule.

analysis - NON-EARNER BENEFIT (“NEB”)

7The test for entitlement to NEBs is set out in s. 12(1) of the Schedule. It states that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of the applicant’s pre- and post-accident activities.

8To establish his entitlement to NEBs, the applicant relies on two Disability Certificates (“OCF-3s”). In an OCF-3 dated January 7, 2020, Mr. Ahmed Afifi, physiotherapist, stated that the applicant had a complete inability to carry on a normal life and noted the applicant’s difficulty with sustained postures, bending, lifting, carrying and reaching. In an OCF-3 dated August 10, 2020, Dr. Georgia Palantzas, chiropractor, also noted the applicant’s complete inability to carry on a normal life and reported on similar difficulties with sustained postures, standing, walking, bending and lifting, as well as radicular and psychological symptoms.

9The applicant also cites two psychological assessments dated September 13, 2020 and August 9, 2021 conducted by Dr. Sharleen McDowell, psychologist and Ms. Mandy Fang, M.S.W., R.S.W., where the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, specific phobia (travel) and major depressive disorder with anxious distress. The applicant further submits pre-screening interviews and progress notes from Somatic Assessments and Treatment Clinic as well as the clinical notes and records (“CNRS”) of Dr. C.K. Yeung, which note that the applicant reported psychological symptoms post-accidents.

10I find that the applicant has failed to prove on a balance of probabilities that he is entitled to NEBs for either of the two accidents. Although the applicant has submitted some evidence of psychological impairment post-accident, I find that this is not sufficient to establish that he suffers from a complete inability to carry on a normal life as a result of the subject accidents.

11The applicant has not provided any submissions or tendered any evidence of his pre-accident activities of daily living, or demonstrated how his engagement in his activities has changed as a result of the accidents. In his submissions, the applicant does not identify the activities he values or provide evidence of the frequency and time commitments of his pre-accident activities, as required by Heath and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). Although the applicant points to his statements in the psychological assessment reports of Dr. McDowell, where he reported that pre-accident he was “active” and engaged in school, hobbies, leisure activities and physical activities and that post-accident his university performance and personal relationships suffered, he has not provided any details of such activities or how they are now limited. In my view, these vague self-reports do not meet the requirements of the stringent NEB test.

12The applicant does not direct me to any medical opinion from a treating physician that he suffers a complete inability to carry on a normal life. Although the OCF-3s prepared by Mr. Afifi and Dr. Palantzas identify such an inability, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident. Further, I agree with the respondent’s submissions that as a physiotherapist, Mr. Afifi is limited in his ability to diagnose the impairments listed in the OCF-3.

13The respondent’s insurer’s examination (“IE”) assessors found that the applicant did not suffer a complete inability to carry on a normal life as a result of the accidents. With respect to the June 5, 2019 accident, the applicant reported to Dr. Tepperman, occupational health physician, that he continued with all of his pre-accident activities of daily living and was self-sufficient with his personal care, housekeeping including cooking, cleaning, laundry, shopping and driving. With respect to the October 22, 2019 accident, the applicant reported to Dr. Robert Woods, psychologist, that he returned to his regular class schedule “two or three” days after the accident, and was fully independent in personal care and housekeeping, other than receiving assistance once a month for heavier housekeeping tasks, due to low back pain.

14The applicant points to his self-reports of pain as evidence that he could not genuinely “engage” in his pre-accident activities after the accident. However, where pain is the primary factor preventing an applicant from engaging in pre-accident activities, Heath requires the applicant to show that the pain practically prevents them from engaging in those activities. I find that the evidence and the applicant’s self-reporting do not meet this stringent test.

15As such, I find that the applicant is not entitled to NEBs for either period in dispute, as he has not demonstrated a complete inability to carry on a normal life as a result of each accident.

16To receive payment for a treatment and assessment plan under s. 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 how the overall costs of achieving them are reasonable.

Causation

17The respondent raises a causation issue with respect to the applicant’s psychological impairments. It submits that the applicant has not provided any medical opinion that his psychological impairments were caused by either of the accidents. I am not persuaded by the respondent’s argument.

18The applicant’s psychological assessor directly linked the applicant’s psychological symptoms to the accidents and opined in both the September 13, 2020 and August 9, 2021 reports that his psychological functioning has been negatively affected by the accidents. Further, I note that the respondent’s IE assessors, Dr. Mor and Dr. Woods, in their assessment reports dated November 20, 2020 and October 15, 2021, respectively, did not dispute that the psychological symptoms were caused by the accidents, and recommended time-limited therapy to address these impairments. As such, I find there is sufficient evidence that the applicant’s psychological impairments can be linked to the subject accidents.

OCF-18 in the amount of $2,585.00 for psychological services

19The applicant submitted an OCF-18 dated October 2, 2020 in the amount of $3,981.88 for psychological treatment, to address the listed injuries of adjustment disorders and specific (isolated) phobias. The respondent partially approved the OCF-18 in the amount of $1,396.88 and the applicant seeks the outstanding balance of $2,585.00.

20I find the applicant has not demonstrated that the remainder of the OCF-18 is reasonable and necessary.

21To establish his entitlement to the OCF-18, the applicant relies upon the September 13, 2020 psychological assessment report of Dr. McDowell, where the applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, and specific phobia (travel). Dr. McDowell recommended fourteen 1.5-hour sessions of cognitive-behavioural therapy to reduce negative thought patterns, provide coping skills and encourage a gradual return to normal activities of daily living.

22The respondent partially approved the OCF-18 in dispute on the basis of its psychological IE assessment of Dr. Shulamit Mor. In his psychological paper review dated November 20, 2020, Dr. Mor noted that while the applicant appeared to be suffering from adjustment difficulties, this did not rise to the level of a psychological diagnosis. Dr. Mor instead recommended time-limited treatment of eight 60-minute sessions.

23The applicant bears the onus of proving, on a balance of probabilities, that the additional and lengthier therapeutic sessions are reasonable and necessary. In assessing the reasonableness and necessity of proposed treatment, I rely on the considerations set out in General Accident Assurance Co. of Canada v Violi, 2000 CarswellOnt 3453, which held that:

a) The treatment goals must be identified; they must be reasonable; and they must be met to a reasonable degree;

b) The treatment should be appropriate to the goals and to the person;

c) The frequency, cost and duration of the treatment itself must be reasonable; and

d) With respect to cost, not just the financial expense should be considered, but whether the investment of time, effort and expertise required to achieve the treatment goals are reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.

24With respect to the frequency, cost and duration of treatment, the applicant has not provided submissions as to why he is entitled to the unapproved portions of the treatment plan. The respondent’s IE assessor opined that a block of eight 60-minute sessions should be sufficient to address the applicant’s adjustment difficulties and teach him general coping skills. The applicant did not provide arguments as to why this would not be sufficient.

25Other than Dr. McDowell’s report recommending the more extensive treatment, the only additional contemporaneous evidence of psychological impairment submitted by the applicant were the CNR entries from Dr. Yeung. However, there are only two entries referencing psychological symptoms, dated ten months after the second accident. As such, I find there is limited objective evidence of psychological impairment beyond adjustment difficulties. Given that the applicant did not provide submissions or direct me to specific references in the evidence which supports his entitlement to the additional and lengthier treatment sessions, I find the applicant has not met his onus to establish that the outstanding balance of the OCF-18 in dispute is reasonable and necessary.

OCF-18 in the amount of $3,989.56 for psychological services

26The applicant submitted a second OCF-18 for psychological services, dated February 16, 2021. An additional course of fourteen 1.5-hour treatment sessions of psychological treatment was proposed by Dr. McDowell, to address the stated impairments of specific (isolated) phobias and adjustment disorders. The respondent denied this treatment plan in full.

27I find the applicant has provided sufficient evidence to establish that the treatment plan in dispute is partially reasonable and necessary.

28The applicant submitted a subsequent psychological assessment of Dr. McDowell, dated August 9, 2021 and a progress report (“Progress Report’) from Somatic dated January 29, 2021. The Progress Report notes that the applicant had attended all eight sessions of the previously approved treatment sessions, that he showed improvement in his sleep quality, anxiety and stress, and that he indicated that he would like to continue with treatment.

29Moreover, I find it persuasive that in a subsequent psychological IE assessment dated October 15, 2021, the respondent’s assessor Dr. Woods also recommended additional time-limited psychological treatment. In his report, Dr. Woods diagnosed the applicant with residual symptoms of an adjustment disorder with mixed anxiety and depressed mood. Although Dr. Woods raised some concerns about the validity testing measures with respect to the applicant, he noted that cultural factors may confound test interpretation. Dr. Woods noted the fact that the applicant had already completed one block of cognitive-behavioural therapy sessions, but recommended an additional block of treatment to a maximum of ten 60-minute sessions. The specific focus of such treatment would be to consolidate previous treatment gains and to orient the applicant towards treatment completion and termination.

30Given that both the applicant’s and the respondent’s assessors have noted the applicant’s continuing adjustment disorder and recommended further treatment and given the reports of the applicant’s progress with the previous therapeutic sessions, I find that the applicant has led sufficient evidence that an additional course of psychological treatment is reasonable and necessary.

31In terms of the frequency and duration of the proposed treatment, I prefer the recommendations contained in Dr. Woods’ report, over those of Dr. McDowell. In his October 15, 2021 report, Dr. Woods not only assessed the applicant’s psychological impairments by way of an in-person assessment, but also considered the applicant’s treatment to date. In contrast, Dr. McDowell’s subsequent report did not reference any of the applicant’s treatment to date and instead inaccurately noted that the applicant’s impairments “appear to have been mostly untreated”.

32In addition, Dr. McDowell diagnosed the applicant with a worsening psychological condition, which appears to be inconsistent with the stated gains in the Progress Report. Despite the fact that in the Progress Report it was reported that the applicant’s emotional state had improved with treatment, in the August 9, 2021 psychological assessment report, Dr. McDowell had diagnosed the applicant with a major depressive disorder with anxious distress. No explanation was provided for the apparent deterioration in his psychological condition.

33As such, when comparing the treatment recommendations of Dr. Woods and Dr. McDowell, I prefer the time-limited treatment proposed by Dr. Woods, which took into account the applicant’s previous treatment sessions. Dr. Woods recommended an additional block of ten 60-minute sessions of cognitive-behavioural therapy, which would amount to $1,696.13 for ten sessions of treatment plus the $200.00 for the completion of the OCF-18. Therefore, I find that the applicant is entitled to partial funding of the OCF-18 dated February 16, 2021, in the amount of $1,696.13.

ORDER

34For the reasons provided above, I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to the outstanding balance of the OCF-18 dated October 2, 2020;

iii. The applicant is entitled to partial funding of the OCF-18 dated February 16, 2021, in the amount of $1,696.13, plus interest in accordance with s. 51 of the Schedule.