Wong v. Aviva Insurance Canada, 2023 CanLII 13083

Citation: Wong v. Aviva Insurance Canada, 2023 ONLAT 20-006725/AABS

Licence Appeal Tribunal File Number: 20-006725/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:

John Wong

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Andrej Rondas, Paralegal

For the Respondent: Lauren Kolarek, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1John Wong (“the applicant”) was involved in an automobile accident on June 19, 2018 and sought benefits from Aviva Insurance Canada (“the respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016), O. Reg. 34/10 (the “Schedule”). The respondent denied the applicant’s claims for certain benefits and as a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant entitled to $5,463.04 for physical rehabilitation services, proposed by Canadian Acid-Base Balance and Direct Detoxication Wellness Centre in a treatment plan/OCF-18 (“plan”) dated December 11, 2018?
2. Is the applicant entitled to $4,786.62 for physical rehabilitation, proposed by Canadian Acid-Base Balance and Direct Detoxication Wellness Centre in a plan dated March 19, 2019?
3. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Canadian Acid-Base Balance and Direct Detoxication Wellness Centre in a plan dated January 8, 2019?
4. Is the applicant entitled to interest on any overdue payment of benefits?

3The additional issue of whether the applicant is entitled to $4,530.84 for physiotherapy services, proposed by Canadian Acid-Base Balance and Direct Detoxication Wellness Centre in a plan dated October 24, 2018, was withdrawn as an issue in dispute at the request of the applicant in its written submissions. I have not considered it below.

RESULT

4The applicant is entitled to $1,796.00 out of the $5,463.04 claimed for physiotherapy and documentation proposed in the OCF-18 dated December 11, 2018.

5The applicant is also entitled to interest in accordance with the Schedule on the $1,796.00 amount.

6The applicant is not entitled to the remaining treatment plans dated March 19, 2019, and January 8, 2019.

ANALYSIS

Medical Benefits

7The treatment plan proposes multi-disciplinary therapy by multiple providers over the course of 16 weeks. Specifically:

a. 16 units of chiropractic treatment with Dr. Kevin Bar (DC); b. 16 units of acupuncture with Shumei Fu (RMT); c. 16 units of massage with Shumei Fu (RMT); and, d. 16 units of physiotherapy with Kuppuswamy Sundaresan (PT).

8It is submitted in the hospital records, clinical notes and records, and s. 44 assessments that the applicant was injured in the automobile accident. In his s. 44 report, Dr. Michael Devlin, physiatrist, noted the injuries included: “A CT of the thorax noted mild displaced right lateral rib fractures of the fourth and fifth ribs and a displaced fracture in the right sixth rib.”

9There is considerable documentation between the applicant and his family physician, Dr. Eric Leu. From the date of the accident to December 14, 2018 (three days after the disputed treatment plan), the applicant saw Dr. Leu ten times. Six of these visits were due to complaints of pain experienced as a result of the accident. At these visits, Dr. Leu recommends that the applicant attend physiotherapy. The most relevant notations to this treatment plan were visits on October 26, 2018, and December 14, 2018. Both visits were in relation to post-accident injuries, and in both, Dr. Leu makes a recommendation to “cont[inue] physio.”

10The respondent relies on the IE report completed by Dr. Devlin, where he assessed the applicant on March 7, 2019. This assessment was conducted 12 weeks after the proposed 16-week treatment plan was submitted to the insurer. Dr. Devlin found that the applicant had reached maximal medical recovery.

11Due to the time lag between the date of the disputed plan and Dr. Devlin’s IE assessment, I place more weight on Dr. Leu’s recommendation that the applicant continue physiotherapy as the timing of that recommendation directly coincides with the submission of the proposed treatment plan. I give no weight to Dr. Devlin’s recommendation for this plan as it relies on an examination conducted 12 weeks after the fact. Therefore, based on Dr. Leu’s opinion and the medical evidence provided to me, I find physiotherapy would be both reasonable and necessary to alleviate the applicant’s pain, which the records indicate was present when the treatment plan was proposed.

12However, I note that Dr. Leu was very clear about his recommendation in every notation. He recommended only physiotherapy, not chiropractic treatment, acupuncture, or massage therapy.

13Therefore, I find that the applicant is entitled only to the amounts allocated for treatment provided by a physiotherapist, which, according to the plan, amounts to $1,596.00. In addition, the applicant is entitled to the $200 proposed by Dr. Bar for documentation completion for this treatment plan, for a total of $1,796.00.

14The treatment plan proposed multi-disciplinary therapy by multiple providers over the course of 22 weeks. Specifically:

a. 17 units of chiropractic treatment with Dr. Kevin Bar (DC); b. 15 units of acupuncture with Shumei Fu (RMT); c. 15 units of physiotherapy with Kuppuswamy Sundaresan (PT); and, d. 1 units of physiotherapy with Hans Thomas Varghese (PT).

15As discussed above, there is no recommendation in Dr. Leu’s clinical notes and records for any treatment beyond physiotherapy. Given this, my conclusion for the previous treatment plan applies to this one. I am not persuaded by the applicant’s submissions that a form of treatment beyond physiotherapy is reasonable or necessary. Therefore, the applicant is not entitled to either acupuncture or chiropractic treatment.

16With respect to the physiotherapy, there is a record of only one visit between the December 14, 2018 visit and the 30 days following the creation of this treatment plan. This visit occurred on February 27, 2019. Dr. Leu notes that the applicant presented with pain from falling down 12 stairs at home “this AM.” From this notation, physiotherapy was recommended.

17This presents causation complications when assessing whether the continued physiotherapy is in relation to this fall, or the accident. I find that Dr. Devlin’s report is relevant to contrast the injuries sustained in the fall with the injuries sustained in the accident, and the treatment which will be required.

18For example, Dr. Devlin reviewed the clinical notes and records of Dr. Leu from 2015-2018 in advance of the IE. Despite the above-mentioned fall occurring seven days prior to the March 7, 2019, assessment, the fall is not mentioned anywhere in the report. This is perplexing considering that the injuries were severe enough to warrant a same day visit to the applicant’s family physician. Given this inconsistency, with respect to this treatment plan, I assign significant weight to Dr. Devlin’s statement: “I believe that Mr. Wong has [reached maximal medical improvement]. Mr. Wong’s soft tissue injuries would have resolved within the three-to-six-month timeframe, and his rib fractures would have healed by now as well.”

19By the time the subject treatment plan was submitted, physiotherapy treatment was no longer reasonable or necessary for the applicant’s accident-related injuries. I find that the applicant is not entitled to any part of this disputed treatment plan, as it is not reasonable and necessary.

20The treatment plan proposes multi-disciplinary therapy by multiple providers over the course of two weeks. Specifically:

a. A psychological assessment performed by Dr. Ming Che Yeh (Registered Psychologist).

21The clinical notes and records of Dr. Leu do not contain a single reference to the applicant’s psychological condition.

22The applicant submitted a Psychological Pre-Assessment Screening Report by an unknown assessor. According to this report, the applicant was assessed to determine whether his OCF-18 is warranted. This is the only document submitted by the applicant to support the reasonableness and necessity of a s. 25 psychological evaluation.

23While the applicant’s submissions note that Dr. Yeh is the author of this report, it is lacking in many ways. First, there is no mention of who conducted the interview and assessment with the applicant. Second, there is no mention of who authored the report or made the recommendation, as the report is unsigned. Third, there is no mention of the specialty or credentials held by the individual making this recommendation. Finally, the report is undated.

24Due to the deficiencies noted above, I cannot assign any weight to this report. As it is the sole piece of evidence referenced by the applicant regarding the reasonableness and necessity of the disputed treatment plan, I find the applicant has not satisfied his onus to prove on a balance of probabilities that this treatment plan is reasonable or necessary.

25Therefore, the applicant is not entitled to this treatment plan.

Interest

26The applicant is entitled to interest in accordance with s. 51 of the Schedule on the $1,796.00 amount from the OCF-18 dated December 11, 2018.

ORDER

27For the reasons outlined above, I order that:

i. The applicant is entitled to $1,796.00 for physiotherapy and documentation from the OCF-18 dated December 11, 2018, however, he is not entitled to massage therapy, acupuncture and chiropractic treatment from this OCF-18;

ii. The applicant is not entitled to the OCF-18 for chiropractic, acupuncture and physiotherapy dated March 19, 2019;

iii. The applicant is not entitled to the OCF-18 for a psychological assessment dated January 8, 2019; and

iv. The applicant is entitled to interest in accordance with s.51 of the Schedule in relation to the $1,796.00 entitlement above.