Chi Ping Fang v. Aviva Insurance Company of Canada, 2023 CanLII 19847

Licence Appeal Tribunal File Number: 20-009264/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:

Chi Ping Fang

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Meredith Harper, Counsel

HEARD: By way of written submissions

OVERVIEW

1Chi Ping Fang (“CPF”), was involved in an automobile accident on August 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). CPF was denied benefits by the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are:

(i) Is CPF entitled to an income replacement benefit (“IRB”) from August 9, 2018 to date and ongoing, and if so, at what rate?

(ii) Are the medical benefits reasonable and necessary from Total Recovery Rehab Centre as follows:

(a) $4,990.96 for chiropractic treatment in a treatment plan (OCF-18) submitted on March 6, 2019 and denied on April 5, 2019?

(b) $4,780.08 for physiotherapy in an OCF-18 submitted on September 17, 2019 and denied on October 1, 2019?

(c) $2,200.00 for a concussion assessment in an OCF-18 submitted on March 28, 2019 and denied on April 5, 2019?

(d) $2,200.00 for an in-home assessment in an OCF-18 submitted June 25, 2019 and denied on July 9, 2019?

(iii) Is the medical benefit in the amount of $6,714.92 for psychological services, recommended by Somatic Assessments and Treatment Clinic in an OCF-18 submitted June 25, 2019 and denied July 9, 2019, reasonable and necessary?

(iv) Is the medical benefit in the amount of $9,712.82 ($16,712.81, less $7,000.00 approved) for catastrophic assessments, recommended by Somatic Assessments and Treatment Clinic in an OCF-18 submitted March 4, 2020 and denied March 23, 2020, reasonable and necessary?

(v) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to CPF?

(vi) Is CPF entitled to interest on any overdue payment of benefits?

3In his submissions, CPF withdrew issues 2a. and 2b. (iii and iv) as noted above.

RESULT

4CPF is entitled to the OCF-18s for chiropractic treatment and physiotherapy. Interest is payable in accordance with s. 51 of the Schedule.

5CPF is not entitled to the remaining OCF-18s in dispute as he has failed to establish that they are reasonable and necessary. No interest is payable.

6CPF is not entitled to an award.

BACKGROUND

Pre-accident Medical History

7CPF suffered from prior wrist pain from a June 2018 incident, in which he fell from his bicycle. He sustained a fractured wrist as a result of the fall. In a diagnostic imaging report dated July 19, 2018, it was confirmed that CPF’s distal radius fracture had stable alignment.

8The evidence shows that at the time of the subject accident, CPF was wearing a cast for the wrist fracture.

ANALYSIS

The OCF-18s for physical treatment are reasonable and necessary

9Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. To receive payment for a treatment plan under the Schedule, an applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. 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 same are reasonable.

March 6, 2019 OCF-18 in the amount of $4,990.96 for chiropractic treatment

September 17, 2019 OCF-18 in the amount of $4,780.08 for physiotherapy

10The March 6, 2019 OCF-18 recommends 48 sessions of chiropractic treatment and the September 17, 2019 OCF-18 recommends 64 sessions of physiotherapy, for the joint purposes of pain reduction, increased range of motion and strength, and soft tissue healing with the goal of a return to activities of normal life and pre-accident work activities. CPF submits the OCF-18s are reasonable and necessary on the basis that physical therapy provided pain relief and had improved his physical injuries. He further submits that the medical evidence supports a need for ongoing treatment to address his physical injuries.

11To this end, he relies on the clinical notes and records of his family physician, Dr. Lau, an October 22, 2018 Disability Certificate (OCF-3), and Catastrophic Determination Reports from Somatic Clinic dated June 7, 2020.

12In response, Aviva submits that the OCF-18s are not payable as CPF has failed to establish that they are reasonable and necessary. It further submits that the treatment plans were not incurred. Its position is that CPF has not provided compelling evidence to demonstrate that the OCF-18s are required as a result of the accident, are of a therapeutic or restorative benefit and are therefore reasonable and necessary.

13I agree with CPF.

14Between August 2018 and November 2020, CPF attended Dr. Lau several times complaining of neck pain, upper back pain, bilateral neck muscle pain, various small joint pains, decreased grip strength, with the lower back pain remaining severe and other degenerative changes by November 2020. This is consistent with the 2020 catastrophic report from Somatic Assessments, which noted constant lower back pain with difficulty standing (neurosurgeon); radicular symptoms in the bilateral extremities, notably bilateral shoulder pain, with the pain being consistent and sharp, limitations in the cervical, thoracic and lumbar spine with range of motion restricted by 60% of normal range with pain (chiropractor); and displayed a limited range of motion and strength to engage in day to day self-care tasks due to pain (occupational therapist).

15While this is not an exhaustive list of CPF’s pain complaints, I find that it is corroborative evidence that CPF had ongoing pain as a result of the accident. The objective testing conclusions by the Somatic Assessments assessors, supports the pain complaints made during the same period that CPF was regularly seeing Dr. Lau for his accident-related pain. I find this combination of medical documentation and self-reporting is persuasive in establishing that he has ongoing pain as a result of the accident. Further, the goals of the treatment plan, specifically pain reduction, is reasonably addressed by the chiropractic and physiotherapy OCF-18s.

16Aviva relies on the report of its s. 44 insurer examination (IE) assessor, orthopaedic surgeon, Dr. Oshidari, who opined that objective testing failed to reveal any structural or physiological abnormality to account for the limitation of function. Dr. Oshidari noted that CPF’s presentation at the assessment was disproportionate to the nature of the accident. Dr. Oshidari noted that, based on CPF’s own statement there is no impairment, concluding that as there is no impairment, he was not able to put any physical or medical restriction upon CPF.

17Aviva also relies on the June 5, 2019 neurology report of Dr. Yufe, who opined that there was no neurological basis for CPF’s complaints. I place less weight on Dr. Yufe’s report, because he indicates that CPF suffers from chronic neck pain and low back but does not find that the March 2019 OCF-18 is reasonable and necessary.

18I find Dr. Oshidari and Dr. Yufe’s reports to be conflicting. While Dr. Oshidari finds that CPF does not suffer any impairments, Dr. Yufe determines that CPF has chronic pain. Despite the chronic pain diagnosis, Dr. Yufe concludes the March 2019 OCF-18 is not reasonable and necessary. Lastly, Aviva denied the September 2019 treatment plan, although there is no objective opinion from its assessors that considered the September 2019 OCF-18. Given the consumer protection nature of the Schedule, where the IE reports conflict, or where there is no basis given for a denial by way of an opinion from an IE assessor, I find that my determination should be made in favour of CPF.

19Having been diagnosed with chronic pain as a result of the accident by Dr. Yufe, which supports the ongoing pain complaints that CPF has made to his various treatment providers, I find that CPF is entitled to the OCF-18s for chiropractic treatment and physiotherapy. I find the OCF-18s to be reasonable and necessary to address his ongoing pain complaints and chronic pain as a result of the accident.

Section 46.2 non-compliance – June 25, 2019 OCF-18 for psychological services

20CPF submits that Aviva approved the subject treatment plan for psychological services in full, however, it has failed to pay for the invoices in full.

21Section 46.2 of the Schedule provides that an insurer may request any information from a provider that the insurer requires, acting reasonably, to determine its liability for the payment, including access to inspect and copy the originals of any treatment confirmation form, treatment and assessment plan, assessment of attendant care needs and other documents giving rise to the claim for payment.

22Further, under s. 46.2, the same provision also allows the insurer to request the provider’s statutory declaration as to the circumstances that gave rise to the invoice, including particulars of the goods and services provided. In addition, s. 46.2(2) mandates the provider to give the information requested by the insurer within 10 business days after receiving the request. Lastly, s. 46.2(3) provides that the amount payable by an insurer under an invoice is not overdue and no interest accrues on it during any period during which a provider fails to comply with subsection (2).

23The other relevant section here is s. 55(1) of the Schedule, which bars an insured person from applying to this Tribunal if, among other circumstances, the issue in dispute relates to the insurer’s denial of liability to pay an amount under an invoice on the grounds that:

(i) The insurer requested information from a provider under subsection 46.2(1).

24I find that the June 2019 OCF-18 for psychological services is not reasonable and necessary due to CPF’s non-compliance with the s. 46.2 request.

25CPF points to the psychological-based records for both his treatment providers and the IE assessors that have all concluded that he would benefit from psychological counselling. He argues that despite the affirmations, Aviva still refuses to make payments for the approved treatment.

26In response, Aviva submits that CPF has no basis for this claim that Aviva approved on July 9, 2019, as a result of his non-compliance with the request under s. 46.2.

27On December 17, 2019, Aviva sent statutory declaration requests pursuant to s. 46.2 of the Schedule to the treatment providers, Elden Leung and Dr. Sharleen McDowall, at Somatic Assessments, in order to obtain more information about the proposed OCF-18. On March 15, 2021, Aviva advised CPF that a statutory declaration and clarification of invoices request pursuant to s. 46.2 was sent to Somatic Assessments. Aviva sent follow up letters to Mr. Leung and Dr. McDowall on March 18, 2021.

28Aviva approved the OCF-18 and made the s. 46.2 request around six months after approving the OCF-18. By December 10, 2021, the s. 46.2 request had not been satisfied by Mr. Leung and Dr. McDowall. As noted in paragraph 16 above, the response to the s. 46.2 request must be provided to the insurer within 10 business days.

29I find that Aviva has properly made its s. 46.2 requests, and accordingly, should have received a response within 10 business days. CPF has failed to satisfy the request, and despite Aviva approving the treatment, it is not liable to pay the treatment for any period that CPF has failed to comply with the request.

30CPF does not address the s. 46.2 non-compliance issue in his initial submissions, and although he was given an opportunity to do so on reply, he chose not to. Therefore, he has not contested Aviva’s position on the issue, and I see no reason to interfere with Aviva’s determination that the benefit is not payable due to CPF’s non-compliance under s. 46.2.

March 4, 2020 OCF-18 in the amount of $9,712.82 for catastrophic assessments

31CPF is not entitled to the balance of the OCF-18 for catastrophic assessments as he has failed to establish that it is reasonable and necessary.

32CPF submits that he is entitled to the payment as they are necessary in order to meaningfully apply for a catastrophic determination.

33Aviva submits that the partial approval was as a result of amounts claimed that were outside of the provisions set out in s. 25(5) of the Schedule, that the amount the respondent would have to pay is limited to $2,000 for any one assessment, examination or report in connection with it.

34Aviva specifically denied the following assessments and expenses:

(i) Neurological Assessment - $2,000.00;

(ii) Clinical File Review Assessment – Neurologist, Dr. Vachhrajani - $2,000.00;

(iii) Overall Assessment Summary – Neurologist, Dr. Vachhrajani $2,000.00;

(iv) Interpretation for Mr. Fang – partially approved for $400.00;

(v) Transportation for Mr. Fang – partially approved for $200.00;

(vi) Transportation for assessors - $112.81;

(vii) Chiropractor Assessment - $2,000.00; and

(viii) Clinic File Review Assessment, Dr. Palantzas - $1000.00.

35Aviva submits that the Clinic File Review Assessment and Overall Assessment Summary – Dr. Vachhrajani and Clinical File Review Assessment – Dr. Palantzas are not payable, where s. 25(5)(a) of the Schedule sets a $2,000.00 limit for fees and expenses. It further argues that the transportation expenses for the service provider are also included in the $2,000.00 limit.

36I agree with Aviva for several reasons. First, I agree that the clinical file reviews are a part of the fees that are captured by the $2,000.00 limit under s. 25(5)(a). Second, there is no provision under the Schedule that provides transportation expenses outside of the $2,000.00 limit. Third, on a plain reading of the provision, the insurer shall not pay more than a total of $2,000.00 in respect of fees and expenses for conducting any one assessment or examination. Therefore, any fee that is above and beyond the $2,000.00 limit is not payable. There is no exception to this regulation. Lastly, CPF makes no submissions on Aviva’s determination in his initial submissions, nor are any reply submissions tendered that respond to Aviva’s claims.

37Having failed to address the key aspects of the denials for the balance of the catastrophic impairment assessments, I find that CPF has failed to meet his burden.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that CPF is entitled to the OCF-18s for chiropractic treatment and physiotherapy treatment, interest is payable on the outstanding benefits.

Award

39The 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.

40CPF did not address the issue of the award, therefore, there is no basis for granting an award.

41Accordingly, I find that Aviva did not unreasonably withhold, or delay payment of benefits and an award is not appropriate.

ORDER

42CPF is entitled to payment for the OCF-18s for chiropractic treatment and physiotherapy. Interest is payable in accordance with s. 51 of the Schedule.

43CPF is not entitled to any of the remaining benefits in dispute as he has failed to establish that they are reasonable and necessary. As there are no outstanding payments of benefits, no interest is payable.

44CPF is not entitled to an award.