Citation: Byun v. Aviva Insurance Company, 2023 ONLAT 21-000169/AABS

Licence Appeal Tribunal File Number: 21-000169/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:

Ho Rim Byun

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Julia Zhiyan Hou, Counsel

For the Respondent: Mohamed R. Hashim, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ho Rim Byun, the applicant, was involved in an automobile accident on August 6, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to payment of lost educational expenses in the amount of $6,968.70 as set out in an Expense Claim Form (OCF-6) dated September 4, 2020?

ii. Is the applicant entitled to a medical benefit in the amount of $1,297.25 for physiotherapy services, proposed by Pro Physio & Sport Medicine Centres Vantage in a treatment plan/OCF-18 (“plan”) dated September 11, 2020?

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

RESULT

3The applicant is entitled to $6,968.70 for lost education expenses, plus applicable interest.

4The applicant it not entitled to the physiotherapy plan in the amount of $1,297.25, dated September 11, 2020.

Applicant’s request to add two additional issues is denied

5The applicant sought to add two additional issues in dispute as laid out in her initial written hearing submissions. These issues include $500.00 in botox injections as set out in an OCF-6 dated May 25, 2021, and $1,350.00 for acupuncture and massage therapy set out in an OCF-6 dated February 8, 2022.

6The Tribunal does not have any previous record of a Notice of Motion, or similar request to add these issues prior to the request laid out in her submissions. Additionally, the respondent has not made any comment regarding these additional expenses in its written hearing submissions.

7This untimely request to add issues to the hearing raises potential procedural fairness complications pursuant to Rule 3.1(a) of the Tribunal’s Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017). The respondent has not had the opportunity to adequately address the additional issues prior to the written hearing. This application was filed with the Tribunal on January 7, 2021, and the case conference was held on May 18, 2021. The applicant failed to raise these additional issues in the nine months between the case conference and her February 25, 2022 written submission deadline.

8When I consider the totality of the circumstances, I am not persuaded that these two expenses may be added as issues in dispute. The applicant has provided no explanation regarding why these issues were not added prior to the written hearing. Additionally, the respondent had no opportunity to respond to these additional issues prior to the written hearing date, nor has it made submissions regarding these additional issues. Simply put, adding these issues at this juncture would compromise the procedural fairness of this hearing. Thus, the applicant’s request to add these additional expenses is denied.

ANALYSIS

The applicant is entitled to lost educational expenses

9I am persuaded the applicant is entitled to lost educational expenses in the amount of $6,968.70.

10Section 21 of the Schedule sets out the two-part test for payment of lost educational expenses. The insurer shall pay up to $15,000.00 for lost educational expenses incurred by an insured person who sustains an impairment as a result of the accident if, at the time of the accident, the insured person was enrolled in a program of elementary, secondary, post-secondary, or continuing education and as a result of the accident, the insured person was unable to continue the program.

11Section 21(5) defines lost educational expenses as those incurred before the accident including tuition, books, and equipment in respect to the program term in which the insured person was enrolled at the time of the accident.

12The applicant submits she has furnished proof that she was enrolled at York University for the summer semester from May 22 to August 20, 2018, when the accident occurred. Following the accident, she was unable to write her final examinations for the semester due to physical accident-related impairments and withdrew from the four summer courses in which she was enrolled. The Disability Certificate (“OCF-3”) prepared by P. Wadhwani, physiotherapist, and dated August 11, 2018 indicated the applicant suffered from whiplash associated disorder (WAD-I), sprain and strain of the lumbar spine, sacroiliac joint and thoracic spine, nervousness, dizziness, headache and radiculopathy.

13The respondent submits the applicant is not entitled to lost education expenses, as she never provided clarification regarding any information from York University for any accommodation or deferral of the examinations to a later date. In the alternative, the respondent submits the medical records submitted are insufficient to support her claim for lost educational expenses.

14I find the applicant has met both parts of the test in s. 21 of the Schedule. It is clear from the York University Correspondence dated June 26, 2020 that the applicant was enrolled in four courses for the summer 2018 semester, and withdrew from these courses on August 8, 2018 and March 30, 2019. This correspondence notes the outstanding tuition balance of $6,968.70 for these courses was paid via financial aid payment.

15This matter turns on the clinical notes and records provided by Dr. Park, the applicant’s family physician. In correspondence provided to the applicant’s counsel dated January 21, 2022, he notes the applicant “was unable to continue with her schooling as of August 2018, as she would not be able to sit for long periods”. This inability to sit for long periods due to accident-related pain is noted in Dr. Park’s notes dated August 13, 2018, December 2, 2019, and February 8, 2021.

16The inability to sit for long periods during the acute phase of her soft-tissue injuries following the accident, accords with the insurer’s examination (“IE”) assessment by Dr. P. Jugnundan, family and occupational health physician. In his report dated January 8, 2019, he diagnosed the applicant with soft-tissue injuries to her lower back and mild intermittent neck pain.

17Noticeably absent from the evidentiary record is any correspondence from York University regarding potential accommodation due to her accident-related impairments. Its unclear if the applicant took any steps to defer her exams to a later date when she was capable of writing them. However, the Schedule provides no requirement for the applicant to mitigate the issue by seeking an accommodation for her accident-related impairments. I otherwise place no weight upon the purported conversations between the applicant and her academic advisor as detailed in the adjuster log notes tendered by the applicant, as they are of no probative value. All that is clear form the York University correspondence is that the applicant withdrew from the majority of these courses two-days post-accident and was not entitled to any tuition refund.

18I am not persuaded that the applicant’s enrollment and completion a semester of a paralegal program at Seneca College commencing in September 2018 is relevant to her entitlement to lost educational expenses. The applicant was unable to sit for long periods in August 2018 and, as a result, was unable to complete her summer semester examinations. I am satisfied from the clinical notes and records and the IE report by Dr. Jugnundan that the applicant was suffering from soft tissue injuries in the immediate post-accident period relevant to the determination of lost education expenses. These injuries impaired her ability to sit for prolonged periods, as required to complete final examinations.

19On the totality of the evidence tendered, I am satisfied the applicant was enrolled at York University at the time of the accident and was unable to continue her studies for the summer 2018 semester due to accident-related impairments, specifically her inability to sit for long periods of time. As a result, the applicant is entitled to lost education expenses in the amount of $6,968.70, or the tuition cost of four the courses dropped for the summer 2018 semester.

Physiotherapy services are not reasonable and necessary

20I am not persuaded the applicant has established that $1,297.25 in physiotherapy treatment is reasonable and necessary pursuant to the Schedule.

21To receive payment for 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.

22The plan at issue was prepared by M. Abdalla, physiotherapist, dated September 11, 2020, more than two years following the accident. The goals identified include pain reduction, increase in strength, increased range of motion, improve tolerances of activities of daily living, minimize neck and back stiffness.

23The applicant submits this plan is reasonable and necessary, as physiotherapy was recommended by Dr. Park to assist with the applicant’s accident-related chronic pain on January 21, 2022. Conversely, the respondent submits this claim for physiotherapy is unsupported by the evidence, as there are no records demonstrating that physiotherapy was reasonable and necessary in 2020 when it conducted insurer’s examinations. In addition, Dr. Jugnundan determined the applicant sustained only soft-tissue injuries as a result of the accident in the IE report dated January 8, 2019.

24I agree with the respondent and find no evidence to support the need for ongoing physiotherapy. The clinical notes and records provided by Dr. Park indicate only three instances of reported pain related to the 2018 accident. None of the notes in 2020 reference physiotherapy or any potential benefit derived as a result. However, the notes do reference “a back strain chronic pain”, but this pain was treated with injections of Botox on April 21, 2020. Otherwise, the potential benefit of physiotherapy, or a referral, was not mentioned by Dr. Park until two years later in a January 21, 2022 letter to the applicant’s counsel where he noted she would require ongoing physiotherapy and treatment for chronic pain.

25Although Dr. Park and Dr. Jugnundan both mention the applicant attended physiotherapy until early 2021, no records have been tendered from any provider. I am unable to determine whether the applicant benefitted from physiotherapy without records from the physiotherapy provider.

26I prefer the IE report by Dr. Jugnundan. This report is the only expert opinion provided in evidence and is largely uncontradicted. I place weight upon Dr. Jugnundan’s diagnosis of soft-tissue injuries as a result of the accident, as he did not recommend further facility-based treatment, and indicated the applicant was capable of returning to her pre-accident employment. Otherwise, Dr. Park’s clinical notes and records do not list any references to physiotherapy in 2020, contemporaneous with this treatment plan.

27On the evidence, I am not persuaded that this plan for physiotherapy is reasonable and necessary pursuant to the Schedule. The contemporaneous clinical notes and records provided do not support the goals of additional physiotherapy treatment laid out in the OCF-18 dated September 11, 2020.

Interest

28The applicant is entitled to applicable interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

ORDER

29I find that:

i. The applicant is entitled to $6,968.70 for lost education expenses, plus applicable interest.

ii. The applicant it not entitled to $1,297.25 for physiotherapy services.