Citation: Yang v. Aviva Insurance Canada, 2023 ONLAT 21-007503/AABS

Licence Appeal Tribunal File Number: 21-007503/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:

Kun Hee Yang

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Julia Hou, Counsel

For the Respondent:

Yann Grand-Clement, Counsel

HEARD: In Writing

OVERVIEW

1Kun Hee Yang, the applicant, was involved in an automobile accident on December 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva Insurance Canada, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. $2,470.00 for chiropractic services, proposed by CK Chiropractic in a treatment plan/OCF-18 (“plan”) submitted on October 21, 2019 and denied on November 1, 2019;

ii. $860.00 for physiotherapy, proposed by Tae Kyong Yi in an expenses claim form/OCF-6 (“OCF-6”) submitted on November 10, 2021 and denied on December 9, 2021;

iii. $2,200.00 for a psychological assessment, proposed by Dr. Sunha Kim in a plan submitted on September 29, 2021 and denied on November 25, 2021; and

iv. $1,146.32 ($5,127.94 less $3,981.62 approved) for driver rehabilitation therapy, proposed by Drive Lab in a plan submitted on February 18, 2022 and denied on March 8, 2022?

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

RESULT

3The applicant is entitled to payment of the $1,146.32 balance for the plan for driver rehabilitation therapy as it is reasonable and necessary. Interest is payable pursuant to s. 51 of the Schedule.

4The applicant is not entitled to the plans for chiropractic services and psychological assessment as they are neither reasonable or necessary pursuant to the Schedule.

5The applicant is not entitled to the physiotherapy expenses in dispute.

ANALYSIS

6To 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.

The applicant is entitled to the balance of $1,146.32 ($5,127.94 less $3,981.62 approved) for the driver rehabilitation therapy in a plan submitted on February 26, 2022

7The applicant submits that the OCF-18 was submitted on February 18, 2022, however upon review, it was not signed by the applicant until February 26, 2022. The applicant subsequently cured the defective OCF-18 and hence the submission date is therefore February 26, 2022. I find that the respondent partially approved the OCF-18 on March 4, 2022, hence, its response is within 10 business days as required by s. 38(8) of the Schedule.

8The respondent partially approved:

i. Item 1: ten $115.00 sessions for training, cognition and learning skills by the driving instructor;

ii. Item 2: ten $90.00 sessions for the driving instructor’s travel time and treatment;

iii. Item 6: an end of session progress report for $299.25;

iv. Item 7: completion of OCF-18 for $200.00; and

v. Item 8: ten $100.00 sessions for Korean Interpreter services; which should be a total of $3,549.25 plus HST (i.e. $4,010.65). However, I note that the respondent only approved $3,981.62 and hence, there is a shortfall of $29.03 owing to the applicant;

9The respondent denied:

i. Item 3: Occupational Therapist (OT) planning/supervision of treatment for $299.25;

ii. Item 4: OT participating in last in-vehicle session with driving instructor for $99.75;

iii. Item 5: OT provider to and from the client’s home for $99.75;

iv. Although not specifically stated in the letter, Item 8 for the balance of the costs for the Korean interpreter for $490.00;

v. which is a total of $988.75 plus HST ($1,117.29); and

10In the Explanation of Benefits (EOB) dated March 8, 2022, the respondent stated that it did not believe Item 3 was reasonable or necessary because “this was included in the cost of completing the OCF-18”. There was no further information or reason provided the other denied items.

11Section 38(8) of the Schedule requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. The requirement of medical reasons was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company 2018 CanLII 39373 (ONLAT) in which Executive Chair Lamoureux stated in paragraph 19:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

12If an insurer fails to comply with its obligations under s. 38(8), s. 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must pay for all incurred goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day until such time that it gives a valid denial.

13The applicant submits that the respondent failed to provide reasons for the denied items of the OCF-18 and thereby submits that the notice is deficient pursuant to s. 38(8) of the Schedule. The applicant submits that DriveLab stated the occupational therapist is the supervising health care professional for the recommended treatment and monitors the progress of the plan. The driving instructor and the applicant need to be able to discuss any problems that arise during in-vehicle treatment with the occupational therapist and as such, the OCF-18 is reasonable and necessary.

14The respondent submits that the denied items (i.e. Items 3, 4 and 5) are all duplicative of the existing items (i.e. Items 1, 2 and 7). It submits that its response is a sufficient explanation for why the items are not reasonable and necessary.

15I find the respondent’s submission is not substantiated by the EOB. Firstly, the EOB does not state that the denied items were a duplication of the existing approved items of the OCF-18, as the respondent claims. Secondly, the respondent only provided a reason for Item 3 (as stated above), but no other reasons were provided for the other two denied items, including the partially denied costs of the Korean interpreter. Thirdly, the disputed items listed on the OCF-18 are to be provided by the occupational therapist, not the driving instructor, hence I find that there is no duplication of these items at all.

16I find that the disputed items are justified by, the occupational therapist, Ms. Deborah Melamed‘s explanation in the OCF-18 where an occupational therapist is required to monitor the progress of the applicant during the driving rehabilitation therapy, particularly where the OT is required travel to the applicant’s home with the driving instructor and to be present at the last in-vehicle session.

17With respect to Item 3 above, the respondent submits that the expense is already included in the cost of completing the OCF-18. However, Item 3 is for the OT’s planning or supervision of the treatment for the amount $299.25, which is not the same as completion of an OCF-18 for $200.00 and therefore I disagree with the respondent. I accept the applicant’s submission that the OT is required to be available to discuss any issues that arises during the proposed treatment. I also find Ms. Melamed’s description of the OT’s role during a driving rehabilitation therapy to be helpful and persuasive in that “[t]he OT has the expertise to problem solve issues with physical adaptation, pain management issues and cognitive and psychological adjustment to the attainment of new driving skills for adaptive driving equipment. The [OT] has a professional obligation to their college to address the client's injuries sustained in the MVC and to work with the client to improve their driver/passenger confidence and ensure safe driver/passenger behaviour and functioning.”

18Lastly, in relation to the cost of the Korean Interpreter, the respondent did not provide medical or any other reasons for its partial denial and did not make any submissions on this point. Based on the evidence tendered, such as the Case Conference Report and Order dated August 4, 2022 and the two s. 44 Insurer Examination (IE) reports, I find that the applicant requires a Korean interpreter.

19For the reasons above, I find the respondent did not provide sufficient medical or any other reasons to enable the applicant to make a decision on whether or not to accept or dispute the decision. On this basis, I find that the respondent is non-compliant with s. 38(8) of the Schedule and therefore the obligations of s. 38(11) are triggered.

20The applicant has not led any evidence as to what, if any, portion of the treatment plan was incurred. I find that the appropriate Divisional Court decisions related to this topic are Aviva General Insurance Company v. Catic, 2022 ONSC 6000 and Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200. In Catic, the Divisional Court addressed the issue of non-compliant notices and denials, and found that for the OCF-18s to be payable, they must be incurred. In Suarez, where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial. Catic is consistent with Suarez because if the insurer cures the defective denial before the Tribunal has adjudicated the disputed OCF-18, then that “closes the door” for the purposes of s. 38(11)2.

21I find that this treatment plan in dispute is similar to that of Suarez as the respondent no longer has the opportunity to issue a proper denial notice to “close the door” for the purposes of s. 38(11)2. Hence, the applicant is entitled to proceed to consume the subject OCF-18 following this decision.

22Pursuant to s. 38(11), the applicant is entitled to the balance payment of $1,146.32 and interest is payable in accordance with s. 51 of the Schedule.

The applicant is not entitled to chiropractic services in an OCF-18 dated October 21, 2019

23The applicant submitted the OCF-18 on October 21, 2019 which was denied by the respondent on November 1, 2019.

24For the reasons set out below, I find that the applicant has failed to demonstrate on the balance of probabilities that the disputed OCF-18 is reasonable and necessary.

25The applicant submits that the goal of the OCF-18 is for pain reduction and relies on the case of Lagoudis v. Aviva Insurance Canada, 2022 CanLII 6780 (ONLAT) and 17-001614 v. Wawanesa Mutual Insurance Company, 2018 CanLII 140342 (ONLAT), where the adjudicators found that pain management or pain reduction is a reasonable goal for a treatment plan. She relies on the CNRs of Dr. Doo Young Kim, her family physician, and a letter by Dr. Kafai Lai, orthopedic surgeon, to support her position that the treatment is reasonable and necessary.

26In response, the respondent relies on a s. 44 orthopedic examination report dated October 14, 2022, by Dr. Gilbert Yee, orthopedic surgeon, and Dr. Lai’s finding that “there was no evidence of significant pathologies” and encouraged the applicant to continue her home exercise. The respondent further submits that the applicant did not pinpoint reference any specific medical evidence in support of her claim and, as of October 2019, the CNR of the applicant’s family doctor indicated that the applicant was doing fine, therefore the applicant has not discharged her onus of proving that the OCF-18 is reasonable and necessary.

27I note that none of the respondent’s assertions were contested by the applicant, despite the applicant having the benefit of reply.

28I find that the applicant has failed to meet her onus to prove entitlement to the OCF-18 for the following reasons:

i. There were only four CNR entries tendered from Dr. Kim, dated May 19, August 2, September 1 and October 2, 2019 (i.e. 8 to 10 months after the accident). The applicant ‘s first “meet and greet” appointment with Dr. Kim was on May 19, 2019, where the applicant made no mention of the accident or made any complaints of pain. Dr. Kim noted that the applicant “looks generally well, not in acute distress, not toxic looking, well hydrated”. During the four visits, Dr. Kim made no definitive connection between the accident and any pain complaints but referred the applicant to Dr. Lai for an orthopedic consultation and to undergo an x-ray and ultrasound of the right shoulder and spine. Dr. Kim did not refer the applicant to physiotherapy or chiropractic treatment;

ii. In Dr. Lai’s summary letter dated October 5, 2019, Dr. Lai reviewed the diagnostic imaging results and opined that “[o]ther than mild degenerative changes in her cervical and lumbar spine, there are no significant pathologies present”. Dr. Lai found that the applicant’s symptoms are “likely secondary sprain/strain injuries to her cervical and lumbar spine. She also likely strained her left paraspinal musculature.” Dr. Lai recommended treatment options such as back injections and encouraged the applicant to continue with the home exercises. It is noted that Dr. Lai did not make any findings with regards to causation, although he provided a summary of the applicant’s self report of the accident. He also did not refer the applicant to any physiotherapy or chiropractic treatment;

iii. I find that the respondent’s s. 44 orthopedic assessment report by Dr. Yee to be persuasive and in line with the applicant’s evidence. Dr. Yee reviewed an extensive list of medical documents and conducted a physical examination of the applicant during the assessment. He opined that the applicant’s residual symptoms relate to myofascial strains to the thoracolumbar spine. There are radiographic findings of a 10% compressed fracture at T12-L1 and retrolisthesis in L2-4, however Dr. Yee opined that there were no objective clinical findings to suggest any active radiculopathy or myelopathy. Dr. Yee was specifically requested to assess the subject OCF-18 and opined that, due to the elapse of time since the accident and the treatment provided so far as at the date of the assessment, the OCF-18 was not reasonable and necessary. It was also noted that Dr. Yee did not “feel that any further passive modalities will provide any long-lasting clinical benefit.”.

iv. Although Dr. Yee reported that the applicant experienced tenderness to palpitation throughout her left ankle during the examination, he noted that the applicant reported that this issue did not begin until three months after the accident. I did not find any CNRs that mentioned any left ankle pain. Hence, I do not find this complaint to be connected with the accident;

v. The respondent also submitted that the applicant subsequently changed her family doctor to Dr. John Lee. In Dr. Lee’s CNRs, the applicant does not mention the subject accident at all. I agree with the respondent on this point. Based on the CNRs of Dr. Lee from March 5, 2020 to April 6, 2021, the applicant did not report any complaints of pain nor mention the subject accident. There is no contemporaneous evidence from any of the applicant’s family doctors that she was suffering from any pain as a result of the accident or had to be given pain medication or that she required any medical rehabilitation; and

vi. While the Tribunal has recognised in past cases, such as in Lagoudis and 17-001614, that “[p]ain relief, even if only temporary, is enough to qualify passive treatment as reasonable and necessary as long as it maintains or increases functionality”, I find that there is no compelling and contemporaneous medical evidence to support the applicant’s position.

29Therefore, I find the applicant has not proven on the balance of probabilities that the treatment plan is reasonable and necessary. The applicant is not entitled to payment of the OCF-18 and interest is not payable.

The applicant is not entitled to a psychological assessment in a plan submitted on September 29, 2021

30The applicant submits that Dr. Bruce Ballon, psychiatrist, did not administer any psychometric testing during the s. 44 psychiatry assessment on September 3, 2020, and since he found that the applicant suffers from a pre-existing and ongoing psychiatric condition of an unspecified mood disorder, a formal psychological assessment should be warranted. She relies on Dr. Kim’s CNRs and submits her mood worsened after the accident, specifically her high anxiety and fear of driving have made it difficult for the applicant to return to normal driving routine. The applicant also submits that the purpose of an assessment is to determine if a condition exists and to make treatment recommendations.

31The respondent submits that the applicant’s psychological symptoms have already been assessed by her family doctor who found that they are associated with the death of her son in a prior motor vehicle accident, family issues and work stressors. It submits that Dr. Ballon diagnosed the applicant with Specific Phobia (driving as driver and passenger) which he found to be related to the accident and an Unspecified Mood Disorder. Although Dr. Ballon noted that the subject OCF-18 was not reasonable and necessary, he opined the applicant would likely benefit from an on-road driving desensitization program as her driving anxiety could be linked back to the accident.

32The goals of the OCF-18 are to decrease symptom severity levels and to help the applicant return to her activities of normal living and pre-accident work activities.

33For the following reasons, I find that the applicant has not proven on the balance of probabilities that the OCF-18 is reasonable and necessary:

i. Dr. Kim reported on September 1, 2019, that the applicant was not taking Cipralex at the time, although she had the medication at home if required, and that the applicant’s mood was stable and was “not deemed danger to self or others”. Subsequently on October 2, 2019, Dr. Kim again noted that the applicant self reported that her mood had been “slightly lower recently but able to manage, trying not to depend on medication” and again noting that she is not taking Cipralex, although “she keeps it at home in case she wants to start”. Dr. Kim did not make any diagnosis or refer the applicant to undergo any psychological assessment;

ii. The majority of Dr. Lee’s CNRs noted that the applicant appeared to be “comfortable” and did not record any psychological symptoms or concerns at all. Since the applicant became Dr. Lee’s patient and under his care, Dr. Lee has not prescribed any Cipralex or any other medication for treatment of the applicant’s psychological symptoms or related complaints. I am not provided with any further updated CNRs from Dr. Lee after April 6, 2021; and

iii. On review of Dr. Ballon’s report, he found that the applicant has had pre-existing and ongoing psychiatric condition of an unspecified mood disorder, but her mood issues do not appear to have been exacerbated by the subject accident. He recommended the applicant’s treatment providers help connect the applicant with “a program such as Hong Fook which may aid her in dealing with her pre-existing mental health issues and…[that] she may benefit from medications that can address pain, mood and anxiety (e.g. duloxetine). What does appear directly related to the subject MVA at this time is Specific Phobia as a Driver and a Passenger in a car, which does not appear to have existed before the subject MVA”. He opined that the applicant would benefit from an on-road driving desensitization program. All other psychological symptoms or issues are not related to the accident. I find the s. 44 psychiatry assessment by Dr. Ballon to be persuasive as he reviewed an extensive list of the applicant’s prior medical documents, applied a mental status examination during the assessment and explained his observations and the reasons for his diagnosis.

34Therefore, I find that the applicant has not proven on the balance of probabilities that the OCF-18 is reasonable and necessary and is not entitled to a psychological assessment and interest is not payable.

The applicant is not entitled to $860.00 for physiotherapy in an OCF-6 for non-compliance with s. 38(2) of the Schedule

35The applicant incurred the expenses in dispute without first submitting an OCF-6. Section 38(2) of the Schedule states that subject to four exceptions, an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before an insured person submits a treatment plan that satisfies the requirements of subsection (3). The burden of proof lies on the applicant to establish that she is entitled to the expenses in dispute: Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.) at para 20. I find that she has not done so.

36The applicant relies on the exception under s. 38(2)(d). It applies where the insurer agrees that the expense is essential for the treatment or rehabilitation of the insured person for goods or services referred to in ss. 15(1)(h) or 16(3)(l) with a cost of $250 or less per item or service. Sections 15(1)(h) and 16(3)(l) refer to “other goods and services” that the insurer agrees are essential for the treatment or rehabilitation of the insured person, and for which a benefit is not otherwise provided in the Schedule.

37The applicant submits the respondent did not provide an explanation of benefits for massage therapy, although she later refers in her submissions to physiotherapy. She submits that she has tried various modalities to improve her condition, but physiotherapy assists her with temporary relief which enables her to function in her day-to-day life. The applicant further submits that the goal is to reduce pain and that case law has shown that passive treatment is reasonable and necessary when it provides relief of pain to maintain her current level of function.

38The respondent submits that the applicant is barred from recovering incurred expenses prior to submitting the required documentation to the insurer, pursuant to s. 38(2) of the Schedule. The respondent further submits that the OCF-6 is for one item priced at $860.00, which is in excess of the exception under the Schedule and argues that the applicant has not produced any evidence to show that the proposed treatment is “essential for the treatment of the insured person” as per the Schedule.

39The applicant submitted an OCF-6 on November 10, 2021, with one item described as “MR July 30 – Nov 1, 2021 R.M.T – Tae Kyong Yi $860.00”. The invoices attached to the OCF-6 provides that the goods and services for the period from July 30 to November 1, 2021 were for physiotherapy and the total cost of $860.00 consists of one initial physiotherapy assessment at $90.00 and eleven sessions of $70.00 per session. There is no further information about what the services entailed.

40I find that s. 38(2)(d) does not apply for the following reasons:

i. There is no evidence of whether the applicant had previously submitted any OCF-6 for any physiotherapy sessions that had been incurred or approved by the respondent. There is also no evidence that the respondent considered whether any physiotherapy services were essential for the applicant’s treatment or rehabilitation and never agreed the same;

ii. Section 38(2)(3) applies to services of up to $250.00 per service. In this case, the applicant requested benefits for a 12-session course of treatment totalling $860.00; and

iii. I find that s. 38(2) of the Schedule specifically operates in this case as it relieves an insurer from being liable to pay for a medical/rehabilitation or cost of examination expense prior to having an opportunity to review the expense and then determine whether they agree to pay for it.

41As s. 38(2)(d) does not apply, the respondent is not liable to pay for the expenses in dispute.

ORDER

42The applicant is entitled to payment of the balance for the plan for driver rehabilitation therapy as it is reasonable and necessary. Interest is payable pursuant to s. 51 of the Schedule.

43The applicant is not entitled to the plans for chiropractic services and psychological assessment as they are neither reasonable or necessary pursuant to the Schedule.

44The applicant is not entitled to the physiotherapy expenses in dispute.