Zhao v. Aviva General Insurance Company, 2024 CanLII 106224

Licence Appeal Tribunal

Citation: Zhao v. Aviva General Insurance Company, 2024 ONLAT 22-011643/AABS

Licence Appeal Tribunal File Number: 22-011643/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:

Ye Zhao, Applicant

and

Aviva General Insurance Company, Respondent

DECISION

Adjudicator: Melanie Malach

Appearances:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Kathleen Mertes, Counsel

Heard: By way of written submissions

OVERVIEW

1Ye Zhao, the applicant, was involved in an automobile accident on October 12, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $4,195.12 for physiotherapy proposed by Total Recovery Rehab Centre, in a treatment plan, dated July 17, 2021?

ii. Is the applicant entitled to the treatment proposed by Somatic Assessments and Treatment Clinic as follows: i. $3,981.88 for psychological services submitted in a treatment plan dated May 19, 2021? ii. $5,712.81 ($16,712.81 less amounts approved of $11,000.00) for the cost of a multi-disciplinary catastrophic (CAT) impairment assessment submitted in a treatment plan dated July 16, 2021?

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

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4The applicant is not entitled to the treatment plans in dispute, interest or an award.

ANALYSIS

The applicant is not entitled to the treatment plan dated July 17, 2021 for physical therapy

5I find that the applicant has not proven on a balance of probabilities that the treatment plan, dated July 17, 2021 is reasonable and necessary.

6To receive payment for a treatment 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.

7While the applicant only identified the treatment plan as being for physiotherapy, it is actually for multiple types of treatment and assessments. The treatment plan proposed by Total Recovery Rehab Centre, dated July 17, 2021, recommends 16 sessions of physiotherapy, 16 sessions of active therapy, 16 sessions of massage therapy, an initial assessment, an initial assessment report and travel assistance in the amount of $4,195.12.

8I find that the applicant has not led sufficient evidence to establish that the proposed treatment plan is reasonable and necessary.

9The applicant has not provided any submissions or evidence in support of the reasonableness and necessity of the treatment plan in dispute. Her only submission with respect to this treatment plan, is that "the applicant started physiotherapy sessions at Total Recovery Rehab Centre with the help of Mr. Ahmed Afifi to alleviate her ongoing physical pain and provide her with at-home techniques to do so herself." A copy of the treatment plan was attached to the submissions.

10I am persuaded by the decision of Eapen v. Aviva Insurance Company, 2022 CanLII 84686 (ON LAT), submitted by the respondent, where the Tribunal states at paragraph 15 that treatment plans, "while they can be useful in assessing an applicant's medical status, they must be accompanied by compelling contemporaneous medical evidence." I find that simply attaching a copy of the treatment plan in the applicant's submissions on its own is not sufficient. A treatment plan must be supported by medical evidence that is contemporaneous, relevant, and objective. Moreover, the treatment plan is not just seeking physiotherapy treatment – it is also seeking active therapy and massage therapy. The applicant has not provided any submissions with respect to these additional treatment modalities or why they are reasonable and necessary.

11The applicant also did not submit a reply to directly address the treatment plan or the submissions of the respondent in respect to same.

12Given the lack of submissions and medical evidence provided by the applicant with respect to her entitlement to the treatment plan dated July 17, 2021, I find that she has not met her onus of demonstrating that the treatment plan is reasonable and necessary as a result of the accident.

The applicant is not entitled to the treatment plan, dated May 19, 2021, for psychological services

13I find that the applicant has not proven on a balance of probabilities that the treatment plan dated May 19, 2021 for psychological services is reasonable and necessary.

14The applicant claims entitlement to $3,981.88 for psychological services, proposed by Dr. Sharleen McDowall, of Somatic Assessments & Treatment Clinic, dated May 19, 2021. The plan recommends 14 one and a half hour sessions of psychological treatment, a progress report, completion of the treatment plan and transportation.

15The applicant submits that the psychological treatment in dispute is reasonable and necessary based on her psychological symptoms and impairments. The applicant relies on the Psychological Assessment report prepared by Dr. McDowall, dated June 19, 2019. Dr. McDowall diagnosed the applicant with major depressive disorder with anxious distress, as well as specific phobia (travel). The applicant also relies on a Psychological Progress report, prepared by Sunny Hu, psychotherapist, dated April 29, 2021, which recommended further treatment to continue to address the applicant's ongoing psychological impairments. Ms. Hu noted limited improvement with the applicant's psychological state and that she remained depressed and struggled with sleep. The applicant also relies on the Psychological CAT Assessment report prepared by Dr. Sedigheh Nasi, psychologist, dated October 20, 2022. Dr. Nasi diagnosed the applicant with major depressive disorder, single episode, severe, somatic symptom disorder, with predominant pain, persistent, and specific (isolated) phobia.

16The respondent submits that the treatment plan in dispute was denied based on the findings outlined in the s. 44 Insurer's Examination ("IE") Psychological Assessment report of Dr. Rod Day, psychologist, dated August 27, 2021. Dr. Day concluded that the proposed psychological treatment was not reasonable and necessary as the applicant had reached maximum psychological recovery from her accident-related injuries. Dr. Day noted that:

Although Ms. Zhao did report some initial benefits from the in-person sessions she received under the supervision of Dr. McDowall, she stated that she derived no benefit from the most recent allocation of psychotherapy that was delivered by phone and does not wish to participate in continuation of this psychotherapy.

17The respondent further submits that the treatment plan in dispute is not reasonable and necessary as the applicant had already completed 28 prior sessions of treatment, Dr. McDowall the treatment provider gave no indication as to how an additional 14 sessions would provide any additional benefit that the prior 28 sessions did not, and the applicant herself advised that the most recent treatment was not beneficial and that she did not wish to continue with the proposed psychological counselling.

18I find that the applicant has not led sufficient evidence to establish that the proposed treatment plan for psychological services is reasonable and necessary.

19I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plan in her submissions. She has not provided any submissions on the disputed treatment plans' therapeutic goals, whether they are being met, or their costs. The applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable. There are also no details provided of the psychological treatment that the applicant had previously received or the benefits that she received from this treatment.

20With respect to the applicant's psychological injuries, I prefer the report of Dr. Day, over the progress report of Ms. Hu, as Dr. Day's report is more comprehensive. The applicant stated that she derived no benefit from the most recent allocation of psychotherapy and did not wish to participate in continuation of this psychotherapy. The applicant did not provide any submissions in respect to the report and findings of Dr. Day or address the finding of Dr. Day that the applicant did not want to proceed with further counselling.

21The report of Dr. Nasi makes no recommendations for ongoing psychological treatment. Similarly, I note that under the documentation reviewed by Dr. Nasi, the reports of Dr. McDowall, Ms. Hu and Dr. Day were not included which would have been useful for his assessment of the applicant.

22The applicant also submits that the respondent's denial letter for the psychological treatment plan in dispute failed to provide sufficient medical reasons to satisfy the requirements under s. 38(8) of the Schedule.

23The respondent submits that its denial letter is compliant with s. 38(8) of the Schedule and notes that the applicant did not provide any specific allegations in her written submissions as to how the denial is not compliant.

24I find that neither party has provided me with a copy of the denial letter in respect to this treatment plan. Further, the applicant has not provided me with the specific allegations in how the denial is not compliant. I therefore find that the respondent's denial is compliant with s. 38 of the Schedule. The applicant did not satisfy her onus under s. 38(8) of the Schedule and is therefore not entitled to the treatment plan on this basis.

25For the reasons set out above, I find that the applicant has not met her onus of demonstrating that the treatment plan dated May 19, 2021 for psychological treatment is reasonable and necessary as a result of the accident.

The applicant is not entitled to the unapproved amount of the treatment plan dated July 16, 2021 for a multi-disciplinary CAT impairment assessment

26I find that the applicant has not proven on a balance of probabilities that she is entitled to the unapproved amount of the treatment plan dated July 16, 2021 for a multi-disciplinary CAT impairment assessment.

27The applicant claims entitlement to $5,712.81 ($16,712.81 less amounts approved $11,000.00) for the cost of a multi-disciplinary CAT impairment assessment proposed by Somatic Assessments and Treatment Clinic, in a treatment plan, dated July 16, 2021.

28The respondent in its submissions set out a detailed description of the treatment plan and its Explanation of Benefits correspondence dated August 5, 2021 which advised the applicant of the partial approval of the treatment plan in the amount of $11,000.00. The following was approved:

Line 1: Neurological Assessment $2,000.00 Line 2: OT Assessment (In-Home) $2,000.00 Line 3: Psychology Assessment $2,000.00 Line 4: Clinic File Review Assessment $2,000.00 Line 5: Overall Assessment, Summary, Analysis, Final Rating $2,000.00 Line 8: OCF-18 Form $200.00 Line 9: OCF-19 Certificate $200.00 Line 10: Interpretation services for Occupational Therapy, Psychology and Neurological Assessments $600.00 Total approved: up to $11,000.00

29The respondent submits that the Explanation of Benefits noted that the respondent was not agreeable to funding the following items in the total amount of $5,712.81:

Lines 6, 7 and 14: three additional line items relating to an additional fee of $1,000.00 each for a "clinic file review" by each of the three listed assessors Line 11 and 12: transportation to the psychological and neurological assessments of $712.81 (the distance between the applicant's residence to Somatic Assessments is less than 50km round trip) Line 13: Orthopaedic Assessment that was proposed to be completed by Dr. Georgina Palantzas, a chiropractor in the amount of $2,000.00 (Dr. Palantzas has not provided credentials in order to be qualified to perform an orthopaedic assessment)

30The respondent submits that it approved all reasonable portions of the treatment plan submitted and that the applicant failed to discharge her onus to prove on a balance of probabilities that the unapproved portion of the treatment plan is reasonable and necessary.

31The applicant submits that the treatment plan proposing a multi-disciplinary catastrophic impairment assessment was reasonable and necessary based on the medical evidence. The applicant sets out the wording in s. 25(1)(3) and s. 25(1)(5) of the Schedule as well as the wording of FSCO Bulletin No. A-21/10 – Revised Application for Determination of Catastrophic Impairment and Summary of Changes to the Auto Insurance System which applies to HST. No further submissions were made.

32I find that the applicant has not led sufficient evidence to establish that the unapproved portion of the treatment plan is reasonable and necessary.

33I find that simply attaching a copy of the treatment plan in the applicant's submissions and citing sections of the Schedule without further submissions on the issue in dispute, is not compelling evidence in support of the treatment plan.

34The applicant also did not submit a reply to directly address the treatment plan or the submissions of the respondent in respect to same.

35Given the lack of submissions and medical evidence provided by the applicant with respect to her entitlement to the unapproved portion of the treatment plan dated July 16, 2021, I find that she has not met her onus of demonstrating that the treatment plan is reasonable and necessary as a result of the accident.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to the disputed treatment plans, no payments are overdue, and thus no interest is payable.

Award

37The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that the respondent unreasonably withheld or delayed the payment of benefits. I find an award is not appropriate. There is no evidence before me of the respondent unreasonably withholding or delaying the payment of benefits.

ORDER

38For the reasons outlined above, I find that the applicant is not entitled to the treatment plans in dispute, interest or an award. The application is dismissed.