Zeng v. Aviva Insurance Canada
Licence Appeal Tribunal File Number: 22-012501/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:
Yuan Ting Zeng
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Raymond Selbie
APPEARANCES:
For the Applicant: Anil Hampole, Counsel
For the Respondent: Yann Grand-Clement, Counsel
HEARD: In Writing
OVERVIEW
1Yuan Ting Zeng, the applicant, was involved in an automobile accident on December 11, 2020, 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 the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties attended a case conference on June 27, 2023, but were unable to resolve the issues in dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $544.44 ($4,069.56 less $3,525.12 approved) for physiotherapy services, proposed by Total Recovery Rehab in a treatment plan/OCF-1 (“plan”) dated August 17, 2021?
ii. Is the applicant entitled to $544.44 ($4,069.56 less $3,525.12 approved) for physiotherapy services, proposed by Total Recovery Rehab in a plan dated October 22, 2021?
iii. Is the applicant entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rehab in a plan dated April 2, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant’s submissions address whether the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule however, that is not in dispute in this hearing and is not being addressed as the applicant was removed from the Minor Injury Guidelines (MIG) by the respondent prior to the hearing on the basis of psychological impairment sustained as a result of the accident.
RESULT
5I find that the applicant is not entitled to the medical benefits described in paragraphs 3(i). and 3(ii)
6I find that the applicant is entitled to the medical benefits described in paragraph 3(iii) together with interest pursuant to s. 51 of the Schedule.
ANALYSIS
Outstanding physiotherapy services proposed by Total Recovery Rehab in a plan dated August 17, 2021, for $544.44
7The applicant submitted an OCF-18 to the respondent dated August 17, 2021, requesting approval for $4,069.56 and the respondent approved $3,525.12 leaving the remaining $544.44 outstanding. Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits beyond the MIG if they can demonstrate with compelling medical evidence if they suffer from psychological impairment or chronic pain with a fundamental impairment that cannot be treated under the MIG. The burden to establish entitlement to coverage beyond the $3,500.00 cap rests with the applicant on the balance of probabilities. In this case, the respondent has accepted that the applicant is removed from the MIG due to meeting the onus on the basis of psychological impairment.
8The applicant bears the burden of proof in establishing entitlement to all benefits under the Schedule and this burden does not shift to the respondent. There must be objective evidence that the treatments are reasonable and necessary as required by Sections 14-15 of the Schedule. The applicant did not supply any evidence in support of this partially approved plan.
9The respondent submits that the lack of any contrary evidence by the applicant, leaves the applicant without anything in support of payment of the balance of this issue.
10Sections 14-15 of the Schedule provides that the insurer shall pay for medical and rehabilitation benefits to or on behalf of the applicant so long as the applicant sustains an impairment as the result of the accident and the expense of the incurred benefit is reasonable and necessary. On this issue, the applicant has provided no evidence or submissions for its position and therefore, I find that the applicant has not demonstrated entitlement to the unapproved portion of the treatment plan.
Outstanding physiotherapy services proposed by Total Recovery Rehab in a plan dated October 22, 2021, for $544.44
11The applicant submitted an OCF-18 to the respondent dated October 22, 2021, requesting approval for $4,069.56 and the respondent approved $3,525.12 leaving the remaining $544.44 outstanding. Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits beyond the MIG if they can demonstrate with compelling medical evidence if they suffer from psychological impairment or chronic pain with a fundamental impairment that cannot be treated under the MIG. The burden to establish entitlement to coverage beyond the $3,500.00 cap rests with the applicant on the balance of probabilities. In this case, the respondent has accepted that the applicant is removed from the MIG due to meeting the onus on the basis of psychological impairment.
12The applicant bears the burden of proof in establishing entitlement to all benefits under the Schedule and this burden does not shift to the respondent. There must be objective evidence that the treatments are reasonable and necessary as required by Sections 14-15 of the Schedule. The applicant did not supply any evidence in support of this partially approved plan.
13The respondent submits that the lack of any contrary evidence by the applicant, leaves the applicant without anything in support of payment of the balance of this issue.
14Sections 14-15 of the Schedule provides that the insurer shall pay for medical and rehabilitation benefits to or on behalf of the applicant so long as the applicant sustains an impairment as the result of the accident and the expense of the incurred benefit is reasonable and necessary. On this issue, the applicant has provided no evidence or submissions for its position and therefore, I find that the applicant has not demonstrated entitlement to the unapproved portion of the treatment plan.
Chiropractic services proposed by Total Recovery Rehab in a plan dated April 2, 2022, for $4,383.90
15The applicant submitted an OCF-18 to the respondent dated April 2, 2022, requesting approval for $4,383.90 for chiropractic services provided by Total Recovery Rehab which the respondent denied in full because the applicant had been declared outside the MIG on August 6, 2021, as the result of a psychological assessment and a chiropractic service is irrelevant to the applicant’s psychological injuries. Pursuant to the OCF-18, the treatment plan requests services relating to the accident physical injuries and recommends ‘rehabilitation sessions including multi-disciplinary sessions---medical intervention, psychological counselling for anxious and emotional issues.
16The applicant argues that Dr. Georgina Palantzas notes that the applicant requires a multi-disciplinary approach because the applicant suffers impairments that cannot be treated within the MIG. The applicant further asserts that the treatment is reasonable and necessary and the refusal of the respondent to approve same demonstrate a breach of good faith and negligence in handling the applicant’s claim.
17The applicant submitted that the CNRs of her family doctor, Dr. Jiun-An Lai, January 6, 2021 and June 8, 2021 recite the physical and psychological difficulties being experienced including the opinion of Dr. Georgia Palantzas at page 8 that the applicant suffers various chronic and persistent injuries sustained in the accident which, in addition to chronic pain include anxiety and attention deficit. Dr. Palantzas indicates that “travel assistance is being added on the treatment plan due to the patient’s inability to drive due to their physical and psychological accident-related injuries” This OCF-18 was included as an exhibit in the respondent’s submissions.
18The respondent submitted that the applicant had been declared outside the MIG as the result of a psychological assessment and therefore, treatment for chiropractic services is irrelevant to the applicant’s psychological injuries. Further the respondent submits that the OCF-18 and the assessment by Dr. Palantzas relating to this issue would financially benefit Total Recovery Rehab Centre and it cannot be considered objective. Further, the respondent relies upon the s. 44 report of Dr. Ming-Wai Tu, MBBS, CCFP, Family Medical Practitioner, dated December 16, 2022, that concludes the treatment is not reasonable or necessary because chiropractic treatment would address physical issues and not psychological. Dr. Tu does note the psychological symptoms being experienced by the applicant but does not include an opinion of whether the plan would address these complaints. Dr. Tu specifically limits the opinion to physical symptoms.
19I find that the applicant has fulfilled the onus of proving on a balance of probabilities that the treatment is reasonable and necessary. I find that the evidence meets these criteria because the applicant has been found by Dr. Palantzas to suffer from physical and psychological injuries that require a multi-disciplinary approach.
Interest
20Considering the treatment plan set forth in 3(iii) is reasonable and necessary, it follows that the applicant is entitled to interest on that plan pursuant to s. 51 of the Schedule.
ORDER
21I find and order that:
i. The applicant is not entitled to the outstanding $544.44 for physiotherapy services, proposed by Total Recovery Rehab in a plan dated August 17, 2021;
ii. The applicant is not entitled to the outstanding $544.44 for physiotherapy services, proposed by Total Recovery Rehab in a plan dated October 22, 2021;
iii. The applicant is entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rebab in a plan dated April 2, 2022, because the applicant has demonstrated that it is reasonable and necessary; and
iv. The applicant is entitled to interest on overdue payment of benefits pursuant to s. 51 of the Schedule.
Released: November 4, 2024
Raymond Selbie
Adjudicator