Licence Appeal Tribunal File Number: 23-001160/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:
Yi Jia Yao
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Timothy Porter
APPEARANCES:
For the Applicant: Aylina Dhanji, Counsel Yu Denise Jiang, Paralegal
For the Respondent: Geoffrey Keating, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yi Jia Yao, the applicant, was involved in an automobile accident on October 27, 2019, 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.
2This hearing was originally scheduled for a hybrid hearing where a videoconference hearing was ordered for a non-earner benefit claim dispute and a written hearing was ordered for six treatment plans, an award and interest. Just prior to the start of the videoconference hearing the parties reached a resolution of the NEB claim. Therefore, the videoconference portion of the hybrid hearing was no longer required.
3For the written portion of this hybrid hearing the applicant withdrew four of the treatment plans in dispute, namely issues #2, 3, 4 and 7 from the Case Conference Report and Order of September 11, 2023.
ISSUES
4The issues in dispute are:
i. Is the applicant entitled to $2,042.03 for physiotherapy services, proposed by Easy Health in a treatment plan/OCF-18 (“plan”) dated October 23, 2021?
ii. Is the applicant entitled to $4,334.50 for physiotherapy services, proposed by Uheal Rehab in a plan dated October 7, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant is not entitled to either physiotherapy services treatment plan.
6The respondent is not liable to pay an award.
7As there are no benefits owing, the applicant is not entitled to interest.
ANALYSIS
The applicant is not entitled to the treatment plans in dispute
8For the following reasons I find that the applicant is not entitled to either physiotherapy services treatment plan.
9To 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.
10The applicant submits that she continues to suffer pain in the back, neck, shoulders, waist, hips and wrists as a result of the subject accident; that the proposed treatments provide therapeutic benefit and that she is responding to treatment and continually improving. The applicant relies on the clinical notes and records (“CNR”) of Dr. Cheng, general practitioner, Dr. Bhatia, psychologist, pre-screening notes; psychological assessment reports by Ms. Szeto, registered social worker supervised by Dr. Naisi, psychologist; the screening assessment and progress report of Dr. McDowell, psychologist, and co-assessor Ms. Fang, registered social worker (“RSW”).
11The respondent submits that the applicant was involved in a very minor collision, that she did not seek medical attention for more than a year after the subject accident, and that the applicant has no objective evidence of pain or unresolved injuries and therefore has not discharged her burden. The respondent relies on the insurer’s examination report by Dr. Fung, general practitioner.
12The biggest issue that arises from submissions is that the applicant waited for over a year to receive any medical attention for accident injuries. This significant delay is not addressed in any way by the applicant and calls into question the veracity of the pain and functional limitation complaints.
13I prefer the evidence of the respondent. The most detailed and comprehensive medical documentation before me is the report by Dr. Fung. I place a high weight on the report by Dr. Fung because he conducted both a physical and neurological exam, reviewed medical documentation from other caregivers and assessors and interviewed the applicant on the accident, her current complaints and her current functionality.
14I assign a diminished weight to assessments, records and reports of physical pain to mental health professionals as these are of little value in demonstrating impairment and entitlement to physical therapies as the practitioner has no objective evidence or testing to assess the validity of the self reports. The Dr. Bhatia’s pre-screening notes of January 2020, the psychological assessment report by Ms. Szeto, R.S.W., and the psychological assessment report by Dr. McDowell, psychologist, and co-assessor Mandy Fang, RSW, were submitted as evidence of the physical pain and limitations reported by the applicant. I assign less weight to the opinions of Dr. Bhatia, Ms. Szeto, Dr. McDowell and Ms. Fang, in relation to whether these treatment plans for physical therapy are reasonable and necessary because recommending physical therapy isn’t within their expertise.
15I find that the applicant’s complaints and goals are not supported by the evidence. The first factor in considering the reasonableness and necessity of a treatment plan are the identified goals of treatment; the applicant maintains that she continues to suffer pain in various areas and that the proposed treatments provide pain relief and support improving functional limitations. However, there is no persuasive or corroborating evidence that the applicant is suffering from pain or functional limitations as a result of the accident. A month past the one-year anniversary of the accident the applicant saw Dr. Cheng, the lone CNR from this visit indicates the applicant was suffering from driving anxiety, poor sleep, headaches and accident flashbacks. The diagnosis is post-traumatic stress disorder. There is absolutely no mention of physical injury or physical impairment of any kind by the applicant in the CNR of Dr. Cheng. The s. 44 insurer’s examination by Dr. Fung opines that the applicant’s minor injuries had fully resolved and that there is no objective evidence of any functional limitation; concluding that the applicant has reached maximal medical recovery.
16I find the objective of pain reduction and improved functional limitation is not reasonable considering the lack of objective evidence in support of the pain or functional limitation. The second factor in considering a treatment plan is how the identified goals would be met to a reasonable degree by the proposed treatment. The applicant has not identified how the goals will be met to a reasonable degree by the outlined treatments. The only reference to a functional physical limitation is found in the OCF-18s of Michael Santhosh, physiotherapist, Hadi Fateh Nemati, physiotherapist and Ahmed Affi, physiotherapist. The Tribunal has held that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. In my view there should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment. I prefer the opinion of Dr. Fung who states that the applicant’s physical injuries had resolved.
17I find that the applicant has not met her onus. The applicant has not submitted evidence nor established that the costs associated with her identified goals are reasonable. The applicant has failed to submit objective evidence of physical limitation or pain and the long delay in seeking medical attention following the collision causes me to question the veracity of the applicant’s complaints.
Interest
18As there are no overdue or withheld payments no interest is due.
Award
19The 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. The applicant has not established that the respondent delayed or withheld any payment or handled the claims of the applicant in any way that would merit an award.
ORDER
20I find that the applicant is not entitled to the physiotherapy services plan dated October 23, 2021, for $2,042.03 nor the physiotherapy services plan for $4,334.50 dated October 7, 2022.
21The respondent is not liable to pay an award.
22As there are no benefits owing, the applicant is not entitled to interest.
Released: November 21, 2024
Timothy Porter Adjudicator