Xi Jian Zhang v. Aviva General Insurance, 2024 CanLII 121095

Licence Appeal Tribunal

Citation: Zhang v. Aviva General Insurance, 2024 ONLAT 22-014165/AABS Licence Appeal Tribunal File Number: 22-014165/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:

Xi Jian Zhang Applicant

and

Aviva General Insurance Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Ryan Olson, Paralegal

For the Respondent: Brittanny K Tinslay, Counsel

HEARD: In Writing

OVERVIEW

1Xi Jian Zhang, the applicant, was involved in an automobile accident on June 16, 2022, 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 General Insurance, 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. Is the applicant entitled to $4,223.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 submitted October 15, 2022?

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

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

RESULT

3The applicant is not entitled to the treatment plan for chiropractic services dated October 15, 2022.

4The applicant is not entitled to interest or an award.

ANALYSIS

5I find, on a balance of probabilities, that the applicant is not entitled to $4,223.90 for chiropractic services.

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.

7The proposed treatment plan submitted by chiropractor Dr. Palantzas calls for 16 one-hour sessions of manipulation, 16 half-hour sessions of exercise, 16 half-hour sessions of acupuncture, $160.00 for provider travel time, $253.82 for documentation, and $200.00 for completion of the treatment plan, for a total of $4,223.90. The goals are listed as: pain reduction, increase in strength, increased range of motion, minimize compensatory strain, and return to activities of normal living.

8The applicant submits that the clinical notes and records of Dr. Heung Wing Li, family physician, demonstrate persistent neck and back pain and stiffness as well as headaches since the accident. The applicant also relies on the psychological assessment reports of Dr. Mehrdad Pojhan’s dated September 26, 2023, and the s. 44 assessment report of Dr. David Direnfeld dated October 26, 2022 which indicate that the applicant reported considerable improvement of his pain from physical treatment while also noting ongoing shoulder, back, and neck pain.

9The applicant argues that the physician assessment report of general practitioner Dr. Shafik Dharamshi should be given no weight by the Tribunal because even though the applicant reported back and neck pain and Dr. Dharamshi noted a decrease in lumbar flexion, he still concluded that the proposed treatment plan was not reasonable and necessary because the applicant had achieved maximum medical recovery.

10The respondent submits that both Dr. Li and Dr. Dharamashi reported that the applicant had normal ranges of motion, and no medical records other than the treatment plan in dispute notes any neurological complaints or findings. According to the respondent, Dr. Palantzas’s indication that the applicant has decreased ranges of motion, persistent neurological symptoms, and is unable to participate in activities of daily living and housekeeping is inconsistent with the medical records from Dr. Li, the report of Dr. Dharamshi, and the applicant’s self-report to psychologist Dr. Bruce Cook.

11I am not persuaded by the submissions of the applicant. I find that the evidence does not support the need for ongoing facility-based physical treatment, as proposed, for the following reasons.

12Dr. Palantzas does not provide any objective testing outcomes or improvement measures to support the ongoing need for chiropractic treatment. On July 20, 2022, the applicant also reported to Dr. Cook that he is able do most of his pre-accident activities, including vacuuming, sweeping, lifting heavy laundry, cutting the grass, raking leaves, and gardening. This is corroborated by Dr. Dharamashi in his report.

13While I recognize that Dr. Dharamashi indicated that the applicant’s lumbar flexion was slightly decreased to 60 degrees of spinal flexion, all of the applicant’s other lumbar, cervical, and shoulder ranges of motion were normal. Dr. Li also found that the applicant’s neck and back ranges of motion were normal, and on March 11, 2023, Dr. Li noted that the applicant was physically well. I find that this is inconsistent with Dr. Palantzas’s findings.

14The applicant also relies on Dr. Pojhan’s and Dr. Direnfeld’s reports to show that the applicant described considerable improvement in his pain from physical treatment. However, Dr. Direnfeld reported that the applicant’s pain had only marginally improved after four months of physical therapy, which I find supports a finding that the proposed treatment is not reasonable and necessary.

15I accept, and have given weight to, Dr. Dharamashi’s conclusion that the applicant has attained maximal medical recovery from any further facility-based treatment. Dr. Dharamashi recommended that the applicant continue with swimming and participate in a self-directed home exercise program for his residual pain based on his assessment. I find that Dr. Dharamashi’s opinion and recommendations are consistent with the applicant’s treating family physician, Dr. Li.

16For these reasons, I find on a balance of probabilities that the applicant is not entitled to the proposed chiropractic services as they are not reasonable and necessary.

Interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to any benefits, it follows that no payment of benefits went overdue and the applicant is not entitled to interest.

Award

18The 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.

19Having determined that no benefits are payable, it follows that no benefits were unreasonably withheld or delayed, and the applicant is not entitled to an award as a result.

ORDER

20The applicant is not entitled to the treatment plan for chiropractic services dated October 15, 2022.

21The applicant is not entitled to interest or an award.