Chen v. Aviva Insurance Company of Canada, 2025 CanLII 102214

Citation: Chen v. Aviva Insurance Company of Canada, 2025 ONLAT 23-010700/AABS

Licence Appeal Tribunal File Number: 23-010700/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:

Melody Yi-An Chen

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Steve Clarke

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Christopher Lupis, Counsel

HEARD:

In Writing

OVERVIEW

1Melody Yi-An Chen, the applicant, was involved in an automobile accident on April 23, 2021, 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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2A case conference was held on March 15, 2024, and the matter was set down for a written hearing.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $3,989.56 for physiotherapy services proposed by Total Recovery Rehab Centre in an OCF-18/treatment plan (“plan”) submitted May 11, 2022?

ii. Is the applicant entitled to physiotherapy services proposed by Easy Health Centre as follows:

1. $2,945.80 in a plan submitted October 11, 2022; and

2. $1,884.04 in a plan submitted March 1, 2023?

iii. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Somatic Assessments, in a plan submitted January 25, 2022?

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?

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

RESULT

4The applicant is not entitled to the treatment plans in dispute.

5The applicant is not entitled to interest.

6The respondent is not liable to pay a s. 10 award.

ANALYSIS

Is the applicant entitled to the treatment plan for $3,989.56 for physiotherapy services submitted May 11, 2022?

7I find, on a balance of probabilities, that that applicant is not entitled to the treatment plan for physiotherapy, dated May 11, 2022.

8To 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.

9The treatment plan dated May 11, 2022, proposes 8 weeks of physiotherapy, with the goal of pain reduction and increased range of motion. The plan was recommended by Ahmed Afifi, physiotherapist.

10The applicant submits that the treatment plan is reasonable and necessary because the applicant had chronic neck and back pain as a result of the accident and sought treatment for the pain. She relies on the clinical notes and records of Dr. Kris Cheng, family physician. She also references the notes of Dr. Cook, psychologist. Further, the applicant submits that she reported neck and back pain to Dr. Chris Aldridge, GP, the s. 44 insurer examination (IE) assessor on May 19, 2022.

11The respondent submits that the treatment plan is not reasonable and necessary. It relies on the IE report of Dr. Aldridge.

12The applicant maintains that that she felt “immediate pain” and that “following the accident, she visited Birchwood Walk-in Clinic to consult with Dr. Cheng”. However, the accident occurred on April 23, 2021 and the pain referenced in the CNRs of Dr. Cheng, reflect a date of October 27, 2022, approximately one and a half years after the subject accident. Additionally, although Dr. Cheng referenced pain, there was no recommendation for physical treatment. I note that pain was referenced during a psychological assessment, with Dr. Cook, on June 11, 2021 however, the applicant did not seek physiotherapy treatment until May and September of 2022, over a year post-accident. As the accident occurred in April, 2021, I am not directed to any contemporaneous medical evidence to support that the applicant was experiencing accident-related pain.

13Further, I am not pointed to any corroborating medical evidence to support the claim for this treatment plan.

14I have reviewed the CNRs of Dr. Cheng. While they reference the applicant’s accident-related pain, Dr. Cheng prescribes medication for insomnia and panic attacks but does not recommend physiotherapy for her pain.

15I have also reviewed Dr. Cook’s report and note that Dr. Cook does not recommend physiotherapy. Further, Dr. Cook is a psychologist and this is outside of his scope of practice to make recommendations.

16It is well established that a treatment plan on its own is not sufficient to establish that it is reasonable and necessary. There must be corroborating contemporaneous medical evidence. The records I am pointed to, of Dr. Cheng, are not contemporaneous, as they are dated approximately a year and a half after the applicant’s accident. The applicant also relies on Dr. Cook’s report however, Dr. Cook is a psychologist and, further, he does not recommend physiotherapy. As well, the applicant references a report, from Dr. Aldridge (s.44 assessor), however, this report maintains that the applicant had attained maximum medical recovery. I am not persuaded by the evidence that the proposed treatment plan is reasonable and necessary.

17I find, on a balance of probabilities, that the applicant is not entitled to this treatment plan.

Is the applicant entitled to the treatment plan for $2,945.80 for physiotherapy, submitted October 11, 2022?

18I find, on a balance of probabilities, that that applicant is not entitled to the treatment plan for physiotherapy, dated October 11, 2022.

19The applicant submits that the goals of the treatment plan for physiotherapy includes: pain reduction, increased range of motion and a return to activities of normal living.

20The applicant submits that the OCF-18 is reasonable and necessary because the applicant had chronic neck and back pain, as a result of the accident, and sought treatment for the pain and further, that the medical documentation from various medical practitioners and assessors, visited by the applicant, makes clear that the applicant continues to suffer from pain symptoms related to the accident.

21The respondent submits that the applicant has not provided any clinical notes and records from her family doctor that speak to the efficacy of past physiotherapy treatment or any that recommend physiotherapy treatment at all.

22The applicant reported pain to Dr. Cook, during a psychological assessment on June 11, 2021, but appears to not have sought physiotherapy for pain relief until May 11, 2022. The applicant submits that Dr. Cook provided a diagnosis of Adjustment Disorder mixed with Anxiety and Depressed Mood, but I find that there was no reference to the need for physiotherapy. As noted above, Dr. Cook is a psychologist, and not a medical practitioner, so it is beyond Dr. Cook’s scope of practice to recommend physical treatment.

23With respect to the goal of increasing range of motion, I agree with respondent that maximum recovery had been achieved. The CNRs from October 2022, by Dr. Cheng, the applicant’s family doctor, noted that the applicant had full range of motion in her cervical spine that is nontender throughout. As well, Dr. Aldridge stated that he saw no objective musculoskeletal findings attributable to the accident, that the applicant had sustained uncomplicated soft-tissue sprains and strains, and that the applicant had obtained maximal medical recovery.

24Further, I am not pointed to any recommendation by Dr. Cheng for physiotherapy or other corroborating medical evidence in support of the physiotherapy treatment plan.

25I find, on a balance of probabilities, that the applicant is not entitled to this treatment plan.

Is the applicant entitled to the treatment plan for $1,884.04 for physiotherapy, submitted March 1, 2023?

26Of note: The applicant cites in her submissions that $2,945.80 is the value of this treatment plan however, the OCF-18, the LAT application, and the Case conference Report and Order specify a value of $1,884.04.

27I find, on a balance of probabilities, that the applicant is not entitled the treatment plan for physiotherapy dated March 1, 2023.

28The applicant submits that the medical documentation from various medical practitioners and assessors, visited by the applicant, makes clear that the applicant continues to suffer from pain symptoms related to the accident.

29The applicant further submits that this treatment plan is necessary to achieve goals that include pain reduction, increased range of motion, an increase in strength and a return to activities of daily living and pre-accident work activities.

30The respondent submits that the applicant has achieved maximum medical recovery and refers to s.44 assessor, Dr. Aldridge, who after submitting the applicant to physical tests, found that the applicant has attained maximal medical improvement, from a musculoskeletal perspective.

31I put weight on the CNRs of Dr. Cheng, as the applicant’s family doctor, who, as noted above, indicated that the applicant had full range of motion of her cervical spine that was non-tender throughout. As also noted above, Dr. Cheng does not recommend physiotherapy. I also put weight on the report of Dr. Aldridge, s.44 assessor, who concluded that the applicant had reached maximum recovery and noted that the applicant was taking part in activities of daily living, including snowboarding.

32I have not been pointed to any corroborating contemporaneous medical evidence to support this treatment plan. I point to the CNRs of Dr. Cheng, the family doctor, which were dated October 27, 2023, 8 months after the date of the treatment plan, and, as noted, there was no recommendation for physiotherapy. I find that the applicant has not met her onus.

33I find, on a balance of probabilities, the applicant is not entitled to this treatment plan.

Is the applicant entitled to $2,200.00 for an attendant care assessment proposed by Somatic Assessments in a plan submitted January 25, 2022?

34I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan for an attendant care assessment, dated January 25, 2022.

35The purpose of an assessment is to determine whether a condition exists. For an insured person, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

36The applicant submits that the consistency and severity of her physical limitations warrants an attendant care assessment to determine whether she requires attendant care services.

37The respondent counters that the applicant’s objective medical evidence does not point to grounds supporting that it is reasonable and necessary to explore whether she may require attendant care, as a result of the accident. The respondent further submits that the assessments done by Dr. Aldridge and Dr. Cook support that she remains independent with her activities of daily living.

38I agree with the respondent that the applicant’s records indicate that she takes part in, and is independent in, her activities of daily living. The report submitted by Dr. Cook indicated that the applicant is independent with self-care, housekeeping, driving, working. Further, the report of Dr. Aldridge corroborates this and added that the applicant participates in recreational activities such as snowboarding.

39I am not pointed to evidence that indicates that the applicant has attendant care needs that warrant further investigation. Based on the evidence before me, I find the applicant has a continued ability to independently take part in her activities of daily living.

40I find, on a balance of probabilities, the applicant is not entitled to this treatment plan.

Interest

41As there are no overdue payments, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

Award

42As there are no benefits unreasonably withheld or delayed, the applicant is not entitled to a s. 10 award.

ORDER

43I find that:

i. I find, on a balance of probabilities, that the applicant is not entitled to these treatment plans.

ii. The applicant is not entitled to interest.

iii. The applicant is not entitled to an award under s. 10.

iv. This application is dismissed.