Citation: Cao v. Aviva Insurance Company of Canada, 2025 ONLAT 23-013422/AABS

Licence Appeal Tribunal File Number: 23-013422/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:

Elaine Cao

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Estella Muyinda

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Justin Chan, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Elaine Cao, the applicant, was involved in an automobile accident on February 25, 2022, 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 Insurance Company of Canada, 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 $4,309.56 for physiotherapy services, proposed by Uheal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated June 27, 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?

4Is the applicant entitled to interest on any overdue payment of benefits?

5The parties advised that the applicant had been removed from the MIG, they had settled Issue 3, and the applicant withdrew Issue 1 as listed in the application. Accordingly, I will not be addressing these issues in my decision.

RESULT

6The applicant is not entitled to $4,309.56 for physiotherapy services, proposed by Uheal Rehab Centre in a plan dated June 27, 2022.

7The respondent is not liable to pay an award under s. 10 of Reg. 664.

8The applicant is not entitled to interest.

9This application is dismissed.

ANALYSIS

10I find that the applicant is not entitled to the treatment plan because she has not met her burden of proving that her claim for physiotherapy treatment was reasonable and necessary.

11To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary because of the accident.

12To 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.

13The applicant is seeking entitlement to a treatment plan for physiotherapy services in the amounts of 4,309.56 dated June 27, 2022.

14The applicant submits that the treatment plan was prepared by Mr. Ahmed Afifi, physiotherapist. The injuries outlined in the treatment plan include, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs. sleep disorder, malaise and fatigue, nightmares, nervousness, anxious [avoidant] personality disorder, state of emotional shock and stress, and low back pain, sprain and strain of lumbar spine.

15Mr. Afifi described the activities that limited the applicant’s ability to function as difficulty sleeping (5 hrs/night, interrupted, nightmares), decreased sitting (1 hr.) tolerance, decreased lift/carry tolerance (10-15 lbs.), decreased driving tolerance, decreased ability to push/pull and bend/twist, decreased ability to participate in physical exercise/social activities, difficulty with attending classes and doing schoolwork.

16The goals of the treatment plan include reducing pain, increase of the applicant’s range of motion and strength and a return to activities of normal living. The progress of the goals is to be evaluated by the neck disability index, pain visual analogue scale, Roland Morris questionnaire and the lower extremity functional Scale. To meet the goals of the proposed physiotherapy treatment Mr. Afifi recommended 66 therapy sessions, for an estimated duration of 8 weeks.

17The applicant relies on the opinion of the following healthcare providers to argue that the treatment plan is reasonable and necessary. The applicant states that in the s.25 psychological assessment report dated July 20, 2022, Dr. Sharleen McDowall, psychologist, opined that the applicant experienced pain in her neck. Similarly, in the progress report dated June 1, 2023, Dr. Bruce Cook, psychologist, opined that the applicant experienced a dull, aching, and constant pain in her neck, upper and lower back.

18Additionally, in a progress report dated December 12, 2023, Ms. Carmen Xiaoquing Guo, psychotherapist, indicated that the applicant experienced continuing physical pain in her body (lower back). In a progress report dated March 27, 2024, Ms. Crystal Ka Wun Ng, physiotherapist, stated that the applicant experienced tightness in her upper back and neck.

19The respondent relies on the s.44 report of Dr. Riaz Moolla, physician, dated September 9, 2022, to state that the applicant displayed a full range of motion and no back pain. The respondent submits that the applicant self reported to Dr. Moolla that she stopped receiving physiotherapy treatment in April 2022. The respondent asserts that the applicant is not entitled to the treatment plan because, between July 12, 2022, to September 19, 2022, the applicant received no physiotherapy treatment. Accordingly, the respondents’ states that the applicant has not proven that the physiotherapy services are reasonable and necessary.

20Additionally, the respondent submits that Dr. Cook, Ms. Guo and Crystal Ng are qualified to speak about the psychological injury of the applicant. However, they were not qualified to assess or speak on the physical impairments of the applicant. I agree with the respondent.

21I am persuaded by the respondent’s submission because the issue before the Tribunal is the applicant’s entitlement to a treatment plan for physiotherapy services not psychological services. Further, I am not persuaded by the applicant’s submissions because she has not provided contemporaneous corroborating evidence of the need for physiotherapy for this period. Furthermore, despite mentioning the applicant’s impairments, there is no recommendation for physiotherapy in that evidence.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

23As there is no benefit owing for the treatment plan, no interest is payable.

Award

24The 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.

25I find that the applicant is not entitled to an award because she has not met her onus on a balance of probabilities.

26The applicant submits that the respondent’s behaviour or conduct unreasonably withheld or delayed payment of the benefits.

27The respondent submits that the applicant is not entitled to an award. The respondent stated that it adjusted the applicant’s claim based upon the medical records that the applicant produced. Further, the respondent asserts that the applicant has not provided any evidence of any unreasonably withheld or delayed payment of benefit.

28The applicant is not entitled to an award because she has not demonstrated that benefits have been unreasonably withheld or delayed.

29Accordingly, I do not find an award is payable.

ORDER

30The applicant is not entitled to $4,309.56 for physiotherapy services, proposed by Uheal Rehab Centre in a plan dated June 27, 2022.

31The respondent is not liable to pay an award under s. 10 of Reg. 664.

32The applicant not entitled to interest.

33This application is dismissed.