Citation and File Number

Citation: Yang v. Aviva General Insurance Company, 2025 CanLII 119954 Licence Appeal Tribunal File Number: 24-002176/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:

Tianzhen Yang Applicant

and

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Ariel Baek, Paralegal

For the Respondent: Mark Vella, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tianzhen Yang, the applicant, was involved in an automobile accident on December 24, 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 Company, and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 22, 2023 to date and ongoing? ii. Is the applicant entitled to $2,061.29 for physiotherapy services, proposed by Prime + Care Health Centre Inc. in a treatment plan/OCF-18 (“plan”) dated February 1, 2024? iii. Is the applicant entitled to $1,909.50 ($4,204.32 less $2,294.82 approved) for psychological services, proposed by Downsview Healthcare Inc. in a plan dated November 10, 2023? iv. Is the applicant entitled to $1,780.20 ($4,711.51 less $2,931.31 approved) for psychological counselling, proposed by Downsview Healthcare Inc. in a plan dated March 26, 2024? v. Is the applicant entitled to $1,014.16 ($3,697.14 less $2,682.98 approved) for drivers counselling, proposed by Downsview Healthcare Inc. in a plan dated May 2, 2024? vi. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Downsview Healthcare Inc. in a plan dated November 30, 2023? vii. Is the applicant entitled to interest on any overdue payment of benefits? viii. Is the respondent liable to pay an award under section 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant? ix. Are the parties entitled to costs?

3In its written submissions, the respondent alleges the applicant has acted unreasonably and in bad faith. The respondent requested costs in the amount of $1,000.00.

4In his reply submissions, the applicant requested costs in the amount of $2,000.00 and alleges the respondent has acted in a reckless and hostile manner.

5Rule 19.2 of the Rules provides that a party may make a request for costs in writing or orally at a case conference or hearing, at any time before the decision is released. Accordingly, I have added these issues to the list of issues in dispute above.

RESULT

6The applicant is not entitled to a non-earner benefit of $185.00 per week from January 22, 2023 to date and ongoing.

7The applicant is not entitled to the disputed treatment plans.

8As there are no overdue benefit payments, no interest is owing.

9The respondent is not liable to pay an award.

10I find neither party has met the high threshold for ordering costs.

PROCEDURAL ISSUES

The respondent’s submissions are allowed

11I deny the applicant’s request to have the respondent’s submissions struck from the record.

12In his reply submissions, the applicant states the respondent did not comply with the Case Conference and Report Order (“CCRO”) because its submissions are not indexed and tabbed. The applicant argues he has been disadvantaged because he is unable to locate each of the tabbed references and the respondent’s submissions should be struck.

13I find the respondent’s submissions were tabbed and indexed and the respondent would suffer greater prejudice if the submissions were struck.

14For these reasons, I am denying the applicant’s request to have the submissions struck from the record.

ANALYSIS

The applicant is not entitled to a non-earner benefit of $185.00 per week from January 22, 2023 to date and ongoing

15I find the applicant has not met his burden to prove his entitlement to a non-earner benefit.

16Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit (“NEB”) to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post- accident activities.

17The applicant submits he has suffered a complete inability to carry on a normal life and he cannot do some of the activities of his daily living since his accident. The applicant relies on the OCF-3/Disability Certificate, the section 25 psychological report prepared by Dr. Jacqueline Brunshaw, psychologist, and the completed Activities of Daily Living Form.

18The applicant submits his pre-accident activities included exercise for 30 minutes before work, laundry, grocery shopping, driving to work, working, cooking, studying, exercise after work for one hour, reading for 30 minutes, and sleeping for eight hours.

19I find that the Disability Certificate dated March 2, 2023 completed by Dr. Domenic Minella, chiropractor, does not establish that the applicant suffered a complete inability to carry on a normal life as a result of the accident. Part 1 of the form indicates that the applicant was working at the time of the accident. In Part 5 of the form, the applicant’s injuries are listed as sprain/strain of the cervical, lumbar spine, shoulder and thoracic joints and ligaments, post-traumatic headaches, pain, and emotional disturbance. In Part 6 of the form, the applicant’s recovery time was noted to be more than 12 weeks, and that the applicant suffered a complete inability to carry on a normal life.

20The section 25 psychology report dated October 15, 2023 was supervised by Dr. Brunshaw, psychologist, and the interview was completed by Ibrahim Atasevar, psychologist candidate, states the applicant “was off work for several weeks after the accident due to his injuries” and upon his return to work he had difficulty completing his job-related tasks due to pain in his right shoulder, left knee, lower back and neck. The report states the applicant worked modified hours with modified duties and “continues to experience many difficulties which are impairing his overall functioning.” His physical pain is limiting his ability to perform many of his daily activities, including his job and the social activities he previously engaged in. However, this was not corroborated by his employer in his employment file.

21I find the section 25 psychology report is inconsistent with correspondence from the applicant’s employer’s legal counsel dated July 23, 2024 and his employer’s employee relations specialist correspondence dated March 27, 2024. The applicant’s employer stated that he did not lose time at work because of the accident, the applicant did not seek support from the employer’s health services, and he was not working on modified duties or a workplace accommodation.

22I place little weight on the section 25 psychology report because of the inconsistency in the applicant’s self-reported work status. Further, in the Activities of Daily Living Form dated March 29, 2023, the applicant indicates he is continuing with all activities, except keeping his energy up and going to the gym for one hour. In my view, the applicant has not established a complete inability to carry on a normal life as a result of the accident.

23The respondent submits the applicant is able to perform his activities of normal living, including his work, personal care routine and social activities. The respondent relies on the Activities of Daily Living Form, a section 44 physician report prepared by Dr. Greg Gelman, a section 44 psychology report prepared by Dr. Sarah Talebizadeh, psychologist, and an orthopaedic consultation prepared by Dr. Jiun-An Lai, orthopaedic surgeon. These reports find the applicant did not lose time at work, continued to work regular hours, and he is able to perform his activities of normal living.

24I find the applicant has not met his onus and the evidence he relies on has inconsistencies that make it unreliable. Further, the applicant has not demonstrated that he has a complete inability to engage in a normal life because he is performing his job duties, and his Activities of Daily Living Questionnaire indicates that he continues to perform the majority of his pre-accident activities. I prefer the respondent’s evidence because it is consistent with the Activities of Daily Living Form completed by the applicant and the employer’s correspondence. The applicant has not demonstrated that he suffers a complete inability to carry on a normal life or that he is prevented from engaging in substantially all of his normal activities from before the accident as per the test in Heath.

25I find the applicant has not met his onus of establishing entitlement to the non-earner benefit.

26To receive treatment for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

The applicant is not entitled to $2,061.29 for physiotherapy services

27I find on a balance of probabilities the applicant is not entitled to the physiotherapy treatment plan.

28The physiotherapy services treatment plan dated January 30, 2024 was prepared by Dr. Payam Pirnia, chiropractor. The plan intends to address the applicant’s injuries including dislocation, sprain and strain of neck level, thorax, lumbar spine and pelvis, shoulder girdle, myalgia, headache, dizziness, fatigue, sleep disorders, and anxiety. The provider proposed 22 sessions including nine sessions of chiropractic services, nine half hour sessions of active therapy, two sessions of physiotherapy, and reassessment over a six-week period. The goals for this plan are pain reduction, increase in strength and range of motion, return to activities of normal living and pre-accident work activities. The provider notes progress will be evaluated by monitoring the patient and evaluation including routine assessments.

29The applicant submits he is entitled to the physiotherapy services because the respondent’s denial is based on Dr. Gelman’s section 44 insurer’s examination that did not consider the applicant’s family physician records. The applicant relies on the Scarborough Health Network hospital records, the records of Dr. Joseph Wong, physical medicine and rehabilitation specialist, and the records of Dr. Lai, orthopaedic surgeon. However, the applicant has not directed me to any portion of the records that refer the applicant for physiotherapy treatment.

30The applicant argues that the respondent did not produce Dr. Gelman’s handwritten notes or the applicant’s consent form, and this diminishes the credibility of the report.

31The respondent notified the applicant that Dr. Gelman did not make handwritten notes, and it is not a requirement for the doctor to make handwritten notes. As a result, no handwritten notes are available for exchange. In my view, this does not diminish the credibility of the section 44 report.

32The respondent submits the applicant has not met his onus to demonstrate the benefit is reasonable and necessary. The respondent relies on Dr. Gelman’s section 44 assessment.

33I assign greater weight to Dr. Gelman’s section 44 report because it notes the applicant has no objective signs of ongoing musculoskeletal accident-related impairment, the applicant has reached maximum medical improvement, and no further physiotherapy treatment is required.

34In sum, I find that the treatment is not corroborated by contemporaneous medical evidence. Relying on alleged weakness in the respondent’s evidence alone is insufficient to meet the applicant’s burden of demonstrating that the treatment plan is reasonable and necessary.

35I find on a balance of probabilities the applicant is not entitled to the physiotherapy treatment plan.

The applicant is not entitled to the unapproved amounts of $1,909.50 ($4,204.32 less $2,294.82 approved) for psychological services; $1,780.20 ($4,711.51 less $2,931.31 approved) for psychological counselling; and $1,014.16 ($3,697.14 less $2,682.98 approved) for psychological counselling

36I find on a balance of probabilities the applicant has not demonstrated that the unapproved amount for psychological services and the unapproved amount for psychological counselling are reasonable and necessary.

37The applicant submits he is entitled to the unapproved amounts of $1,909.50 and $1,780.20 and $1,014.16 because the respondent erred in the hourly fees for the psychotherapist. The applicant also submits that the November 13, 2023 denial is not compliant with section 38(8) of the Schedule. The applicant relies on the Professional Services Guidelines and the Tribunal’s decision J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT).

38The respondent submits that the applicant has not met his onus to demonstrate entitlement to the unapproved amounts. The respondent states the applicant did not contact the insurer to discuss the rate and the insurer has complied with the requirements of section 38(8). The respondent relies on J.A. v. Aviva General Insurance, 2020 CanLII 12726 (ON LAT).

39I will deal first with the alleged deficient notice.

40Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods or services to not be reasonable and necessary.

[41] If any insurer fails to comply with its obligations under section 38(8), the following consequences set out in section 38(11) of the Schedule are triggered: i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. ii. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

42I find the respondent’s explanation of benefits letter dated November 13, 2023 is compliant with the requirements under section 38(8) of the Schedule as it clearly states the benefits in dispute, it refers to the rate of the psychotherapist and the Professional Services Guideline, and it allows an unsophisticated person to understand the denial and make an informed decision.

43Turning to the unapproved amounts, the applicant submits that in J.V. v. Intact Insurance Company psychotherapists are not covered within the Guideline and therefore the respondent should approve the full amount for the psychotherapist. However, the applicant has not directed me to evidence in support of the higher hourly rate for the provider.

44In the explanation of benefits letter dated November 13, 2023, May 3, 2024, and May 15, 2024, the respondent approved the psychotherapy sessions with an approved rate of $99.75 per hour for the psychotherapist. The respondent states the approved rate is as per “Professional Fee Guideline.”

45The fee for services provided through the Schedule is governed by the Professional Services Guideline. The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits, and case management services. The Guideline does not specify a rate for psychotherapists. The rate provided for unregulated providers is $58.19 per hour. The amounts payable by an insurer related to professional services not covered by the Guideline are to be determined by the parties involved.

46Given the Guideline is silent on the maximum hourly rate for a psychotherapist, it is left to the parties to determine what the acceptable hourly rate would be. However, this does not automatically entitle the applicant to the higher hourly rate. The respondent approved the rate of $99.75 per hour.

47The applicant has not directed me to evidence of the provider’s qualifications or how the proposed rate was established for the psychotherapist. In the email dated March 28, 2024, the applicant replied to the insurer’s request for the psychotherapist’s curriculum vitae only and did not direct to any specialized training to justify a higher rate. In my view, the applicant’s response to a request for information without any supporting rationale for the increased hourly rate does not entitle the applicant to the higher hourly rate.

48I find the applicant has not demonstrated on a balance of probabilities that the unapproved amounts in the treatment plans are reasonable and necessary.

The applicant is not entitled to $2,486.00 for a chronic pain assessment

49I find the applicant has not demonstrated on a balance of probabilities that he is entitled to a chronic pain assessment.

50The purpose of an assessment is to determine whether a condition exists. For an insured, 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.

51The applicant submits the respondent’s section 44 insurer examination report prepared by Dr. Gelman does not consider the applicant’s medical evidence and Dr. Gelman is not qualified to assess the applicant’s treatment plan. The applicant relies on imaging reports, including the cervical spine x-ray dated April 17, 2023 and MRI results dated April 10, 2024.

52The respondent submits that the applicant has not demonstrated a need for a chronic pain assessment and relies on the section 44 insurer’s examination report prepared by Dr. Gelman and Dr. Talebizadeh, dated February 15, 2024.

53The onus is on the applicant to establish he has a condition that warrants further investigation by way of an assessment. The applicant has not directed me to evidence in support of a chronic pain assessment. In the physiatry consultant report dated May 15, 2024, Dr. Wong, physical medicine and rehabilitation specialist, states the applicant has “chronic myofascial strain of the neck and back”. In my view, a chronic pain assessment would provide limited value because Dr. Wong did not note any functional limitations, the applicant declined the recommendation of Tylenol for his pain management, and Dr. Wong makes no recommendation for a chronic pain assessment.

54I find on a balance of probabilities that the applicant is not entitled to a chronic pain assessment.

Interest

55Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no benefits are owing the applicant is not entitled to interest.

Award

56The applicant seeks an award under section 10 of Reg. 664. Under section 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 tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

57The applicant submits the respondent unreasonably withheld or delayed the payment of benefits and the respondent’s behavior was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The applicant has not, however, directed me to evidence of the alleged behaviour. The respondent is silent on the matter of the award.

58I find the applicant has not met the onus to prove, on a balance of probabilities, that the respondent unreasonably withheld or delayed the benefits in dispute.

59I find an award is not appropriate in this case. As I have determined that the applicant is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Therefore, no award is payable.

Costs

60According to Rule 19 of the Tribunal’s Rules, a party may make a request to the Tribunal for costs if it believes that the other party in a proceeding has “acted unreasonably, frivolously, vexatiously, or in bad faith.” Rule 19.5 provides a list of factors the Tribunal shall consider when determining whether to order costs. Such a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing at any time before a decision or order is released. It is the burden of the party that raises a request for costs to support allegations of misconduct.

61Under Rule 19.5, when awarding costs the factors to consider are whether there was a breach of an order, whether or not the behaviour interfered with the Tribunal’s ability to conduct a fair and efficient process, the prejudice to the parties, and the potential impact an order for costs would have on individuals accessing the Tribunal.

62Both parties are seeking costs. The applicant argues that he should be entitled to $2,000.00 due to the respondent’s “continuous false, reckless, hostile allegations” of falsified evidence. The respondent argues he is entitled to $1,000.00 due to the applicant’s representative acting unreasonably and in bad faith.

The applicant is not entitled to costs

63The applicant seeks costs in the amount of $2,000.00 against the respondent in accordance with Rule 19.

64I find the applicant is not entitled to costs against the respondent.

65The applicant submits the respondent has breached the CCRO and the Complete Rules of Professional Conduct of the Law Society of Ontario and made reckless claims of falsifying evidence against the applicant. According to the applicant, this conduct shows that he acted in a careless and hostile manner, was excessive and impudent on several occasions and this shows a personal animosity to the applicant.

66In my view, the Tribunal must consider the totality of a party’s conduct and behaviour in the proceeding and whether it interfered with the Tribunal’s ability to conduct a fair and efficient process. In the circumstances here, not providing a tabbed and indexed submission or repeatedly attempting to verify the authenticity of evidence is not conduct that prevented the Tribunal from conducting a fair and efficient process.

67I find that costs against the respondent for efforts to verify the authenticity of evidence is not, on its own, conduct that would warrant an order for costs. There must be a course of conduct that frustrates the Tribunal’s ability to carry out a fair and efficient hearing.

68In the current proceeding, the applicant has not set out how the Tribunal proceeding was impacted because the respondent made efforts to confirm the authenticity of productions. If anything, it made the respondent’s submissions more accurate, and the outcome is that the applicant failed in his request for accident benefits.

69In short, I am not persuaded of the presence of any behaviour that interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, and there was no prejudice to the applicant. I find the applicant has not established that the respondent’s behaviour was unreasonable, vexatious, frivolous, or bad faith conduct.

70I find the applicant’s request for costs is denied.

The respondent is not entitled to costs

71The respondent seeks costs in the amount of $1,000.00 against the applicant in accordance with Rule 19.

72I find the respondent is not entitled to costs against the applicant.

73The respondent submits the representative of the applicant breached the confidentiality of the case conference and the Complete Paralegal Rules of Conduct of the Law Society of Ontario and knowingly attempted to deceive the Tribunal by offering false evidence and misstating the contents of a document. According to the respondent, this conduct shows that the representative of the applicant acted unreasonably and in bad faith.

74As stated above, the Tribunal must consider the totality of a party’s conduct and behaviour in the proceeding and whether it interfered with the Tribunal’s ability to conduct a fair and efficient process. Ultimately, the applicant’s representative provided the unaltered documents to the respondent, albeit after the respondent raised the matter to the applicant’s employer’s counsel and the applicant’s representative, but it did not prevent the Tribunal from conducting a fair and efficient process.

75I find that costs against the applicant’s representative are not distinguishable from finding costs against the applicant. Although the applicant’s representative ultimately confirmed there was an error by her office and she produced the requested document, on its own, this does not warrant an order for costs against the applicant because it did not frustrate the Tribunal’s ability to carry out a fair and efficient hearing.

76Turning to the matter of the confidential discussions during the case conference. According to the provisions of Rule 14, “settlement discussions in a case conference are confidential and shall not be communicated to the Member that participates in the hearing or otherwise be relied on in a hearing before the Tribunal for any purpose unless the parties consent.”

77I find the applicant referred to a point of clarification regarding a section the Schedule and the respondent has not set out how the Tribunal proceeding was impacted by raising the same point of distinction in his submissions.

78I find the respondents request for costs is denied.

ORDER

79The applicant is not entitled to a non-earner benefit.

80The applicant is not entitled to the treatment plans or the unapproved services in the treatment plans.

81As there are no overdue benefits, the applicant is not entitled to interest.

82The respondent is not liable to pay an award.

83Neither party is entitled to costs.