Huang v. Aviva General Insurance Company, 2025 CanLII 122648

Citation: Huang v. Aviva General Insurance Company, 2025 ONLAT 24-001214/AABS

Licence Appeal Tribunal File Number: 24-001214/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:

Kaixin Huang

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Matthew Owen, Counsel

HEARD: In Writing

OVERVIEW

1Kaixin Huang, the applicant, was involved in an automobile accident on December 13, 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 of Canada, 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 a non-earner benefit of $185.00 per week from January 10, 2023 to ongoing?

ii. Is the applicant entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan dated March 8, 2023?

iii. Is the applicant entitled to $448.80 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated September 11, 2023?

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

3The applicant is not entitled to any of the benefits in dispute, nor an award. The application is dismissed.

ANALYSIS

Is the applicant entitled to a Non-Earner Benefit (‘NEB’)?

Did the respondent issue a compliant denial?

4The applicant is not entitled to a non-earner benefit.

5Section 36(4) states that within 10 business days after the insurer receives the application and completed disability certificate, it shall either (a) pay the specified benefit, (b) give the applicant a notice explaining the medical and any other reasons why it does not believe the applicant is entitled to the specified benefit, and if it requires an examination under s. 44, advise the applicant of the requirement for an examination, or (c) send a request under s. 33. Section 36(6) states that if the insurer fails to comply with the above, it shall pay the specified benefit starting on the day it received the application and completed disability certificate, and ending on the day the insurer gives notice under s. 36(4)(b).

6The applicant claims the insurer has not issued a proper denial to their claim for non-earner benefits. Specifically, the applicant argues they applied for a non-earner benefit on December 13, 2022, but did not receive a complete and compliant denial until August 8, 2023.

7The respondent disagrees, and submits that it issued a compliant denial, along with s.33 requests to the applicant, in writing on December 21, 2022. The applicant claimed they did not receive a copy of this denial.

8The respondent submitted a copy of the letter into evidence, dated December 21, 2022. Furthermore, it also submitted a copy of the email, dated December 21, 2022, where a copy of the denial letter was sent to current applicant’s counsel.

9Having seen copies of both letters in the respondent’s document brief, I find the respondent has issued a compliant denial. The evidence indicates that the December 21, 2022 denial was sent to the applicant’s representative by email the same day – a fact which has not been disputed by applicant’s counsel on reply. Therefore, I do not accept the applicant’s argument that they did not receive the denial letter.

10For this reason, I find the applicant has not met the onus, on a balance of probabilities, to establish he is entitled to a NEB based on the lack of a compliant denial.

Does the applicant have a complete inability to carry on a normal life?

11The applicant does not have a complete inability to carry on a normal life and is not entitled to a NEB.

12Section 12(1) provides that an insurer shall pay an 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) 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, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

13The applicant has submitted an OCF-3 from Chiropractor Dr. Georgina Palantzas, along with psychological reports authored by Psychologist Dr. Mehrdad Pojhan. The applicant claims that since the accident, he is experiencing poor memory, concentration challenges, and anxiety. The applicant claims his cognitive impairments and ongoing physical limitations have resulted in a complete inability for him to lead a normal life.

14The respondent disagrees, arguing that the applicant is leading a normal life, but is also being dishonest. To support its position, it submitted surveillance evidence which it submits shows the applicant was enrolled in a full time PSW program before and after the accident, which involved placements with private businesses where the applicant worked full-time hours. The respondent argues the applicant did not disclose his student activities to the insurer and it was only discovered through surveillance.

15The respondent has submitted surveillance evidence with date and time stamps that I find indicates the applicant has worked in a long-term care facility, providing direct care to persons with disabilities during May and June 2023. The surveillance report indicates that this work involves ongoing physical activity, such as housekeeping, transferring patients to a toilet, or assisting patients with bathing or dressing. The time stamps where the applicant was working as a PSW overlap with the claimed timeframe the applicant was seeking an NEB.

16The respondent also submitted two confirmation of employment letters, which indicate the applicant was busy in two full time student positions from March 28, 2023 to June 16, 2023, where the duties involved assistance with bathing, dressing, housekeeping and engaging in exercise with patients at two long-term care facilities.

17I agree with the respondent. The applicant returned to work after the accident. This work involved physically demanding labour and mentally taxing activity on a full-time basis. He was working during the same period for which he claimed an NEB. Accordingly, on the evidence before me, I have no reason to believe that the applicant sustained an impairment that continuously prevents him from engaging in substantially all of the activities he ordinarily engaged before the accident nor that he has suffered a complete inability to carry on a normal life as a result of the accident.

18For these reasons, I find the applicant has not, on a balance of probabilities, met the onus to establish he is eligible for an NEB.

Is the applicant entitled to chiropractic services?

19The applicant is not entitled to chiropractic benefits, proposed by Total Recovery Rehab Centre in the amount of $4,383.90 in a plan dated March 8, 2023.

20To 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.

21The treatment plan calls for 16 sessions of chiropractic and acupuncture services with a stated goal of pain reduction and increased range of motion, to return to the activities of normal living.

22The applicant claims the treatments are reasonable and necessary to provide pain relief. To support his claim, the applicant relies upon the Clinical Notes and Records of his family physician, Dr. Ken Ng. In the CNR’s, I note that the applicant reports back pain and that he is receiving benefit from physiotherapy.

23The respondent claims the treatments are not necessary. The respondent states that the applicant is being deceptive and exaggerating the nature of his injuries, and that any injuries he did suffer from the accident have already achieved maximal recovery. To support its claim, the respondent relies upon the s.44 report authored July 26, 2023, by General Practitioner Dr. Shafik Dharamshi, which states the applicant has suffered only minor injuries which have already achieved maximal recovery.

24The respondent continues to point to the surveillance and confirmation of employment letters, which indicate the applicant was employed in physically strenuous PSW activities from March 15, 2023 (one week after the OCF-18 was submitted) until at least June 2023.

25Furthermore, the respondent argues that the CNR’s from Dr. Ng, the applicant’s doctor, merely point out the applicant was receiving physiotherapy. They do not contain a recommendation for a new round of physiotherapy or chiropractic treatments.

26I agree with the respondent. There are 17 symptoms and diagnoses listed on the OCF-18 form, but CNR’s from Dr. Ng at the same time report that the applicant is experiencing only “some neck and back pain.” I put weight on the CNRs of the applicant’s family physician who provides contemporaneous evidence of the applicant’s reported complaints. Given the inconsistency between the CNRs and the OCF-18, I put no weight on the OCF-18.

27Since the stated goal of the treatment plan is the return to normal living, I find the applicant has not established that the treatment plan is reasonable and necessary. The applicant has already commenced with a return to normal living, as shown by the evidence of his student enrolment and workplace history in a physically demanding position.

28In summary, I do not find that the treatment plan is supported by medical evidence, nor do I find the stated goal reasonable and necessary.

29For these reasons, I find the applicant has not met his onus, on the balance of probabilities, to establish entitlement to the chiropractic services in dispute.

Is the applicant entitled to the disputed amounts for psychological services?

30The applicant has not met the onus to prove entitlement to the disputed amounts for psychological services.

31According to the applicant, the dispute lies in the length of treatment sessions. The OCF-18 calls for 12 sessions of 75 minutes in length, while the insurer approved 12 sessions of 60 minutes in length.

32The applicant submits that the treatment provider is in the best position to determine the proper length of a treatment session. To support their claim, he is referring to C.M. v. Intact Insurance Company, 2020 CanLII 14419 (ON LAT), where an adjudicator ruled that the treating psychologist is the most qualified person to determine how long each psychological treatment should be.

33The respondent disagrees with the applicant’s characterization of the nature of the dispute, and suggests the dispute is about the appropriate rate for the psychologist hourly rate versus a social worker hourly rate. The respondent has included the Notice Letter, dated September 20, 2023, where it explained to the applicant the nature of the dispute regarding psychologist rates and social worker rates.

34The respondent also points out that the applicant continued to receive ongoing psychological treatments after this particular treatment plan was consumed, so the applicant continued to receive ongoing treatments.

35The applicant has not made any submission regarding the appropriate hourly rate or why he should be entitled to a higher rate, nor have they made a submission regarding the Professional Services Guideline.

36For these reasons, I find the applicant has not met the onus, on a balance of probabilities, to establish that the disputed amounts for psychological services are reasonable and necessary.

Interest

37As no benefits are overdue or delayed, no interest is payable.

Award

38The 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.

39The applicant has not provided a basis for the award. Regardless, I find the insurer has not unreasonably withheld or delayed benefits, and no award is payable.

ORDER

40The application is dismissed.

i. The applicant is not entitled to a Non-Earner Benefit.

ii. The applicant is not entitled to the disputed treatment plans or amounts for psychological services or chiropractic services.

iii. No interest or award are payable.