Lam Ching Yiu v. Aviva General Insurance, 2025 CanLII 122691

Citation: Yiu v. Aviva General Insurance, 2025 ONLAT 23-013951/AABS

Licence Appeal Tribunal File Number: 23-013951/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:

Lam Ching Yiu

Applicant

and

Aviva General Insurance

Respondent

AMENDED DECISION

ADJUDICATOR: Patrick Molloy

APPEARANCES:

For the Applicant: Ryan Olson, Counsel

For the Respondent: Eric Grossman Thulasi Kandiah, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Lam Ching Yiu the applicant, was involved in an automobile accident on April 20, 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, Insurer, 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 $4,389.56 for Physiotherapy Services, proposed by Total Recovery Rehab Centre in a treatment plan dated October 11, 2022?

ii. Is the applicant entitled to $2,200.00 for an Attendant Care Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan date October 24, 2022?

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

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

RESULT

3The applicant is not entitled to physiotherapy services or benefits.

4The applicant is not entitled to an attendant care assessment.

5The applicant is not entitled to an award.

6The applicant is not entitled to interest on any overdue payments.

ANALYSIS

Physiotherapy services

The applicant is not entitled to $4,389.56 for physiotherapy services proposed by Total Recovery Rehab Centre dated October 11, 2022

7To 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.

8When determining whether a treatment plan is reasonable or necessary, A) the treatment goals, as identified must be reasonable. B) The treatment goals are being or will be met to a reasonable degree. C) The overall cost, not just financial also including the investment of time, in achieving the treatment goals are reasonable, taking into consideration both the degree of success and the availability of other treatment plans.

9The applicant submitted treatment plans from Total Recovery Rehab Centre, Mr. Ahmed Afifi, there is little evidence to support the treatment plan with only a general comment in the submissions that the treatment may help with pain and movement. The applicant complains of difficulty sleeping, neck pain and difficulty getting comfortable.

10The respondent’s multidisciplinary examination by Dr. Nikolaos Harmantas (Physician) August 18, 2022, notes that the applicant sustained primarily soft tissue injuries. In a Dr. Harmantas review of Dr. M. Shew’s, (family physician), report from May 26, 2022, found “no acute findings in the cervical Thoracic or lumbar spine”. Dr Shew on two occasions has assessed the applicant with soft tissue injuries with degenerative changes. Dr. Harmantas could not comment on the applicant’s complaints of headaches as it was beyond his scope of practice. There was no referral to a chronic pain specialist documented.

11I find the applicant has not established on a balance of probabilities the treatment plan for physiotherapy services is not reasonable or necessary.

12The applicant has acknowledged to Dr. Hung Tat Lo, (Physiatrist), that the treatment provides only temporary relief “not that helpful” and discontinued the treatment in 2023. The applicant complained of neck pain and hand weakness, the hand injury is a result of a fall September 16, 2023.

Attendant Care Assessment

The applicant is not entitled to an Attendant Care Assessment proposed by Somatic Assessments and Treatment Clinic dated October 24, 2022

13The 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.

14In an interview with Dr. Harmantas, the applicant noted she is unable to drive due to her fear of driving and her sister does her grocery shopping due to her psychological impairment. Dr. Lee, (Psychologist), concluded that the Applicant was independent with performing her home care tasks prior to the subject accident, however, since the accident, she noted that she must now engage in tasks slowly and requires the help from her daughter to complete most activities.

15I find the applicant is not entitled to an Attendant Care Assessment, although the applicant is not driving, or as Dr. Lee concluded, the applicant is unable to work, there is little evidence the applicant is unable to take care of her personal tasks other than those requiring the use of her injured hand, which is not accident related. The applicant has acknowledged that she is capable of performing her personal care needs and tasks, although she is slower than pre-accident. There are no referrals documented for an attendant care assessment.

Interest

16Interest applies on the payment of any overdue benefits pursuant to s.51 of the schedule. Having concluded that no benefits are payable, it follows that no payments are overdue, and no interest is payable.

Award

17The 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. I find the applicant is not entitled to an award as the respondent has not unreasonably withheld or delayed payments.

ORDER

18The applicant is not entitled to the treatment plan for physiotherapy.

19The applicant is not entitled to the attendant care assessment.

20The applicant is not entitled to interest.

21The applicant is not entitled to an award.