Wu v. Aviva General Insurance, 2025 CanLII 28480

Citation: Wu v. Aviva General Insurance, 2025 ONLAT 23-001988/AABS

Licence Appeal Tribunal File Number: 23-001988/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:

Zi Ran Wu

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Evan Argentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zi Ran Wu, the applicant, was involved in an automobile accident on January 7, 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, 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 March 1, 2023, to date and ongoing? ii. Is the applicant entitled to $1,120.00 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan dated June 8, 2022? iii. Is the applicant entitled to $1,120.00 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan dated September 28, 2022? iv. Is the applicant entitled to $1,120.00 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan dated December 3, 2022? v. Is the applicant entitled to $1,196.80 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated October 14, 2022? vi. Is the applicant entitled to $5,183.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan dated July 10, 2023? vii. Is the applicant entitled to $2,804.10 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated April 17, 2023? viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant? ix. Is the applicant entitled to interest on any overdue payment of benefits?

3In her written submissions, the applicant has withdrawn issues ii, iii, and iv listed above, from the issues in dispute.

RESULT

4The applicant has not proven on a balance of probabilities that she is entitled to a non-earner benefit.

5The applicant has not proven on a balance of probabilities that the treatment plans in question are reasonable and necessary.

6The applicant is not entitled to an award.

7As there are no overdue benefit payments, no interest is owing.

ANALYSIS

Non-Earner Benefit (NEB)

8I find the applicant has not proven on a balance of probabilities that she is entitled to NEBs.

9Section 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.

10The applicant argues that she suffers significant impairments in her activities of daily living, including pain and psychological symptoms that have interfered with her return to pre-accident functioning. The applicant relies on reporting from the OCF-3, two OCF-18s from Dr. Palantzas, chiropractor, and Dr. McDowall, psychologist, and a psychological assessment from Dr. Naisi, psychologist.

11The OCF-3 completed by Mr. Afifi, physiotherapist, on February 12, 2022, indicates that the applicant suffers a complete inability to carry on a normal life due the number of injuries and severity of those injuries. The OCF-3 provides no insight into how Mr. Afifi assessed such a wide range of injuries listed in the OCF-3.

12If find that the two treatment plans from Dr. Palantzas and Dr. McDowall, do not address the applicant’s eligibility for non-earner benefits. Treatment plans on their own are not sufficient evidence to prove an applicant’s claim because additional medical evidence needs to be provided to substantiate entitlement.

13The psychological assessment report by Dr. Naisi completed on September 23, 2022, diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder. I place little weight on this assessment as Dr. Naisi mentions the applicant’s bipolar diagnosis in the assessment but does not acknowledge that the applicant has been receiving psychiatric care from Dr. Muhammad for several years. Nor does Dr. Naisi reference the clinical notes and records (“CNRs”) of Dr. Muhammad in developing his diagnosis. The diagnosis of Dr. Naisi is at odds with the ongoing psychological reporting of the applicant’s treating psychologist Dr. Muhammad, who indicates that the applicant is stable on her current medication.

14The respondent submits that the applicant has not provided compelling medical evidence to prove on a balance of probabilities that the applicant has suffered a complete inability to carry on a normal life. The respondent relies on the CNRs of Dr. Muhammad, psychiatrist, the CNRs of Dr. Thakersee, the applicant’s family doctor, a musculoskeletal examination by Dr. Lee, completed February 28, 2003, and psychiatry examination by Dr. Peterkin, completed February 28. 2023, and an occupational therapy examination by Ms. Sivananthan, completed February 28, 2023.

15I agree with the respondent and find that the CNRs of Dr. Muhammad do not support the applicant’s claim for NEBs. The applicant makes no reporting to Dr. Muhammad about any functional restrictions or limitations. In the CNRs, Dr. Muhammad notes that mood wise, the applicant is doing well, and no major concerns were mentioned.

16I find the CNRs of Dr. Thakersee also do not support the applicant’s claim for NEB. The CNRs note the applicant reported the accident to Dr. Thakersee who noted “no injuries now”. Additionally, Dr. Thakersee notes that the applicant presents as stable on her bipolar medication. There is no reporting of pain, or any increased psychological issues reported to Dr. Thakersee by the applicant. There is no reporting by the applicant about any functional issues, restrictions, or limitations in carrying on a normal life.

17I am persuaded that the musculoskeletal examination by Dr. Lee does not support the applicant’s claim for NEB from a physical perspective. A physical examination was unremarkable, and Dr. Lee concluded that there were no valid indicators to support ongoing accident-related musculoskeletal injury or impairment. During the examination, the applicant reported being independent with all of her self-care activities and was able to do laundry. Dr. Lee was not able to identify any clinical indication that would impose any specific restriction in the applicant performing her normal activities of daily life.

18I find that the psychiatry examination by Dr. Peterkin does not support the applicant’s claim for NEB. Dr. Peterkin found that the applicant did not suffer from a complete inability to carry on a normal life as a direct result of the subject accident. Dr. Peterkin pointed to the applicant being enrolled as a full-time student, and her reporting of studying in a library for 6 hours at a time. Dr. Peterkin also noted that the applicant did not describe any activities of daily living that she has abandoned, so it is the doctor’s opinion that the applicant’s activities of daily living are unchanged. Dr. Peterkin’s clinical opinion was that the applicant suffered no absolute restrictions on psychiatric grounds due to the subject accident.

19I find that the occupational therapy assessment by Ms. Sivananthan does not support the applicant’s claim for NEB. During the assessment the applicant did not report any changes in her personal care, housekeeping, or social activities. The applicant reported she continues to drive to the pharmacy, gym, and local roads. It is not noted if there is any change in these driving patterns after the accident. The applicant declined to engage in any physical testing during the assessment. It was the opinion of Ms. Sivananthan that the applicant does not suffer a complete inability to carry on a normal life.

20I find that the applicant has not proven on a balance of probabilities that she is entitled to NEBs. The applicant has presented no compelling medical evidence to show that she suffers from a complete inability to carry on a normal life. There is no indication in either the CNRs of the applicant’s family doctor or treating psychiatrist that prevented from engaging in her pre-accident activities. Additionally, the respondent has provided evidence from experts that reinforce that conclusion.

21The applicant is not entitled to NEBs.

22To 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.

a) Chiropractic services are not reasonable and necessary.

23I find that the applicant has not proven that the treatment plan for chiropractic services is reasonable and necessary.

24The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, return to activities of daily living, and to promote soft tissue healing.

25The treatment plan includes 16 sessions of manipulation, exercise, acupuncture, travel time, and documentation.

26The applicant argues that she has not achieved her pre-accident state and continues to experience physical pain. The applicant relies on the CNRs of Dr. Thakersee, and Dr. Muhammad, as well as various reports from OCF-18s by Dr. Palantzas, Dr. McDowall, and Dr. Naisi.

27I find that the CNRs of Dr. Thakersee do not support chiropractic services as reasonable and necessary. The CNRs do not note any physical injuries as a result of the accident.

28I find that the CNRs of Dr. Muhammad do not support chiropractic services as reasonable and necessary. The CNRs do not note any physical injuries as a result of the accident.

29I place little weight on the reporting from the various treatment plans. Treatment plans themselves are not sufficient evidence to prove a service is reasonable and necessary. In this instance, the reporting of pain due to the accident is not supported by the CNRs of either of the treating medical professions of the applicant.

30The respondent argues that the applicant has not proven that chiropractic services are reasonable and necessary. The respondent relies on a s. 44 musculoskeletal report by Dr. Lee, completed February 28, 2023.

31I find that the musculoskeletal examination by Dr. Lee does not support the applicant’s position that the chiropractic treatment plan is reasonable and necessary. Dr. Lee’s physical examination was unremarkable, and the doctor’s opinion was that the applicant did not suffer any ongoing accident related musculoskeletal, orthopaedic, or neurological injuries or impairments. It was Dr. Lee’s opinion, that due to his findings, he had no recommendations for any rehabilitative strategies, and that the applicant has reached maximum medical improvement from a musculoskeletal injury perspective. I preferred the examination report by Dr. Lee, as the conclusions he presents are corroborated by the CNRs of Dr. Thakersee, the applicant’s family doctor.

32I find that the applicant has not proven on a balance of probabilities that chiropractic services are reasonable and necessary. The applicant has not established that chiropractic services are reasonable and necessary as a result of the accident.

b) Psychological services are not reasonable and necessary

33I find that the applicant has not proven on a balance of probabilities that the treatment plan for psychological services is reasonable and necessary.

34The goals of the treatment plan are to challenge and reduce negative thought patterns using cognitive restructuring techniques to deal with anxiety and depressive feelings and cognitions. Additionally, a goal is to return to activities of normal living.

35The treatment plan includes 10 therapy sessions, and documentation and support activities.

36The applicant submits that she suffers from psychological impairments as a result of the accident. The applicant relies on the CNRs of Dr. Thakersee, the CNRs of Dr. Muhammad, the pre-screen report by Dr. McDowall, and the psychological assessment report by Dr. Naisi.

37I find that the CNRs of both Dr. Thakersee and Dr. Muhammad do not support that psychological services are reasonable and necessary. Both CNRs report the applicant as suffering from bipolar disorder, but that she is stable on her current medication. Neither of the CNRs show signs of reporting of additional psychological issues after the accident.

38I placed little weight on the psychological assessment report by Dr. Naisi as he mentions the applicant’s bipolar diagnosis in the assessment but does not acknowledge that the applicant has been receiving psychiatric care, by Dr. Muhammad for several years. Nor is there any indication that Dr. Naisi reviewed the CNRs of Dr. Muhammad in developing his diagnosis. The conclusions of Dr. Naisi are strongly contradicted by the ongoing psychological reporting of the applicant’s treating psychiatrist Dr. Muhammad, who does not diagnose the applicant with no other conditions than bipolar and indicates that she is stable on her medication. Additionally, it is contradicted by the CNRs of Dr. Thakersee, that do not note any psychological reporting, beyond the applicant’s ongoing bi-polar disorder.

39I place little weight on the reporting from the various treatment plans. Treatment plans themselves are not sufficient evidence to prove a service is reasonable and necessary. In this instance, the reporting of psychological issues due to the accident is not supported by the CNRs of either of the applicant’s treating medical professionals.

40I find that the applicant has not proven on a balance of probabilities that the treatment plan for psychological services are reasonable and necessary.

c) Psychological services are not reasonable and necessary

41I find that the applicant has not proven on a balance of probabilities that the outstanding balance of the treatment plan for psychological services is reasonable and necessary.

42The Case Conference Report and Order lists this issue as a payment for a treatment plan for psychological services. This should actually be recorded as a partial payment for a psychological treatment plan in the amount of $1,196.80.

43The respondent partially approved the treatment plan submitted by Somatic Assessments and Treatment Clinic for the amount of $2,953.76.

44The outstanding amount of $1,196.80 represents brokerage services in the amount of $598.40 and planning service in the amount of $589.40.

45The respondent submits that the brokerage services are for communication with others, and the planning service is for ongoing evaluation and modification of treatment. The respondent submits that such fees are not reasonable and necessary. The respondent argues that communication between professionals is seldom necessary, and specifically for psychological treatments, is not required. Additionally, the respondent argues that the planning fees are not reasonable and necessary as such fees are already covered in the fee to complete the treatment plan and progress reports are not required as part of the treatment.

46The applicant has not made any submissions on these two fees being reasonable and necessary.

[47] I find that the applicant is not entitled to the outstanding balance for the psychological services treatment plan. In review of the professional services guidelines from the Financial Services Regulatory Authority of Ontario. The guideline states: i. The maximum fees payable for the listed forms include all examinations, assessments and expenses related to professional services (as referred to below) that are involved in such examinations and assessments, and all other activities, tasks and expenses involved in the completion and submission of forms, whether they are made through the Health Claims for Auto Insurance (HCAI) system or otherwise. Automobile insurers are not liable to pay for any expenses related to the listed forms that exceed the maximum fees set out in the Appendix (maximum fee of $200.00).

48The applicant has not met her burden of proof in demonstrating that these additional fees were reasonable and necessary above the Guideline rates.

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, there is no interest owing.

Award

50The 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. As the applicant has not established that any benefits were unreasonably withheld or delayed, there is no award owing.

ORDER

[51] I find that: i. The applicant is not entitled to NEBs. ii. The various treatment plans are not reasonable and necessary. iii. The outstanding balance for psychological services is not reasonable and necessary. iv. No interest or award is owing. v. The application is dismissed.