Licence Appeal Tribunal File Number: 21-001105/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:
Yin Ze Li
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Kristofer B. Angle, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Yin Ze Li, the applicant, was involved in an automobile accident on October 26, 2020, 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.
2The parties agreed the Minor Injury Guideline (MIG) is no longer an issue in dispute effective October 2021. The applicant was removed from the MIG on psychological grounds.
3The applicant filed their written hearing submissions one day late. The Respondent took no issue with this.
4The respondent did not file its written hearing submissions on time and filed a Notice of Motion requesting an extension of time to file submissions. The motion was granted on February 20, 2024. The respondent subsequently filed submissions according to the deadline extension. The applicant did not file a reply after the respondent’s submissions were submitted.
ISSUES
5The issues in dispute are:
i. Is the applicant entitled to $1,884.10 for physiotherapy services, proposed by Easy Health Centre in a treatment plan submitted March 19, 2021?
ii. Is the applicant entitled to $1,922.53 for physiotherapy services, proposed by Easy Health Centre in a treatment plan submitted May 3, 2021?
iii. Is the respondent liable to pay an award under s. 10 of O. 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
6The applicant is entitled to the following:
i. $1,884.10 for physiotherapy services proposed by Easy Health Centre in a treatment plan submitted March 19, 2021.
ii. $1,922.53 for physiotherapy services proposed by Easy Health Centre in a treatment plan submitted May 3, 2021.
iii. The applicant is entitled to interest in accordance with s. 51 of the Schedule for the benefits in dispute.
7The applicant is not entitled to an award.
8In response the respondent has asked for costs of $1,000.00. I do not find the respondent has met the high threshold for ordering costs.
PROCEDURAL ISSUES
Withdrawn issues
9On July 22, 2022, the applicant filed a Notice of Motion requesting to convert the proceeding from a video conference to a written hearing. The motion was granted on August 15, 2022, on consent and the applicant advised the parties had resolved and withdrawn the following issues:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to an income replacement benefit of $400.00 per week from November 3, 2020 to date and ongoing?
iii. Is the applicant entitled to $2,200.00 for a cost of exam for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan (OCF-18) submitted February 5, 2021?
The respondent’s request for costs
10In its written hearing submissions, the respondent asked for costs in the amount of $1,000.00.
11Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (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 or order is released. The applicant made no submissions about the request to add costs as an issue in dispute.
12As the respondent requested costs as part of its written hearing submissions and prior to the decision in this matter, I find that the respondent has requested costs in accordance with Rule 19.2 and, therefore, I order the following issue to be added to the issues in dispute:
i. Is the respondent entitled to costs in the amount of $1,000.00 because the applicant has acted unreasonably, frivolously, vexatiously, or in bad faith?
ANALYSIS
Are the treatment plans reasonable and necessary?
13I find the applicant has produced sufficient evidence to demonstrate, on a balance of probabilities, that the proposed treatment plans in dispute are reasonable and necessary.
14To receive payment for a treatment plan 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 the treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
15The physiotherapy treatment plans submitted by Easy Health Centre for $1,884.10 and $1,922.53 are for six weeks each and address the applicant’s injuries including whiplash associated disorder, sprain and strain of thoracic spine, ribs and sternum, lumbar spine, shoulder joint, elbow, hip, injury of muscle and tendon at lower leg, radiculopathy, cervicothoracic, tension headache, post concussion syndrome. The goal for each plan is pain reduction, increase in strength, increased range of motion and return to activities of daily living. The modalities in the treatment plans include physical rehabilitation, massage, active exercise and an elbow brace. The only difference in the two plans is the one additional session for physical rehabilitation, message therapy and range of motion exercise.
16The applicant states he suffered from back and arm pain, numbness of his toes and left foot at times and having a lump on his right side in the mid lower rib area over a period of six weeks since the accident. The applicant states he has mechanical pain and cannot stand due to muscle weakness related to the accident for which he was referred to physiotherapy by his family doctor who also referred him to physiotherapy for frozen shoulder in January 2024.
17The applicant relies on the clinical notes and records (CNRs) of Dr. Li Liu, family physician, the treatment plan and physiotherapist notes prepared by Mr. Sreejith Jayanth, physiotherapist, and the psychological assessment supervised by Dr. Sharleen McDowall, psychologist. The applicant also relies on the ultrasound results for his shoulder and elbow pains.
18The respondent states the applicant suffers from a pre-existing heart condition unrelated to the accident, as well as osteoporosis and chronic right knee pain. The respondent relies on Dr. Liu’s CNRs, MRI results, the ultrasound report, s. 44 insurer’s examinations, and x-ray report.
19I find the CNRs provide supportive evidence, are comprehensive and offer valuable and objective insight into the applicant’s pain and impairments due to the accident. For example, I find on November 9, 2020, December 12, 2020 the applicant consistently complained to the Doctor about lower back and knee pain, left elbow pain, right shoulder pain, numbness of the toes, and muscle weakness after the accident. He also complained of numbness in his toes and the doctor noted “mechanical back and arm after MVA”. The applicant started physiotherapy at this time. Dr. Liu noted on January 22, 2021, the applicant still had “left lower back stiffness but pain is almost gone” which I find supports his position that the treatment plan is reasonable and necessary because of the consistent and ongoing complaints and also because Dr. Liu also prescribed physiotherapy on May 14, 2021, September 7, 2021, and December 7, 2021.
20The psychological assessment report dated July 18, 2021, overseen by Dr. McDowall stated the applicant’s physical injuries included “pain in his waist and back, along with loss of strength and numbness on his right hand, legs, and left elbow”. The applicant reported that his physiotherapy “had only been slightly helpful in alleviating the pain”. I find Dr. McDowall’s report is consistent with Dr. Liu’s CNRS however, it provides limited usefulness with regards to the applicant’s physical pain and an assessment of the applicant’s physical impairments are outside of her scope of practice.
21The physiotherapy notes prepared by Mr. Jayanth dated November 9, 2020, state the applicant complained of balance issues, sprain and strain, left shoulder strain, left hip, bilateral knees, and left elbow impairments. Mr. Jayanth noted six to eight weeks of physiotherapy and two visits per week. On December 28, 2020, after six weeks of treatment, Mr. Jayanth noted the applicant’s elbow pain and hip were “better than before” however there was pain on the left side lower back which remained. I find Mr. Jayanth’s report is consistent with Dr. Liu’s observations of the applicant’s lower left back pain, and stiffness of the left arm.
22The respondent relies on the s. 44 insurer’s examination by Dr. Pankaj Bansal, physician, report dated April 8, 2021. Dr. Bansal’s paper review included the treatment plan in the amount of $1,884.04 and other documentation including Dr. Liu’s CNR, and Mr. Jayanth’s notes. Dr. Bansal noted the applicant had been assessed in-person previously in a report dated January 26, 2021, with an addendum on March 26, 2021. Dr. Bansal noted full range of motion in the spine, shoulders, elbow and wrist and lower extremities and stated, “there would be no reason from a musculoskeletal injury perspective why (the applicant) would have a physical impairment in relation to the MVA.”
23I find Dr. Bansal’s reports to be thorough because they conducted an in-person assessment as well as a paper-review of one of the treatment plans. While Dr. Bansal’s report noted the applicant “sustained uncomplicated self resolving soft tissue type injuries” he also notes the applicant “stated that therapy provides him with two to three days of relief regarding his lower back pain.” I afford greater weight to Dr. Liu’s CNRs during this time that noted on May 14, 2021, the applicant was suffering left arm pain since the accident with a prescription provided for an elbow brace and noted on August 13, 2021, the applicant suffered lower back pain, left toe pain and muscle weakness. On September 7, 2021, Dr. Liu also prescribed physiotherapy treatment for mechanical back, left elbow, and left foot pain.
24I find the ultrasound of the elbow, coupled with the note from the family doctor of the prolonged issue confirm the applicant’s ongoing pain and complication from the accident. The MRI report dated December 30, 2021 noted “minor osteoarthritis without spinal stenosis or foraminal stenosis” while the left knee and left elbow x-ray and ultrasound dated October 19, 2022, noted no fracture, dislocation, or tears. I find the applicant’s complaints have been consistent and focussed largely on the same impairments since the accident and the treatment plans would address the applicant’s ongoing pain.
25I find, on a balance of probabilities, that the applicant has established that the proposed physiotherapy services are reasonable and necessary. I find the charges listed in the treatment plans are reasonable and necessary to address the applicant’s mechanical pain, back pain, arm and elbow pain. I also note the respondent did not take issue with the line items and the charges are not unreasonable. I find the applicant has met the onus of establishing his entitlement to the physiotherapy treatment plans.
26I find the applicant has satisfied the onus to demonstrate that the plans are reasonable and necessary to treat his specific accident-related physical impairments, which appear to be primarily pain issues. It is well settled that pain management is a legitimate goal for treatment and I find the proposed treatment is sufficient with respect to pain management beyond what the applicant could achieve through in-home physical exercise and self guided care including stretches as it relates to his injuries. The applicant remains independent with his activities of daily living and self care, and I am persuaded that further treatment is reasonable and necessary.
Collateral benefits
27Section 47(2) of the Schedule states: Payment of a medical, rehabilitation or attendant care benefit or a benefit under Part IV is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.
28In the Case Conference Report and Order dated July 22, 2021, the applicant agreed to provide the respondent with
i. Confirmation from the employer, D&J Manufacturing, as to whether any benefits policy is available to the claimant through his employer.
29The applicant provided the respondent with a copy of the request letter dated February 17, 2021. The applicant has not provided confirmation of collateral benefits. It remains undetermined what collateral benefits the applicant may have access to.
30Pursuant to s. 47(2) any portion of entitlement is subject to reasonably available collateral benefits through the employer’s benefits policy, if applicable.
Interest
31The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
32The applicant seeks an award under section 10 of Regulation 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.
33I find an award is not appropriate. The onus is on the applicant to show the denial was unreasonable, which has not been demonstrated in this case because no particulars were provided in the applicant’s submissions.
The respondent’s request for costs is denied
34Turning to the costs request, I find the respondent is not entitled to costs in this matter.
35Rule 19.1 of the Rules states that the Tribunal may award costs when “another party 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.
36While the respondent requested $1,000.00 in costs, the respondent did not make any direct submissions in support of its costs request. As such, I find the respondent has not met its onus related to costs.
ORDER
37The applicant has demonstrated, on a balance of probabilities, subject to final confirmation that the benefits are not available under a collateral plan, he is entitled to:
i. $1,884.10 for physiotherapy services proposed by Easy Health Centre in a treatment plan submitted March 19, 2021.
ii. $1,922.53 for physiotherapy services proposed by Easy Health Centre in a treatment plan submitted May 3, 2021.
iii. The applicant is entitled to interest in accordance with s. 51 of the Schedule for the physiotherapy treatment plans.
38The applicant is not entitled to a s. 10 award.
39The respondent is not entitled to costs.
Released: March 31, 2025
Aric Bhargava
Adjudicator