Park v. Aviva General Insurance Company, 2025 CanLII 31117

Park v. Aviva General Insurance Company

Citation: Park v. Aviva General Insurance Company, 2025 CanLII 31117 Licence Appeal Tribunal File Number: 23-003644/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:

Yoon Kyung Park

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Christin Carmichael Greb

APPEARANCES:

For the Applicant: Daniella Cohen, Paralegal

For the Respondent: Geoffrey Keating, Counsel

HEARD: By way of written submissions

OVERVIEW

1Yoon Kyung Park, the applicant, was involved in an automobile accident on October 26, 2021, 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

2The issues in dispute are:

i. Is the applicant entitled to $1,520.00 for chiropractic services, proposed by Idealspine Rehabilitation Centre, in a treatment plan/OCF-18 (“plan”) submitted September 15, 2023?

ii. Is the applicant entitled to the assessments proposed by A&B Medical Assessments Inc., as follows:

a. $851.05 ($2,486.00 less $1,634.95 approved) for a psychological assessment, in a plan submitted September 29, 2022; and

b. $2,486.00 for a chronic pain assessment, in a plan submitted February 23, 2023?

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

RESULT

3The applicant is entitled to $1,520.00 for chiropractic services in the treatment plan submitted on September 29, 2022.

4The applicant is not entitled to the outstanding amount of $851.05 for a psychological assessment in the treatment plan submitted September 29, 2022.

5The applicant is entitled to $2,486.00 for a chronic pain assessment in the treatment plan submitted February 23, 2023.

6The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

The applicant is entitled to the treatment plan for chiropractic services

7The applicant seeks entitlement to $1,520.00 for chiropractic services. The applicant submits that the treatment plan is reasonable and necessary. I find the applicant is entitled to this treatment plan.

8To 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.

9The denied treatment plan requested 12 one-hour sessions with the goals of pain reduction, increased strength, increased range of motion, and a return to normal activities.

10The applicant relies on medical evidence in the form of clinical notes and records from Dr. Joo, Family Physician, dated October 27, 2021 to September 19, 2022, who continues to recommend chiropractic treatments. The applicant also relies upon the Tribunal decisions in 17-003735 v. Certas Direct Insurance Company (“17-003735”) and 16-003921 v Certas Home and Auto Insurance Co. (“16-003921”).

11The respondent relies on the IE report of Dr. Levy, Physician, dated November 13, 2023, who concluded that as it had been two years since the accident, further treatment of a passive nature was not medically indicated. The respondent submits that the applicant has failed to prove how any further treatment could be of tangible benefit to the applicant.

12The applicant submitted that she continues to experience unresolved neck, back, arms, right foot, and ankle pain and has not returned to normal activities, as per the goals of the treatment plan, as it was only partially approved, but that she was receiving some benefit following treatment sessions.

13The applicant also submits, relying upon 17-003735 and 16-003921, that pain reduction, even if pain relief is not designed to promote pain recovery or lead to lasting improvement, is an acceptable result of a reasonable and necessary treatment plan.

14While the goals of the treatment plan have been partially met, in that she has some relief following treatments, this relief is short-lived, and she continues to suffer pain from her injuries as a result of the accident. I find her submissions compelling in establishing that the chiropractic services were providing a genuine, albeit brief, benefit to the applicant. She continues to advise her family physician that the treatments offer some relief, but do not provide permanent relief. I am not persuaded by the respondent’s argument that further treatment would not benefit the applicant two-years post-accident. Other than mentioning Dr. Levy’s IE report and its results, the respondent does not provide further evidence that the applicant should have made a full recovery and further treatment would not be beneficial or reasonable and necessary to relieve her pain.

15I find that on the balance of probabilities, the applicant has met the onus for proving the chiropractic services treatment plan is both reasonable and necessary.

The applicant is not entitled to the outstanding amount from the treatment plan for a psychological assessment

16The applicant seeks entitlement to the outstanding amount of $851.05 for a psychological assessment proposed in the treatment plan submitted on September 29, 2022. The applicant submits that the assessment is reasonable and necessary. I find the applicant is not entitled to the outstanding amount from this plan.

17The applicant submitted an OCF-18 for approval in the amount of $2,486.00. The respondent requested a breakdown of what was included in the assessment. Once received, the respondent advised the applicant the hourly rates the respondent was prepared to fund. Subsequent to that, an OCF-21 was submitted for $2,486.00 with a breakdown of the completed assessment, including the following completed by Dr. Julie Sarwan, Psychotherapist: 2.5 hours for the clinical interview, 2 hours of clinical/psychological testing, 2.5 hours of data analysis, and 1 hour for report documentation. As well, the assessment included the following completed by Dr. Mandeep Singh, Psychological Associate: 1 hour for the feedback interview and 1 hour for completion of the treatment plan. The respondent advised that it would only approve $1,634.95 of the total amount based on the breakdown provided by the applicant. As much of the assessment was completed by Dr. Sarwan, the hourly rate was lower for those items than the rate applied to the items completed by Dr. Singh. As such, the approved amount follows the Professional Services Guideline – Superintendent’s Guideline No. 03/14 and the amount paid by the respondent is appropriate.

18The applicant relies upon medical evidence in the form of clinical notes and records of Dr. Sarwan and Dr. Joo. On October 25, 2022, Dr. Sarwan diagnosed the applicant with post-traumatic stress disorder, adjustment disorder, single episode, severe, specific phobia, and situational type for which she recommended various. Dr. Sarwan also noted the applicant’s cognitive impairments that have developed, which have impacted her focus and level of concentration, memory, reasoning, job performance, and relationship with her partner. The applicant has reported to Dr. Joo her feelings of anxiety, fear, and trauma related to being a pedestrian or in a car during appointments on December 21, 2021 and January 12, 2023.

19While the evidence of the applicant may be valid in showing how she continues to suffer from her injuries, the evidence of the respondent, and its reliance upon the Professional Services Guideline, is more convincing.

20I find the applicant is not entitled to the outstanding amount from this plan. While the assessment as a whole was reasonable and necessary, the Schedule and the Professional Services Guideline are both clear in stating that an insurer is not required to pay above a Guideline rate for services.

I find that the applicant has not met the onus for proving that the outstanding amount of the psychological assessment treatment plan is both reasonable and necessary.

The applicant is entitled to the treatment plan for a chronic pain assessment

21The applicant seeks entitlement to $2,486.00 for a chronic pain assessment. The applicant submits that the assessment is reasonable and necessary. I find the applicant is entitled to this treatment plan. The goals of the treatment plan were pain reduction, increase in strength, and to return to the activities of normal living.

22The applicant relies upon the clinical notes and records of Dr. Viet Dao, chronic pain specialist, at Toronto Poly Clinic, who diagnosed the applicant with chronic lower back pain, radiating to the right leg. The applicant also relies on previously mentioned clinical notes and records and mentions of ongoing pain since the time of the accident.

23The respondent submits that no compelling evidence had been provided to substantiate the need for such an assessment as being reasonable and necessary. The respondent relies upon the clinical notes and records of the Get Well Clinic, which it says are inconsistent in mentioning pain in ankles, low back, neck. For instance, one visit will mention low back, while another will mention ankles, neck, and shoulders, while another does not have any complaints of pain mentioned. The respondent also submits that the applicant does not meet the AMA Guides’ criteria for evaluating chronic pain.

24I find the chronic pain assessment is both reasonable and necessary, as I find the applicant continues to suffer pain in various areas from the injuries sustained in the accident. While the respondent relies upon the records of Get Well Clinic, it is evident throughout the applicant’s records that she consistently continues to suffer pain from her injuries. While the applicant does submit that she does receive relief from pain following treatment, that relief is short-lived and returns when she is not receiving treatment. I find it probable that that applicant has chronic pain, and it therefore warrants an investigation.

25I find that on the balance of probabilities, the applicant has met the onus for proving the chronic pain assessment treatment plan is both reasonable and necessary.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest on the outstanding amount for a psychological assessment but is entitled to interest on any overdue payment of benefits in accordance with s.51 for the remaining treatment plans.

ORDER

27I find that:

i. The applicant is entitled to $1,520.00 for chiropractic services in the treatment plan submitted on September 29, 2022.

ii. The applicant is not entitled to the outstanding amount of $851.05 for a psychological assessment in the treatment plan submitted September 29, 2022.

iii. The applicant is entitled to $2,486.00 for a chronic pain assessment in the treatment plan submitted February 23, 2023.

iv. The applicant is not entitled to interest for the outstanding amount of $851.05 for a psychological assessment.

v. The applicant is entitled to interest on any overdue payment of benefits for the remaining treatment plans.