Zhang v. Aviva Insurance Company of Canada, 2025 CanLII 42720

Citation: Zhang v. Aviva Insurance Company of Canada, 2025 ONLAT 23-010512/AABS

Licence Appeal Tribunal File Number: 23-010512/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:

Da Qian Zhang Applicant

and

Aviva Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Jessica Bacopulos, Counsel

HEARD: By way of written submission

OVERVIEW

1Da Qian Zhang, the applicant, was involved in an automobile accident on November 14, 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 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 February 14, 2022, to November 12, 2023?

ii. Is the applicant entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab, in a treatment plan/OCF-18 (“plan”) submitted on February 25, 2022?

iii. Is the applicant entitled to $1,207.70 ($3,701.88 less $2,494.18 approved) for psychological services, proposed by Somatic Assessments, in a plan dated May 4, 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 a non-earner benefit of $185.00 per week from February 14, 2022, to November 12, 2023.

4The applicant is entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab, in a plan submitted on February 25, 2022.

5The applicant is not entitled to $1,207.70 ($3,701.88 less $2,494.18 approved) for psychological services, proposed by Somatic Assessments, in a plan dated May 4, 2023.

6The respondent is not liable to pay an award under s. 10 of Reg. 664.

7The applicant is entitled to interest on any overdue payment of benefits.

ANALYSIS

Non-Earner Benefit (“NEB”)

8I find the applicant is not entitled to NEB for the following reasons.

9Section 12(1) of the Schedule 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.”

10The test for an NEB is set out in the Court of Appeal decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.

11I find that the 104-week period for NEB eligibility ends on November 12, 2023.

12The applicant submits that the entitlement to NEB has been proven with the submission of a Disability Certificate (OCF-3) and numerous medical records. The applicant relies on the clinical notes dated November 20, 2021 from Dr. Heung Wing Li, general physician, which indicates the applicant suffers from physical pain, limitations, and psychological sequelae. The OCF-3 dated November 26, 2021, completed by Dr. Georgia Palantzas, chiropractor, listed a complete inability to carry on a normal life and a substantial inability to perform housekeeping and home maintenance. The treatment plan completed by Dr. Palantzas on January 19, 2022, at Part 8 indicates the applicant has limited ability to function and is unable to participate in full social activities and housekeeping duties. I note that the specific activities were not identified in the OCF-3. Further, the applicant relies on the treatment plan completed by Mr. Ahmed Afifi, physiotherapist, on February 24, 2022, which listed low energy with reduced endurance, difficulty with housekeeping and physical limitations. The applicant submits that he had no pre-existing health conditions and before the accident he was active and healthy.

13The respondent submits that the applicant has not led evidence of the applicant’s pre-accident activities or demonstrated the extent to which the applicant was prevented from engaging in those activities. Further, the respondent relies on the opinions as contained in the multidisciplinary assessment report dated February 10, 2022, which concludes the applicant did not suffer a complete inability to carry on a normal life as a result of and within 104-weeks after the accident. The respondent also relies on the in-home assessment report of Ronald Findlay, occupational therapist, which concluded the applicant has sufficient tolerances, strength and range of motion to independently engage in his pre-accident functional activity measures. The respondent submits that Dr. Michael Fung, general practitioner, concluded that the applicant continues to be independent with his activities of daily living. Dr. Arpita Biswas, psychologist, reported that the applicant is able to complete all the tasks related to self-care, and acknowledged the applicant’s reporting of limitations in doing heavy chores like cleaning, and lacking some motivation in doing social recreational activities.

14I find that I am unable to make a meaningful comparison of the applicant’s pre- and post-accident activities because I have not been directed to evidence of the applicant’s life circumstances over a reasonable period of time before and after the accident. The clinical notes of Dr. Li are for a single medical visit one week after the accident and confirm the physical injuries reported by the applicant. The OCF-3 was completed two weeks after the accident, and I note that they provide very limited details about the applicant’s pre or post accident activities.

15I acknowledge that in the treatment plans, Dr. Palantzas and Mr. Afifi comment on the applicant’s physical and psychological limitations after the accident. However, I find that it is not sufficient to list the applicant’s injuries and simply state that the applicant has difficulty engaging in pre-accident activities without identifying what the pre-accident activities were, how often the applicant engaged with the activity and in what way are his engagements limited.

16The most detailed information regarding the applicant’s pre and post accident activities that I have been directed to is contained in the respondent’s multidisciplinary assessment report dated February 10, 2022. The vast majority of the information in each of the three reports is focused on the applicant’s life post accident. The applicant reported that the housekeeping duties continue to be shared with his friend with reliance on his friend to do more post accident than before the accident, and post accident he lacks the tolerance to play videogames for as long as he did before the accident. The applicant also reported that he cooks less and eats frozen or fast food. Furthermore, in the psychological assessment report of Mr. Bruce Cook, clinical psychologist, dated March 21, 2022, the applicant reported being unable to go jogging or play basketball, however no further information regarding these activities pre or post accident was provided. I find that this is not enough detail upon which to make a meaningful comparison between the applicant’s pre-accident and his post-accident life circumstances, to satisfy the requirements of Heath.

17Therefore, I find the applicant has not proven on a balance of probabilities that he suffers a complete inability to carry on a normal life as a result of and within 104-weeks after the accident.

18To 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.

Physiotherapy

19I find the applicant is entitled to $4,069.56 for physiotherapy services for the reasons that follow.

20I have reviewed the goals of the treatment plan completed by Ahmed Afifi, physiotherapist, which identifies the goals as pain reduction, increased range of motion, increased strength, and returning to activities of normal living. The course of treatment proposed includes a reassessment, 16 sessions each of physiotherapy, active therapy, massage therapy, travel assistance, and a progress report. Mr. Afifi reported that the applicant was making good progress with improvements of: Neck Disability Index (NDI): 68% from 82%, Roland-Morris Questionnaire (RMQ): 16/24 from 22/24, and Patellar Visual Analogue Scale (P VAS): Right (R) Knee: 6/10 from 8/10. The treatment plan identifies multiple injuries, psychological dysfunctions, and neurological symptoms as barriers to recovery.

21The applicant submits that Dr. Li, Dr. Cook, Dr. Palantzas and Dr. Afifi agree and document that the applicant continues to suffer physically from the accident. The applicant submits that the doctors agree that the treatment plan goals are reasonable, and the previous treatment was beneficial in improving his functional limitations or significantly assisting with pain reduction.

22The respondent submits that the denial of the treatment plan was properly based on the opinion of the Insurer’s Examination assessor, Dr. Michael Fung. Further, the respondent submits that the applicant has not led evidence that the goals of the treatment plan were being met and there is a lack of evidence that the previous treatment plan for similar modalities produced significant or lasting results and therefore the cost of the treatment plan is not reasonable.

23The Insurer’s Examination general practitioner paper review report conducted by Dr. Michael Fung, dated March 23, 2022, was for the stated purpose of determining if the disputed treatment plan is reasonable and necessary. Dr. Fung opines that the applicant has reached maximum medical improvement of his physical injuries and that the treatment plan for passive treatment modalities is not reasonable or necessary for soft tissue injuries and patellofemoral syndrome greater than 3 months post injury. Further, the applicant should be instructed on a home-based exercise program with 1-2 sessions with a physiotherapist. I note that Dr. Fung, a general practitioner who is qualified to opine on the applicant’s overall treatment needs, restricted his conclusions to a physical perspective. Further, I note that Dr. Fung reviewed the psychological paper review report of Dr. Biswas, psychologist, dated March 16, 2022, who recommended the applicant be removed from the Minor Injury Guideline (“MIG”) based on his psychological condition and recommended a full psychological assessment, including psychometric testing, for the purpose of treatment. However, Dr. Fung did not have the assessment report of Dr. Cook to review and consider. I find Dr. Fung’s conclusions are not persuasive because he bases his opinion on one consideration, that being the amount of time that has lapsed since the accident.

24Dr. Cook, clinical psychologist, completed a psychological assessment for the purpose of treatment and prepared a report dated March 21, 2022. This report included the results of the psychometric testing and in-depth clinical interview. Dr. Cook provided a psychological diagnosis and treatment recommendations. The psychological treatment plan was subsequently approved. However, Dr. Cook further opined that the applicant’s pain symptoms must be addressed in tandem with his psychological symptoms. I am persuaded by Dr. Cook’s opinion because he takes into consideration the applicant’s overall condition and treatment for recovery. I acknowledge that Dr. Cook did not review the disputed treatment plan or provide a specific opinion on same. However, I find Dr. Cook’s opinion is corroborating medical evidence that supports that continued physiotherapy treatment is reasonable and necessary.

25I find the goals of pain reduction, increased range of motion, increased strength, and returning to activities of normal living are reasonable.

26I also find that the evaluation method as stated in the treatment plan as being subjective/objective assessment, pain scale and other appropriate outcome measures, and as demonstrated by the evaluated progress from the previous treatment plan, is reasonable.

27In determining if the overall cost of achieving the goals is reasonable, I have considered the improvements from the previous treatment plan, as reported by Mr. Afifi: Neck Disability Index (NDI): 68% from 82%, Roland-Morris Questionnaire (RMQ): 16/24 from 22/24, and Patellar Visual Analogue Scale (P VAS): Right (R) Knee: 6/10 from 8/10, which Mr. Afifi described as good progress. I find the applicant’s progress demonstrates the treatment goals are being met and that the overall costs of achieving them are reasonable.

28I find the applicant has proven on a balance of probabilities that the treatment plan for physiotherapy in the amount of $4,069.56, is reasonable and necessary.

Psychological Services

29For the reasons that follow, I find the applicant is not entitled to $1,207.70, the denied amount of the disputed psychological treatment plan.

30The applicant submits that the treatment plan should be paid in full. The applicant submits that a previous, identical treatment plan was fully approved by the respondent and that the denial is improper because no reason was given for the denial of the remaining amount of the treatment plan in dispute.

31The respondent submits that the treatment plan was properly approved for 14 sessions at 1.5 hours each of psychotherapy to be provided by Christy Huang, M. Psy., at an hourly rate of $99.75, which is appropriate for her qualifications under the Professional Services Guidelines. Further, the applicant has not proven that Ms. Huang is a psychologist or psychological associate who would be entitled to the submitted rate of $149.61 per hour.

32The fee for services provided through the Schedule is governed by the Professional Services Guideline issued as Superintendent’s Guideline No. 03/14 (the “Guideline”). The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour.

33The Guideline does not specify a rate for psychotherapists. Given the Guideline is silent on the maximum hourly rate for a psychotherapist, it is left to the parties to determine what the acceptable hourly rate would be. The applicant must prove that the higher hourly rate is reasonable on a balance of probabilities.

34I disagree with the applicant that the treatment plan in dispute is identical to the previous, fully approved treatment plan. The treatment plan at hand clearly lists Ms. Huang as the service provider. Meanwhile, the previous treatment plan lists Dr. Cook as the treatment provider.

35I find the applicant has not led evidence that supports Ms. Huang, M.Psy. is a psychologist or psychological associate, which would thereby qualify for the rate of $149.61 per hour.

36I note that neither party has led evidence of the explanation of benefits for this partially approved treatment plan. I find that the applicant has not proven the denial was improper.

37I find the applicant has not proven on a balance of probabilities that he is entitled to the denied amount of $1,207.70 for psychological services.

Award

38I find the applicant is not entitled to an award under s.10 of Reg. 664, for the following reasons.

39Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the 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 the criteria.

40The applicant submits that all factors are argued to advance this claim. That the respondent ignored the medical records of all the applicant’s treating practitioners and assessors. Also, the applicant is vulnerable, he has sustained injuries as a result of this accident. Further that the respondent acted in a highhanded manner and a precedent needs to be set to ensure deterrence.

41It is well-settled that insurers are not held to a standard of perfection, but reasonableness. I am not persuaded by the applicant’s submissions in the absence of evidence to support that the respondent’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

42I find the applicant has not met the burden of proof to support the respondent has acted in a manner that attracts an award. No award is payable.

Interest

43Pursuant to s. 51 of the Schedule, the applicant is entitled to interest on any overdue payment of benefits.

ORDER

44For the reasons stated above I order the following:

i. The applicant is not entitled to a non-earner benefit of $185.00 per week from February 14, 2022, to November 12, 2023.

ii. The applicant is entitled to $4,069.56 for physiotherapy services, proposed by total Recovery Rehab, in a plan submitted on February 25, 2022.

iii. The applicant is not entitled to $1,207.70, the denied portion of the plan for psychological services, proposed by Somatic Assessments, dated May 4, 2023.

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

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