Licence Appeal Tribunal File Number: 23-009338/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 Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Paralegal
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 Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
1The issues in dispute are:
i. Is the applicant entitled to the following by Easy Health Centre:
a. $1,855.05 for physiotherapy services, in a treatment plan (“plan”) submitted August 5, 2021; and
b. $1,855.05 for physiotherapy services, in a treatment plan submitted October 21, 2021?
ii. Is the applicant entitled to the following proposed by Somatic Assessments and Treatment Clinic:
a. $1,327.34 ($3,981.88 less $2,654.54 approved) for psychological services, in a treatment plan submitted August 9, 2021; and
b. $1,327.34 ($3,981.88 less $2,654.54 approved) for psychological services, in a treatment plan submitted December 15, 2021?
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
2The applicant is not entitled to any payments from the treatment plans.
3The respondent is not liable to pay an award.
4No interest is payable.
PROCEDURAL ISSUES
5The respondent filed a motion to allow an additional three pages of submissions to argue the fact that the applicant has now raised, for the first time, the issue of section 38(8) and the application of section 38(11) of the Schedule. Also, according to the respondent, the applicant failed to file the collateral benefits policy, as required by paragraph 9(1)(b) of the case conference report and order.
6The applicant submits that the Tribunal should exclude the extra pages in the respondent’s submissions on the basis that they exceed the page limits ordered by the case conference adjudicator.
7I will allow the additional pages to be filed by the respondent to address the new issues that the applicant has raised in his submissions. This doesn’t prejudice the applicant in any way, because the applicant is aware of his new s. 38 arguments. Therefore, the respondent is allowed to file an additional three pages in his submission for this written hearing.
ANALYSIS
The applicant is not entitled to either of the physiotherapy treatment and assessment plans proposed by Easy Health Centre
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.
9I find that the applicant has not demonstrated entitlement to the two physiotherapy plans in dispute.
10To support payment of these two plans, the applicant relies on the OCF-18s themselves, signed by Sreejith Jayanth, physiotherapist, and by Santhosh Michael, physiotherapist. These plans list injuries of a WAD2, whiplash, neck pain, sprain and strain of ribs and sternum, sprain and strain of elbow, hip, sprain and strain of lumbar spine, sprain and strain of thoracic spine, injury of tendon at left lower leg level, headaches and post concessional syndrome. The goals are for pain reduction, increased range of motion, increase strength, return to activities of normal living, return to pre-accident work and return to recreational activities, i.e., walking. Also, on the OCF-18s, the physiotherapists state that the applicant has barriers to a full recovery, which include thoracic lumbar muscles, left side and muscle spasms The applicant also relies on the clinical notes and records (CNRs) of Dr. Li Liu, family doctor, to support payment of these plans. The applicant also relies on the evidence of Dr. McDowall, who stated that the applicant found physiotherapy was slightly helpful.
11The respondent relies on a s. 44 assessment report by Dr. Panjaj Bansal, M.D. dated October 24, 2021, who assessed the first plan in dispute dated August 5, 2021. Dr. Bansal concluded that the applicant sustained uncomplicated, self-resolving soft tissue type injuries. The physical examination of the applicant revealed no valid signs of musculoskeletal, orthopedic or neurological injury related to the accident. He examined the applicant for approximately 45 minutes. He concluded that the plan, dated August 5, 2021, is not reasonable and necessary.
12With respect to the other plan, dated October 21, 2021, the respondent relies on section 38(2) of the Schedule that precludes an insurer from funding goods and services that were incurred prior to the submission of an OCF-18. The respondent submits that, on page ten of the applicant’s submissions, the applicant made two visits prior to the submission of this OCF-18. For the other eight sessions in this plan, the respondent submits that the medical evidence submitted by the applicant doesn’t support that they are reasonable and necessary.
13I agree with the respondent on this point that the two sessions were done prior to the plan being submitted. For that reason, those two sessions are not payable pursuant to s. 38(2) of the Schedule.
14In any event, I also find that the physiotherapy plans in dispute are not reasonable and necessary. The two plans in this case are almost identical and state the same injuries or sequelae and goals for the applicant. I further find the plans themselves are not compelling evidence to support payment of that same plan.
15As for the barriers for recovery, no objective evidence was submitted to support such assertions made in each OCF-18. There were no progress reports or CNRs by either physiotherapist, nor was there any evidence that physiotherapist had conducted any physical examination of the applicant.
16For the above reasons, I find that the applicant has not met his onus, and, on a balance of probabilities, I find that the Physiotherapy Services plans in dispute are not reasonable and necessary.
The applicant is not entitled to any of the unapproved amounts in the plans proposed by Somatic Assessments and Treatment Clinic
17I find that the applicant has not demonstrated entitlement to the remaining amounts in the psychological services plans.
18In addition to the plans themselves, the applicant relies on the CNRs of Somatic Assessments and Treatment Clinic, CNRs from Dr. Liu, and the CNRs of Dr. Sharleen McDowall, psychologist, including her report from July 19, 2021.
19The respondent relies on the s. 44 report of Dr. Aleksandra Nesovic, Psychiatrist, dated August 19, 2021.
20The applicant relies on the disputed OCF-18s stating that the applicant suffers from physical, psychological, behavioral, and cognitive difficulties. Dr. McDowall reported that the applicant had been experiencing significant emotional and psychological distress since the accident. According to Dr. McDowall, the applicant was distressed from the accident, such as his worries about his general health and outlook of his life. The applicant also has experienced avoidance and anxiety when travelling in a vehicle, difficulties with sleep, fluctuating emotions, and feelings of guilt for causing his family and friends to worry about him.
21The applicant attended nine sessions of psychotherapy from January 14, 2022, until March 10, 2022, with Mandy Fang, registered psychotherapist, under the supervision of Dr. McDowall. Ms. Fang suggests the applicant did well with the counselling therapy and was taught different coping skills to cope with his anger, sleep deprivation and anxiety issues.
22The respondent states that the plans were partly paid for, and, as a result, the remaining amount of the plans are not reasonable and necessary.
23I find the report from the respondent’s s. 44 assessor, Dr. Nesovic, convincing. Based on her August 9, 2021, in-person assessment of the applicant and a review of the documentation, it is her opinion that the applicant has sustained a psychological impairment as a result of the accident and that psychological treatment is reasonable and necessary. Therefore, the psychological treatment plans were partially approved, in that 14 one-hour psychological treatment sessions were found to be reasonable and necessary. The applicant submitted no evidence demonstrating the outstanding amounts from the two Psychological Services plans are reasonable and necessary.
24I therefore find that the applicant has not met his onus to prove that the remaining amounts in dispute in both plans are reasonable and necessary.
25Turning to the applicant’s arguments about section 38(8) in respect to the respondent’s denials, the applicant submits that the insurer failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical/relevant reasons for the denial.
26I find the respondent clearly explains what it agrees to pay for and what it does not agree to pay for, on each of the denial letters. The respondent’s denial letters also explains that it will pay for goods and services outlined in the plans based on appropriate rates for the medical practitioner who is providing treatment. I find the respondent adequately notified the applicant of what treatment plans it was addressing and the medical and other reasons why it did not agree to pay for those services. I find that the denial letters also indicated the respondent’s need for an insurer’s examination to ascertain whether the submitted treatment plans were reasonable and necessary. I therefore find the denial letters are compliant with s. 38(8) of the Schedule and that the s. 38(11) “shall pay” provision has not been triggered.
Interest
27The applicant is not entitled to interest, because there are no overdue benefits.
Award
28Since I find that none of the disputed plans are payable, it follows that payment for these benefits were not unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.
ORDER
29I order THAT:
i. The applicant is not entitled to any of the disputed treatment plans (or the unapproved portions of them).
ii. The applicant is not entitled to an award.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: May 14, 2025
Roderick Walker
Adjudicator