Zhao Xiu Chen v. Aviva Insurance Canada, 2025 CanLII 55814

Citation: Chen v. Aviva Insurance Canada, 2025 ONLAT 23-010234/AABS

Licence Appeal Tribunal File Number: 23-010234/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:

Zhao Xiu Chen

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Harouna Saley Sidibé

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Catherine H Zingg, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Zhao Xiu Chen, the applicant, was involved in an automobile accident on December 18, 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 Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2A case conference took place on February 26, 2024, and the Case Conference Report and Order (“CCRO”) dated March 6, 2024, set the matter down for a four-day video conference hearing starting on October 1, 2024.

3On September 9, 2024, the applicant filed a Notice of Motion with the Tribunal, on consent, requesting:

1. The withdrawal of the following issue listed in the CCRO: Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $314.10 per week from December 26, 2021, to date and ongoing? and
2. That the videoconference hearing be converted to a written hearing.

4The Motion Order dated September 10, 2024, vacated the videoconference hearing dates, converted it to a written hearing and clarified the issues in dispute as set out below.

ISSUES

5The issues in dispute are:

1. Is the applicant entitled to $4,229.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) dated April 1, 2022?
2. Is the applicant entitled to $1,346.56 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated March 24, 2022?
3. Is the applicant entitled to $1,047.34 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated August 26, 2022?
4. Is the applicant entitled to $1,047.34 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated October 27, 2022?
5. Is the applicant entitled to $2,105.38 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated February 23, 2023?
6. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated June 9, 2023?
7. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated August 2, 2022?
8. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
9. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6For the reasons that follow, I find:

1. The applicant is entitled to the outstanding balance of the treatment plans dated March 24, 2022, August 26, 2022, October 27, 2022, and February 23, 2023, for psychological services, with interest pursuant to s.51 of the Schedule.
2. The applicant is not entitled to the treatment plan dated August 2, 2022, for an attendant care assessment, the treatment plan dated June 9, 2023 for psychological services and the treatment plan dated April 1, 2022, for physiotherapy services.
3. The applicant is not entitled to an award under section 10 of Regulation 664.

ANALYSIS

Is the applicant entitled to the treatment plan, dated April 1, 2022, for physiotherapy services?

7I find that the applicant is not entitled to the treatment plan for physiotherapy services dated April 1, 2022.

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 treatment plan dated April 1, 2022, for $4,229.56 for physiotherapy services proposed by Total Recovery Rehab Centre outlines an assessment, 48 (16 x 3) sessions of therapy for multiple body sites, 16 hours of travel time for the treatment provider, and documentation to support activity. The additional goods and services are broken down into reassessment, physiotherapy, active therapy, massage therapy, travel assistance, and a progress report.

10The applicant argued that she continues to experience headaches and chronic pain caused by the accident. The physiotherapy plan aimed to alleviate her symptoms and restore her range of motion. The assessment relies on the clinical notes and records (“CNRs”) of the family doctor, Dr. Chan Hing Ho, dated August 3, 2022, and November 28, 2023, as well as the section 44 report by general practitioner Dr. Michael Fung, dated June 7, 2022, which acknowledges her headache symptoms. The applicant maintained that pain relief is a legitimate treatment goal.

11The respondent relied on the insurer's examination (“IE”) conducted by Dr. Michael Fung, who concluded that there were no objective findings to support the need for physiotherapy. The insurer argued that ongoing treatment is unlikely to alter the course of the condition and that the applicant did not provide compelling evidence beyond subjective complaints.

12I find that the applicant has not met her burden of proof to demonstrate that the disputed treatment plan is reasonable and necessary to meet the stated goal of physical pain relief.

13Firstly, the applicant relies on her family doctor’s notes to assert that she has sustained impairments needing physiotherapy. However, the CNRs from Dr. Ho do not reflect any objective musculoskeletal findings that warrant physiotherapy. Dr. Ho’s CNRs indicate that the applicant experiences occasional headaches (CNRs dated January 11, 2022), is unable to sleep, and has mood issues (CNRs dated November 28, 2023), as well as other problems unrelated to the accident, such as osteopenia, intermittent chest discomfort, and vitamin D insufficiency (CNRs dated November 23, 2023).

14Secondly, Dr. Fung, a general medical practitioner, noted in his section 44 report dated June 7, 2022, that the applicant showed no signs of apparent distress, no saddle anesthesia (a symptom that could indicate severe nerve damage in the lower spine), and no upper motor neuron signs (which would suggest damage to the brain or spinal cord). I place greater weight on Dr. Fung’s report because it provides a musculoskeletal assessment that offers an objective physical evaluation of the applicant’s condition. These clinical findings are significant as they do not support the presence of neurological or spinal abnormalities that would typically explain the kind of persistent pain the applicant attributes to the accident. Moreover, the applicant’s position relies solely on her subjective reports of pain, without corresponding objective medical evidence to substantiate those claims.

15Although Dr. Fung’s report notes that the applicant reported experiencing frequent headaches, I do not accept that this supports the applicant’s submission that the OCF is reasonable and necessary. Dr. Fung does not link these headaches to any musculoskeletal injury or concussion diagnosis. In the absence of such a connection, his report does not provide objective medical support for the applicant’s claim that the headaches are accident-related or that further treatment is warranted on that basis.

16Additionally, none of the medical evidence presented by the applicant explains why they would likely require 48 sessions of physiotherapy. While pain relief is a legitimate goal, the evidence lacks objective findings or functional deficits to justify the necessity for further physiotherapy. The IE by Dr. Fung provides a well-reasoned basis for the denial.

17In my view, the applicant’s subjective reports, as reflected in the clinical notes of Dr. Chan Hing Ho and the Section 44 report by Dr. Michael Fung, are insufficient on their own to establish the necessity of the proposed treatment. While both physicians documented the applicant’s complaints, such as ongoing pain and headaches, neither report provides objective medical findings that support a diagnosis consistent with those symptoms. Dr. Chan’s notes primarily record the applicant’s self-described experiences without clinical corroboration, and Dr. Fung’s assessment, which was meant to evaluate musculoskeletal function, did not identify any physical or neurological basis for the reported symptoms. As such, these reports do not substantiate the applicant’s position.

18Consequently, I find that the treatment plan for physiotherapy services is not, on a balance of probabilities, reasonable and necessary.

Is the applicant entitled to the outstanding balance of the treatment plans for psychological services?

19I find that the applicant is entitled to the outstanding balance of the disputed psychological treatment plans.

20As the parties agree that the applicant has sustained psychological impairments, the issue in dispute primarily pertains to the difference in the number of hours allocated per therapy session provided by a psychotherapist. The claimant states they are entitled to 1.5 hours per session, while the defendant maintains that it is 1 hour per session.

21The treatment plans dated March 24, 2022, August 26, 2022, October 27, 2022, and February 23, 2023, are signed by Mr. Bruce Cook, the applicant’s treating practitioner, and share the same goals: to challenge and reduce negative thought patterns by using cognitive restructuring techniques to address anxiety, as well as depressive feelings and thoughts. Another objective is to enable a return to normal activities of daily living. The plans propose 14 sessions of 1.5 hours of mental health therapy each. The total amount for each treatment plan is $3,701.88, but the respondent has partially paid for all of the treatment plans based on 1 hour per session.

22The applicant stated that her treating psychologist, Mr. Bruce Cook, recommended 14 sessions of 1.5 hours each based on his assessment and ongoing progress reports. She argues that treating practitioners are best positioned to determine the appropriate duration of therapy.

23The respondent approved shorter 1-hour sessions based on IE reports by Dr. Fabio Salerno, a psychologist, dated July 28, 2022, and Dr. Lorne Tugg, a psychiatrist, dated November 29, 2022, who concluded that shorter sessions were sufficient.

24On one hand, Mr. Cook, in his report dated March 7, 2022, suggests that the applicant underwent 14 sessions, each lasting 1.5 hours. He emphasizes that the recommended session count is merely an estimate of treatment duration and does not accurately reflect the actual length. The treatment length is linked to long-term treatment goals, which are to alleviate depressive, anxiety, and PTSD symptoms, adjust to loss/change in psychological and physical functioning due to the accident, develop strategies for stress management and relaxation, establish more effective and flexible cognitive patterns, and improve emotional management skills. Mr. Cook added that each client's response to psychological treatment varies, complicating the certainty of the needed sessions. After the tenth session of therapy, Mr. Cook provided a psychological progress note dated August 15, 2022, stating that further psychological intervention is necessary, as the therapy appears to have had an ongoing stabilizing effect on the applicant. He recommends fourteen sessions of therapy, each lasting 1.5 hours. A re-evaluation will be conducted through a progress report at the end of the treatment.

25On the other hand, in his report, Dr. Salerno stated that one-hour, weekly sessions of “therapy, mental health and addictions” are reasonable and necessary. Although the healthcare provider has proposed 1.5-hour treatment sessions, Dr. Salerno found that the provider has not provided any compelling rationale for sessions longer than 60 minutes. Dr. Tugg, in his report, stated that it was her opinion, from a strictly psychiatric perspective, that 14 one-hour sessions are recommended rather than the proposed 14 sessions of 1.5 hours.

26Additionally, the Superintendent’s Guideline No.01/14 states that “The appropriate health care provider will deliver treatment sessions based on the needs of the insured person and the health practitioner’s clinical judgment”.

27Therefore, I find the treating psychologist's opinions persuasive because they address the long-term treatment goals, especially regarding the applicant’s response to treatment. It is logical that the treating practitioner should determine which treatment corresponds to the patient’s precise and specific situation. Furthermore, I find Mr. Cook's explanations in his report to be convincing.

28Consequently, on the balance of probabilities, I find that the applicant is entitled to 14 sessions of 1.5 hours of “therapy, mental health and addictions” for each treatment plan that is partially paid.

29Additionally, the applicant submits that the denied amounts pertaining to “Documentation, Support Activity” under the treatment plan dated February 23, 2023, are reasonable and necessary because the exact amounts were previously approved in the three preceding treatment plans. Also, the amounts concern the completion of a progress report. Dr. Salerno, in his own section 44 report, concluded that these expenses were reasonable and necessary.

30I find that the applicant is entitled to the “Documentation, Support Activity” under the treatment plan dated February 23, 2023, as the same amount was approved in the other three treatment plans. This expense is for completing a progress report required at the end of the treatment.

31Therefore, the applicant is entitled to:

i. The outstanding balance of the treatment plan dated March 24, 2022, for $1,346.56;

ii. The outstanding balance of the treatment plan dated August 26, 2022, for $1,047.34;

iii. The outstanding balance of the treatment plan dated October 27, 2022, for $1,047.34; and

iv. The outstanding balance of the treatment plan dated February 23, 2023, for $2,105.38.

Is the applicant entitled to the treatment plan dated June 9, 2023, for psychological services?

32I find that the applicant has not established that the treatment plan for additional psychological services is reasonable and necessary.

33The treatment plan dated June 9, 2023, for $3,701.88, outlines 14 sessions of 1.5 hours of mental health and addictions therapy, along with documentation supporting the activity. The denial was issued on June 27, 2023, and the denial letter required an Insurer Examination to determine whether the proposed treatment is reasonable and necessary.

34The applicant submits that the treatment plan dated June 9, 2023, is reasonable and necessary. The respondent's denial letter stated that an Insurer’s Examination is needed to assess the reasonableness of the treatment; however, the Insurer did not explain this requirement. Two Insurers’ Examinations were conducted by different assessors within a year of this denial, yet the Insurer provided no justification for a new assessment.

35The respondent relies on Dr. Bruce Ballon’s s. 44 assessment report, dated August 25, 2023, maintaining that the applicant's psychiatric conditions are unrelated to the subject accident, and that the applicant had reached maximum medical improvement from accident-related psychiatric impairments.

36I find that the applicant is not entitled to the treatment plan dated June 9, 2023.

37On August 17, 2023, psychiatrist Dr. Bruce Ballon conducted an examination and diagnosed the applicant with unspecified trauma and stress-related disorder, as well as major depressive disorder with anxious distress. Dr. Ballon attributed the applicant’s condition to non-accident-related factors. He emphasized that, at this point in time, he cannot establish a psychiatric condition of clinical intensity directly related to the accident.

38The applicant did not provide contemporaneous evidence of her current psychological status. The most recent document is Mr. Cook’s psychological progress report dated February 2, 2023, which reiterates the long-term goals outlined in his initial report from March 7, 2022. While I previously accepted Mr. Cook’s opinion regarding session length, I do not assign the same weight to his progress report in determining the reasonableness and necessity of the treatment plan dated June 9, 2023. This is because Dr. Ballon, a psychiatrist, conducted a more recent and comprehensive assessment on August 17, 2023, and diagnosed the applicant with unspecified trauma and stress-related disorder, as well as major depressive disorder with anxious distress. Crucially, Dr. Ballon attributed these conditions to non-accident-related factors and concluded that there is no psychiatric condition of clinical intensity currently linked to the accident. While progress reports are useful for tracking treatment, they are generally supplementary and do not provide the same diagnostic depth or objectivity as an independent psychiatric examination. Given the timing, scope, and conclusions of Dr. Ballon’s report, I find it more persuasive in assessing the applicant’s current psychological condition and its relation to the accident.

39Based on the evidence before me, I find that the treatment plan dated June 9, 2023, is not reasonable and necessary. Dr. Ballon’s psychiatric assessment, conducted on August 17, 2023, provided detailed reasoning that the applicant’s current symptoms are attributable to non-accident-related factors, including prior trauma, marital stress, and bereavement. He also noted the absence of contemporaneous psychological complaints related to the accident. In light of this, I am not satisfied that the proposed treatment addresses impairments caused by the accident.

40On a balance of probabilities, I conclude that the applicant has not shown that the proposed treatment plan is reasonable and necessary.

Is the applicant entitled to the treatment plan, dated August 2, 2022, for an Attendant Care Assessment?

41I find that the applicant is not entitled to the treatment plan, dated August 2, 2022, for an attendant care assessment.

42The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

43The treatment plan was signed by Mr. Raymond Wong and dated August 2, 2022, for an attendant care assessment totalling $2,200.00 provided by Somatic Assessments and Treatment Clinic. This amount is specified for determining the attendant care benefit and includes documentation to support activities, planning, and counselling services.

44The applicant stated that her pain and psychological impairments warranted an attendant care assessment. She maintains that she suffers from chronic headaches as a result of the accident. Following the accident, she consistently complained of headaches to her family doctor and reported that the severity of her headaches had increased.

45The respondent relied on the multidisciplinary IE conducted by Dr. Tugg, dated November 29, 2022, which concluded that the applicant had no impairment limiting her ability to perform self-care tasks. She was found to be independent in daily activities.

46I find that the applicant is not entitled to an attendant care assessment because she did not demonstrate that there are grounds to believe a condition exists that requires detailed evaluation and investigation.

47In Mr. Cook’s psychological assessment dated March 7, 2022, the applicant reported that she was able to stand and cook at her stove, and the report primarily focused on her psychological symptoms, including adjustment disorder with mixed anxiety and depressed mood. While the report outlined long-term psychological goals and recommended treatment, it did not specifically address whether the applicant was experiencing functional limitations in her ability to perform personal care or daily living tasks. The applicant did not point to any portion of Mr. Cook’s report that supports a need for assistance with such tasks, nor did she submit additional evidence clarifying how her psychological impairments translated into restrictions in daily functioning.

48Similarly, Dr. Tugg’s psychiatric IE report dated November 29, 2022, concluded that the applicant remained independent in her personal care and daily living activities. He noted that she had resumed household and social tasks, including driving locally, and explicitly stated that she had not sustained a functional limitation or impairment that would necessitate assistance with personal care.

49After considering the evidence from both parties, I find that the applicant has not provided sufficient or persuasive evidence to demonstrate that she is likely to need assistance with personal care tasks. Therefore, I am not convinced that the proposed services are reasonable and necessary in this context.

50Accordingly, I find that the applicant did not meet her burden, on a balance of probabilities, to demonstrate that the attendant care assessment is reasonable and necessary.

Interest

51Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is entitled to the remainder of the partially paid psychological treatment plans, interest applies to these plans.

Award

52The 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.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

53The applicant argued that the insurer acted unreasonably by denying the recommended treatment without providing an adequate explanation. She submitted that the respondent disregarded the treating provider's reports and failed to conduct a thorough investigation.

54The respondent argued that treatment plans were reviewed in accordance with the Schedule and based on IE reports. The denials were not made in bad faith.

55An award requires proof of unreasonable withholding or delay in the receipt of benefits. Although there may have been disagreements regarding the duration and relevance of treatment, the respondent relied on expert evidence and approved substantial portions of the treatment. There is no indication that the respondent’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

56Therefore, I find that the applicant is not entitled to an award.

ORDER

57For the above reasons, it is ordered that:

1. The applicant is entitled to the outstanding balance of the treatment plans dated March 24, 2022, August 26, 2022, October 27, 2022, and February 23, 2023, for psychological services, with interest pursuant to s.51 of the Schedule.
2. The applicant is not entitled to the treatment plan dated August 2, 2022, for attendant care assessment, the treatment plan dated June 9, 2023, for psychological services and the treatment plan dated April 1, 2022, for physiotherapy services.
3. The applicant is not entitled to an award under section 10 of Regulation 664.

Released: June 10, 2025

Harouna Saley Sidibé

Adjudicator```