Li Wen Hsieh v. Aviva General Insurance, 2025 CanLII 5865

Citation: Hsieh v. Aviva General Insurance, 2025 ONLAT 22-013136/AABS

Licence Appeal Tribunal File Number: 22-013136/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:

Li Wen Hsieh

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Yu Denise Jiang, Paralegal

For the Respondent: Joe Bowcock, Counsel

HEARD: By way of written submissions

OVERVIEW

1Li Wen Hsieh, the applicant, was involved in an automobile accident on April 23, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to $3,717.30 for physiotherapy services, proposed by EZ Physio Inc. in an OCF-18/treatment plan ("treatment plan") dated August 31, 2021? ii. Is the applicant entitled to $4,387.20 for chiropractic treatment, proposed by UHeal Rehab Centre in a treatment plan dated August 11, 2022? 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

3The applicant is entitled to the treatment plan for physiotherapy.

4I find the applicant is not entitled to the treatment plan for chiropractic treatment.

5The respondent is not liable to pay an award under s.10 of Reg. 664.

6The applicant is entitled to interest pursuant to section 51.

Analysis

Is the applicant entitled to the treatment plan for physiotherapy services?

7I find on a balance of probabilities that the applicant is entitled to the treatment plan for physiotherapy services.

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 is for 15 weeks, while the goals are listed as pain reduction, increased strength and range of motion, and to improve sleeping.

10The applicant relies on medical evidence in the form of Clinical Notes and Records from her family physician, Dr Albert Lai.

11The insurer relies on an independent examination of the applicant with Dr Maria Nestorenko, a General Practitioner, who concluded that the applicant's physical injuries were minor in nature, and subject to the Minor Injury Guideline. In the respondent's written submission, they further argued that the treatments were not reasonable or necessary. In short, it was the respondent's position that the applicant's medical issues were minor in nature, not proven to be caused by the accident, and that any further treatment would be unreasonable or necessary.

12I specifically note that Dr. Nestorenko's report states that the applicant "has achieved maximum therapeutic benefit."

13The applicant submitted evidence that she suffered physical injuries to her neck, back and were caused by the accident, and that the injuries were being aided by medical treatment. The notes and records from Dr. Lai indicate that the applicant was receiving some benefit from physiotherapy, albeit for as short as one day.

14While the pain reduction and relief that the applicant reported feeling are brief, I do find her submission compelling in establishing that physiotherapy was providing a genuine, albeit brief benefit to the applicant. Given that the Minor Injury Guideline is not an issue in dispute, I am not persuaded by the insurers argument that her injuries are minor.

15I find that on the balance of probabilities, the applicant has met the onus for proving that physiotherapy services are both reasonable and necessary.

Is the applicant entitled to the treatment plan for chiropractic services?

16I find the applicant has not established on a balance of probabilities that she is entitled to the treatment plan for chiropractic services.

17The applicant's submission stated "The goals of the treatment plans are pain reduction, increased strength, increase in range of motion, reduce inflammation and swelling and minimize compensatory strain." As such, the applicant submitted that chiropractic services were reasonable and necessary, to treat ongoing pain.

18The respondent relied upon the opinion of Dr Nastorenko in an Insurer's s.44 examination. In a report dated February 8, 2022, Dr. Nastorenko stated the applicant "did not demonstrate any ongoing objective musculoskeletal impairment attributable to the accident-related injuries."

19The applicant submitted a letter from Dr. Robert Wang, an Orthopaedic Surgeon, whom she visited in May 2023, which is ten months after her request for chiropractic services was denied. Dr. Wang reported that the applicant presented "a three month history of bilateral lateral based elbow pain of insidious onset." Dr. Wang diagnosed her with bilateral lateral epicondylitis, and provided recommendations for non-surgical treatment, consisting of medication, physiotherapy and a counterforce brace.

20I note that Dr. Wang's report is one full year after the applicant sought chiropractic services, yet it specifically lists a three-month history of pain. Critically, Dr. Wang's recommendations do not include chiropractic services.

21I have also carefully reviewed the clinical notes and records from Dr. Lai, and I note that while there was originally a recommendation for physiotherapy and massage, I do not see any recommendation for chiropractic services.

22Furthermore, I find that there is evidence in Dr. Lai's records that the applicant stopped attending chiropractic treatments in 2021, because she found them to be ineffective at addressing her pain.

23In sum, the evidence leads me to conclude that the treatment plan for chiropractic services is not supported by any contemporaneous, corroborating medical evidence and the applicant has previously found that chiropractic services were ineffective.

24For these reasons, I find on a balance of probabilities that applicant has not met the onus to prove that the treatment plan for chiropractic services is reasonable and necessary.

Award

25The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

26Under 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 this criteria.

27I have reviewed the submissions from the applicant regarding an award. I find the applicant's submission do not provide grounds for making an award as they speak to the general, overall nature of an insurer/insured relationship. They do not indicate behaviour that meets the high threshold for an award.

28As such, no award is granted.

Interest

29The applicant is entitled to interest pursuant to s. 51 of the Schedule for the treatment plan for physiotherapy services.

ORDER

[30] I order the following: i. The applicant is entitled to the August 31, 2021 treatment plan for physiotherapy services. ii. The applicant is not entitled to the August 11, 2021 treatment plan for chiropractic treatment. iii. The respondent is not liable to pay an award under s.10 of Reg. 664 iv. The applicant is entitled to interest pursuant to s. 51 on any overdue payment of benefits.