Citation: Li v. Aviva General Insurance, 2025 ONLAT 23-011858/AABS

Licence Appeal Tribunal File Number: 23-011858/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:

Qian Li

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Aylina Dhanji, Counsel

For the Respondent: Jonathan White, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Qian Li, the applicant, was involved in an automobile accident on December 31, 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

2The issues in dispute are:

i. Is the applicant entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted February 3, 2024, and denied February 29, 2024?

ii. Is the applicant entitled to $130.00 for a psychological assessment, partially approved for $2,070.00 as proposed by Somatic Assessments and Treatment Clinic in a treatment plan submitted February 9, 2023, and denied February 10, 2023?

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 not entitled to the treatment plan for chiropractic services.

4The applicant is not entitled to the treatment plan for planning services.

5No award or interest is granted.

ANALYSIS

6To 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.

The respondent did not comply with s. 38(8) of the Schedule for proper denial notice to the applicant for chiropractic services.

7I find that the denial letter, dated February 29, 2024, did not comply with s. 38(8) of the Schedule. Thus, the OCF-18 for chiropractic services is payable under s. 38(11) of the Schedule, provided it is incurred and properly invoiced by the applicant, as the respondent failed to cure the deficient notice prior to this hearing.

8Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered: 1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. 2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

9The applicant submits that the insurer did not comply with s. 38(8) in giving medical and other reasons with explanations within 10 business days in the Explanation of Benefits (EOB) dated February 29, 2024.

10The respondent submits that the denial letters are consistent with Dr. Ge’s Clinical Notes and Records (CNRs) and there was no evidence that the applicant sustained a physical impairment from the accident.

11I find that in respect to the February 29, 2024, EOB, the respondent did not provide the notice within ten days as required by s. 38(8). The OCF-18 treatment plan was received by the respondent on February 5, 2024, and the EOB was dated to the applicant on February 29, 2024, which is more than 10 business days.

12While I have concluded that the respondent’s’ notice is not compliant to section 38(8), however, I find that the applicant did not incurred this plan of $4,383.90 for chiropractic services and also I find that there is no evidence that the applicant has paid the plan out of pocket or from a third party insurer. Therefore, I will conduct an analysis of the plan to see to it is reasonable and necessary.

The applicant is not entitled to entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rehab Centre.

13I find the applicant is not entitled to the chiropractor services in dispute.

14The applicant relies on five OCF 18’s dated April 9, 2022 May 6, 2023, August 12, 2023 and December 6, 2023 prepared by chiropractor, Dr. Georgia Palantzas, the CNR‘s of Dr Hong Ge, MD , Mr. Raymond Wong , occupational therapist and his report dated, February 17, 2023 and psychologist associate, Mr. Bruce Cook and his report dated June 9, 2023.

15The respondent relies on Dr. Jennifer Gordon, physiatrist, and her report dated August 21, 2024.

16The applicant states that Dr. Palantzas confirms that the applicant is not at a pre-accident state and needs continual uninterrupted therapy for their accident related injuries. The applicant continually needs uninterrupted therapy for her injuries is recommended. The applicant submits that she has suffered pain in a decreased range of motion in her cervical thoracic, lumbar spine and shoulder region. Also, she suffers from persistent neurological symptoms in her, left upper and left lower extremity with weaknesses and loss of strength. She has difficulty standing sitting walking, lifting, unable to work and she has difficulty with her housekeeping and social activities.

17The respondent argues that the bases of the denial letters is consistent with Dr. Ge ‘s CNR’s. The respondent argues that there is no evidence in Dr. Ge’s records that the applicant sustained a physical impairment from the accident. The respondents’ states that the evidence shows that the applicant only had two consultations with Dr. Ge after December 31, 2021. The responded also states that the applicant relied on the approved OCF-18’s to support her approval for the disputed treatment plan. However, the tribunal has ruled consistently that the treatment plans are not evidence of medical diagnosis or evidence that a treatment plan is reasonable and necessary. Also, the respondent states that the section 25 psychological report of psychologist assistant Mr. Bruce Cook dated February 8, 2023, is inconsistent because Mr. Cook does not address the treatment plan in dispute. The respondent argues that Mr. Cook relies on the applicant ‘s self-reports and psychometric testing. Also Mr. Cook did not review the medical records to verify the applicant self-reporting level of pain symptoms.

18I find that the applicant is not entitled to the disputed chiropractic services. While the applicant submitted multiple treatment plans (OCF-18s) and medical reports from various practitioners supporting ongoing therapy due to accident-related injuries that were paid by the respondent, the tribunal has found that an OCF-18 on its own is not evidence of a medical diagnoses. I find that the disputed treatment plan is a duplicate in regard to the same injuries as the other OCF 18’s that were paid by the respondent. There is no evidence from the applicant suggesting that the OCF 18 in dispute is either reasonable or necessary. I also agree with the respondent that suggests that the Mr. Cook did not review the medical records of the applicant and I find that he made his report based on his clinical observation and the applicant’s self reporting of her injuries.

19Further, I find that the respondent relied on a s.44 report dated August 21, 2024, of Dr. Jennifer Gordon, physiatrist which concluded that there was no existence of a physical impairment from the accident.

20For the reasons stated above, I find on the balance of probabilities that the applicant is not entitled to the disputed treatment plan because it’s not reasonable or necessary.

The applicant is not entitled to the unapproved balance of the psychological assessment.

21I find that the applicant is not entitled to the unapproved balance of the psychological assessment proposed in the treatment plan submitted February 9, 2023.

22The applicant argues that the unapproved amount is reasonable and necessary. The applicant also submits that the respondent’s denial dated February 10, 2023, was non-complaint with s. 38 of the Schedule.

23The applicant relies on the CNR’s of Mr. Raymond Wong, occupational therapist, and his in-home report dated February 17, 2023, and July 13, 2023, and the CNR’s of Mr. Bruce Cook, psychologist assistant, and his report dated June 9, 2023.

24The respondent relies on the s. 44 Insurer’s Examination (IE) reports of Dr. Kerry Lawson, psychologist, dated December 15, 2023, and the in-home assessment report of Mr. Josh Mello, occupational therapist, dated December 15, 2023.

25The applicant states that the insurer partially approved the assessment but did not approve a fee for planning services. The applicant submits that planning services are reasonable and necessary expenses incurred by the insured person as a result of the accident and ought to be payable. The applicant submits that planning services are a necessary expense when conducting a psychological assessment.

26The applicant also suggests that the insurer failed to meet the requirements set out under section 38(8) of the Schedule by not giving medical and relevant reasons for the denial. The respondent’s reasoning for the partial denial of the psychological assessment was due to planning services not being reasonable and necessary. The applicant suggests that the EOB is too vague to constitute a valid medical reason for refusing to pay the claimed benefit.

27The respondent submits that it partially paid the plan of $2,070.00 for the disputed OCF-18 dated February 9, 2023. The respondent says that the remaining $130.00 for planning services has not been paid because the “provider has not detailed how the proposed services will directly contribute to the applicant’s recovery of her injuries”. In addition, the insurer states that, “occupational therapists will be paid an hourly rate of $99.75 pursuant to the Financial Service Commission of Ontario Guidelines, pursuant to section 15(2)(b) of the Statutory Accident Benefits Schedule.”

28The respondent cites the Ontario Court of Appeal decision of Varriano v. Allstate Insurance, 2023 ONCA 78 particularly paragraphs 21-31, where the Court held that under the Schedule, “medical and other reasons” for an insurer’s determination of benefits must be interpreted disjunctively. Accordingly, an insurer must provide actual reasons for a denial, which may include grounds other than medical reasons for denying a benefit.

29I find that the respondent’s denial letter, dated February 10, 2023, complies with section 38(8) of the Schedule. In the letter, it states the reasons, other than medical reasons, to explain why the insurer is not paying the $130.00 remaining in the disputed plan. The insurer states that the “provider has not detailed how the proposed services will directly contribute to the applicant’s recovery of her injuries”.

30Given that I have found the EOB is compliant with s. 38(8), I will now consider whether the unapproved amount is reasonable and necessary.

31The applicant states that a psychological assessment conducted by psychologist assistant, Mr. Bruce Cook, dated February 8, 2023, diagnosed the applicant with major depressive disorder with anxious distress and somatic symptom disorder with predominant pain. The insurer examination dated October 22, 2024, similarly, diagnosed the applicant with major depressive disorder with anxious distress.

32The respondent states that it denied $130.00 for planning service as the provider failed to demonstrate how the proposed services would directly contribute to the recovery of the claimant’s injuries. It requested a breakdown of all components of the assessment and the dates of each component of the assessment, to consider whether it would pay the proposed expenses. On March 7, 2023, the respondent acknowledged receiving a breakdown of the proposed assessment and an invoice for $2,070.00, dated February 22, 2023. It partially funded the invoice up to $1,467.50. This included payment at the rate of at $99.75/hour for the following items: 5 of the proposed 10 hours of preparation time to complete the attendant care report; one hour for the initial assessment, one hour for form preparation, 0.7 hours to prepare the Form 1, 1.5 hours for planning/coordination and booking the assessment, two hours for review of medical documentation, three hours for interview and assessment and the proposed documentation fees. The respondent submits that the partial approval of 5 hours of preparation time for completion of the attendant care assessment was reasonable.

33I find that the respondent has partially paid for the above psychological assessment in dispute. The respondent argues that it denied $130.00 for planning service as the provider failed to show how the proposed services would directly contribute to recovery of the claimant’s injuries. I concur with the respondent as the applicant has not directed me to concluded that the unapproved planning services are reasonable and necessary.

34For these reasons, the applicant has not met her onus and on a balance of probabilities, the applicant is not entitled to the unapproved amount in the disputed OCF-18.

Award

The respondent is not entitled to pay an award.

Interest

35No interest is payable because there are no benefits payable to the applicant. plan.

ORDER

36I find on the totality of the evidence that:

i. The applicant is not entitled to $4,383.90 for chiropractic services, proposed by Total Recovery Rehab Centre.

ii. The applicant is not entitled to the remaining amount of $130.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic.

iii. No award or interest is owning.

iv. The application is dismissed.