Licence Appeal Tribunal File Number: 23-012025/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:
Jia Long Hui
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Gina Nardella, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Jia Long Hui, the applicant, was involved in an automobile accident on December 7, 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 a non-earner benefit (“NEB”) in the amount of $185.00 per week from January 4, 2022 to December 7, 2023?
ii. Is the applicant entitled to $1,215.32 for physiotherapy services, proposed by Easy Health Centre in a treatment plan/OCF-18 (“plan”) dated June 4, 2022?
iii. Is the applicant entitled to $1,041.88 ($3,701.88 less $2,660.00 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated May 4, 2023?
iv. Is the applicant entitled to $1,553.76 for physiotherapy services, proposed by Easy Health Centre in a plan dated July 30, 2022?
v. Is the applicant entitled to $3,701.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated September 14, 2023?
vi. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Somatic Assessments and Treatment Clinic in a plan dated July 19, 2022?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an NEB.
4The applicant is not entitled to the plans dated June 4, 2022 and July 30, 2022 for physiotherapy services, proposed by Easy Health Centre.
5The applicant is not entitled to the outstanding amount of $1,401.88 for psychological services in plan dated May 4, 2023, proposed by Somatic Assessments and Treatment Clinic.
6The applicant is not entitled to $3,701.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a plan dated September 14, 2023.
7The applicant is not entitled to $2,200.00 for an attendant care assessment, proposed by Somatic Assessments and Treatment Clinic.
8The applicant is not entitled to interest or an award.
ANALYSIS
The applicant is not entitled to a NEB
9I find that the applicant has not established entitlement to an NEB as the evidence regarding his pre- and post-accident functional abilities does not support this claim.
10Section 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.
11Section 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.”
12The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
13The applicant submits that he has suffered a complete inability to carry on a normal life due to his accident-related injuries. The applicant relies on his Disability Certificate (OCF-3) dated December 10, 2022, completed by Sreejith Jayanth, physiotherapist of Easy Health Centre, in support of his entitlement to a NEB, which indicates that he was unable to carry on a normal life due to his inability to do housekeeping tasks of cooking, laundry, grocery shopping, and his inability to go walking, or contact relatives, but he does not further address the test.
14On the evidence before me, I am unable to engage in the analysis required by Heath to determine if the applicant suffers from a complete inability to carry on a normal life. The evidence does not provide any details of the applicant’s pre-accident activities or demonstrate how his participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to the applicant, how he is prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.
15The respondent relies on Insurer Examination (“IE”) report dated August 2, 2022 by Dr. Michael Hanna, neurologist; IE report dated June 23, 2022 by Dr. Alfonso Marino, psychologist; and IE report dated August 16, 2022 by Atul Kaul, occupational therapist. The respondent submits that both Dr. Hanna and Dr. Marino indicate that the applicant reported that he has returned to his pre-accident housekeeping tasks, school activities and socializing. The respondent submits that the applicant reported to Atul Kaul that he returned to his pre-accident studies after the accident, and he obtained a part-time job in August 2022. The respondent further submits that during the occupational therapy assessment on June 9, 2022, Atul Kaul observed no functional limitations, and the applicant reported that he has returned to all of his pre-accident activities.
16The respondent argues that the applicant has not addressed the factors set out in Heath v. Economical Mutual Insurance, Company, 2009 ONCA 391, which include a comparison of the applicant’s activities and life circumstances before and after the accident.
17I agree with the respondent that the medical evidence does not establish that the applicant suffers from a complete inability to carry on a normal life as a result of the accident because I find this evidence does not address the elements of the legal test.
18For the reasons set out above, I find that the applicant has not established that he suffered from a complete inability to carry on a normal life as a result of the accident from January 4, 2022 to December 7, 2023. As a result, I find on a balance of probabilities that the applicant has not established entitlement to an NEB.
19To receive payment for a treatment plan (OCF-18) 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. 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 same are reasonable.
20Sections 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) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and other reasons why it has considered any of the goods and services to not be reasonable and necessary.
21If an insurer fails to comply with its obligations under s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. Second, s. 38(11)2 provides that is an insurer must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11^th^ business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
22The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
Issue #2 – Plan dated June 4, 2022 for physiotherapy services at Easy Health Centre
23I find that the applicant is not entitled to physiotherapy services because the medical evidence does not support that further therapy is reasonable and necessary for the applicant’s accident-related injuries.
24The applicant seeks payment for a plan dated June 4, 2022, in the amount of $1,215.32 for physiotherapy services, submitted by Dr. Hyo Kim, chiropractor of Easy Health Centre. The plan consists of 6 one-hour sessions for physical rehabilitation; 6 one half-hour sessions for range of motion (“ROM”) exercises; and completion of the OCF-18. The goals of the plan are for pain reduction, increase strength and ROM, and return to activities of daily living.
25The applicant relies on the plan itself, in which Dr. Kim indicates that the applicant’s range of motion (“ROM”) remains reduced with pain, and he has not achieved his pre-accident functional abilities. The applicant also relies on a pre-screen report dated January 31, 2022, by Dr. Sharleen McDowall, psychologist; report dated August 4, 2022, by Bruce Cook, psychological associate; and the OCF-3, completed by Sreejith Jayanth, physical therapist, which indicate his functional abilities are limited due to pain. The applicant argues that the disputed plan for physiotherapy services is reasonable and necessary for pain reduction and to improve his functional abilities.
26The respondent submits that the applicant has not provided medical evidence in support of the disputed plan, other than the plan itself. The respondent relies on the report of Dr. Hanna, in which Dr. Hanna found that the applicant’s range of motion in his neck and back was nearly full, and he would not benefit from further facility-based rehabilitation. The respondent further submits that Atul Kaul indicates in his report that the applicant’s range of motion was full, with no pain.
27I find that the applicant has not met his onus to establish how the proposed plan for physiotherapy services is reasonable and necessary. The applicant only relies on the disputed plan from the treatment provider and self-reported pain complaints to Dr. McDowall, Sreejith Jayanth and Bruce Cook. I find that the applicant did not make submissions to explain how physical rehabilitation is reasonable and necessary or provide corroborating evidence of the need for physical rehabilitation.
28I find on a balance of probabilities that the applicant is not entitled to the proposed treatment plan for physiotherapy services for his accident-related injuries.
Was the respondent’s denial of the disputed treatment plan proper under Section 38(8) of the Schedule?
The respondent’s denial of the June 4, 2022 plan
29This is a plan for physiotherapy services by Easy Health Centre in the amount of $1,215.32. Since the parties make no submissions or provide any evidence regarding the date of the initial denial of the benefits, the question of whether the denial was sent within 10 business days is not before me. In a subsequent letter dated August 15, 2022, the respondent enclosed a copy of the IE report of Dr. Hanna which concluded the plan is not reasonable and necessary for the applicant’s accident-related injuries because his injuries are within the Minor Injury Guideline (“MIG”).
30The applicant submits that the respondent’s denial was improper because it did not provide medical and relevant reasons for the denial. I find that the August 15, 2022 denial was compliant with s.38(8) of the Schedule. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
31The respondent submits that the applicant makes no submissions regarding how the denial is non-compliant with s.38(8) of the Schedule. The respondent submits that in its denial letter dated August 15, 2022, it provided a copy of Dr. Hanna’s report and summarized medical reasons for the denial.
32Given that the respondent provided a compliant denial, I find that the applicant has not met his burden to establish that the respondent provided an improper denial.
Issue #3 – Plan dated May 4, 2023 for psychological services
33I find that the applicant has not established that he is entitled to the unapproved portion of the difference between $149.61 per hour less $100.00 per hour, or $1,041.88, for 14 one and a half-hour sessions by Man Wai Szeto, social worker; documentation support activity for $360.00; and completion of the OCF-18 for $200.00, totaling $3,701.88.
34Under s. 25(3) of the Schedule, an insurer is not liable to pay for expenses for professional services that exceed the Professional Services Guideline, Superintendent’s Guideline No.03/14 (“Guideline”).
35The applicant submits that the proposed plan for psychological services are reasonable and necessary for his accident-related injuries, however, the applicant makes no submissions regarding the proposed rate in the plans for psychological counselling provided by Man Wai Szeto, a social worker, nor do they explain why the social worker should be paid an hourly rate above the Guideline. Accordingly, I find the applicant has not persuaded me on a balance of probabilities that the higher hourly rate proposed is reasonable and necessary.
36The respondent submits that social workers are unregulated health care professionals under the Guideline, and as such, the services of Man Wai Szeto are payable at a rate of $100.00 per hour. The respondent submits that it paid a fair rate of $100.00 per hour for Man Wei Szeto, as a social worker, since the hourly rate of a psychotherapist is not payable at the same rate of a psychologist, which it argues is fair under the circumstances for the services of an unregulated health care professional.
37I find the respondent’s argument persuasive. The applicant has not established how the hourly rate of the treatment provider Man Wai Szeto, who is a social worker, should be equivalent to a psychologist, and therefore, payable at the maximum rate of $149.61 per hour.
38I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to the unapproved portion of $1,401.88 of the May 4, 2023 plan.
Was the respondent’s denial of disputed treatment plan proper under Section 38(8) of the Schedule?
The respondent’s denial of the May 4, 2023 plan
39The applicant submits that the respondent’s denial of the unapproved portion of the plan was improper because it did not provide a detailed explanation or justification for the denial. The applicant makes no submissions regarding the language in the respondent’s denial letter of May 16, 2023.
40I find that the denial was compliant with s. 38(8) of the Schedule because the respondent stated in the May 16, 2023 denial, that since the provider is Man Wai Szeto, who is a social worker, then a different rate applies than the rate submitted for a psychologist. The respondent provided a list of rates for psychologists, psychotherapists, social workers and counsellors, therapists, or unregulated providers. I find that the respondent provided a valid reason for the denial because it is not liable to pay above the Guideline’s specified hourly rates for a social worker.
41The respondent provided clear and unequivocal explanation in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
42I find the applicant has not met his burden to establish an improper denial. I find there was a compliant denial of the outstanding amount of the plan dated May 4, 2023.
Issue #4 – Plan dated July 30, 2022 for physiotherapy services at Easy Health Centre
43I find that the applicant has not demonstrated that the plan for physiotherapy services is reasonable and necessary.
44The applicant submits that the plan dated July 30, 2022, completed by Dr. Hyo Kim, in the amount of $1,553.76 for physiotherapy services is reasonable and necessary. The plan consists of eight 1-hour sessions for physical rehabilitation; eight 0.5-hour sessions for ROM exercises; and completion of the OCF-18. The goals of the plan are for pain reduction, increase strength and ROM, and return to activities of daily living.
45The applicant relies on the documentation of Dr. McDowall, psychologist (pre-screen report dated January 31, 2022); Bruce Cook, psychological associate; Sreejith Jayanth (who completed the OCF-3); Raymond Wong, occupational therapist; and the OCF-18 completed by Dr. Kim. The applicant submits that Dr. McDowall, Raymond Wong, Bruce Cook, Dr. Jayanth and Dr. Kim have all documented the applicant’s neck and back pain, and Dr. Kim indicates that the applicant has achieved improvement with treatment. The applicant submits that he would benefit from treatment for his functional limitations in his activities of daily living and pain reduction.
46The respondent relies on the report of Dr. Hanna, in which Dr. Hanna found that the applicant had full ROM in the cervical spine, without pain, and mildly limited ROM in the lumbar spine. The respondent also relies on the report of Atul Kaul, in which Mr. Kaul found that the applicant’s ROM was full and pain-free, and he was independent in all his activities of daily living. The respondent submits that the applicant has not met his onus to establish that the proposed plan for physiotherapy services is reasonable and necessary for his accident-related injuries.
47I find on a balance of probabilities that the applicant has not met the burden of proof that the plan dated July 30, 2022, for physiotherapy services is reasonable and necessary for his accident-related injuries. I am not persuaded by the applicant’s evidence regarding his neck and back pain and his need for further treatment. I prefer the reports of Dr. Hanna and Atul Kaul, in finding that the applicant has returned to his activities of daily living and his ROM is pain-free because their findings are based on physical assessments of the applicant.
Was the respondent’s denial of the disputed treatment plan proper under Section 38(8) of the Schedule?
The respondent’s denial of the July 30, 2022 plan
48The applicant submits that the respondent’s denial was improper because it did not provide medical and relevant reasons for the denial.
49The plan dated July 30, 2022, for physiotherapy services by Easy Health Centre. The respondent wrote to the applicant by letter dated August 15, 2022, denying the benefits within 10 business days of receiving the plan. The respondent’s denial stated that based on the opinion of Dr. Hanna, the applicant has received sufficient facility-based treatment for his minor injuries.
50The respondent provided a copy of the IE report dated August 2, 2022, by Dr. Michael Hanna, with a summary of his opinion that the applicant sustained sprain/strain type injuries to his cervical, thoracic and lumbar regions. The respondent further stated that the applicant’s injuries are considered minor and fall under the MIG.
51I find that the August 15, 2022 denial was compliant with s.38(8) of the Schedule. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
52Given that the respondent provided a compliant denial, I find that the applicant has not met his burden to establish entitlement to this plan.
Issue #5- Plan dated September 14, 2023 for psychological services
53I find that the applicant has not demonstrated that the plan in dispute for psychological services is reasonable and necessary.
54The applicant submits that the plan dated September 14, 2023, completed by Raymond Wong, occupational therapist, of Somatic Assessments and Treatment Clinic, in the amount of $3,701.88 for psychological services with provider, Man Wai Szeto, social worker is reasonable and necessary. The plan consists of fourteen 1.5-hour sessions psychological treatment, with a progress report, and completion of the OCF-18. The goals of the plan are to reduce negative thought patterns through cognitive restructuring techniques and return to activities of daily living.
55The applicant relies on the plan in dispute dated September 16, 2022; the psychological report by Bruce Cook; a progress note, by Bruce Cook; and the IE report dated June 23, 2022, by Dr. Marino. The applicant submits that Bruce Cook diagnosed the applicant with severe depressive disorder, phobia, anxiety and pain in his report dated August 4, 2022, and subsequently diagnosed him with anxiety disorder in progress note dated March 17, 2023. The applicant submits that Dr. Marino diagnosed the applicant with adjustment disorder. The applicant submits that since he has made improvement with therapy, this plan is reasonable and necessary.
56The respondent relies on the IE report dated January 15, 2024, by Dr. Charlotte Lynn Gooden. The respondent submits that Dr. Gooden found no clinically significant psychological impairment, and she opined that the applicant had reached maximum medical improvement, therefore the plan is not reasonable and necessary. I find that the applicant reported to Dr. Gooden that he had returned to all his personal care and housekeeping tasks, and he resumed driving with no avoidance.
57I find that in the progress note by Bruce Cook, the applicant reported he is able to sleep 8-10 hours per night, he has returned to driving, and he was involved in a second accident on February 25, 2023. Mr. Cook recommended psychological treatment for the psychological affect on the applicant caused by both accidents.
58I find there is insufficient evidence in support of the plan dated September 16, 2022, for psychological services because the applicant’s sleep and driving anxiety had been improving before his involvement in a second accident, for which Bruce Cook recommended treatment. I am not persuaded by the evidence in the plan itself and by treatment providers, and I have not been directed to corroborating evidence in support of the plan. Therefore, I find on a balance of probabilities that the applicant is not entitled to the disputed plan for psychological services.
Issue #6- Plan dated July 19, 2022 for an attendant care assessment
59I find that the applicant has not established, on a balance of probabilities, that an attendant care assessment is reasonable and necessary for his accident-related injuries.
60The applicant seeks payment for a plan dated July 19, 2022, for an attendant care assessment, submitted by Raymond Wong in the amount of $2,200.00 to address the applicant’s injuries including neck sprain/strain, low back pain, sleep disorders, nightmares, irritability and anger, fatigue and dizziness. The goals of the plan are for the applicant to return to his activities of normal living.
61The applicant submits that an attendant care assessment is reasonable and necessary for his physical and psychological injuries. The applicant does not point to any corroborating evidence in support of the plan.
62The respondent relies on the report of Atul Kaul, in which Mr. Kaul determined that an attendant care assessment was not reasonable and necessary since the applicant was independent with all his personal care. The respondent further submits that the applicant makes no submissions regarding why the assessment is reasonable and necessary.
63I find that the applicant has not demonstrated that an attendant care assessment is reasonable and necessary for his accident-related symptoms because the applicant has not provided medical evidence in support of the stated goal of the disputed plan that he requires an attendant care assessment. Therefore, the applicant has not demonstrated that the plan for an attendant care assessment is reasonable and necessary as a result of the accident.
Interest
64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
65The 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. Since there were no benefits withheld or delayed, an award under s.10 of Reg. 664 is not warranted.
ORDER
66For the reasons set out above, I find that:
i. The applicant is not entitled to an NEB in the amount of $185.00 per week for the period from January 4, 2022 to December 7, 2023;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. Interest is not payable, and the respondent is not liable to pay an award; and,
iv. The application is dismissed.
Released: July 23, 2025
__________________________
Lisa Holland
Adjudicator