Licence Appeal Tribunal File Number: 23-010311/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:
Yueh Tang Yang
Applicant
and
Aviva Insurance Company of Canada
Respondent
AMENDED DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Eric Grossman, Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Yueh Tang Yang, the applicant, was involved in an automobile accident on July 18, 2018, 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
2The issues in dispute are:
i. Is the applicant entitled to $2,822.90 for chiropractic services, proposed by Vcare Physio & Rehab in a treatment plan/OCF-18 (“plan”) dated September 4, 2019?
ii. Is the applicant entitled to $300.00 for acupuncture therapy, submitted on a claim form (OCF-6) dated March 2, 2022?
iii. Is the applicant entitled to $2,200.00 for an attendant care assessment, proposed by Somatic Assessments & Treatment Clinic in a plan dated January 17, 2019?
iv. Is the applicant entitled to $3,712.81 ($16,712.81 less $13,000.00 approved) for catastrophic assessments, proposed by Somatic Assessments & Treatment Clinic in a plan dated September 24, 2021?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that:
The applicant is not entitled to the disputed treatment and assessment plans.
The applicant is not entitled to an award or interest.
ANALYSIS
4To 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.
Is the applicant entitled to the treatment plan for chiropractic services?
5I find that the applicant is not entitled to the treatment plan for chiropractic services.
6The applicant contends that the treatment plan is reasonable and necessary, and also asserts that it is payable pursuant to s. 38(11).
Is the treatment plan reasonable and necessary?
7The September 4, 2019, treatment plan for chiropractic services from VCare Physio & Rehab Centre for $2,822.90 is signed by Dr. Georgia Palantzas, a chiropractor. Goals include pain reduction, increased range of motion, enhanced strength, reduced compensatory strain, return to daily activities, resume pre-accident work, and promote soft tissue healing. The plan includes reassessment, 14 sessions of Electrotherapy, 14 sessions of active therapy, and a progress report.
8The applicant argues that the proposed chiropractic treatment is reasonable and necessary due to his ongoing impairments. He cites reports from treating providers, including Dr. Georgia Palantzas, who authored the disputed treatment plan, as well as assessments, clinical notes, and records (“CNRs”) from Drs. Sharleen McDowall, a psychologist; Kelly Forse, a family doctor; Eric Ireland, a family doctor; Shuo Xiang, a psychiatrist; and Joseph Chu, a neurologist.
9The respondent argues that the treatment is neither reasonable nor necessary, noting that the applicant has already received $8,742.67 for physical treatment. It cites Dr. Stephen Halman's orthopaedic surgeon's Insurer Examination (“IE”) report, which concluded that the applicant had reached maximum medical recovery and that further treatment was unnecessary. The respondent also highlights surveillance evidence that, it claims, contradicts the applicant's reported functional limitations.
10I find that the reports of Dr. Sharleen McDowall, Dr. Shuo Xiang, and Dr. Joseph Chu do not recommend chiropractic treatment for the applicant.
11The clinical notes and records (CNRs) of Dr. Kelly Forse, the applicant’s family doctor, mainly concern conditions unrelated to the accident, such as the applicant’s previous heart surgery. The CNR dated July 29, 2019, indicated that the applicant had been experiencing neck and shoulder pain since the accident. The CNR dated September 13, 2019, is the only other one that addresses the applicant’s complaints thoroughly since the accident, stating that the applicant had vertigo, pain in his left shoulder and neck, and headaches. No contemporaneous accident-related complaints have been made by the applicant since that date. The CNRs of Dr. Forse do not recommend chiropractic treatment.
12In his CNRs dated February 22, 2019, Dr. Eric Ireland does not recommend chiropractic treatment. While he notes some physical findings, such as neck pain with decreased range of motion (ROM), his records do not support the inclusion of chiropractic care as part of the applicant’s treatment plan.
13I find, on a balance of probabilities, that the applicant is not entitled to the treatment plan. The applicant has not provided contemporaneous documentation supporting the need for continued chiropractic treatment. While Dr. Halman assessed the applicant, his report does not recommend chiropractic care, and in any event, the applicant has not met the onus of establishing that the proposed treatment is reasonable and necessary.
Is the treatment plan payable pursuant to s. 38?
14The applicant contends that the respondent failed to comply with the requirements of Section 38(8) of the Schedule by not providing sufficient reasons for denying the treatment plan.
15Sections 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.
16If 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:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
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).
17I agree with the respondent’s position that the September 2, 2021, notice adequately sets out the medical reasons for the denial. It references the earlier correspondence dated November 22, 2019, which relied on Dr. Halman’s s. 44 report concluding that the proposed treatment plan was neither reasonable nor necessary. Importantly, that conclusion remained unchanged, and the September 2, 2021, notice also explicitly cites the s. 44 findings, namely, residual neck pain, resolved low back pain, and no neurological or orthopedic impairments on examination, and notes that the applicant’s cardiac condition did not impede healing. It further suggests that the neck and interscapular pain may be related to the aneurysm and should be addressed accordingly. The s. 44 report was attached to the denial letter. Accordingly, I find that the respondent met its obligation under section 38(8) by clearly stating and disclosing the medical basis for the denial.
18In light of the foregoing, I conclude that the chiropractic treatment plan is not payable under s. 38(11).
Is the applicant entitled to the acupuncture expenses?
19I find that the applicant is not entitled to reimbursement for the acupuncture expenses claimed.
20In support of his claim, the applicant submitted an Expense Claims Form (OCF-6) dated March 2, 2022, along with a receipt from the World Chinese Medicine and Acupuncture College of Toronto, dated February 27, 2022. The receipt reflects three acupuncture sessions, each at $100, totalling $300.
21The applicant argues that the acupuncture treatments were medically necessary to alleviate pain resulting from the accident. He relies on receipts and references to medical opinions indicating ongoing physical discomfort to support this position.
22The respondent, however, submits that the expenses were denied because the applicant failed to submit the OCF-6 as required under section 38(2) of the Schedule.
23Section 38(2) of the Schedule provides that an insurer is not liable for medical or rehabilitation expenses incurred before the submission of a treatment and assessment plan, unless specific exceptions apply. These include: the insurer agreeing to fund the expense without a plan; the expense being for ambulance or emergency services provided within five business days of the accident; or the expense being reasonable and necessary for prescribed drugs or goods costing $250 or less.
24The evidence indicates that the applicant did not submit a treatment plan prior to incurring the acupuncture expenses. There is also no indication that the respondent agreed to fund the treatment without a plan. Moreover, the total cost of the acupuncture sessions exceeds the $250 threshold for minor expenses that may be exempt from the treatment plan requirement.
25As such, the requirements of section 38(2) have not been met. The applicant has not provided evidence of a submitted or approved treatment plan related to the acupuncture services. While the presence of receipts may support the necessity of the treatment, the absence of a treatment plan is determinative in this case.
26Accordingly, I find that, on a balance of probabilities, the applicant is not entitled to the acupuncture expenses.
Is the applicant entitled to an attendant care assessment?
27I find that the applicant is not entitled to the proposed attendant care assessment.
28The 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.
29The applicant asserts that the assessment was justified based on his documented physical and psychological impairments, as well as his ongoing need for assistance with daily living activities. The applicant did not submit the treatment and assessment plan for the proposed attendant care assessment, valued at $2,200.00 and dated January 17, 2019, from Somatic Assessments & Treatment Clinic Inc., as evidence at the hearing.
30The respondent argues that the applicant failed to distinguish between the need for an attendant care benefit and the need for an attendant care assessment. The respondent also notes that the applicant had returned to work and did not provide contemporaneous evidence to support the necessity of the proposed assessment.
31The burden of proof lies with the applicant to establish entitlement to the attendant care assessment. However, the applicant did not submit a Form 1 (Assessment of Attendant Care Needs) and instead relied on section 19 of the Schedule, which pertains to the attendant care benefit itself, a separate issue from the assessment in question.
32Moreover, while the applicant referred to physical and psychological limitations, he failed to submit the necessary Form 1 (Assessment of Attendant Care Needs), which is critical to evaluating the goals, costs, and overall need for attendant care. Without this foundational document, and in light of his return to modified work and medical records showing stable functioning with no recommendation for attendant care, I find there was insufficient justification for conducting an attendant care assessment at the time in question.
33Accordingly, based on the balance of probabilities, I find that the applicant is not entitled to the proposed attendant care assessment.
Is the applicant entitled to the remaining amount for a catastrophic (“CAT”) assessment?
34I find that the applicant is not entitled to the remaining amount of $3,712.81 claimed for a catastrophic assessment.
35Under subsection 25(5)(a) of the Schedule, an insurer may agree, pursuant to subsection 38(8), to pay up to $2,000.00 for any single assessment or examination proposed in an OCF-18.
36The treatment plan dated September 24, 2021, submitted by Dr. Shobhan Vachhrajani of Somatic Assessment & Treatment Clinic Inc., totals $16,712.81. Of this amount, the respondent approved $13,000.00. The plan includes six CAT assessments at $2,000 each, three CAT assessments at $1,000 each, two documentation support activities at $200 each, three interpretation services at $200 each, three claimant transportation services at $200 each, and one additional transportation charge of $112.81. The stated purpose of the plan was to complete an OCF-19 for the determination of catastrophic impairment.
37The applicant submits that the CAT assessment is reasonable and necessary due to ongoing impairments and relies on case law recognizing the importance of such assessments when the catastrophic threshold may be met.
38The respondent argues that the remaining $3,712.81 exceeds the limits set out in the Professional Services Guideline. It submits that the denied portions include duplicative file review charges and ineligible transportation expenses.
39The applicant has not sufficiently explained how the unapproved amounts are reasonable and necessary. No justification is provided for exceeding the $2,000 per-assessment cap, nor is there a rationale for deviating from the Professional Services Guideline. Furthermore, the applicant has not substantiated the transportation expenses detailed in the treatment plan. According to section 3(1) of the Schedule, non-catastrophic claimants are entitled to reimbursement for transportation costs only after the first 50 kilometres. The applicant did not demonstrate that the threshold has been met in this case.
40The respondent relies on the Professional Services Guideline, which caps the cost of individual assessments, and submits Tribunal jurisprudence, including He v Security National Insurance Company, 2024 CanLII 54032 (ON LAT), in support of its position that file review costs fall within this cap. I find this authority persuasive in the context of this dispute. The applicant has not addressed or justified the charges exceeding the cap, nor has he demonstrated that the proposed travel expenses meet the requirements set out in the Schedule.
41Therefore, I conclude that, on a balance of probabilities, the applicant is not entitled to the unapproved part of the treatment plan, totalling $3,712.81.
Interest
42Since no benefits are awarded, interest under s. 51 of the Schedule is not payable.
Award
43The applicant seeks an award under section 10 of Regulation 664. Under this section, 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. However, since the respondent has not unreasonably withheld or delayed any benefits, there is no basis for an award under Section 10.
ORDER
44For the above reasons, I find that:
i. The applicant is not entitled to the disputed treatment plans and assessments.
ii. The applicant is not entitled to an award or interest.
Released: August 5, 2025
Harouna Saley Sidibé
Adjudicator