Citation: Weng v. Aviva General Insurance, 2025 ONLAT 23-012996/AABS

Licence Appeal Tribunal File Number: 23-012996/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:

Mei Rong Weng

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Aimee Draper, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mei Rong Weng, the applicant, was involved in an automobile accident on January 11, 2022, 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) of $185.00 per week from February 9, 2022 to January 9, 2024?

ii. Is the applicant entitled to $4,303.90 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) submitted June 26, 2023?

iii. Is the applicant entitled to $3,989.56 for physiotherapy treatment, proposed by Total Recovery Rehab Centre in a plan submitted May 17, 2022?

iv. Is the applicant entitled to $1,741.74 ($3,701.74 less $1,960.00 approved) for social work counselling, proposed by Somatic Assessment & Treatment Clinic in a plan submitted November 11, 2022?

v. Is the applicant entitled to $1,741.74 ($3,701.74 less $1,960.00 approved) for social work counselling, proposed by Somatic Assessments & Treatment Clinic in a plan submitted February 15, 2023?

vi. Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the applicant is not entitled to a non-earner benefit.

4I find the applicant is not entitled to the treatment plan for $4,303.90 for chiropractic services.

5I find the applicant is not entitled to the treatment plan for $3,989.56 for physiotherapy treatment.

6I find the applicant is not entitled to the unapproved amount of the treatment plan of November 11, 2022 for $1,741.74 for social work counselling.

7I find the applicant is not entitled to the unapproved amount of the treatment plan of February 15, 2023 for $1,741.74 for social work counselling.

8The respondent is not liable for an award.

9I find the applicant is not entitled to interest as there are no overdue payments.

ANALYSIS

Is the applicant entitled to a non-earner benefit?

10I find the applicant has not met her burden to prove her entitlement to a non-earner benefit.

11Section 12(1) of the Schedule provides that an insurer shall pay 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. Section 3(7)(a) of the Schedule 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.” The 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.

12The applicant submits she suffers right shoulder pain, low back pain, neck pain, psychological difficulties including sleep, anxiety and depression issues, as well as chronic pain syndrome. The applicant submits that she is not engaging in her pre-accident activities. The applicant relies on the clinical notes and records (CNRs) of her family doctors, the OCF-3/Disability Certificate, and psychology reports from Somatic Assessments & Treatment.

13I have reviewed the CNRs of her family doctors at Brimley Family Clinic for the period of February 2022 to December 2023 where the applicant visited three times during this period. On March 30, 2022 the doctor noted “bilateral trapezius tenderness” and the applicant’s pain is “not worse or better” but “better than before”. The doctor also noted “relatively good [range of motion]”, anxiety, poor sleep and “neck strain” from the accident. The doctor recommended massage/heat. The applicant visited again on December 29, 2023 and the doctor notes in reference to the accident, the applicant has “lower back pain” and refers the applicant for physiotherapy.

14The OCF-3/Disability Certificate dated January 21, 2022 prepared by Mr. Ahmed Afifi, physiotherapist at Total Recovery Rehab Centre. The OCF states the applicant suffers headaches, dizziness, whiplash associated disorder, pain, sprain and strain of thoracic spine, amnesia, low back pain, sprain, strain of sacroiliac joint, sleep and anxiety disorders. In Part 6 Disability Tests and Information, Mr. Afifi selected “Yes” to indicate the applicant suffers a complete inability to carry on a normal life. The recovery period is listed as more than 12 weeks. I give little weight to the OCF-3 because it is not corroborated by the notes and findings of the applicant’s primary care physician.

15The applicant submits the psychological assessment dated April 1, 2022 prepared by Mr. Bruce Cook, psychological associate with Somatic Assessments & Treatments is “a psychological independent assessment”. However, Mr. Cook noted the assessment is for treatment and not an independent medical examination, and the primary purpose was to examine the applicant’s psychological status to determine whether certain therapies could assist in her rehabilitation. Mr. Cook noted the applicant’s pre-accident daily activities included long walks and household activities such as mopping, vacuuming and groceries. Since the accident she completes these tasks by moving them to different parts of her day. The assessment suggests the applicant suffers from anxiety and depressive symptoms, however, she continues to participate in her activities of daily living, such as her independent self-care and various household chores.

16The respondent submits the applicant has not suffered a complete inability to carry on a normal life and relies on several s. 44 insurer examinations, including an orthopaedic assessment by Dr. Gilbert Yee, orthopaedic surgeon, a psychological assessment by Ms. Zabina Ladak, psychologist, and an occupational therapy assessment by Mr. Robert Campos, occupational therapist.

17I have reviewed each of the s. 44 reports and each report states the applicant has resumed much of her normal daily activities such as her independent self-care and household chores albeit with some discomfort. The applicant does not have a driver’s license and does not drive and is not involved in heavy house chore duties. Dr. Yee’s report dated May 25, 2022 noted, she has “functional range of motion” and “no objective clinical findings suggest any active radiculopathy or myelopathy.” Ms. Ladak’s report noted, “[she] has not sustained a clinically significant impairment as a result of the subject accident” and “[her] symptoms are not of a severity that renders her completely unable to carry on a normal life.” Mr. Campos noted, “she can manage all her self-care tasks” slowly and with some difficulty. I put weight on these reports because I find each of the s. 44 insurer examinations are consistent in their findings and their findings are aligned with the CNRs of the family doctor.

18In sum, I find that the applicant has not suffered a complete inability to carry on a normal life and is therefore not entitled to an NEB.

19I find on a balance of probabilities that the applicant is not entitled to an NEB.

20To receive payment for an OCF-18 under sections 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 in the amount of $4,303.90 for chiropractic services?

21I find on a balance of probabilities the applicant has not demonstrated the chiropractic services treatment plan is reasonable and necessary. The applicant is not entitled to the disputed treatment plan.

22The chiropractic services treatment plan submitted on June 26, 2023 was prepared by Dr. Georgia Palantzas, chiropractor, with Total Recovery Rehab Centre. The plan intends to address the applicant’s injuries including chronic pain, dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis, sacroiliac joint, shoulder girdle, neck level, thorax, injury of muscle tendon of abdomen, lower back, pelvis, shoulder, upper arm, thorax level, radiculopathy, chronic post-traumatic headache, dizziness, nightmares, sleep disorders, emotional slate and shock, nervousness, symptoms concerning food intake, slowness, difficulty walking, cramp and spasm, anger, unhappiness, and disturbance of activity. The provider proposed 66 sessions including 16 sessions for manipulation of multiple body sites, 16 half sessions for exercise of spinal vertebrae, 16 half sessions for acupuncture of multiple body sites, and 16 counts of travel time over 8 weeks. The goals for this plan are pain reduction, increase in strength, increased range of motion, to minimize compensatory pain, to return to activities of normal living, and promote soft tissue healing. The provider noted progress would be evaluated through a questionnaire.

23The applicant submits the treatment plan is reasonable and necessary and addresses the applicant’s ongoing physical and psychological impairments, providing her with pain relief. The applicant relies on the treating practitioners but has not directed me to evidence of how the proposed treatment is reasonable and necessary for her accident-related impairments. The plan was submitted June 26, 2023 and her last visit with her family doctor was in March 2022, when her doctor noted complaints about her trapezius tenderness, anxiety, poor sleep and shoulder strain. The doctor also noted the applicant was “better than before” at this time. The doctor did not recommend chiropractic treatment. The next visit to her family doctor was December 2023, almost two years after the accident and six months after the treatment plan was submitted. Based on the evidence, the applicant’s the treatment plan is not well supported by the CNRs of the family doctor.

24The respondent states the treatment plan was denied and the applicant was referred to an insurer’s examination with Dr. Oshidari, physical medicine and rehabilitation. Dr. Oshidari’s report dated August 25, 2023 notes the applicant reached maximum medical recovery and the treatment plan was denied October 17, 2023. Dr. Oshidari notes the applicant reported a 50% improvement since her accident and her range of motion of the cervical spine is 90% of normal, extension and lateral bending was 50% of normal, range of motion of both shoulders was full and “there was no complaint of discomfort and pain in the neck, trapezius, or lumbar area.” Dr. Oshidari notes the applicant complained of pain in the back. Regarding this specific treatment plan, Dr. Oshidari’s s. 44 report states, “the treatment plan in dispute … is not reasonable or necessary.”

25I find Dr. Oshidari’s report suggests the applicant has experienced some discomfort and pain and opines the recommended treatment is not reasonable and necessary. I place weight on this because it is consistent with the CNRs of the family doctor calling into question what benefit this treatment plan could provide the applicant.

26I find on a balance of probabilities the treatment plan in dispute for chiropractic services is not reasonable or necessary at this time.

Is the applicant entitled to the treatment plan in the amount of $3,989.56 for physiotherapy services?

27I find the applicant has not demonstrated, on a balance of probabilities, that the physiotherapy services are reasonable and necessary. The applicant is not entitled to the disputed treatment plan.

28The physiotherapy treatment plan submitted May 17, 2022 was prepared by Mr. Afifi Ahmed, physiotherapist with Total Recovery Rehab Centre. The plan is intended to address the applicant’s injuries including dislocation, sprain, strain of lumbar spine, shoulder girdle, neck level, thorax, sprain and strain of sacroiliac, injury of lower back, pelvis, upper arm, thorax, radiculopathy, headache, dizziness, various sleep disorders, cramp and spasm, and various mood disorders. The provider proposed 40 sessions of therapy for one hour each, 16 sessions of therapy for a half hour each, 16 counts of travel time, assessment and documentation over 8 weeks. The goals for this plan are pain reduction, increase in strength, increased range of motion and return to activities of normal living. The provider noted the applicant “has significant limitations due to pain, weakness and decreased ROM”.

29The applicant submits the treatment plan for physiotherapy is reasonable and necessary. The applicant relies on the treating practitioner’s notes in the OCF-18 but has not directed me to evidence of how the proposed treatment is reasonable and necessary for her accident-related impairments. It is also well established that an OCF-18 alone is not sufficient to establish that the treatment plan is reasonable and necessary. The medical evidence before me does not corroborate the need for physiotherapy treatment. Further, the injuries noted in the treatment plan are not consistent with the CNRs of the family doctor. As I stated above, the applicant visited her family doctor on March 30, 2022 and she followed up on December 29, 2023. In the CNRs of the March visit, the doctor notes the accident, and that the applicant has “bilateral trapezius tenderness” and notes “better than before” with neck and shoulder strain.

30I find the applicant’s family doctor’s CNRs do not support the applicant’s position that the treatment is reasonable and necessary because the applicant did not visit the doctor after March 2022 with complaints related to the accident until December 2023 and that is almost two years after the accident.

31The respondent states there was no objective evidence for this treatment plan and a home exercise plan would be sufficient in the alternative, based on the s. 44 report of Dr. Yee.

32I assign weight to the s. 44 report prepared by Dr. Yee dated June 8, 2022, and the s. 44 report prepared by Mr. Campos dated June 28, 2022 for two reasons. First, the applicant’s injuries are noted as “residual symptomology related to myofascial strains of the cervical spine”, left shoulder and lumbar spine that is consistent with the family doctor’s CNRs and inconsistent with the OCF-18 notes. Dr. Yee looked at this treatment plan specifically and noted the applicant was approaching maximal medical recovery at that time and required no further or additional treatment outside of a home-based exercise program. Second, Mr. Campos’ also reviewed the specific treatment plan, and his report states the applicant demonstrates sufficient mobility, range of motion and functioning. Therefore, the physiotherapy treatment plan is not reasonable and necessary.

33I find the applicant has not met the burden of demonstrating on a balance of probabilities that the physiotherapy treatment is reasonable or necessary.

Is the applicant entitled to the unapproved amount of $1,741.74 ($3,701.74 less $1,960.00 approved) for the treatment plans for social work counselling?

34I find the applicant has not demonstrated, on a balance of probabilities, that the unapproved amounts for social work counselling services are reasonable and necessary. The applicant is not entitled to the unapproved amounts of the disputed treatment plans.

35The social work counselling treatment plans proposed by Dr. Sedigheh Naisi, psychologist, and Raymond Wong, occupational therapist, were submitted November 1, 2022 and February 15, 2023. Each treatment plan is for $3,701.74 with $1,960.00 approved by the respondent. The plans are identical and intend to address the applicant’s anxiety and depression. The goal of the plan is to return to activities of normal living and to deal with feelings of anxiety and depression. The treatment plan is for 14 sessions, plus brokerage service, planning service, and documentation. The remaining $1,741.74 in each plan was the unapproved amount due to the disputed hourly rates for a social worker. The treatment plans listed the hourly rate for therapy as $149.61 per hour for a social worker. The respondent approved the rate of $58.19 per hour.

36The applicant refers to the social work treatment plans as psychological treatment plans and states the applicant continues to struggle with ongoing psychological/cognitive difficulties and physical pain. The applicant relies on the assessment prepared by Dr. Cook and counselling reports prepared by Dr. Shirley McDowall, psychologist.

37The applicant did not make any submissions regarding the hourly rate or the qualifications of the social worker administering the therapy sessions.

38The respondent states that unregulated providers such as counsellors, social workers and psychotherapists hourly rate is $58.19.

39The fee for services provided through the Schedule is governed by the Professional Services Guideline. The Guideline establishes the maximum expenses payable for a range of health care services, medical benefits and case management services. The maximum hourly rate for psychologists and psychological associates is $149.61 per hour. The rate provided for unregulated professionals is $58.19 per hour. The amounts payable by an insurer related to professional services not covered by the Guideline are to be determined by the parties involved.

40The Guideline does not specify a rate for social workers. Rather, the rate stipulated for unregulated providers such as counsellors and psychometrists, is $58.19 per hour. Given the Guideline is silent on the maximum hourly rate for a social worker, it is left to the parties to determine what the acceptable hourly rate would be. However, this does not automatically entitle the applicant to the higher hourly rate. The respondent approved a rate of $58.19 per hour and the applicant has not directed me to the providers qualifications or evidence of how the proposed rate was established for the social worker.

41I find the applicant has not demonstrated on a balance of probabilities that the remaining balances for social work counselling in the treatment plans are reasonable or necessary.

Interest

42As no benefits are owing the applicant is not entitled to interest.

Award

43The 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. 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 threshold.

44I find an award is not appropriate in this case. As I have determined that the applicant is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Therefore, no award is payable.

ORDER

45I find the applicant is not entitled to non-earner benefits.

46I find the applicant is not entitled to the treatment plans for chiropractic services and physiotherapy treatment in dispute.

47I find the applicant is not entitled to the unapproved amounts for the treatment plans for social work counselling.

48I find the applicant is not entitled to an award under s. 10 of Reg 664 because no payments were unreasonably withheld or delayed.

49As there are no overdue benefits, the applicant is not entitled to interest.

50The application is dismissed.