Licence Appeal Tribunal File Number: 23-013452/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:
Xingyu Long
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Sareena Samra, Counsel
For the Respondent: Meredith Harper, Counsel
HEARD: By way of written submissions
OVERVIEW
1Xingyu Long, the applicant, was involved in an automobile accident on March 10, 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 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 a non-earner benefit (“NEB”) of $185.00 per week from March 17, 2022 to November 7, 2023?
ii. Is the applicant entitled to $4,549.56 for physiotherapy services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated June 22, 2022?
iii. Is the applicant entitled to $1,741.88 for psychological services, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated March 21, 2023?
iv. Is the applicant entitled to $1,041.88 ($3701.88 less $2660.00 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated September 20, 2023?
v. Is the applicant entitled to $1,041.88 ($3701.88 less $2,660.00 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan dated November 23, 2023?
vi. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated April 8, 2022?
vii. Is the applicant entitled to $80.00 for a doctor’s visit, submitted on a claim form (OCF-6) dated June 1, 2022?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
3In the respondent’s written submissions, the outstanding amount for Issue 3 is listed as $1,960.00, not $1,741.88, and represents an outstanding amount for a treatment plan, not the plan in total. The applicant made no submissions regarding the different outstanding total.
4In the respondent’s written submissions, they indicate Issue 6 was partially approved and at issue is an outstanding balance of $503.90, not the full amount of $2,200.00
RESULT
5The applicant has not proven on a balance of probabilities that the physiotherapy treatment plan is reasonable and necessary.
6The applicant has not proven on a balance of probabilities that he is entitled to the outstanding balances for the various treatment plans in dispute.
7The applicant is not entitled to the OCF-6.
8The applicant has not proven on a balance of probabilities he is entitled to NEBs from March 17, 2022 to November 7, 2023
9No interest or award is owing.
ANALYSIS
10To 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.
$4,549.56 for physiotherapy services
11The applicant has not proven on a balance of probabilities that the physiotherapy services treatment plan for $4,549.56 is reasonable and necessary.
12The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and a return to activities of normal living.
13The treatment plan includes sixteen sessions each of physiotherapy, active therapy and massage therapy. Also, travel assistance to the sessions, a progress report, and reassessment.
14The applicant argues that he has not achieved his pre-accident state, and continues to experience physical pain. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Li from the Birchwood Walk-In Clinic.
15The CNRs of Dr. Li from May 20, 2022, report pain in the neck and back, and that the applicant is recovering with physio for the last two months.
16The respondent argues that the applicant has not provided medical evidence to substantiate the need for additional physiotherapy. The respondent relies on a s. 44 Insurer’s Examination (“IE”) by Dr. Gelman, independent medical evaluator, completed on December 8, 2022.
17I find that the IE by Dr. Gelman, does not support the physiotherapy services treatment plan as reasonable and necessary. In the IE, the applicant reports that his pain symptoms lasted approximately 4 months and resolved by the end of July 2022, and that there are no residual symptoms. The physical examination of the applicant was unremarkable. Dr. Gelman concluded that there are no ongoing accident-related impairments.
18I find that the applicant has not met his onus to prove on a balance of probabilities that the physiotherapy services treatment plan is reasonable and necessary. While the applicant has made a claim of ongoing pain, I am not presented with any medical evidence of pain reporting beyond the single entry in Dr. Li’s CNRs. In contrast, the report by Dr. Gelman was very conclusive that the applicant has self reported that he is not experiencing any ongoing pain related issues.
19The applicant is not entitled to the physiotherapy services treatment plan.
Outstanding balances for the three psychological services treatment plans
20The applicant has not proven that he is entitled to the outstanding balances for the three psychological services treatment plans in dispute.
21The goal of all three treatment plans is to challenge and reduce negative thought patterns by utilizing cognitive restructuring techniques and a return to activities of normal living.
22The three treatment plans comprise of 14 therapy, mental health and addiction sessions, documentation and support.
23The applicant has not addressed the issue of the partial approval, or why the applicant submits that he is entitled to the full amount of the treatment plan.
24The respondent submits that they partially approved the treatment plans, but the partial denial was in regards to the provider of the service. The provider was a social worker, and as per the Professional Services Guideline, Superintendent’s Guideline No. 03/14 that is an unregulated provider, the maximum hourly rate is not the stated $149.61 used for psychologist. The respondent used the hourly rate of $100 in their approval.
25I find that the applicant has not proven on a balance of probabilities to be entitled to the outstanding balances for the three psychological services treatment plans. The applicant made no argument regarding the reduction of the service provider rate, or why the provider should have been paid the full quoted rate. Conversely, the respondent has clearly outlined why it approved the reduced the rate, using the Professional Services Guidelines.
26Accordingly, the applicant is not entitled to the outstanding balances for the three psychological services treatment plans in dispute.
Outstanding balance for Psychological Assessment
27The applicant has not proven on a balance of probabilities that he is entitled to the outstanding balance for the psychological assessment.
28The applicant has made no submission regarding the outstanding balance.
29The respondent provided the explanation of benefits (EOB) on January 12, 2023. In the EOB, the respondent questions what health care professional would be providing the assessment and provided a breakdown of the different hourly rates by service providers. Additionally, the EOB indicates that the provider can call to discuss the rate. Further, the EOB outlines what they would need from the clinic to pay the full amount of treatment plan including a breakdown of all components of the assessment, the length of the assessment, and a confirmation of the healthcare provider.
30I find that the applicant has not proven on a balance of probabilities to be entitled to the outstanding balance for the psychological assessment. The applicant made no argument regarding the reduction of the service provider rate, or why the provider should have been paid the full quoted rate. Additionally, I have been provided no evidence that either the treating facility or the applicant contacted the respondent to dispute the partial approval. Conversely, the respondent has clearly outlined in their explanation of benefits why they partially approved the psychological assessment and provided opportunities for a reassessment of their decision.
31The applicant is not entitled to the outstanding balance for the psychological assessment.
OCF-6
32The applicant has not proven on a balance of probabilities that he is entitled to the OCF-6.
33The applicant has made no submission regarding the why he is entitled to the amount for the walk-in clinic visit.
34The respondent provided the explanation of benefits questioning why there was a charge for a visit to the walk-in clinic and why it wasn’t covered by OHIP. Additionally, the explanation of benefits invited the applicant to provide documentation to show he had no OHIP coverage and they would reassess the request.
35I find that the applicant has not proven on a balance of probabilities to be entitled to OCF-6. The applicant made no argument as to why he is entitled to the cost of the visit. Conversely, the respondent has clearly outlined in their explanation of benefits why they did not approve it, and provided opportunities for a reassessment of their decision.
36The applicant is not entitled to the OCF-6.
Non-Earner Benefit (NEB)
37Section 12(1) 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. Section 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
38The applicant has not proven on a balance of probabilities that he is entitled to NEB from March 17, 2022 to November 7, 2023.
39The applicant argues that the NEB was improperly denied. The applicant relied on a Disability Certificate (“OCF-3”), and a psychological assessment by Mr. Cook, a C. Psych Assoc. completed on January 24, 2023.
40I find that the OCF-3 indicates that the applicant is unable to carry on a normal life, based on his inability to perform housekeeping and home maintenance. The OCF-3 does also indicate that the expected duration of this inability would be between 9-12 weeks.
41I find that the psychological assessment by Mr. Cook, does not support the applicant’s claim for NEBs as it did not speak to a complete inability to carry on a normal life. The assessment focused on the applicant’s psychological state and does not share any clinical impression that the applicant suffers a complete inability to carry on a normal life.
42The respondent argues that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to NEBs. The respondent relies on s. 44 IEs from Dr. Gelman, independent medical evaluator, completed on December 8, 2022, Dr. Ratti, C. Psych, completed on December 20, 2022, and Mr. Livadas, occupational therapist, completed on January 3, 2023.
43I find that the IE of Dr. Gelman does not support the applicant’s claim for NEBs. In his report, Dr. Gelman notes that the applicant reports being independent with his self-care tasks both before and after the accident and is currently performing them without difficulties. The IE also reports that the applicant only missed work to attend some therapy, but did not miss other work. He is still currently working his job. Additionally, the applicant reported that he was attending Seneca College, and other than missing a few tests at the time of the accident, which he was allowed to make up, he is still attending school full time. The conclusion of Dr. Gelman is that the applicant shows no sign of accident-related impairments either subjectively or objectively that would result in a complete inability to carry on a normal life.
44The IE of Dr. Ratti does not support the applicant’s claim for NEB. Dr. Ratti in her diagnosis does find that the applicant meets the criteria for specific phobia (driving anxiety). Dr. Ratti does clarify that while the applicant presents symptoms of anxiety and depressed mood, there is not sufficient evidence that his psychological factors result in any functional limitations.
45The IE of Mr. Livadas does not support the applicant’s claim for NEB. Mr. Livadas did not uncover any physical, cognitive or functional capacity issues experienced by the applicant that would prevent him from carrying on a normal life. The only barrier noted by Mr. Livadas is the applicant’s underestimation of his present abilities.
46I find that the applicant has not proven on a balance of probabilities that he is entitled to NEB from March 17, 2022, to November 7, 2023. The applicant has not provided medical evidence to support his claim that he suffers from a complete inability to carry on a normal life. The respondent has provided three IEs that are all in agreement that the applicant does not suffer a complete inability to carry on a normal life. These three IEs outline the applicant is not reporting pain related complaints, has continued to work and go to school, and did not uncover any physical limitation that the applicant has sustained from the accident.
47The applicant is not entitled to NEBs from March 17, 2022, to November 7, 2023
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
Award
49The 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. As no benefit payments were unreasonably withheld or delayed, no award is owing.
ORDER
50I find that:
i. The applicant has not proven on a balance of probabilities that the physiotherapy treatment plan is reasonable and necessary.
ii. The applicant has not proven on a balance of probabilities that he is entitled to the outstanding balances for the various treatment plans in dispute.
iii. The applicant is not entitled to the OCF-6.
iv. The applicant has not proven on a balance of probabilities he is entitled to NEBs from March 17, 2022 to November 7, 2023
v. No interest or award is owing.
Released: September 4, 2025
Robert Rock
Adjudicator