Citation: Chen vs. Chubb Insurance Company of Canada, 2020 ONLAT 19-008582/AABS

Released Date: 12/29/2020

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:

RYC

Applicant

and

Chubb Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Rui Yue Chen, Applicant

Yu Jiang, Paralegal

For the Respondent:

Chubb Insurance Company of Canada, Representative

Jason Frost, Counsel

HEARD:

By way of written submissions

OVERVIEW

1RYC was involved in an automobile accident on September 22, 2017 and sought medical benefits and a non-earner benefit (“NEB”) from the respondent, Chubb, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Chubb denied the NEB based on its determination that RYC did not suffer a complete inability to carry on a normal life and denied the treatment plans in dispute because they were not reasonable and necessary. RYC disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2The issues I have been asked to decide are as follows:

a. Is RYC entitled to receive a non-earner benefit in the amount of $185.00 per week for the period February 22, 2018 to September 22, 2019?

b. Is the medical and rehabilitation benefit in the amount of $3,464.70 for chiropractic treatment recommended by Perfect Physio & Rehab Centre in a treatment plan (“OCF-18”) dated and submitted on February 5, 2018 and denied on July 8, 2018, reasonable and necessary?

c. Is the medical and rehabilitation benefit in the amount of $2,963.84 for physiotherapy treatment recommended by Total Recovery Rehab Centre in an OCF-18 dated and submitted on July 31, 2018, and denied on August 5, 2018, reasonable and necessary?

d. Is the cost of examination expense in the amount of $2,200.00 for an attendant care assessment recommended by Total Recovery Rehab Centre in an OCF-18 dated and submitted on July 22, 2019 and denied on August 31, 2019, reasonable and necessary?

e. Is the medical and rehabilitation benefit in the amount of $3,981.88 for psychological treatment recommended by Somatic Assessments & Treatment Clinic in an OCF-18 dated and submitted on July 29, 2019 and denied on October 21, 2019, reasonable and necessary?

f. Is RYC entitled to interest on any overdue payment of benefits?

FINDINGS

3Based on a review of the evidence, I find that:

a. RYC is not entitled to a NEB;

b. RYC is not entitled to the OCF-18s for physical treatment;

c. RYC is not entitled to the OCF-18 for an attendant care assessment;

d. RYC is not entitled to the OCF-18 for psychological treatment; and

e. No interest is payable as there are no outstanding payments of benefits.

ANALYSIS

Is RYS entitled to a non-earner benefit?

4In order to receive a NEB, RYC must prove that, as a result of the accident, she suffers a complete inability to carry on a normal life.² A person suffers a complete inability to carry on a normal life as a result of an accident if the person sustains an impairment that continuously prevents him or her from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.³ Based on the evidence, RYC has not established that she suffers from a complete inability to carry on a normal life.

5Chubb has already taken RYC out of the MIG. However, as will be addressed below, RYC relies on her physical pain complaints in support of her NEB entitlement claim. RYC presented evidence of a psychological impairment as a result of the accident. That evidence was in support of her removal from the MIG.

6In support of her position, RYC relies on a Disability Certificate (“OCF-3”) dated September 28, 2017 of Chiropractor, Dr. Tavares. Dr. Tavares diagnosed RYC with numerous injuries as a result of the accident.⁴ Dr. Tavares noted that RYC suffered a complete inability to carry on a normal life. The OCF-3 also indicated that RYC suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident.

7In response, Chubb contends that RYC does not suffer a complete inability to carry on a normal life. It submits that the evidence contradicts RYC’s claims that she suffers a complete inability to carry on a normal life. Chubb highlights that RYC has returned to all her pre-accident activities of daily living. Chubb relies on the findings of its s. 44 assessor, physiatrist Dr. Zabieliauskas. Dr. Zabieliauskas concluded that RYC did not suffer from a complete inability to carry on a normal life from a physical perspective.

8I find there was limited evidence led and no substantive submissions on RYC’s pre-accident activities and how her accident-related impairments have led to a complete inability to carry on with them post-accident. Although not specifically addressed in her submissions, upon review of the evidence, I was able to ascertain from her self-reporting that some of her pre-accident activities included: living with her two young children and the owner of the condominium in which she resides, attending school five days a week, and taking care of her two young children. While these details are helpful, RYC offered no comparison of the amount of time she spent on each of her pre-accident activities or on how much value and importance she placed on each. RYC also failed to show how her accident-related impairments have impacted her ability to carry on with her pre-accident activities. In the absence of this information, it is difficult to compare her pre- and post-accident abilities with respect to the activities she ordinarily engaged in or valued, as Heath requires.

9While not required by the legislation, RYC did not rely on any affidavit or viva voce evidence to speak to the Heath factors for this written hearing. As a result, I have limited evidence to evaluate RYC’s claim and certainly not enough to find that she meets the stringent NEB test. I only have assertions that she has a complete inability to carry on a normal life with little support as to how the injuries sustained as a result of the accident have affected her daily routines, her function, or her most valued activities, from either a subjective or objective viewpoint. I find this oversight fails to support her claim in proving that it was the accident that led to her alleged complete inability to carry on a normal life because the evidence contradicts her claim that her “normal life” post-accident has changed from her pre-accident life.

10Although I have a general understanding of RYC’s pre- and post-accident activities based on her self-reporting, I find there is no substantive comparison of the amount of time she spent on these activities or on how much value and importance she placed on each. While I am aware of RYC’s reports of pain, I also find that she is not completely unable to do many things. Upon a review of the reports, I find she is able to travel at least five days a week to take her children to and from daycare, is independent with her self care, able to cook, clean, and bathe her children on a nightly basis.

11A portion of RYC’s submissions focused on her pain and how it impedes her day-to-day living, specifically, as noted in the clinical notes and records of Nurse Practitioner Jie Lu, severe headache, neck pain, and bilateral shoulder pain. Where pain is a primary factor, it must be considered whether performing the activity with pain is such that the individual is practically prevented from engaging in those activities.⁵ Although I find RYC has reported pain, I find on the evidence that her pain does not practically prevent her from the majority of her independent self-care tasks or engagement in her daily activities. As mentioned above, RYC is able to participate in substantially all, if not all of her pre-accident activities. As such, I find it difficult to determine how her pain practically prevents her from completing these tasks.

12The Heath test provides that the applicant may identify his or her “valued” activities of daily living and submit how, as a result of the accident, those most valued activities have fundamentally changed due to pain, thus resulting in a complete inability to carry on a normal life. Activities identified by an applicant as being highly valued are generally afforded more weight. In her materials, however, RYC did not identify activities that she placed greater weight or value on pre-accident.

13I find the NEB test requires more evidence of functional impairment and inability than RYC provided. RYC has failed to meet her onus to prove that she suffers a complete inability to carry on a normal life as a result the accident. Consequently, I find RYC is not entitled to payment for the NEB.

Are the OCF-18s for physical treatment reasonable and necessary?

14Under s. 15 of the Schedule, an insurer shall pay for all medical treatment that is reasonable and necessary as a result of an accident. RYC bears the burden of proving that the specific treatment is reasonable and necessary to address her specific impairments on a balance of probabilities.

15RYC claims entitlement to OCF-18s for chiropractic and physiotherapy treatment. RYC submits the treatment is reasonable and necessary to aid in her physical rehabilitation because she suffers from a number of physical injuries as identified in the OCF-3 and clinical notes and records from HF Connecting Health; which has resulted in RYC continuing to experience ongoing physical pain which negatively impacts her life.

16In response, Chubb submits that the OCF-18s are not reasonable and necessary and relies on the s. 44 opinions of Dr. Zabieliauskas who found that RYC had reached maximum medical improvement from her accident-related impairments, that RYC did not require further facility-based treatment and that she would benefit from a self-directed exercise program.

17Upon review of the OCF-18s, there is limited detail on how the chiropractic and physiotherapy treatment will specifically address RYC’s specific accident-related issues, or which issues the treatment will address generally, since the impairments are identified as sprain and strain injuries and headaches. The goals of the treatment are to reduce pain, increase strength and get RYC back to her daily activities. While these are legitimate goals for treatment, the OCF-18s also indicate in part nine that RYC does not take any medications for injuries related to the accident and the goal of returning to a satisfactory level of recreational and social activities, so I question the reasonableness and necessity of over $6,000 worth of treatment where the evidence shows that RYC has is fully participating in her daily activities.

18While the clinic notes were helpful in proving that RYC attended for post-accident treatment, I find more analysis of why continued treatment is reasonable and necessary, and especially so as to rebut Dr. Zabieliauskas’s specialized opinion, which I prefer, that RYC had reached maximum medical improvement from her accident-related impairments, that RYC did not require further facility-based treatment and that she would benefit from a self-directed exercise program. On the evidence, I find no reason to interfere with Chubb’s determination that the treatment requested is not reasonable and necessary on the strength of Dr. Zabieliauskas’s reports.

Is the attendant care assessment reasonable and necessary?

19RYC submits that s. 25(1) of the Schedule provides that the insurer shall pay reasonable fees charged by a health practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. RYC further submits it is her onus to prove on a balance of probabilities that each treatment and assessment plan is reasonable and necessary. For the reasons to follow, I find that the cost of examination for the attendant care assessment is not reasonable and necessary.

20The evidence relied on by RYC of her inability to be independent in her self-care was questionable. As detailed above, RYC reported that she is independent in her self-care, there was no evidence that she has difficulty or restriction in her personal toileting or grooming, she is able to dress herself, as well provide full care for her two young children. Further, RYC resides with the owner of the condominium in which she and her children reside. There is no evidence that RYC relies on the condominium owner to assist with any of her self-care needs. On the evidence, I was provided with no clinical reason why an attendant care assessment is reasonable or necessary.

21As such, I find that the cost of examination for the attendant care assessment is not reasonable and necessary.

Is the OCF-18 for psychological treatment reasonable and necessary?

22RYC submits that the OCF-18 proposing 14 additional sessions of in-person psychotherapy is reasonable and necessary based on the psychological diagnosis of Major Depressive Episode, Single, Severe without Psychotic Symptoms and Post-Traumatic Stress Disorder by Dr. Cook in his psychological report dated July 25, 2019. The report notes that in terms of any depressive symptoms that her appetite is less, at times she gets six hours of sleep, but at other times she gets a full night’s sleep. RYC also reported to Dr. Cook that she is able to be a passenger in a vehicle and does not avoid this behaviour. She did admit to feeling scared and nervous, and experiencing hyperarousal and hypervigilance in and around a car.

23In response, Chubb submits that RYC did not suffer any psychological impairment as a result of the accident, and Dr. Cook’s report supports the determination that psychological treatment is not reasonable and necessary and relies on the October 11, 2019 s. 44 Insurer’s Examination report of Dr. Syed, psychologist, who determined that there was no objective evidence to substantiate RYC’s subjective claims of psychological impairment as a result of the accident.

24Dr. Cook notes in his report that RYC’s test results were of “questionable validity;” that her patient profile should be interpreted with caution. Similarly, Dr. Syed notes that psychometric testing suggests that RYC may not have answered questions in a “completely forthright manner” as Dr. Syed notes attempts by RYC to portray herself in a “negative or pathological manner.” Despite RYC’s self-reported psychological symptoms, Dr. Syed opined that her validity scores were indicative of feigning psychological impairment.

25RYC has not demonstrated why the goals of the OCF-18 and the costs of achieving those goals are a reasonable and necessary expense. There are no specific submissions on the costs of each item in the treatment plan or an explanation as to why 14 1.5-hour sessions is reasonable almost two years post-accident (now over three years post-accident), where the most recent psychological assessment revealed no diagnosable psychological condition and questioned the validity of RYC’s alleged psychological impairments.

26To the extent that a goal of the claimed psychological treatment is a return to activities of daily living, I find no indication that her daily activities or life circumstances have been significantly impacted as a result of psychological impairments that can be attributed to the accident and RYC has not established that such a connection exists. Accordingly, I find the OCF-18 is not payable as RYC has not demonstrated that it is reasonable and necessary.

DISCUSSION

Is RYC in non-compliance pursuant to s. 33?

27Chubb argues that RYC is not entitled to payment of benefits because she failed to attend an EUO. Given my determination that she does not meet the test for an NEB, I need not consider this submission.

CONCLUSION

28I find RYC is not entitled to a NEB as she does not suffer from a complete inability to carry on a normal life. RYC is not entitled to the disputed OCF-18s are they are not reasonable and necessary. No interest is payable as there are no outstanding payments of benefits.

Footnotes

1. 1O. Reg. 34/10
2. 2O. Reg. 34/10, at s. 12. The factors that inform the determination of NEB entitlement are outlined in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (Heath).
3. 3O. Reg. 34/10, at s. 3(7)(a).
4. 4OCF-3 injury and sequela information is as follows: concussion, limitation of activities due to disability, localized swelling, mass and lump, head, superficial injury of head, dislocation, sprain and strain of joints and ligaments at: neck level, of thorax, and of lumbar spine and pelvis, radiculopathy, chronic post-traumatic headache, dislocation, sprain and strain of joints and ligaments of hip and knee, pain in throat and chest, chest pain on breathing, malaise and fatigue, non-organic sleep disorders, dizziness and giddiness, nausea, symptoms and signs concerning food and fluid intake, abnormalities of gait and mobility, slowness and poor responsiveness, phobic anxiety disorders, state of emotional shock and stress, unspecified, nightmares, disturbance of activity and attention, nervousness and symptoms and signs involving emotional state.
5. 5Heath, supra note 2 at para 50.