Citation: Z.X.C. vs. Belair Insurance, 2020 ONLAT 19-000314/AABS

Released Date: 05/15/2020

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:

Z.X.C.

Applicant

and

Belair Insurance

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice Chair

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

For the Respondent:

Christian Farahat and Deanna Miller, Counsel

Court Reporter:

Bruce Porter

HEARD: In-Person:

November 18, 19 and 20, 2019

OVERVIEW

1On June 18, 2016, while stopped at a light with her ebike, Z.X.C. was bumped by a motor vehicle, causing $50 bike damage and her to fall. She sought an Income Replacement Benefit (“IRB”) and medical benefits from Belair Insurance (“Belair”) under the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule'').

2Belair disputes her entitlement to the IRB after March 24, 2017, when it believes she was able to return to work. Yet Belair has not paid the IRB due to insufficient records to calculate the rate. Belair denies medical benefits are due beyond the $3,500 treatment cap for minor injuries and denied three treatment plans and a request for medication (“the treatment plans”). Z.X.C. appealed Belair’s denials to this Tribunal.

3I find many factual gaps in Z.X.C.’s evidence and conclude that Z.X.C. is not entitled to the listed benefits at issue. I also make no finding on an award for a delayed payment that came to light during the hearing, but I allow the applicant to pursue a supplemental decision on that issue, as set-forth below.

ISSUES

4The issues in dispute as confirmed by the parties, are:

i. Is Z.X.C. entitled to receive an income replacement benefit of $400.00 per week from August 25, 2016 to date and ongoing?²

ii. Did Z.X.C. sustain predominantly minor injuries as defined under the Schedule?

iii. Is Z.X.C. entitled to $2,819.08 for chiropractic treatment, by Perfect Physio & Rehab Center in a plan dated October 31, 2016?

iv. Is Z.X.C. entitled to $2,480.64 for chiropractic treatment, by Perfect Physio in a plan dated July 6, 2017?

v. Is Z.X.C. entitled to $397.80 ($551.25 less payments) medication?

vi. Is Z.X.C. entitled to $2,200.00 for a chiropractic assessment, by Somatic Assessments & Treatment Clinic in a plan dated December 15, 2017?

vii. Is Belair liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to Z.X.C.?

viii. Is Z.X.C. entitled to interest on any overdue payment of benefits?

RESULT

5Z.X.C. is not entitled to the IRB from August 25, 2016 to date as she has not proven the rate of the benefit. After March 24, 2017, Z.X.C. also has not proven her basic entitlement to the IRB.

6Likewise, Z.X.C.’s impairments are defined as “minor” under the Schedule, thus she is not entitled to any of her requested medical benefits.

7Z.X.C. is not entitled to interest or a Reg. 664 award for the above issues.

8Due to jurisdictional concerns, I make no finding on Z.X.C.’s entitlement to an Reg. 664 award for a $1,079 payment that was delayed from 30 days after its October 17, 2016 submission to its November 15, 2019 payment, but provide the opportunity for the parties to make further submissions, as set-forth below.

Analysis

Issue I – Is Z.X.C. entitled to the requested IRB?

9No. Section 5 of the Schedule provides that an insurer shall pay an IRB up to 104 weeks to a person who, as a result of an accident suffers, suffers “a substantial inability to perform the essential tasks” of her pre-accident employment³.

10Sections 4 and 7 provide that the rate of the IRB is 70% of the person’s gross weekly employment income, which can be based on the person’s income either for the four weeks or 52 weeks before the accident, whichever is higher.

11Z.X.C. bears the onus to show on a balance of probabilities her basic “entitlement” to the IRB (i.e. her inability to work at her pre-employment position) and the quantum (i.e. the rate), rather than Belair having to disprove either. (Z.X.C. also bears the onus for the medical benefits and award, below.)

Can an IRB be calculated?

12Z.X.C. submits she has provided ample documents to calculate the rate of the IRB. In contrast, Belair describes Z.X.C.’s records and testimony to calculate the IRB as “murky” and insufficient. I agree with Belair.

13Z.X.C.’s records conflict as to what her employment earnings were, and when she earned it – and her testimony lacked credibility to fill in the gaps. She did not produce an accounting report or otherwise suggest what is the correct rate. Only in response to my inquiry in closing submissions did applicant’s counsel suggest $134.70 as the correct rate. I found counsel’s approach laudable, but not supportable on a balance of probabilities as it’s based on unproven assumptions.

14Z.X.C.’s initial Application for Accident Benefits (OCF-1) merely states for the IRB that she could not return to work as of June 18, 2016 and the calculation should be on her income in the past 4 weeks. Yet, it is blank regarding the employer, dates of employment, position she held, hours or gross income, and states that an OCF-2 will be provided.

15The OCF-2 (an Employer’s Confirmation Form) merely states “$800/biweekly” income but provides no further detail. Two checks were attached, but each show a payment of $759.79 rather then $800. One is dated June 13, 2016 (5 days before the accident) and one June 26, 2016 (after the accident). Both are business checks with blank memo lines, rather than then true pay checks with stubs showing the time period to which the check relates and deductions. The OCF-2 form also indicates full time employment since 2008 to the day after the accident.

16T1 Income Tax Returns were not provided, but Z.X.C.’s 2016 Notice of Assessment (“NOA”) lists her total income as $8,013, and a T4 for $3,200. The Canadian Revenue Agency (“CRA”) Income Tax Return Information for 2016 shows the difference of $4,813 was for rental income.

17These numbers do not match. Assuming the $3,200 was all earned before the accident, at $400/week, it would be earned in 8 weeks, yet the employer advises she was there since 2008 – which means 24 weeks in 2016 until the accident. Earnings of $3,200 over the 24 weeks produces a gross weekly rate of $133.33 – which doesn’t match the employer’s stated rate. Still, for any method, its not clear that the $3,200 was all earned before the accident.

18The 2015 tax records add further confusion as no records establish (or hint) that the gross income was earned within one year of the accident, i.e. after June 18, 2015, and the records also do not match the claimed $800 bi-weekly income. The NOA shows $9,961 income with T4s for $4,100 and $3,150, but it is without corporate names, providing only numbers. Z.X.C. previously denied working at two different employers, but later in testimony admitted it. She still claimed not to know either employer’s name. A CRA printout shows the $7,250 included $2,711 of rental income.

19The CRA records for 2017 and 2018 show $1 of T4 earnings, yet Z.X.C. acknowledged working a few days in 2018 and 2019. Additionally, surveillance evidence confirms her working four days in a row in 2019 which she initially denied – so the T4 information appears inaccurate.

20Z.X.C.’s testimony did not clarify her income – in fact, it lacked credibility from general to specific topics. For example, about general and background matters:

a. She evaded affirming her testimony would be truthful. When asked at the start of the hearing to affirm that her testimony would be true, she replied, “What is truth?” When asked in various ways, she also avoided answering.

b. She could not provide basic background information, such as her date of birth, if she got divorced in 2018 or 2019, the name of her manager or even the name of her employer since 2008, which, I note, is a small restaurant whose name is predominately displayed above the door. She did provide her employer’s name to Dr. Hytman during the March 2017 Insurer Examination (“IE”).

c. The surveillance video was dramatically different than her testimony and physical presentation. For instance, it shows her working at times when she said she was not. It shows her riding her bike each day, though she says she rarely does. Most important, her physical activity level appeared to be a different person then how she acted during the hearing.

21Regarding her earnings, her testimony changed, and she was also unreliable:

a. When asked about the tax records, she testified that sometimes she was paid $1,000 month – yet another different figure as to her pay rate.

b. She was vague about the basics of her employment stating it “seems like” she was working at the time of the accident, but unable to remember the basic hours. Upon further questioning, she said she works 5 or 6 days a week, still unable to specify. She said she thinks she earned $304 a week and about $800 per check. Dr. Hytman’s report records her working 8-hour days.

c. She claims to have returned to work for a few days – last year and this year (2018 and 2019) – but she didn’t report any T4 income in 2018.

22The evidence is so unclear and inconsistent about what and when she was paid that I cannot determine any rate without guessing. Perhaps she earned $800 bi-weekly, but that is not reported. I assume that she was working at some point and earning something. Even if I do not accept her higher rate, if a different rate is supportable, I believe it should be awarded. Yet, in this case, even an IRB based off the $133.33 figure would be a guess.

Is Z.X.C. unable to preform her employment after March 24, 2017, due to the accident?

23I find that from March 24, 2017 to date there is another reason Z.X.C. is not entitled to an IRB. She has not proven she is substantially unable to perform the essential tasks of her employment as a result of the accident.

24Z.X.C. submits that she cannot perform her position as a kitchen helper and has only been able to go back to work for a few days which she thinks was in 2018 or 2019. She claims that as a result of the accident she developed non-stop burping, back pain, low energy, and other debilitating symptoms, including the overall affect she displayed during the hearing - sitting in a hunched position, wrapped in a coat and grimacing in pain, while claiming nausea. She stated numerous times she's “been like this” since the accident and just lays in bed, despite prior good health. She also submits she sustained an injury to her left shoulder.

25Belair submits that her medical records are insufficient in that they do not establish the nature of an accident related injury, nor do they opine or infer any inability to perform her employment. Belair also points out that the treating rehabilitation facilities records were not produced. In fact, Belair’s own early 2017 IEs found very minor soft-tissue injuries and that she can work. Belair also correctly submits that Z.X.C.’s current conditions – such as the burping – were all pre-existing. I again agree with Belair on these points.

26Z.X.C.’s description of the accident varied, but it was a very light impact requiring only $50 to fix a fender and no damage to the wheels. At most she fell to the ground but was not thrown or barely, if at, directly struck. The hospital notes “no obvious injuries”, no damage to the helmet, and her Glasgow Coma Score (“GCS”) score was 15/15 indicating that she was fully alert. In fact, the hospital’s records contradict her testimony that she vomited and was in her current state (“this way”) at the hospital and lost consciousness in the accident. Asked about the discrepancies, she claimed that only her headaches were severe at the hospital.

27Her testimony of events following the initial incident also do not match other records. For instance, while Z.X.C. has a significant belching issue – it could be observed during the hearing – the claim of good pre-accident health and no problems with belching and high cholesterol before is not accurate.

28In fact, she took many medications before the accident. Dr. Pang’s records show hiccups in March 16, 2016; on August 23, 2017 gastrologist, Dr. G. Chan, notes belching that pre-dated the accident by a year; and Dr. Wu noted on December 8, 2015 (7 months prior to the accident) that she belches “often”. She went to the ER of [The Hospital] with abdominal pain and burping in January 2016.

29When asked about Dr. Wu’s note, she claimed the illness wasn’t as severe prior to the accident, despite her earlier testimony that the symptoms didn’t exist. When asked about Dr. Chan’s notes in general, she admitted that no note says anything about the accident, and explained she only told him about the symptoms, but not the accident or that the accident made it worse.

30In fact, she admitted that in her 40+ visits to Drs. Wu and Pang after the accident, there is barely any mention of the accident, and none indicating that it caused her an inability to work. She only mentioned the accident to Dr. Pang once.

31Dr. Pang’s records do refer to other events. For example, an October 29, 2016 note records neck pain for about two weeks, aggravated by working with a computer; a September 18, 2018 note mentions back pain without trauma aggravated by lilting and bending; and, a July 26, 2018 note records lumber strain after housework.

32Z.X.C. claims memory loss and psychological issues, such as depression from the accident, but none of the numerous records mention that symptom. She Claims Dr. Wu, her gastrologist, told her she has blocked blood vessels as a result of the accident, but again the records do not support that.

33She claims she received treatment at a provider of Chinese medicine, but those records were not produced, nor were the clinical notes from Perfect Physio & Rehab Centre, despite its treatment plans being in issue.

34As noted above, the June 2019 surveillance was dramatically different than her testimony, tax reporting and physical presentation. For instance, in each of the four surveillance days, she rode her ebike about town and was working substantial shifts as a cook/dishwasher, seemingly moving about freely and with direction. On June 20, 2019, she appears to work a lengthy 12-hour shift. Similarly, during a break in testimony due to her presentation, the court reporter kindly provided her a cup of water, she perked-up, turned and said “Thank you” in a clear affirmative voice distinctly different than her presentation over two days.⁴

35The IE assessments also contradict her claim. In the March 21 and September 15, 2017 IE reports, orthopaedist Dr. Weisleder found she had simple temporary strain and sprains, but no disability. Dr. Weisleder opined she could return to work without restriction. He did opine her diagnosis was consistent the mechanism of the accident, but the resulting limitations she claimed are not consistent with what one “would anticipate…based on the injures…and my objective clinical findings.”

36In a March 21, 2017 Functional Abilities Evaluation (FAE) IE Report, chiropractor Dr. David Hytman noted some of her test results were not valid as they showed inconsistent effort. She appeared to walk, sit and stand, with no obvious discomfort or difficultly, and that due to her “guarded” effort, the “results cannot be considered indicative of her current maximal abilities.”

37In a May 17, 2018 “GP MIG Assessment” IE Report, general practitioner Dr. S. N. Dharamshi concluded Z.X.C.’s accident related injuries were “minor” strains and sprains, with no impairments or need for further treatment. The burping is not accident related. The doctor noted inconsistent inorganic findings in her presentation and that the complaints and severity did not match the accident.

38Dr. Dharamshi made the following observations: (a) Z.X.C. presented as a “healthy-appearing” person without physical distress throughout the entire assessment; (2) Z.X.C. claimed her past medical history is unremarkable; and, (3) Z.X.C. claimed she had not rode the ebike since the accident – all of which was contradicted by Z.X.C.’s testimony, other records, or the surveillance.

39In conclusion, I find Z.X.C. sustained minor strains and sprains which do not cause her a substantial inability to preform her pre-accident position.

Issue 2 – Is Z.X.C. subject to a $3,500 cap on treatment for “minor” injuries?

40Section 18(1) of the Schedule limits recovery for medical benefits for “predominantly minor injuries” to $3,500. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The Minor Injury Guideline (“MIG”) in turn, establishes a framework for the treatment of minor injuries within the $3,500 limit.

41Based on the evidence above, I find the evidence establishes that Z.X.C. suffered predominately minor physical injuries – strains and sprains – as a result of the accident. Accordingly, her entitlement to treatment is capped at $3,500.

Issue 3-6 – Is Z.X.C. entitled to the requested treatment and/or assessments?

42No. Z.X.C. has used her $3,500 in treatment, and thus is not entitled to further medical benefits. Also, regardless of the $3,500 limit, the requested plans are not reasonable or necessary, based on the above reasons and unrefuted IE reports.

Issue 7 and 8 - Is Z.X.C. entitled to an award or interest?

43No award or interest is due on the IRB or listed treatment plans (Issues 3-6). However, an award may be appropriate concerning a delayed $1,079 payment that came to light during the hearing. The background is as follows:

44Belair’s adjuster testified that Belair’s prior adjuster approved MIG treatment of $2,200 on July 11, 2016, and then approved a MIG extension for $1,300. As some medicals were paid, Z.X.C. resubmitted payment requests dated October 17 and 28, 2016 via an OCF-21 for $1,079, which was the balance of the $1,300.⁵ It was approved at the time by the prior adjuster, but never sent out. The adjuster explained that in preparing for the hearing, she discovered the error – believing it to have been a simple mistake – and immediately had payment processed and sent out the Friday before the Monday hearing.

45It does not appear that that any specific conversations previously took place by either party to address why the MIG limits had not been fully paid.

46The parties then provided oral submissions as to whether the delay was unreasonable and the amount of the award. Belair also argued that without malice or bad-faith an award was not appropriate. Z.X.C. disagreed. However, neither parties addressed the Tribunal’s jurisdiction to issue an award on the $1,079 payment given it does not relate to one of treatment plans in dispute and that it was paid before being in dispute.

47I note that in 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT) the Tribunal found that it has jurisdiction to issue an award on treatment plans that were appealed to the Tribunal but paid prior to a hearing; it does not address a payment made prior to being appealed.

48Accordingly, I make no ruling on this issue, but request that the parties confer to settle this issue. If they cannot resolve it, then Z.X.C. may seek a supplemental decision, as per the below order.

CONCLUSION and Order

49I find Z.X.C. is not entitled to the IRB or the listed treatment plans, nor interest or an award on those benefits. The application is dismissed on all listed issues in dispute.⁶

50If Z.X.C. pursues a supplemental award for the $1,079 payment, then by May 29, 2020, Z.X.C. must provide her submission, limited to 5 pages exclusive of caselaw, 12 point, double spaced, on the issue of “Does the LAT have jurisdiction to issue a Reg. 664 award on the delayed $1,079 payment made in response to the October 17 and 28, 2016 OCF-21s?”. Belair’s response of up to 5 pages is due June 5, 2020. Z.X.C’s reply and/or notice that no reply will be filed is due June 12, 2020, limited to 3 pages. The parties need not attach copies of cases for which Canlii.org citations are provided, but shall provide pinpoint citations to relevant paragraphs.

Footnotes

1. 1O. Reg. 34/10.
2. 2Although the parties agreed that the issues are as listed in the June 3, 2019 Case Conference Order (see Exhibit 45 for the corresponding Report), it’s unclear why the requested start of the IRB is not June 25, 2016 – 7 days after the accident. I suspect it is simply an error.
3. 3After 104 weeks, the person must suffer a “complete inability” to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience. See s. 6.
4. 4Z.X.C. testified through a different interpreter each day. Both confirm that they understood her.
5. 5See Ex. 36. The actual OCF-21’s were referred to in the hearing (Tabs 6 & 8 of Belair’s Supp. Doc. Brief), but not marked as Exhibits.
6. 6Tab 1(a-b) of Belair’s Document Brief, which is Belair’s correspondence file from 2016 and 2017, was marked Exhibit 25. During the hearing, the parties also referred to Tab 1(a-b) of Belair’s Supplementary Document Brief, which also contains 2016-17 correspondence. I have considered Tab 1(a-b) from both the main and supplementary document books as Exhibit 25.