Citation: Lin vs. Aviva Insurance Canada, 2020 ONLAT 19-006064/AABS
Release Date: December 3, 2020
Tribunal File Number: 19-006064/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:
Wen Lin
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Marina Korshunova, Paralegal
For the Respondent:
Kathleen Mertes, Counsel
Heard by way of written submissions
OVERVIEW
1Wen Lin (“the applicant”) was injured in an automobile accident on March 14, 2017 and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The disputed claims in this hearing are:
Is the applicant entitled to receive weekly income replacement benefits (IRBs) in the amount of $194.01 per week for the period spanning May 27, 2018 to-date and ongoing?
Is the applicant entitled to a medical benefit in the amount of $2,439.00 for a chiropractic treatment plan recommended by MultiCare Rehab & Wellness Center in a plan dated July 18, 2017?
Is the applicant entitled to interest on any overdue payments?
RESULT
3The applicant is not entitled to income replacement benefits.
4The treatment plan dated July 18, 2017 is not reasonable and necessary.
5No interest is owed.
PRELIMINARY ISSUE
6The respondent raised a preliminary issue and submits that the applicant, in her initial submissions, improperly relied on three exhibits that were not previously served on the respondent. It requests that I strike the exhibits as was the suggested remedy in 18-001128 v Aviva Insurance Canada (“MK v Aviva”)1. The applicant opposes the motion and submits that MK v Aviva is not relevant to the issue.
7I agree with the respondent and find that the exhibits were not disclosed prior to their submission. As a result, the printouts from Study.com and Indeed as well as the article “What is Bicipital Tenosynovitis & How is it Treated?” are struck from the record. These documents were not disclosed to the respondent prior to the hearing and the applicant submits no evidence showing that the documents were previously disclosed, nor does she give any explanation for the failure to properly disclose them.
BACKGROUND
8The applicant was the driver of a vehicle which struck a turning vehicle in a perpendicular fashion on the rear passenger side. Ambulance services were not called to the scene of the accident but arrived by chance and found the applicant in an anxious state, waiting with a tow truck driver. Paramedics calmed the applicant and took her to the hospital where she complained of chest pain. Examination at the hospital revealed unremarkable results and the applicant was released. The applicant started physical treatment at MultiCare Rehab & Wellness Center the next day, which, it appears, the respondent funded.
9Two days following the accident, the applicant visited her family physician, Dr. R. Chen. She again complained of chest pains. Dr. Chen examined her and diagnosed her with musculoskeletal pain and noted that she was already doing massage and physiotherapy. Although not explicitly stated in the records from the first post-accident visit, CNRs following the visit note that Dr. Chen recommended that the applicant continue with massage and physiotherapy. On March 21, 2017, a week following the accident, the applicant made another visit to Dr. Chen and complained of dizziness, knee pain, sleep issues and anxiety while driving. Dr. Chen acknowledged the applicant’s anxiety following the accident and referred her to Dr. J. Chan, psychologist, whom the applicant started to see on June 9, 2017. Dr. Chan agreed that the applicant suffered from anxiety and prescribed Cymbalta.
10The applicant continued to see Drs. Chen and Chan and continued to treat her injuries at MultiCare Rehab Centre following the accident. The respondent funded her physical and psychological treatment until around July 18, 2017, when it denied funding for the treatment plan of the same date and requested the applicant attend an IE. The applicant’s entitlement to this treatment plan is listed as issue 2.
11The applicant submits that she was unable to work as a result of her physical and psychological impairments. She claims entitlement to IRBs, listed as issue 1, because according to her, her injuries prevent her from returning to her job as a supermarket cashier. The respondent initially accepted the applicant’s claim for IRBs and paid the benefit until May 27, 2018, when it determined that she no longer qualified for the benefit.
INCOME REPLACEMENT BENEFITS
12During the first 104 weeks after an accident, an IRB is payable to an insured who is substantially unable to perform the essential tasks of employment as a result of an impairment. After 104 weeks, the test to qualify for IRBs is more difficult in that it requires a complete inability to engage in any reasonably suitable employment.
13The applicant claims ongoing entitlement to IRBs and submits she suffers from physical and psychological impairments which has resulted in chronic pain and post traumatic stress disorder, rendering her unable to work. She submits that her pre-accident job tasks involved prolonged standing, the use of work-related tools in a safe and accurate manner, communicating with customers, and repetitive processes such as picking up and scanning items. She claims an inability to sustain the prolonged physical and mental effort required by these employment duties.
14The respondent submits that, following it’s May 27, 2018 stoppage, there is no evidence that the applicant is substantially unable to return to her pre-accident employment as a result of physical or psychological impairments. I agree with the respondent.
15The applicant provides no evidence that any of her healthcare professionals recommend that she refrain from her pre-accident employment as a supermarket cashier. The disability certificate completed by physiotherapist M. Kishore, dated March 15, 2017, anticipates a disability period of only 9-12 weeks. No other disability certificate was provided for the hearing.
16The applicant’s family physician, Dr. Chen, is equally unsupportive of a finding that the applicant is substantially unable to return to her pre-accident work tasks. An inability to work is only mentioned once in the entirety of Dr. Chen’s CNRs. That incident occurred on May 19, 2017, where Dr. Chen provided a note for the applicant that she was unable to work that day. The note mentions no other days in which the applicant is unable to work. Other than that single note, Dr. Chen never advised the applicant to refrain from work. Likewise, while Dr. Chen’s CNRs document the applicant’s ongoing complaints of back, neck and shoulder pain as well as symptoms of anxiety, these records show no impairment, physical or psychological, that would prevent the applicant from completing the pre-accident work tasks listed above.
17The CNRs from the applicant’s treating psychologist, Dr. Chan, are also devoid of any evidence that the applicant’s accident-related injuries impair her from working as a supermarket cashier. Like her family physician’s records, Dr. Chan’s CNRs document the applicant’s ongoing psychological symptoms, yet there is no recommendation from Dr. Chan for the applicant to refrain from work. As well, Dr. Chan’s CNRs show no evidence that the applicant’s psychological injuries prevent her from sustaining the mental effort that she submits is required of her employment.
18The May 1, 2018 IE reports of Dr. P. Tansey and Dr. S. Talebizadeh, as well as the May 30, 2018 progress report from the applicant’s treating psychotherapist, Z. Mok, all found no impairment preventing the applicant from completing her pre-accident work tasks.
19Dr. Tansey conducted a physical examination of the applicant and found her fit to work. Tenderness was noted on palpation of the left side of the applicant’s neck and lower lumbar spine, but she showed no range of motion deficit. An examination of her shoulders also showed full range of motion. Dr. Tansey concluded that the applicant demonstrated full and free range of motion in her neck, back, and shoulders with no discernible areas of weakness and no neurological abnormalities. The report concludes that there is no objective evidence of any ongoing impairment what would prevent the applicant from returning to all her pre-accident activities, including her work tasks.
20Dr. Talebizadeh also concluded that there was no evidence that the applicant was substantially unable to work due to her psychological injuries. The examination included an interview and psychometric testing. The examination found the applicant sustained an adjustment disorder with anxiety and that she experienced incidences of isolated reactive episodes. Despite these findings, Dr. Talebizadeh concluded that the psychological injury did not prevent her from fulfilling her duties as a supermarket cashier. Dr. Talebizadeh’s conclusion is consistent with Dr. Chan’s in that the applicant’s psychological injuries, whether it be ongoing or isolated episodes, do not prevent her from completing her pre-accident employment tasks.
21The progress report of Z. Mok concluded that, after twelve sessions of psychotherapy ending May 29, 2018, the applicant demonstrated good effort in improving her well-being and daily and social functioning. Z. Mok recommended no further treatment sessions and made no recommendation or observation that would indicate the applicant is unable to complete her pre-accident work tasks.
THE CHIROPRACTIC TREATMENT PLAN DATED JULY 18, 2017
22I find the treatment plan dated July 18, 2017 is not reasonable and necessary to reduce the applicant’s residual pain as a result of soft tissue injuries suffered in the accident.
23I find the treatment recommendations from Dr. Chen, the applicant’s family physician, are untimely evidence in favour of the treatment plan. The applicant complained of neck, back and shoulder pain to Dr. Chen in various visits, pain that was exacerbated by prolonged sitting and standing. It appears that Dr. Chen supported the applicant’s decision to seek massage therapy and physiotherapy immediately following the accident. However, Dr. Chen made no clear recommendations for the applicant continue with treatment during the period leading up to and around the submission of the July 18, 2017 treatment plan. From my review of Dr. Chen’s records, recommendations were only made during visits dated May 18, September 18, 2018, and August 26, 2019. These recommendations are not contemporaneous with the submission of the treatment plan – they were made nearly a year later.
24The recommendation from Dr. Chan, the applicant’s treating psychologist, for ongoing exercise as part of her psychological health care, is insufficient evidence to find that the treatment plan is reasonable and necessary. The recommendations from Dr. Chan are primarily for yoga and not the multidisciplinary treatment proposed in the disputed treatment plan. There are no records which recommend multidisciplinary physical treatment for the applicant’s psychological injuries.
25There are no treatment records showing how or if the applicant benefitted from multidisciplinary treatment. No CNRs from MultiCare Rehab and Wellness Centre were submitted for this hearing. As a result, there is no evidence showing that the applicant benefitted, physically or psychologically, from similar treatment received up to the submissions of the disputed treatment plan.
26The medical records from treatment received abroad and the ultrasound report dated December 13, 2018, which identified mild left bicipital tenosynovitis, does not factor into my finding on the July 18, 2017 treatment plan. The records and report are not contemporaneous with the submission of the disputed treatment plan and, as a result, hold no weight.
27The IE report by Dr. P. Tansey, orthopaedic surgeon, dated May 1, 2018 is also not contemporaneous with the disputed treatment plan, but it nevertheless is unsupportive of it. Dr. Tansey examined the applicant, found no evidence of any ongoing impairment, and determined that she suffered uncomplicated soft tissue injuries which resolved by the time of the assessment. Dr. Tansey also conducted another assessment and produced a report dated April 7, 2020. Dr. Tansey’s opinion remained the same – the applicant was diagnosed with uncomplicated myofascial strain-type injuries which she fully recovered from.
INTEREST
28Interest accrues on overdue payment of benefits in accordance with section 51 of the Schedule. Having found no benefits to be overdue, I find no interest is payable as a result.
CONCLUSION
29The applicant is not entitled to IRBs for the period claimed.
30The treatment plan dated July 18, 2017 is not reasonable and necessary.
31No interest is owed.
Released: December 3, 2020
___________________________
Brian Norris
Adjudicator