Citation: Cai v. Aviva Insurance Company, 2021 ONLAT 19-009512/AABS

Released Date: 10/12/2021

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:

Qian Ru Cai

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

William Zinkiewich, Articling Student

For the Respondent:

J.-C. Rioux, Counsel

Heard via videoconference on:

February 4 & 5, 2021

OVERVIEW

1Qian Ru Cai (“the Applicant”) was involved in an automobile accident on November 3, 2017 and sought benefits from Aviva Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute

ISSUES

2The issues to be decided in the hearing are:

1. Is the applicant entitled to an income replacement benefit (“IRBs”) of $400.00 per week from November 10, 2017 to date and ongoing?

2. Is the applicant entitled to attendant care benefits (“ACBs”) of $698.71 per month from November 3, 2017 to date and ongoing?

3. Is the applicant entitled to $2,901.08 for physiotherapy recommended by Toronto Health Care Clinic in a treatment plan submitted on December 12, 2017 and denied on March 6, 2018?

4. Is the applicant entitled to $677.80 for assistive devices recommended by Toronto Health Care Clinic in a treatment plan submitted on March 9, 2018 and denied on March 22, 2018?

5. Is the applicant entitled to $2,000.00 for a psychological assessment recommended by Toronto Health Care Clinic in a treatment plan submitted on March 15, 2018 and denied on March 22, 2018?

6. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The parties resolved issues 3, 4, 5, and 6, prior to the hearing.

4I find that the Applicant is not entitled to IRBs and ACBs as a result of the accident. No interest is payable.

BACKGROUND

5The Applicant was the front seat passenger of a vehicle which was struck from behind while stopped at a traffic light. The collision pushed the vehicle the Applicant was in forward and it was struck again on the front end by an oncoming vehicle. The Applicant was taken by ambulance from the scene of the accident to the hospital with complaints of left-sided soreness, dizziness and nausea. She was examined and x-rayed at the hospital and discharged with a diagnosis of accident-related chest pain. She was also given concussion protocol instructions and advised to return to the emergency room if her symptoms worsened.

6The Applicant sought treatment at Toronto Healthcare Clinic Inc. (“THC”) for her accident-related injuries about 3 weeks later, starting on November 25, 2017. She engaged in treatment pursuant to the Minor Injury Guideline (the MIG”) but was later removed from it and no longer precluded from claiming entitlement to ACBs or subject to the $3,500.00 funding limit on treatment.

7The Applicant’s first and only accident-related visit to her family physician was a few days after she started treatment at THC, on November 29, 2017. There, she first complained of cough and cold symptoms and also various accident-related issues such as right-side headaches on and off, nausea and vomiting on and off, some decreased memory, bilateral tinnitus, left shoulder and low back pain, and an inability to lift her arm more than 90 degrees. The family physician referred the Applicant for a CT scan and told her to return to the clinic if no improvement occurred or if her symptoms worsened. The Applicant never returned to the clinic until October 23, 2019, which was for an issue unrelated to the subject accident.

8At issue is whether the Applicant is entitled to IRBs, ACBs and interest. I have considered the evidence and submissions and find that the Applicant has failed to meet her burden to prove entitlement to the benefits claimed. My reasons are as follows.

INCOME REPLACEMENT BENEFITs

9The Applicant claims entitlement to IRBs because, according to her, she is unable to work as a server in a restaurant and as a cat breeder/boarder, due to her accident-related injuries. She claims, primarily, that the reduced range of motion in her left shoulder and post-accident headaches prevent her from working.

10The Respondent submits there is little evidence showing that the Applicant is disabled as a result of the accident. It highlights that the Applicant provides little evidence to support her injury claims and, during cross examination, the Applicant admitted that she returned to self-employment in some form by no later than February 9, 2018 and regular employment by October 24, 2019. The Respondent further submits that the Applicant has failed to disclose any information about her post-accident income from employment and asks that an adverse inference be drawn because it was never produced.

11I have reviewed the submissions and evidence and find that the Applicant has failed to meet her burden to prove entitlement to IRBs.

12The test for IRBs for the first 104 weeks (“the pre-104 test”), pursuant to section 5 of the Schedule, is whether the Applicant is substantially unable to perform the essential tasks of her pre-accident employment or self-employment as a result of an impairment. To be successful, the Applicant must establish that she sustained accident-related impairments and that those impairments prevent her form completing her essential work tasks. The test for IRBs after 104 weeks (“the post-104 test”) is whether the Applicant has a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

Impairments

13The Applicant claims that she has limited range of motion in her left shoulder and is unable to carry more than 5 pounds without pain. To her, these impairments prevent her from completing the essential tasks of her employment and self-employment. She submits two documents to support her claim for IRBs: a disability certificate by Dr. D. Minnella chiropractor, dated December 16, 2017, and an in-home assessment by P. Kedar, occupational therapist, dated January 15, 2018.

14The Disability certificate states that the Applicant sustained sprain/strain injuries to her shoulder, back, and chest, as well as a concussion, headaches, dizziness, and symptoms involving an emotional state. It endorses that the Applicant is substantially unable to perform her essential work tasks and is unable to carry on a normal life. It anticipates that the Applicant will be disabled for more than 12 weeks because of pain intensity and emotional disturbances. The in-home assessment report documents the Applicant’s functionality. That report found that the Applicant’s range of motion (“ROM”) restrictions in the neck and back were mostly minimal, but with some moderate restrictions, and mostly moderate impairments to the ROM in her left shoulder. The in-home assessment included no interpreter.

15The Respondent’s in-home assessment occurred on March 27, 2018 with an interpreter present. The corresponding report by R. Campos, occupational therapist, is dated June 28, 2018. That report concluded that the Applicant demonstrated behaviours of symptom magnification during examination. It noted that she declined certain left-arm tests during the assessment but, with informal observation, was able to perform such tasks without issue. Occupational therapist Campos observed that the Applicant had full ROM throughout, but for mild restriction in her low back and abduction on her left shoulder. The report concluded that the Applicant is able to perform her self-care tasks independently.

Essential Tasks of Employment and Self-Employment

16The Applicant worked as a server in a restaurant and as a cat boarder/breeder. She testified that, following the accident, she was able to feed and water cats but was unable to change litter boxes or trim claws and had help with those two tasks. Regarding her tasks as a server, she said that she delivered food to tables. She did not comment on what tasks, as a server, she was unable to complete following the accident, but noted that, at home, she had difficulty doing meal preparation tasks and setting and clearing the table.

17The disability certificate characterizes the Applicant’s employment as a coffee shop server. The document provides no information on the Applicant’s essential work tasks, nor does it refer to her self-employment as a cat boarder/breeder. As a result, there is no evidence to show that she is disabled from her essential work tasks as a cat boarder/breeder. The employer’s confirmation form for the restaurant states that the applicant’s tasks as “providing wait service, taking customer orders, and delivering food.” These two documents, and the Applicant’s testimony, provide the totality of the information about the Applicant’s essential work tasks. Based on this evidence, I find that the Applicant’s essential tasks of as a cat boarder/breeder included feeding and watering cats, changing litter boxes, and trimming claws. I find that her essential tasks of employment as a server were taking customer orders and delivering food to tables.

Does the Applicant Meet the Legal Test for IRBs?

18The Applicant provides only one medical opinion to support that she meets the test for IRBs, however, the Respondent submits no medical opinion to the contrary. Considering the evidence on a balance of probabilities, I find that she meets the pre-104 test for IRBs, as it relates to her employment as a server. However, I am not convinced that she meets the post-104 test for IRBs. Yet, as noted below, whether the Applicant meets the IRB tests is moot, because the Applicant failed to establish the quantum of her IRBs.

19Though it is not part of the disability test, I find it remarkable that the Applicant’s disability is not supported by her family physician. The Applicant met with her family physician only one time for accident-related complaints, on November 29, 2017, secondary to asthma-related complaints. Her family physician made no treatment recommendations during that visit but advised the Applicant to follow up in 1 to 3 months or sooner if no improvement or worsening symptoms. The Applicant never saw her family physician for two years following that visit, which indicates that her symptoms improved.

20In any event, the Respondent provides no medical opinion to counter Dr. Minella’s opinion in the disability certificate that the Applicant is disabled from working as a server. However, there is no evidence to show she is disabled from her self-employment tasks.

Quantum of Benefit

21The Applicant has failed to establish the quantum of her entitlement.

22The Applicant was both employed and self-employed at the time of the accident. She has elected to calculate her IRB benefit on her last completed tax year, pursuant to section 4(2) of the Schedule. Thus, only the Applicant’s 2016 tax filings are required to calculate the benefit. She provided her 2016 tax return which shows a taxable income as $48,189.52, of which $41,800.00 is characterized as “other income”. At issue is what that “other income” is. The Applicant’s IRB quantum would be $400.00 per week if that “other income” is include in the IRB calculation.

23According to the Applicant’s accountant, her 2016 taxable income is income from employment as a waiter. Though, the accountant testified that he did not know where she was employed. The Respondent infers that the “other income” is investment or trust income, which is not used when calculating IRBs.

24The Applicant has hidden her 2016 Notice of Assessment (“NOA”) from the Tribunal and I draw a negative inference from it. The NOA is listed in the Applicant’s accounting report but was excluded from the schedule of documents provided together with the report. The Applicant’s failure to produce a document that she relied on to calculate her IRB quantum and is in her possession, despite requests from the Respondent, indicates that the document is unfavourable to her. Otherwise, it would have been produced. I draw an adverse inference for this reason.

25The Respondent’s accountant, R. Pellegrini, CPA, CGA, CFE, CFF, testified at the hearing. He confirmed that his office sent letters to the Applicant, requesting additional information. Specifically, he requested the Applicant’s 2016 and 2017 personal tax returns but never received them. He testified that those documents would be the starting point to determine the income to include in the Applicant’s IRB calculation.

26The Applicant’s accountant failed to clarify the issue. Mr. I. Semenov, CPA-CMA, BBA, testified at the hearing but failed to clarify what the income was. He testified that the Applicant identified the “other income” as employment income as a waiter. This contradicts the Applicant’s testimony that she started her work as a server in July 2017. When the accountant was asked how it was treated by the Canada Revenue Agency, he stated it was other income declared by the Canada Revenue Agency. To me, this fails to clarify what that other income is.

Post-Accident Income

27The Applicant’s post-accident earnings from self-employment are uncertain. She testified that she returned to self-employment by February 9, 2018. Her documents show self-employment income earned in November 2017, but she submits no other information on her post-accident income.

28In addition to her return to work as a car boarder/breeder, the Applicant returned to regular employment at some point following the accident and no later than October 23, 2019. This employment was only brought to light when the Respondent found a note in the Applicant’s medical record that showed she was seeking a medical note for her work.

29The Applicant testified that she thinks she filed her 2018 tax returns and that she filed her 2019 taxes too. However, she provided none of these relevant documents for review. Documents depicting the Applicant’s post-accident earnings are required to determine the extent of any deductions from any IRBs, should they be payable.

30To me, considering that the Applicant’s post-accident income is deducted from any IRBs payable, her failure to disclose her post-accident income is material. Again, I draw an adverse inference. The Applicant’s failure to produce the financial documents in her possession indicates that those documents would be unfavourable to her.

Duration of Entitlement

31Compounding the issues above, the Applicant’s return to work dates are unknown. Her own evidence is that she returned to self employment by February 9, 2019, despite earning self-employment income in November 2018. She also confirmed that she returned to regular employment by no later than October 24, 2019. All this information contradicts the Applicant’s claim for IRBs for the period from the date of the accident to November 3, 2020.

32Given the totality of the unknowns listed above, I find that the Applicant has failed to meet her burden to prove that she is entitled to payment of IRBs.

ATTENDANT CARE BENEFITS

33The Applicant claims entitlement to attendant care benefits (“ACBs”) in the amount of $698.71 per month, for the period from the date of the accident to November 3, 2019. She submits that she could not raise her left arm above her shoulder, had below average grip strength, restricted ROM in the neck, back and shoulders, and required help with cooking, shopping, laundry, and cleaning.

34The Respondent submits that the Applicant exhibited functionality which indicates no need for ACBs. It further submits that the Applicant failed to establish that she incurred any ACB expenses.

35Pursuant to section 3(7)(e) of the Schedule, a service is not incurred unless the insured person has received the services, the insured person has paid, promised to pay, or is otherwise legally obligated to pay the expense. Further the person providing the services must have done so in the course of their employment, occupation or profession in which they would ordinarily have been engaged but for the accident, or the person providing the service has sustained an economic loss as a result of providing the services.

36I find no evidence that the Applicant incurred any ACB expenses. The Applicant testified that she paid cash for attendant care services and received no receipt of invoice for these services. However, she provided no information on the amount or frequency of any payments and, critically, submits no information about the service provider and whether they meet the service provider requirements outlined above.

37I cannot deem the expense incurred pursuant to section 3(8) of the Schedule because the Applicant claims that she incurred the expense. Section 3(8) allows me to deem an expense as incurred in the event that it never was incurred because the Respondent unreasonably withheld or delayed payment. Here, the Applicant testifies that she incurred the expense when she paid cash for attendant care. However, she submits no evidence to confirm proof of payment or services received.

AWARD

38The Applicant is not entitled to the benefits claimed and it follows that no award is payable. An award is only payable in situations where benefits have been unreasonably withheld or delayed.

CONCLUSION

39The Applicant has failed to meet her burden to prove her quantum of IRBs. She has omitted important information such as her post-accident income and return to work date, which are required to calculate the quantum of any IRBs payable.

40The Applicant incurred no compensable attendant care expenses. I choose not to deem the expenses incurred because there is no evidence to show that the benefit was not incurred because of an unreasonable refusal to pay the benefit.

41The Application is dismissed.