Liu Qi Shen v. Aviva General Insurance Company, 2021 CanLII 120971

Citation: Shen v. Aviva General Insurance Company, 2021 ONLAT 20-000662/AABS

Licence Appeal Tribunal File Number: 20-000662/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:

Liu Qi Shen

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Denise Jiang, Paralegal

For the Respondent: Alexander hartwig, Counsel

HEARD: By way of written submissions

BACKGROUND

1LQS was involved in an automobile accident on September 9, 2017, and sought benefits, including a non-earner benefit (“NEB”), from Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. (the “Schedule”)¹ Aviva denied the NEB based on its determination that LQS did not suffer a complete inability to carry on a normal life. Aviva denied the disputed treatment plan on the basis that it was not reasonable and necessary. LQS disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

a. Is LQS entitled to a NEB in the amount of $185.00 weekly from October 7, 2017 to September 9, 2019?

b. Is the medical benefit in the amount of $4,088.56 for chiropractic services, recommended by Total Recovery Rehab Centre in an OCF-18 dated March 30, 2019, denied on April 2, 2019, reasonable and necessary?

c. Is LQS entitled to interest on any outstanding payment of benefits?

FINDINGS

3LQS is not entitled to payment of a NEB as she has not demonstrated a complete inability to carry on a normal life from October 7, 2017 to September 9, 2019.

4LQS is entitled to the OCF-18 in dispute as it is reasonable and necessary.

5No interest is payable as there is no outstanding payment of benefits.

DISCUSSION

Non-compliance – s. 33 and s. 36

6LQS submits that Aviva is in non-compliance with several sections of the Schedule and as a result, she is entitled to payment of an NEB up until the period of compliance. Aviva submits that LQS is not in compliance with s. 33 and is therefore not entitled to the benefit.

7Section 36 sets out the process for claiming a NEB. Section 36(2) provides that an insured must submit a completed Disability Certificate (OCF-3) with their application for a specified benefit pursuant to s. 32. Section 36(3) outlines the entitlement period for the NEB once the completed OCF-3 is received, being, an insured who fails to submit a completed OCF-3 is not entitled to an NEB for any period before the completed OCF-3 is submitted.

8On September 21, 2017, LQS provided Aviva with a copy of an OCF-1 and the OCF-10, electing NEBs. On September 28, 2017, the OCF-3 dated September 14, 2017, was submitted. The OCF-3 indicated that LQS suffers a complete inability to carry on a normal life. On October 12, 2017, Aviva requested OCF-5s pursuant to s. 33 of the Schedule in order to obtain medical records to determine LQS’ eligibility for an NEB. On February 12, 2018, LQS provided Aviva with the authorized OCF-5s. Aviva responded in a letter dated June 4, 2018 and a subsequent letter dated June 20, 2018, requesting that LQS attend a s. 44 examination.

9LQS relies on subsections 36(4) and (5), which sets out the insurer’s obligations to provide medical and other reasons for the denial of NEBs. LQS’ position is that Aviva failed to comply with its obligations pursuant to these sections in two ways: a) it failed to comply with the 10 day notice period; and, b) it failed to provide adequate notice explaining the medical and other reasons why it determined that LQS is not entitled to NEBs. LQS further submits that pursuant to s. 36(6), Aviva is required to pay the NEB until such time it complies with subsections 36(4) and (5).

10Alternatively, LQS submits that Aviva failed to comply with s. 36(7), in that she attended three s. 44 examinations but was not provided with a copy of the August 27, 2018 multidisciplinary report until January 14, 2019. LQS acknowledges that the Schedule is silent on a remedy for non-compliance with s. 36(7), however, her position is that she is entitled to payment for the NEB up to the date of the January 14, 2019 letter.

11Aviva’s response is that LQS failed to comply with the s. 33(1) request, and is not entitled to any payment of NEB, even partially, due to her non-compliance. Aviva submits that LQS provided one of the three to four items that were requested under s. 33(1). In an October 12, 2017 letter, Aviva requested pre- and post-accident clinical notes and records from her family physician, post-accident hospital records (including the ambulance report), and a completed activities questionnaire. On February 12, 2018, counsel for LQS provided copies of signed OCF-5s for records from Dr. Michael and Dr. Kwong. The hospital records were not received until November 20, 2020. At the time of its submissions, Aviva had not received the ambulance call report or completed activities questionnaire. Aviva takes issue particularly with the OCF-5s regarding s. 33 non-compliance.

12Regarding the OCF-5s, Aviva submits that neither allowed Aviva to obtain family physician records. Dr. Kwong advised that he had seen LQS twice post-accident, and not for any accident-related issues. Dr. Michael, whom LQS indicated in the OCF-1 was her family physician, responded advising Aviva that she was not a patient of his. Aviva further submits that even though LQS provided the OCF-5s, a) it is the actual clinical notes and records that would allow Aviva to make a determination and satisfy its obligation under s. 36(5), and b) the clinical notes and records would have satisfied the s. 33(1) request. As such, Aviva submits that s. 36(5) is not triggered prior to the June 4, 2018 explanation of benefits requesting s. 44 assessments.

13I agree with Aviva. An insured has an obligation to provide the insurer with any information reasonably required to assist the insurer in determining an applicant’s entitlement to a benefit. There is no evidence from LQS that she subsequently complied with the s. 33 request, therefore preventing Aviva from making a fully informed determination regarding her entitlement to the NEB. The evidence shows that Aviva properly requested the information it reasonably required under s. 33. The Schedule is clear, and LQS remains in non-compliance at the time of this hearing. Therefore, Aviva is in compliance pursuant to s. 36(4) and (5). Alternatively, LQS is not entitled to payment of NEBs as a result of her non-compliance under s. 33.

Non-compliance – s. 44

14Section 44(5)(a) of the Schedule provides that if the insurer requires an examination, the insurer shall arrange for the examination at its expense and shall give the insured notice setting out the medical and any other reasons for the examination.

15LQS asserts that Aviva’s notices dated June 4, 2018 and June 20, 2018, failed to comply with the mandatory requirements of s. 44(5) because they did not identify the specific medical reasons why she required to attend the assessments, as determined in the Tribunal’s reconsideration decision M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT Reconsideration). She further relies on the Divisional Court’s decision in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 to support her position that Aviva’s notices contained boilerplate statements that did not allow her to make an informed decision to either accept or dispute the request to attend the s. 44 examinations.

16LQS argues that the reasons fail to be clear and sufficient and do not identify or specify which impairments are not directly caused by the accident. Further, that the medical reasons provided also fail to specify the documents which identified the impairments. Lastly, she submits that the medical reasons neglect to explain and identify what specific impairments the Insurer is relying on.

17In response, Aviva submits that its notices comply with the finding in the Hedley decision, regarding the sufficiency of a s. 44 notice, where it states at paragraph 14, “If it offers a principled rationale based fairly on an insured’s file, an insurer will have satisfied its obligation under s. 38(8).” Aviva points to the following specific statements from its letters in support of this finding:

We’re unable to determine whether the recommendations made on your Disability Certificate meet the disability requirement for the specified benefit you are claiming, and we’re not able to pay your benefits at the time.

Under section 44 of the Schedule, you’re now required to attend an independent medical examination to review these recommendations.

It’s important to note that we won’t be able to consider payment for the NEB until we receive the results of your examination.

18Aviva objects to LQS’ claim that the notices were deficient, as at the time of the notices, the only documentation it had received in June 2018 were the OCF-1, the OCF-3 and two signed OCF-5s. Aviva’s position is that it had insufficient information to have been able to provide further clarity in its reasons.

19On the evidence, I agree with Aviva that its s. 44 assessment requests complied with the requirements of s. 44. The Hedley and M.B. decisions are distinguishable in that the applicants did not attend the s. 44 examinations as requested. LQS attended all the requested examinations. If there was an issue with the reasons for the examination requests, she could have requested further reasons from Aviva, as was the case in Hedley.

20LQS’ arguments about Aviva’s notices being deficient are not supported by any evidence. In fact, the evidence shows that LQS failed to comply with the request for information, and did not provide Aviva with the necessary documentation that is reasonably required to assist it in determining her entitlement to the NEB. In addition, I note counsel wrote to Aviva on June 15, 2018 objecting to one of the assessors due to alleged unprofessional conduct and attitude, on July 18, 2018 requesting an adjournment due to a scheduling conflict, and on July 27, 2018 requesting that a certain interpreter not be used due to his alleged history of unprofessional manner and misconduct. On review, none of the letters from counsel raised any concern about the notices of assessments.

21LQS has failed to establish that Aviva’s s. 44 examination notices were deficient. LQS has not provided compelling evidence that Aviva shall pay the NEB for any alleged period of s. 44 non-compliance.

22Despite my findings on the issue of non-compliance, I must still determine if LQS has demonstrated that she suffers a complete inability to carry on a normal life, and is therefore entitled to a NEB.

ANALYSIS

Non-Earner Benefit

23Section 12 sets out that an insurer shall pay a NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of the accident within 104 weeks. Sections 12(3) (a) and (c) further state that an insurer is not required to pay an NEB for the first four weeks after suffering a disability and for any period more than 104 weeks after accident.

24Section 3(7) of the Schedule provides that a person suffers a complete inability to carry on a normal life as a result of the accident if the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged in before the accident and they are not entitled to an income replacement benefit. The parties agree that Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 sets out the framework for the NEB test to determine whether an insured suffers a complete inability to carry on a normal life. In Heath, the Court sets out that the test requires a comparison of activities and circumstances pre-and post-accident over a reasonable period of time and allows for greater weight to be assigned to activities that an insured identifies as important.

25On a balance of probabilities, I find that LQS is not entitled to NEBs for the period in dispute as she has not demonstrated a complete inability to carry on a normal life as a result of the accident.

26LQS relies on a September 14, 2017 OCF-3, the treatment records of Scarborough Hospital, Total Recovery Rehab, Somatic Assessments & Treatment Clinic and a January 17, 2019 psychological report from Bruce Cook, who diagnosed her with major depressive episode, recurrent episode, severe, without psychotic features and generalized anxiety disorder. Mr. Cook notes in his report that LQS states she was socially engaged and physically active with leisure activities prior to the accident, and she now struggles with pain, in addition to psychological and cognitive difficulties. Mr. Cook opined that LQS’ current symptoms interfere with her return to her pre-accident functioning. In a September 2019 progress report, LQS reported mild improvement to Mr. Cook with respect to anger management and anxiety.

27In response, Aviva asserts that LQS does not suffer a complete inability to carry on a normal life. It submits that despite the report of Mr. Cook, who diagnosed LQS with major depressive episode and generalized anxiety disorder, and its own assessor, Dr. Schwartz, who diagnosed LQS with adjustment disorder with mixed anxiety and depressed mood as a result of the accident in her August 27, 2018 s. 44 report, that LQS does not suffer a complete inability to carry on a normal life. In support of its position and determination to deny payment of NEBs, it relies on the evidence of her engagement in her activities of daily living.

28For example, LQS returned to school for the fall session after the accident, with her graduating successfully. There is no evidence that the accident impacted her studies or grades. She participated in a work placement during the winter of 2018 and was able to secure a full-time position within 1.5 years post-accident. Further evidence shows that she moved several times within the two years of the accident, with the last relocation being to Ottawa. I place greater weight on LQS’ post-accident accomplishments in her “normal life” than her alleged inability to carry on a normal life.

29On the evidence, I find that LQS is still able to engage in substantially all of her pre-accident activities. I note that she alleges an inability to perform housework tasks following the accident, however, she is able to work at a full-time job without accommodations. She returned to yoga but not kickboxing. While I am empathetic that LQS still reports suffering from accident-related pain, I do not find that she is practically prevented from participating in her daily self-care tasks, which she reported she is able to do, or from engaging in her daily activities.

30The Heath test considers that an applicant may identify the daily activities that they value and, as a result of the accident, how their most valued activities have been significantly impacted due to accident-related pain, thereby resulting in a complete inability to carry on a normal life. Activities that an applicant identifies as highly valuable are afforded more weight. LQS did identify Thai boxing as an activity she enjoyed regularly participating in, however, she is still able to participate in her yoga. I note that despite her complaints of left shoulder, right upper arm and right chest pain, she still does yoga, which would likely put strain on all of those areas, however, there is no evidence that she has presented to any of her treatment providers with pain after her yoga sessions.

31In any event, even with the lack of regular participation in one of her daily activities, I do not find that this is compelling evidence to establish that she suffers from a complete inability to carry on a normal life. When weighed against her post-accident accomplishments, there are significant and compelling achievements and participation in daily activities that I place more weight on and which persuade me to find that she has been able to engage in substantially all of her pre-accident activities.

32Consequently, LQS is not entitled to NEBs for the period in dispute.

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

33I find LQS is entitled to payment for the disputed treatment plan as she has met her onus to prove that it is reasonable and necessary.

34LQS submits that the treatment plan which proposes 16 sessions of chiropractic treatment, 16 sessions of exercise/strength and balance training, and 16 sessions of acupuncture, is reasonable and necessary to reduce her multiple sprains/strain injuries and contusions. The OCF-18 completed by Dr. Fung, chiropractor, indicates that LQS’ chronic pain and chronic right arm radiculopathy, post-concussion syndrome are barriers to her recovery.

35In response, Aviva relies on the August 14, 2018 multidisciplinary report of Dr. Rusen, orthopaedic surgeon in support of its denial of the OCF-18. On examination, Dr. Rusen notes that LQS demonstrated a “mild degree of pain-focused behaviour including frequent grimacing during right shoulder and right chest wall examination.” Dr. Rusen noted cervical, lumbar and thoracic spine examinations within normal limits of range of motion. Upper extremity range of motion testing revealed a decrease in the right shoulder and was limited by reported pain. The same normal range of motion was observed on upper extremity testing.

36Dr. Rusen noted that LQS continues to demonstrate ongoing impairment to her right shoulder as demonstrated by a painful and decreased range of motion with positive impingement testing and positive provocative testing for bicipital tendinopathy. Dr. Rusen also opined that LQS demonstrated ongoing impairment to the right chest wall by reported tenderness to palpation. Dr. Rusen concluded that there is no objective evidence of impairment, and that she sustained uncomplicated soft tissue injuries. Dr. Rusen diagnosed LQS with chest contusion, WADI/II cervical spine strain, soft tissue strain/sprain right shoulder, abdominal contusion, contusion left hand, and bilateral knee contusion. Dr. Rusen concluded that LQS suffered predominantly minor injuries as a result of the accident.

37I agree with LQS that the OCF-18 is reasonable and necessary for several reasons. First, she reported to Dr. Rusen an approximate 65% improvement in the level of her accident-related symptoms, and that treatment provided relief from her pain. Second, Dr. Rusen’s report was intended to address the NEB, and there is no indication that he was given the disputed OCF-18 for review or consideration. It is unclear if Dr. Rosen’s opinion would have changed if he was also provided with the OCF-18. Next, it is well-settled that pain relief is a legitimate goal of treatment. The OCF-18 indicates that pain reduction, increase in strength and range of motion were the plan goals. Dr. Rusen’s report notes that there are continued pain complaints and range of motion limitations, as well as an inability to lift heavy objects. There is no dispute that LQS had no pre-existing injuries or functional limitations, and that her post-accident pain is a direct result of the accident.

38While I place little weight on the diagnosis of chronic pain from Dr. Fung, I do note that her treatment providers and Dr. Rusen note pain complaints on examination. The medical evidence also shows that LQS presented with post-accident pain complaints on various occasions. On the evidence, LQS has demonstrated that her ongoing, accident-related pain has improved with and been relieved by previously received treatment similar to that recommended in the OCF-18, and that more of the same treatment is likely to be beneficial.

39For these reasons, I find that LQS has demonstrated that the OCF-18 is reasonable and necessary to treat the injuries she sustained as a result of the September 9, 2017 accident. Interest is payable in accordance with s. 51 of the Schedule.

CONCLUSION

40LQS has not demonstrated that she suffers a complete inability to carry on a normal life, therefore she is not entitled to a NEB. No interest is payable under s. 51.

41LQS is entitled to payment for the disputed OCF-18 for chiropractic treatment, as it is reasonable and necessary. Interest is payable pursuant to s. 51.

Footnotes

1. 1O. Reg. 34/10, as amended.