Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 19-009204/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:
Qiao Xuan Xin Applicant
and
Aviva Insurance Company of Canada Respondent
DECISION
VICE-CHAIR: Lori Marzinotto
APPEARANCES:
For the Applicant: Qiao Xuan Xi, Applicant Ankita Abraham, Counsel Pavlos Achlioptas, Counsel
For the Respondent: Joy Kohli, Counsel Raji Kulen, Adjuster
Interpreter: Joanna Chen (Mandarin Language)
Court Reporter: Michelle Gordon
HEARD in-person: February 8, 2021
OVERVIEW
1The applicant was injured in an accident on October 2, 2017 (the “Accident”), and sought various benefits from the respondent, Aviva Insurance Company of Canada, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).1 The respondent denied the benefits. The applicant disagreed with the denials and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2At the commencement of the hearing, the parties confirmed that the only issues to be decided in this hearing are as follows:
i. Is the applicant entitled to a visitor’s expense in the amount of $2,070.32 submitted on May 8, 2019?
ii. Is the applicant entitled to a visitor’s expense in the amount of $1,908.90 submitted on July 3, 2019?
iii. Is the applicant entitled to any interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to either of the visitor’s expenses. As there are no overdue payment of benefits, the applicant is not entitled to any interest.
BACKGROUND
4The applicant is an international student who moved from China to Canada in 2014 to attend school.
5Before coming to Canada, the applicant had lived with her parents. The applicant moved to Canada on her own and did not have family in the country. The applicant submitted that she was very close with her family before moving to Canada. After moving to Canada, the applicant submitted that she would video call her family everyday.
6The applicant submitted that her mother came to Canada when she first moved here but did not come to visit until after the Accident2.
7The applicant was in a program at the University of Toronto which started in July 2017.3 The applicant lived in a house with roommates.
8The applicant submitted that, as a result of the Accident, her head, neck, arm, knee, shoulder, back and left side hurt and that she had a lot of bruises. Undated pictures were admitted into evidence which showed a scratch type injury on her hand, a scratch type injury on the opposite forearm, and bruising on her shins.4 The applicant submitted that the pictures were taken the day of the Accident and further submitted that she forgot to take pictures of her stomach which also had bruising. When asked whether the applicant lost consciousness at the time of the accident, her evidence waivered and the applicant suggested that she lost consciousness for a few seconds but still knew what was happening.
9The applicant submitted that she did not call the police, did not call an ambulance, did not go to the hospital or seek any medical attention that day.
10Pre-accident, the applicant submitted that she had average grades, did not have any problems attending school or doing school work, was in good mental and physical health, and was responsible for household duties.
11Post accident, the applicant submitted that she moved in with her boyfriend because she was “unable to do anything”, she could not cook, complete housework, shower, could barely walk and stayed in bed.
12The applicant submitted that she missed two weeks of school after the accident and missed a test that accounted for 20% of her grade. She indicated that she tried to return to English classes but was unable to finish. The English course was a prerequisite to be enrolled in regular courses. The applicant submitted that she failed English so decided to attend York University.
13While at York University, the applicant submitted that her grades continued to drop and in the fall/winter 2018 year, she failed two of seven courses. She enrolled in two summer courses in 2018 but completed only one. In the fall/winter 2019 year, her grades improved as well as in the summer of 2020 which she attributes to her mother helping her while here5.
14The applicant submitted that she told her father, aunt and grandmother about the Accident 1-2 weeks after it happened but did not tell her mother until December 2018. However, additional evidence indicates that the applicant’s family did not know about the Accident even at the time the visitor’s expenses were submitted to the respondent6.
15The applicant submitted that she asked her mother to come visit and help her. Her mother did not come until April 2019 and said that the delay in visiting was because her mother had to work and had to ask for vacation.
ANALYSIS
16Pursuant to s.22 of the Schedule, the insurer shall pay for reasonable and necessary expenses incurred not more than 104 weeks after the accident by parents as a result of the accident in visiting the insured person during his or her treatment or recovery.
17The applicant has failed prove, on a balance of probabilities, that the visitor’s expenses were reasonable or necessary or incurred by her mother as a result of the Accident. The evidence does not support entitlement.
18The Disability Certificate (OCF-3)7 dated October 7, 2017, completed by a chiropractor at EZ Physio Inc. indicates:
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