Yan v. Certas Home and Auto Insurance Company, 2021 CanLII 28669

Citation: Yan v. Certas Home and Auto Insurance Company, 2021 ONLAT 20-000630/AABS

Release date: 2021/03/10

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:

Zhen Fei Yan Applicant

and

Certas Direct Insurance Company Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Jasvinder K. Singh, Counsel

HEARD: by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on February 11, 2017 and sought benefits, including an income replacement benefit (“IRB”), from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Certas removed the applicant from the Minor Injury Guideline and paid IRBs until February 6, 2018. It denied the benefit in dispute and terminated the IRB on the basis of two s. 44 reports. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are as follows:

a. Is the applicant entitled to an IRB in the amount of $400.00 per week from February 6, 2018 to date and ongoing?

b. Is the applicant entitled to $1,892.20 for chiropractic treatment recommended by VCare Rehab Centre in an OCF-18 dated March 29, 2018?

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

RESULT

3The applicant has not demonstrated that he is entitled to an IRB for the period in dispute or that the treatment plan is reasonable and necessary.

ANALYSIS

IRB entitlement

4Section 5(1)1.i of the Schedule sets out the test for entitlement to an IRB. In order to receive payment, the applicant must be (i) employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment; or (ii) was not employed at the time of the accident but was (A) employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident, (B) be at least 16 years old […] and (C) as a result of, and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.

5Prior to the accident, the applicant worked as a marketing manager at [HBTC]. His essential job duties involved long periods of sitting and standing, concentration and focus and upper body and limb co-ordination. He asserts that he continues to experience ongoing physical and psychological impairments which negatively impact his life and prevent him from suitable employment. He relies on an x-ray report dated February 16, 2017; an MRI report of the lumbar spine dated April 17, 2017; the treatment notes from VCare Rehab Centre, including a Disability Certificate (OCF-3) dated March 15, 2017 and re-assessment from March 2018 by Dr. Palantzas; and various clinical notes and records from Dr. Lee, his family physician.

6There is no dispute that the applicant was entitled to an IRB. The applicant elected to receive IRBs on March 3, 2017. On March 23, 2017, the applicant completed an OCF-1 that indicated he was unemployed at the time of the accident but that he had worked 26 of the past 52 weeks. On March 24, 2017, an Employer’s Confirmation Form (OCF-2) followed, indicating that on October 31, 2016, three months before the accident, he stopped working full-time as a marketing manager at HBTC. Accordingly, Certas paid the applicant IRBs in the amount of $78.08 per week from February 18, 2017 to February 6, 2018 based on his income tax returns from 2012-2017. Certas denied further payment of IRBs based on its s. 44 reports and the medical documentation received.

Certas’ calculation of IRB quantum was correct

7Instead, the dispute turns on the quantum of the IRB paid to date and whether the applicant is entitled to IRB payments on an ongoing basis. On the evidence, I find that he has not satisfied his onus to demonstrate that the quantum of IRBs Certas paid was incorrect or that he is entitled to IRBs from February 6, 2018 to date and ongoing.

8Section 4(1) of the Schedule defines gross employment income. Section 4(2) states that a person’s gross annual employment income is whichever of the following amounts the person designates: (i) the person’s gross employment income for the four weeks before the accident, multiplied by 13, or (ii) the person’s gross employment income for the 52 weeks before the accident. Section 4(2)2 then states that, subject to paragraph 3, the person’s gross annual employment income is his gross employment income for the 52 weeks before the accident if, (i) the person qualifies for a benefit under subparagraph 1(i) of subsection 5(1) and was a self-employed person at any time during the four weeks before the accident, or (ii) the person qualifies for a benefit under subparagraph 1(ii) of subsection 5(1).

9Further, s. 4(5) of the Schedule reads that: “If, under the Income Tax Act (Canada) or legislation of another jurisdiction that imposes a tax calculated by reference to income, a person is required to report the amount of his or her income, the person’s income before an accident shall be determined for the purposes of this Part without reference to any income the person has failed to report contrary to that Act or legislation.”

10Section 4(6) of the Schedule provides that a person’s gross annual employment income and the amount of the person’s income or loss from self-employment may be adjusted for the purposes of this Part to reflect any subsequent change in the amount determined by the Canada Revenue Agency (CRA) under the Income Tax Act (Canada) or by the relevant government or agency under the legislation of another jurisdiction that imposes a tax calculated by reference to income. Finally, under s. 7(3), an insurer is entitled to deduct 70% of the gross employment income from the amount payable during the period in which the applicant is eligible for IRBs.

11Certas’ IRB calculation was based on the applicant’s employment file from HBTC. It indicated that he earned a salary of 24,500 yuan from October 2010 to October 2016. Meanwhile, the applicant’s paystubs from May to October 2016 indicate that he was paid in the range of 24,915 to 25,366 yuan a month. The applicant forwarded his income tax returns from 2012 to 2017. In 2015, 2016 and 2017, his reported income was $3,500, $5,800 and $1, respectively.

12While the applicant may believe he is entitled to $400 in IRBs per week, based on the income reported on his 2016 income tax return, Certas paid IRBs of $78.08 a week from February 18, 2017 to February 6, 2018. I agree with Certas that when s. 4(3) is read in conjunction with s. 4(5) and s. 4(6), that these sections direct insurers to rely on the amounts reported to and accepted by the CRA when calculating income.²

13It is the applicant’s burden to prove entitlement to and quantum of IRB. However, as Certas submits, the applicant has not retained an accountant to determine the quantum of IRBs payable, with the only source document to account for his income in Canadian currency being his income tax returns. As provided above, any income that has not been reported to the CRA cannot form part of the IRB calculation pursuant to s. 4(5) of the Schedule. Problematically, the applicant did not provide reply submissions to rebut this position or to provide an alternative IRB quantum calculation. Accordingly, I find that Certas properly calculated the IRB and paid same on the basis of income the applicant reported to the CRA, in keeping with the direction provided by the Schedule.

The applicant has not demonstrated ongoing entitlement to an IRB

14Further, I find that the applicant has not met his burden to prove ongoing entitlement to an IRB from February 6, 2018 to date and ongoing as he has not demonstrated that he suffered a substantial inability to perform the essential tasks of his pre-accident employment under s. 5 of the Schedule.

15As noted, Certas paid the applicant an IRB up to February 6, 2018, terminating payment of the benefit based on a January 2018 s. 44 functional abilities evaluation report from Dennis Polygenis, physiotherapist, and a January 2018 s. 44 report by Dr. Boucher, G.P.

16The functional abilities evaluation report found that the applicant demonstrated inconsistent effort through failed cross-reference validity tests and statistical measure of effort validity. The test results were not considered a valid indication of his current functional abilities and that he demonstrated the requirements of his pre-accident sedentary job and was not taking medication. In a similar vein, Dr. Boucher found functional ranges of motion in the applicant’s cervical and lumbosacral spine, that his upper and lower extremities were normal, that there was no evidence of crepitation or instability in any of the extremity joints and that his neurological exam was normal. Dr. Boucher diagnosed lumbosacral myofascial strain and cervical myofascial neck strain with an excellent prognosis. Dr. Boucher found that the applicant did not have any functional limitations or restrictions as a result of his accident, that he had achieved maximal medical recovery and did not suffer a substantial inability to perform the essential tasks of his employment.

17On the evidence available, I find these reports persuasive and in line with the medical documentation presented. According to the attendance sheet, the last time that the applicant underwent treatment at VCare Rehab Centre was on March 5, 2018. The Decoded OHIP Summary for the period of February 11, 2012 to August 14, 2018 confirms that the applicant did not visit his family physician, Dr. Lee, or his diabetes nurse practitioner from January 17, 2018 to April 19, 2018 and May 24, 2018 to August 14, 2018. On May 23, 2018, the applicant was reportedly walking daily for 30 minutes and playing basketball once or twice a week for an hour.

18Further, on December 1, 2018, Dr. Lee’s note states that she only had one record for the applicant since September 26, 2018, which was from his diabetes nurse practitioner. The applicant had returned to China and was not returning until April 2019. In her notes, Dr. Lee attributes ongoing pain to degenerative disc disease and not to the accident and the applicant did not provide a prescription summary to demonstrate accident-related prescriptions. As Certas submits, the only medications he was taking were Metformin for type-2 diabetes and Coversyl for high blood pressure. Similarly, while the applicant submits that he suffers from a psychological impairment as a result of the accident, there are no notations for psychological or emotional complaints. Indeed, most of Dr. Lee’s post-accident notes are related to the applicant’s diabetes and blood work requisitions.

19Accordingly, I find no evidence that the applicant has accident-related physical and psychological injuries that prevent him from maintaining employment in a competitive workforce or that “the summation of his injuries rendered him unable to competitively engage in pre-accident employment for which he is suited by education, training or experience” from February 6, 2018 and ongoing, as alleged. There is no objective medical evidence that he cannot perform the sedentary tasks of his pre-accident employment as a result of the 2017 accident. As a result, I find he is not entitled to an IRB in the amount of $400.00 per week from February 6, 2018 to date or ongoing.

Is the treatment plan reasonable and necessary?

20In order to receive payment for a medical or rehabilitation benefit under the Schedule, the applicant must demonstrate that the treatment is reasonable and necessary on a balance of probabilities. The sole treatment plan in dispute is dated March 28, 2018 from VCare Rehab Centre and proposes 10 sessions each of acupuncture services and TENS/IFC treatment plus a reassessment, totalling $1,819.20. On April 14, 2018, Certas denied the treatment plan based on the s. 44 report of Dr. Boucher dated January 29, 2018.

21I find the applicant has not demonstrated that the OCF-18 is reasonable and necessary or payable. He does not specifically engage with the treatment plan but submits it is necessary due to his ongoing injuries and that it was “warranted in light of the MRI findings and Dr. Lee’s recommendations.” There is no discussion of the amount of treatment, the cost of the treatment, the goals of the treatment and whether they are reasonable. His submissions do not explain why another slate of similar treatment is required after one year of same or if previous treatment from the same clinic was even beneficial.

22I agree with Certas that there is limited medical evidence to show that the applicant required ongoing treatment when this OCF-18 was submitted. He has not complained of any accident-related complaints since that time and, according to the attendance sheet, he has not undergone any form of treatment at VCare Rehab since March 5, 2018. I also agree that the recommendation for treatment for ongoing back pain contradicts the applicant’s self-reported level of activity in January 2018, where he could play basketball, jog for an hour and purportedly fly to China for work or leisure. Later notes indicate he was still playing basketball and swimming. Further, Dr. Lee noted that any ongoing pain was a result of the applicant’s degenerative or age-related issues and not as a result of the accident.

23To this end, I follow the January 2018 s. 44 opinion of Dr. Boucher, who found that the applicant did not have any functional limitations or restrictions as a result of the accident and that he had achieved maximal medical recovery from the accident. I find no reason to interfere with Certas’ determination that was made on the basis of this report. The applicant has also not provided any evidence to satisfy his burden to prove that the treatment was incurred.

24Accordingly, the applicant has not met his onus to demonstrate that the treatment plan is reasonable and necessary or incurred and it is therefore not payable. As no benefits are overdue, it follows that no interest is payable under s. 51.

ORDER

25The applicant has not demonstrated entitlement to an IRB, the treatment plan in dispute or interest. His application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2See, N.Z. v. Economical Insurance, 2020, ONLAT 18-009611/AABS, at para 30; and 16-000946 v. Aviva Insurance Company of Canada, 2017 CanLII 12607 (ON LAT), at para 28.```