Release date: 03/30/2021
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:
Quan Que Tran
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Philip Kai Kwong Yeung, Paralegal
For the Respondent:
Tushar Tangri, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant, Quan Que Tran, was involved in an automobile accident on February 11, 2019, and sought benefits from the respondent, Certas Home and Auto Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent denied the applicant certain benefits and she applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3I am to decide the following issues:
i. is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from November 1, 2018 to date and ongoing?
ii. is the applicant entitled to $2,200.00 for the cost of a Psychological Assessment as recommended by Somatic Assessment and Treatment Clinic Inc., submitted in a treatment plan (OCF-18) on February 20, 2019 and denied on March 6, 2019?
iii. is the applicant entitled to interest on any overdue payment of benefits?
iv. is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
4The Tribunal’s March 24, 2020 case conference order listed two other issues as in dispute: whether the applicant sustained predominantly minor injuries as defined under the Schedule and whether the applicant is entitled to $1,646.00 for chiropractic treatment. The parties agree that the respondent removed the applicant from the Minor Injury Guideline on March 25, 2020. That issue is no longer in dispute. Neither party identified entitlement to chiropractic treatment as a disputed issue in their submissions, and the applicant made no submissions on the issue. I conclude that the applicant has withdrawn this issue.
RESULT
5The applicant has not established on a balance of probabilities that she is entitled to the income replacement and medical benefits she seeks. Since no benefits are owing, no interest is payable. There is no basis for an award. The application is dismissed.
ANALYSIS
Income replacement benefit
6The criteria for entitlement to an income replacement benefit are set out in s. 5(1)1.i. of the Schedule. To be eligible for this benefit, the applicant must demonstrate on a balance of probabilities that she was employed at the time of the accident, and that as a result of the accident and within 104 weeks of the accident, she suffered a substantial inability to perform the essential tasks of her employment.
7The parties do not dispute that the applicant was employed full-time as a packer in a factory at the time of the accident. She satisfies this aspect of the test.
8The parties also agree that after the accident, the applicant took a brief sick leave from work, returning to her full-time employment on March 26, 2018. The respondent paid the applicant an income replacement benefit from the date of the accident (subject to the one-week waiting period required under s. 6(2)(a) of the Schedule) until March 25, 2018.
9The applicant continued to work full-time, albeit with pain, until November 1, 2018 when she was laid off. She has not returned to work since.
10The parties dispute the reason for the applicant’s layoff. The applicant submits it was because of her accident-related pain and impairments. The respondent submits the layoff was a result of a structural reorganization when her employer relocated the manufacturing plant where the applicant worked to Mexico.
11I must decide whether the accident gave rise to a substantial inability on the part of the applicant to perform the essential tasks of her employment. I must determine whether any inability to work is a result of the accident.
12I find that the applicant has not demonstrated a substantial inability to perform the essential tasks of her employment as a result of the accident. She worked full-time without modified duties from March 26, 2018 to November 1, 2018. The applicant submits that she returned to work because of financial pressures and that she worked through pain. While the applicant has presented evidence from her family physician, Dr. Melina Hong, that she had “muscle aches” that were “worse after work”,2 she has not presented evidence to show that she was substantially unable to perform the essential tasks of her employment during that period. This is the legal test for entitlement.
13The applicant has also failed to show that her layoff from work related in any way to her performance or to any accident-related impairment. She reported to Dr. McDowell, the psychologist who performed the disputed Psychological Assessment, that she was eager to return to work after the accident because her employer was in the process of laying people off and moving the manufacturing plant to Mexico. She reported that the company ended up laying off everyone in October 2018, and that she began receiving Employment Insurance at that time.
14In the applicant’s reply submissions, she posits that only part of the manufacturing plant relocated to Mexico in October of 2018. She submits that on her last day of work, her employer proposed to extend her contract, but she was unable to do so because of her ongoing physical and psychological impairments. In support of these submissions, the applicant directs me to a clinical note of Dr. Hong, dated March 13, 2019, which notes the applicant was “tearful”, and “thinking back to previous sadness” because her “co-workers are still working there” and “she can’t continue working due to her recent MVA […] she wants to continue to work”.
15I attach little weight to the March 13, 2019 clinical note of Dr. Hong. This visit occurred one week after the respondent denied the disputed Psychological Assessment and I conclude that the visit was probably prompted by that denial. I make this finding because the March 13, 2019 clinical note begins, “[s]he is not that happy today” – “[s]he got a call regarding her MVA/insurance”, and because this is the first mention in Dr. Hong’s clinical notes and records of any psychological distress related to the applicant’s employment since her first post-accident visit in February of 2018. In addition, on October 6, 2018, as the applicant’s layoff was approaching, she reported to Dr. Hong that she felt “much better” and was “stopping work in 2 weeks which [made] her much relieved.” Finally, the applicant has tendered no evidence to corroborate the March 13, 2020 clinical note to show that she was offered a contract extension and refused it because of an accident-related impairment.
16The evidence does not support the applicant’s submission that she suffered a substantial inability to perform the tasks of her employment as a result of the accident. She has not met the test for entitlement to an income replacement benefit within the first 104 weeks of disability. The test for entitlement after the first 104 weeks of disability is a more stringent one, and requires that a person suffer a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience [as set out in s. 6(2)(b) of the Schedule]. The applicant has also failed to satisfy this test.
Psychological Assessment
17To be eligible for the disputed Psychological Assessment, a medical benefit, the applicant must demonstrate on a balance of probabilities that the expense is reasonable and necessary as a result of the accident. This test is set out in s. 15(1) of the Schedule.
18The applicant has failed to show that a Psychological Assessment is reasonable and necessary as a result of the accident. Dr. Hong did not refer the applicant to a psychologist or a psychiatrist for the treatment of her psychological symptoms, accident-related or otherwise. The applicant shows that Dr. Hong was managing the applicant’s mood and anxiety symptoms with medication and counselling, and the applicant has not established that assessment or treatment intervention beyond the care she was receiving from Dr. Hong is reasonable and necessary as a result of the accident.
19On February 15, 2018, four days after the accident, the applicant saw Dr. Hong who noted the applicant’s “mild symptomatology” as a result of the accident. She noted that the applicant was crying and worried about losing her job. Dr. Hong noted the applicant’s emotional distress and her situational life stressors. She prescribed Ativan.
20On February 24, 2018, the applicant visited Dr. Hong again, reporting fear of driving and flashbacks to the accident. Dr. Hong noted that Ativan was helpful, and that she would possibly initiate treatment with “SSR” (which I infer to mean selective serotonin re-uptake inhibitors, a class of anti-depressant medication), to address the applicant’s mood symptoms.
21The applicant did not visit Dr. Hong again until August 5, 2018 when she reported “felling much better”. Dr. Hong noted “mood appropriate.”
22At visits on August 27 and October 6, 2018, the applicant reported to Dr. Hong that she felt “much better”. On October 6, 2018, Dr. Hong noted that the applicant had stopped taking her Cipralex (an anti-depressant).
23The medical records of Dr. Hong show that the applicant did experience psychological sequelae as a result of the accident. But those symptoms were effectively managed through OHIP-funded primary care, and evidently resolved within months of the accident. The records also show that the applicant’s anxiety continued to be triggered by situational life stressors unrelated to (and well after) the accident, including knee surgery in 2020. The resurgence of psychological complaints in March 2019 after the denial of the disputed Psychological Assessment, regardless of origin, also apparently resolved with pharmacological treatment and psychosocial support (counselling) from Dr. Hong.
24The applicant has not established that the proposed Psychological Assessment would offer a benefit beyond the care she was already receiving from Dr. Hong. The treatment and assessment plan (OCF-18) proposing the Psychological Assessment in dispute was prepared by Dr. Sharleen McDowall, a psychologist, but the psychological pre-screen interview appended to the plan was conducted by Ms. Xiaolan Yang, a psychotherapist with a Master of Education. It is unclear what involvement, if any, Dr. McDowall had at the pre-screen stage. The pre-screen states that the applicant had no pre-existing psychological difficulties and that her current mental health difficulties are a direct result of the accident. No basis for this conclusion is disclosed and there is no indication that any objective medical records were reviewed as part of the psychological pre-screen. The contents of the pre-screen are therefore of little evidentiary weight.
25The applicant underwent the denied Psychological Assessment on March 18, 2020. The assessment was conducted by Ms. Mandy Fang, a psychotherapist and social worker under the supervision of Dr. McDowall. The report states that Ms. Fang was responsible for the “integration of background data and acquisition of assessment protocols while serving as the psychometrist.” The assessors diagnose the applicant with major depressive disorder with anxious distress, post-traumatic stress disorder (chronic) and specific phobia (travel).
26The strength of the assessors’ conclusions as to the duration and causation of the applicant’s psychological concerns is compromised by the apparent lack of medical records available for their review. The strength of their treatment recommendations is also hampered by the failure to review the applicant’s medical records. The report contains statements about the applicant’s medical history that are untrue (such as the asserted absence of any pre-existing physical difficulties). These factual errors exhibit the assessors’ limited understanding of the applicant’s clinical concerns. For these reasons, I place little weight on the assessment.
27To conclude on the medical benefit in issue, the applicant has not established on a balance of probabilities that the disputed Psychological Assessment is reasonable and necessary for the treatment of any accident-related psychological impairment.
CONCLUSION
28The applicant has not established on a balance of probabilities that she is entitled to the income replacement and medical benefits she seeks. Since no benefits are owing, no interest is payable. There is no basis for an award. The application is dismissed.
Date of Issue: March 30, 2021
________________________
Theresa McGee, Vice-Chair
Footnotes
- O. Reg. 34/10.
- Clinical notes and records of Dr. M. Hong dated August 27, 2018.