Qiu Yun Li v. Allstate Insurance, 2021 CanLII 45655

Li v. Allstate Insurance, 2021 ONLAT 19-004738/AABS

Citation: Li v. Allstate Insurance, 2021 ONLAT 19-004738/AABS

Release date: 05/25/2021

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:

Qiu Yun Li

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Patrick Baker, Counsel

HEARD:

By way of written submissions

OVERVIEW

1On September 25, 2016, the applicant alleges that she sustained physical and psychological injuries when a vehicle reversed over her feet. She sought benefits, including an income replacement benefit (“IRB”), from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Allstate denied the IRB based on an incomplete application supporting entitlement and denied the benefits in dispute because they were not reasonable and necessary. 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 receive a weekly IRB in the amount of $400.00 per week for the period October 3, 2016 to September 25, 2018?

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

c. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

d. Is the applicant entitled to a medical benefit in the amount of $4,355.12 for physiotherapy services in a treatment plan (OCF-18) submitted on July 7, 2020?

e. Is the applicant entitled to a medical benefit in the amount of $3,701.88 for psychotherapy services submitted on April 30, 2020?

RESULT

3The applicant has not demonstrated entitlement to an IRB, the treatment plans in dispute, interest or an award.

ANALYSIS

IRB entitlement

4In order to qualify for an IRB under the Schedule, an insured must have been employed at the time of the accident, must have been employed for at least 26 of the 52 weeks prior to the accident, or must have been receiving employment insurance at the time of the accident. To satisfy the test under s. 5(1), an insured should demonstrate that their accident-related injuries result in a substantial inability to perform the essential tasks of their pre-accident employment. To do so, an insured should identify the essential tasks of their employment, identify which tasks they are unable to perform and the extent of their inability to do so.

5To this end, the applicant asserts that at the time of the accident, she was employed as a Manager/Receptionist at Tian Tian Express, Inc. [“TTE”]. She submits that her job involved managing TTE’s daily activities, which included “long periods of standing, computer work, physical exertion, concentration and focus.” The OCF-3 in evidence provides that she cannot complete these tasks. The Record of Employment (“ROE”) and OCF-2 indicate that she worked full-time at TTE from August 29, 2016 to September 25, 2019 and that her last day of work was on September 23, 2016, or two days prior to the accident.

6Problematically, the issuance code on the applicant’s ROE was listed as “E00”, which corresponds to “quit.” On receipt, Allstate called TTE to verify the applicant’s employment details and was advised that the applicant had no anticipated return to work date as she had quit her job on September 23, 2016. Allstate advised the applicant via an Explanation of Benefits (“EOB”) dated November 10, 2016 that since she was not employed on the date of the accident and the ROE listed the reason as “quit”, it required confirmation that she had worked 26 of the 52 weeks prior to the accident, in accordance with the eligibility criteria under the Schedule.

7On January 31, 2017, the applicant provided a letter purported to be from TTE dated January 4, 2017 that stated that her last work date of September 23, 2016 was a Friday, and that she did not resign from her position as Manager/Receptionist, but rather, that she had temporarily left the company after the accident on September 25, 2016 and that her job was still open. The letter states that the reason for the issuance code on the ROE was an error and that it should have stated code “E” for health reasons or code “D” for illness or injury.

8Allstate sent an EOB dated February 20, 2017 acknowledging receipt of the TTE letter and stating that in order to determine entitlement to IRB it required a corrected ROE to be completed and submitted to the Canada Revenue Agency. In my view, given the inconsistencies, it was a reasonable and valid request that would not trigger the consequences of s. 36. Instead, between June 2017 and August 2018, the applicant submitted 2016 tax records revealing employment income in 2016 but also self-employment income that was not previously disclosed and which would change the calculation. Her 2017 tax information showed no income whatsoever. Allstate then provided an EOB dated September 7, 2018 reiterating its request for confirmation that the applicant had worked 26 of the 52 weeks prior to the accident and a corrected ROE, as there was insufficient evidence to establish that she qualified for an IRB.

9To date, Allstate submits that the applicant never provided a corrected ROE. In submissions, despite having the burden of proof, the applicant appears to lay the blame for the lack of a corrected ROE on Allstate, which is not helpful to her case. Allstate also submits that the applicant failed to provide an employment file from TTE. While the applicant provided evidence of two unfulfilled requests for an employment file and submits that she should not be punished for a third party’s failure to comply, I agree with Allstate that the applicant could have brought a motion for non-party production, could have summonsed a representative from TTE or, at minimum, provided affidavit evidence speaking to the discrepancies in her employment history. She chose not to.

10Accordingly, I agree with Allstate that there is conflicting evidence with respect to the applicant’s employment at the time of the accident. Where the initial ROE indicated that the applicant quit her job prior to the accident, where a TTE representative confirmed that she had quit, where an updated ROE was never provided to Allstate or to the CRA and where the applicant has failed to secure an employment file in the five years since the accident, I agree with Allstate that it is difficult to find that the applicant was employed at TTE on the date of loss or that she had worked for 26 of the 52 weeks prior to the accident, as required by the Schedule. Despite having the benefit of reply, the applicant did not file submissions or evidence to rebut any of Allstate’s assertions or to assist the Tribunal.

11Putting documentation aside, and in any case, I also agree that the applicant has not established substantive entitlement to the IRB. The applicant’s case for inability appears to be based on a single OCF-3 and sporadic complaints to her family physician. The applicant provided no evidence to support the purported essential tasks of her pre-accident employment as a Manager/Receptionist for the four-week period she was employed at TTE. While I can glean what these positions entail, there is no employment file or job description that would be assistive in comparing her pre- and post-accident level of function and whether her impairments made her substantially unable to perform these essential tasks. An OCF-3 alone is not sufficient to establish entitlement to an IRB.

12As Allstate notes, there are sparse accident-related complaints in the family physician records. The rare complaints pertain to pain in her left foot, which she self-reported as having improved by 70-80% in December 2016, with “basically no pain” by August 2018. Notably, the applicant waited five days to see her family physician post-accident and the x-ray report revealed no fractures to the foot. Meanwhile, the s. 44 orthopaedic report of Dr. Marchie dated September 11, 2017 revealed no objective findings of musculoskeletal impairment. While the applicant asserts that the medical records “consistently document her impairments,” it is, with respect, unclear what documents she is referring to that could possibly meet the test, as the hospital records, OHIP summary and clinical notes are not particularly compelling evidence of an impairment of any kind.

13A single page “Orthopaedic initial consultation assessment form” from Total Recovery diagrams pain in her back, shoulder and knee, however, this form was prepared on July 7, 2020, or nearly four years post-accident, so it cannot speak to the IRB test for the period in dispute. I note that the form also states that the applicant was not working before the accident, but that is then crossed out and the word “receptionist” is written above it. In any case, the remaining medical evidence was provided by Allstate, so it is not assistive to the applicant’s claim.

14The applicant asserts that she sustained psychological impairments as a result of the accident and relies on a November 2016 diagnosis of Adjustment Disorder and Mixed Anxiety and depressive disorder and Specific Phobia (Travel) by Dr. McDowall. Allstate approved psychological treatment stemming from this diagnosis. However, Allstate relies on the s. 44 psychological report of Dr. Dumitrascu, dated September 21, 2017, which resulted in no psychological diagnosis and an opinion that the applicant had recovered. On balance, I prefer the report of Dr. Dumitrascu, as there is a dearth of complaints in the family physician records post-accident and the applicant has not demonstrated that her impairments were ongoing or how her psychological impairments substantially prevented her from completing the essential tasks of her employment.

15Finally, the applicant asserts that “her physical and psychological injuries prevented her from maintaining employment in a competitive workforce between December 2, 2017 to April 1, 2018” and that “the summation of the applicant’s injuries rendered her unable to competitively engage in pre-accident employment for which she is suited by education, training or experience.” However, again, she provided no medical opinion or evidence to support these claims. For these reasons, I find the applicant has not demonstrated that she is entitled to an IRB in the amount of $400 per week for the period in dispute.

Are the treatment plans reasonable and necessary?

16In order to receive payment for medical and rehabilitation benefits under the Schedule, the applicant must demonstrate that they are reasonable and necessary. To do so, the applicant should demonstrate that the goals are reasonable, that the goals are being met to a reasonable degree and the cost of same is reasonable. I find the applicant has failed to demonstrate that either treatment plan is reasonable or necessary or incurred and therefore neither is payable and no interest applies.

Psychotherapy Services

17The first OCF-18 in time is from Somatic Assessment and Treatment, submitted on April 30, 2020, proposing $3,701.88 for psychotherapy services. This OCF-18 was submitted 3.5 years post-accident and was denied by Allstate based on the dearth of psychological complaints in the family physician records after August 2018 and because Dr. Dumitrascu’s s. 44 report revealed no psychological diagnosis. I agree with Allstate. With respect, it is unclear what prompted the OCF-18 where there are no contemporaneous complaints to her family physician that would prompt intervention, where there was no referral for same identified and the applicant has not provided analysis to explain why 24-1.5 hour sessions of psychological treatment at the cost proposed is reasonable and necessary nearly four years later or how her alleged impairments can be attributed to the 2016 accident. While OCF-18s are not medical evidence, the OCF-18 does not provide specifics or details about the applicant that would indicate additional treatment is necessary and there are no additional comments that would speak to the treatment. Where there is also no evidence that the treatment was incurred, I find it is not reasonable and necessary or payable.

Physical Treatment

18The second treatment plan is from Total Recovery and proposes $4,355.12 for an assessment, physiotherapy, active therapy, massage, transportation, a report and the cost of the OCF. The OCF-18 was submitted on July 7, 2020, again nearly four years post-accident. Allstate denied the claim on the basis of Dr. Marchie’s s. 44 report and the lack of clinical notes evidencing an impairment. The applicant submits that the plan is reasonable and necessary because she reported that treatment provided pain relief and because Allstate acted unreasonably in denying the plan based on clinical notes and a September 11, 2017 s. 44 report.

19I agree with Allstate. While pain relief can be a legitimate goal for treatment, the clinical notes of the family physician indicate that the applicant reported being “basically pain free” as of August 2018 and there are no pain complaints thereafter. Further, where Dr. Marchie found no evidence of any objective findings of musculoskeletal impairment in 2016, where the x-rays revealed no fractures, where there is no referral for ongoing physiotherapy and where the applicant offered no submissions to speak to why $4,355.12 in physical treatment was reasonable and necessary for subjective pain relief, I cannot find that it is. Where there is also no evidence that the treatment was incurred, it follows that the OCF-18 is not payable, and no interest applies.

Award

20Finally, the applicant sought an award under s. 10 of O. Reg. 664, submitting that Allstate breached its duty of good faith and fair dealing, failed to assess her claims when new information became available, failed to refer the applicant to s. 44 assessments and has unreasonably delayed payment of her benefits. Under s. 10, the Tribunal may award up to 50% of the benefits payable if it determines that an insurer unreasonably withheld of delayed the payment of benefits. Where no benefits are overdue, it follows that an award is not appropriate.

ORDER

21The applicant has not demonstrated entitlement to an IRB in the amount of $400 per week for the period in dispute.

22The applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary or payable. Interest and an award do not apply.

Footnotes

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