Licence Appeal Tribunal File Number: 20-010335/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:
Hang Qiang Shi
Applicant
and
The Co-operators
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
James Heeney, Cousnel
HEARD:
In Writing
OVERVIEW
1Hang Qiang Shi, (“the Applicant”), was involved in an automobile accident on July 1, 2018, and sought benefits from the Co-operators, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016), (the “Schedule”). The Applicant was denied income replacement benefits, (“IRBs”) and medical benefits, by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
Is the Applicant entitled to IRBs in the amount of $400.00 per week for the period from April 12, 2019, to-date and ongoing?
Is the Applicant entitled to a medical benefit in the amount of $1,347.10, less $1,077.71 approved by the Respondent, for a physiotherapy treatment plan dated October 2, 2018?
Is the Applicant entitled to a medical benefit in the amount of $2,377.95 for a physiotherapy treatment plan dated December 18, 2018?
Is the Applicant entitled to a medical benefit in the amount of $250.00 for psychological services proposed in a treatment plan dated July 2, 2019?
Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for an Occupational Therapy In-Home Assessment plan dated May 13, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant is not entitled to the benefits claimed or interest.
BACKGROUND
4The Applicant was the driver of a vehicle which struck another vehicle in a perpendicular fashion. The collision occurred in heavy traffic in an urban intersection, whereby the estimated speed of the Applicant’s vehicle was 5km/h1. The Applicant was taken from the scene of the collision to the hospital by ambulance, assessed, and x-rayed. His primary complaints were feelings of nausea, a mild headache, and difficulty ambulating due to bilateral leg pain. Pelvic, leg, and chest x-rays were negative, and the Applicant was discharged from hospital.
5The Applicant followed-up with his family physician, Dr. A. Lai, approximately one week following the accident, on July 9, 2018. He complained of bilateral leg pain from prolonged standing, increased anxiety around vehicles, and a headache. Dr. Lai examined the Applicant and noted a that the Applicant walked without pain or difficulty and a full physical assessment produced negative findings and no associated neurological findings. I see no formal diagnosis in the related clinical entry, but “MVA 7/1/18” and “Anxiety” are clearly noted. Dr. Lai referred the Applicant for physiotherapy, chiropractic treatment, and acupuncture.
6The Applicant met Dr. Lai next on August 27, 2018 and complained of leg and back pain (worse with prolonged standing) and difficulty lifting. It notes “no other associated neurologic sx/findings”. Dr. Lai recommended that the Applicant refrain from work for a period of four weeks. Dr. Lai’s clinical notes and records, (“CNRs”), span the period up to January 29, 2021, but no other visits are noted in the records provided.
7It appears that the Applicant started physical therapy on July 14, 2018. Reports indicate that the Applicant participated in about 20 physical treatment sessions. The CNRs from the treatment facility were not provided in evidence.
8The Applicant developed psychological injuries following the accident. The Applicant was treated for symptoms of anxiety, depression, post-traumatic stress disorder (“PTSD”), and vehicular anxiety. Treatment sessions spanned July 22, 2019 to October 23, 2019.
ANALYSIS
9The Applicant has the onus to demonstrate that he meets the legal tests of entitlement to the benefits in dispute. To meet his onus, the Applicant must provide contemporaneous medical evidence to support his claims. For IRBs, the Applicant must demonstrate that he sustained an impairment as a result of the accident and that the impairment prevents him from completing substantially all his essential tasks of employment. For plans proposing rehabilitative treatment, the Applicant must demonstrate that the treatment goals are reasonable and can be met to a certain degree and the overall costs of achieving the goals of treatment should be reasonable. For plans proposing an assessment, the Applicant must point to objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment.
Income Replacement Benefits (“IRBs”)
10IRBs are payable to the Applicant if he can prove on a balance of probabilities that he is unable to perform the essential tasks of his employment as a manager at a cleaning company, due to accident-related impairments.
11The Applicant submits that he has not returned to work following the accident because his physical and psychological injuries prevent him from engaging in his pre-accident work tasks. The Respondent submits that the Applicant has failed to meet his onus. I agree with the Respondent.
12The Applicant provided no evidence of a physical impairment contemporaneous with the period he claims entitlement to IRBs. The period in dispute spans April 12, 2019 and ongoing. Yet, there is no corresponding recommendation from Dr. Lai during that period. The only time that Dr. Lai opined that the Applicant should refrain from work was on August 27, 2018, and the recommendation was for four weeks.
13The disability certificate by, Dr. J. Fung, chiropractor, is unpersuasive. The disability certificate dated July 21, 2018 notes that the Applicant is unable to complete the essential tasks of his employment as a manager at a cleaning company for a period of nine to twelve weeks. The disability certificate predates the Applicant’s IRB period by more than 35 weeks; thus, it is not contemporaneous with the period he claims IRBs.
14The psychological assessment report, by M. Fung, psychotherapist, supervised by Dr. S. McDowall, psychologist, dated May 29, 2019 and progress report dated October 23, 2019, do not support the Applicant’s claim that he is unable to work. The May 29, 2019 report notes that the Applicant complained of ongoing physical pain and frustration with being unable to participate in activities like he did prior to the accident, but provided no further detail. Psychometric testing scores indicated that the Applicant suffers from severe to moderate anxiety, depression, had symptoms of PTSD and vehicular phobia. The progress report noted that the Applicant continued to have similar complaints but was improving and interested in participating in further treatment. The progress report recommended another 14 sessions of psychotherapy. Remarkably, though the reports mention some of the Applicant’s self-reported physical complaints but neither of the reports include an opinion on the Applicant’s ability or inability to carry out the essential tasks of his employment. There is no opinion from the assessor or service provider that indicates the Applicant’s depression, anxiety, and PTSD impair him from working as a manager at a cleaning company. The report and progress report include no recommendation to refrain from work for any reason. In fact, the progress report fails to mention the Applicant’s employment as a manager at all and only references his past employment as a waiter in a restaurant.
15No records from the treatment facility were provided for the purpose of this hearing, despite being the origin of the plans in dispute.
16On the other hand, the insurer’s examination, (“IE”), reports were made at a time closer to the period the Applicant claims IRBs, and the reports conclude that the Applicant does not have a substantial inability to complete his essential tasks of employment. Dr. J-P. Sarco, physiatrist, assessed the Applicant and issued a report dated December 21, 2018. Dr. Sarco’s report includes a self-completed pain diagram sheet which stated there is currently no pain. Dr. Sarco’s examination revealed that the Applicant exhibited full range of motion throughout his body with no significant pain whatsoever. The Applicant demonstrated good functional motor strength through his arms and legs with normal neurological findings. Dr. Sarco concluded that the Applicant requires no additional treatment and does not have a substantial inability to complete the essential tasks of his employment as a manager at a cleaning company.
17Dr. K. Aladetoyinbo, psychiatrist, assessed the Applicant and issued an IE report dated March 22, 2019. Dr. Aladetoyinbo noted that the Applicant reported a decreased mood and sleep issues, but the mental status examination was unremarkable. Dr. Aladetoyinbo concluded that the Applicant’s emotional symptomology was not severe enough to cause a substantial inability to complete the essential work tasks of a manager of a cleaning company.
18The Applicant reports an inability to work but there is no compelling evidence to support his claim. Thus, he has failed to meet his onus to demonstrate entitlement to IRBs as claimed.
Physiotherapy Treatment Plans Dated October 2, 2018 and December 18, 2018
19The Applicant submits that the CNRs from Dr. Lai demonstrate that he benefits from physical therapy. He submits that the goals of the plans, such as reducing pain, increasing strength and range of motion (“ROM”), and returning to activities of normal living are all reasonable.
20I find that the Applicant has failed to meet his onus to demonstrate that the treatment plans in dispute are reasonable and necessary as a result of the accident.
21Similar to his claims for IRBs, the Applicant provides no compelling or contemporaneous evidence to support his claim. As noted above, Dr. Lai’s CNRs are unpersuasive because they include no accident-related complaints beyond August 27, 2018. The psychological assessment report and progress report address the Applicant’s psychological status, but fail to indicate that the Applicant requires ongoing physical treatment.
22The IE reports conclude that no further facility-based treatment is reasonable and necessary as a result of the accident. As noted above, Dr. Sarco determined that the Applicant had no functional impairments, reported no pain whatsoever, and required no further treatment for his physical injuries. Dr. Aladetoyinbo provided no opinion that could be construed as supportive of ongoing physical treatment for the Applicant.
Occupational Therapy In-Home Assessment Plan Dated May 13, 2019
23The Applicant submits that he has ongoing impairments and requires the occupational therapy assessment.
24I find that the Applicant has failed to meet his onus to demonstrate that the assessment is reasonable and necessary. As noted above, the evidence demonstrates that the Applicant suffers no measurable impairment which would require any assessment. The examination of the Applicant by Dr. Sarco for the December 21, 2018 report revealed no ROM deficit, no physical impairment, and the Applicant reported that he no longer experiences accident-related pain. There is no evidence, contemporaneous with this treatment plan, that indicates the assessment is reasonable and necessary.
Interest
25Interest is only payable on the overdue payment of benefits. The Applicant is not entitled to any benefits or payments and thus, is not entitled to interest.
CONCLUSION
26The Applicant was involved in a low-speed collision and suffered soft-tissue and psychological injuries. The Applicant is not impaired by the injuries and the evidence indicates that he is able to complete the essential tasks of his pre-accident employment as a manager at a cleaning company. Nothing in the evidence indicates that the Applicant requires treatment in addition to what has been provided to-date.
27Thus, the Applicant has failed to meet his onus to demonstrate that he is entitled to the benefits claimed at this hearing. It follows that no interest is payable and no payments went overdue.
28The application is dismissed.
Released: November 15, 2022
Brian Norris
Adjudicator