Mei Lin v. Aviva General Insurance, 2022 CanLII 106438

Citation: Lin v. Aviva General Insurance, 2022 ONLAT 20-002267/AABS

Licence Appeal Tribunal File Number: 20-002267/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:

Mei Lin

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Kimberley Tye, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1Mei Lin (the “applicant”) was involved in an automobile accident on November 2, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by Aviva General Insurance (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant’s vehicle was rear-ended while it was stopped at a traffic light. The applicant sustained injuries to her back and neck. She alleges that she suffers from chronic pain and that she sustained a psychological impairment.

3The applicant received an income replacement benefit (“IRB”) until April 17, 2018, when the respondent terminated the benefit. The applicant seeks a determination that she continues to be entitled to an IRB.

4The respondent took the position that the applicant sustained an impairment that was predominantly a minor injury, and that she was therefore limited to $3,500.00 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline (the “MIG”). It denied treatment and assessment plans submitted by the applicant for physiotherapy and a psychological assessment on the grounds that she had exhausted the $3,500.00 in benefits available to her. The applicant seeks determinations that she sustained non-minor injuries and that she is entitled to the treatment and assessment plans in dispute with interest.

5The applicant also seeks an award under s. 10 of Regulation 664² on the grounds that the respondent unreasonably withheld or delayed payments for the benefits and assessment in dispute.

ISSUES

6The issues are as follows:

1. Is the applicant entitled to an IRB of $192.52 per week from April 17, 2018 to date and ongoing?
2. Did the applicant sustain a predominantly minor injury as defined in s. 3 of the Schedule?
3. Is the applicant entitled to medical benefits for physiotherapy proposed by Easy Health Centre in the following amounts: i. $1,977.05, proposed in a treatment and assessment plan (“OCF-18”) dated January 24, 2018; and ii. $1,493.78, proposed in an OCF-18 dated March 18, 2018?
4. Is the applicant entitled to $2,200.00 for an orthopaedic assessment, proposed by Somatic Assessments & Treatment Clinic Inc. in an OCF-18 dated September 5, 2018?
5. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7The applicant has not established that she is entitled to an IRB from April 17, 2018 to date and ongoing.

8The applicant has not established that she sustained a non-minor injury, and therefore continues to be subject to the $3,500.00 limit on medical and rehabilitation benefits and to treatment under the MIG.

9As the applicant has exhausted the $3,500.00 in benefits available to her, she is not entitled to the OCF-18s in dispute, an award under s. 10 of Regulation 664, or interest.

ANALYSIS

Is the Applicant Entitled to an Income Replacement Benefit?

10Section 5(1)(1)(i) of the Schedule provides that an insured person who sustains an impairment as a result of an accident is entitled to an IRB if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, they suffer a substantial inability to perform the essential tasks of that employment. Two determinations are required: (1) what are the essential tasks of the applicant’s employment, and (2) is the applicant substantially unable to perform those essential tasks: Melo v Northbridge Personal Insurance Corporation, 2017 ONSC 5885 (Div Ct) at paras 8, 17.

11Section 6(1) of the Schedule provides that for the first 104 weeks after the accident, an IRB is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of their employment or self-employment. Section 6(2) provides that after 104 weeks, the insured person is entitled to an IRB if they are suffering a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

12The onus is on the applicant to prove that she is entitled to an IRB.

13At the time of the accident, the applicant was employed as a server at a restaurant. She received an IRB of $192.52 per week from the respondent until April 17, 2018. In an Explanation of Benefits dated March 29, 2018, the respondent advised that it was terminating the IRB based on independent assessments conducted by Dr. G. Soon-Shiong, an orthopaedic surgeon, and Dr. T. Seon, a psychologist.³

14The applicant submits that she has been entitled to an IRB since April 17, 2018, and that she continues to be entitled to an IRB after the 104-week mark. She argues:

a. The essential tasks of her pre-accident employment as a server include standing for prolonged periods of time, upper body coordination, carrying and lifting, and maintaining concentration and focus;

b. Her pre-accident employment is the only employment for which she is reasonably suited by education, training, or experience; and

c. Due to pain and her psychological impairments, including difficulty sleeping and depression, she has been unable to maintain steady employment, and is unable to work “in a competitive, real- world setting, taking into account employer demands for reasonable hours and productivity,” citing Beth Ann Burgess v Pembridge Insurance Company, 2014 ONFSCDRS 92 (FSCO).

15The respondent argues:

a. The only evidence filed by the applicant is a Disability Certificate (“OCF-3”) dated November 15, 2017,⁴ which is insufficient on its own to establish that she is entitled to an IRB;

b. In May 2018, the applicant resumed work as a server at two restaurants until she went on maternity leave in September 2018, and then received employment insurance benefits from October 7, 2018 to March 2, 2019;⁵ and

c. Dr. Soon-Siong⁶ and Dr. Seon⁷ both concluded that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a server.

16I find that the applicant has not established that she suffered a substantial inability to perform the essential tasks of her pre-accident employment from April 17, 2018 onward, or that since November 2, 2019 she has been completely unable to engage in any employment or self-employment for which he or she is reasonably suited by education, training, or experience.

17The applicant relies on the OCF-3 alone in support of her claim for an IRB. Ms. L. Yang, the physiotherapist who completed the OCF-3, stated that the applicant was substantially unable to perform the essential tasks of her employment for the following reasons, which are quoted verbatim:

Severe dizziness; pain and restriction of spinal joint of neck upper and lower back has impaired patient from bending, extension of body. Also patient has suffered pain for pro-longed standing and sitting. The medical Doctor has administrated two to three months off work.⁸

18For the following reasons, I agree with the respondent that the OCF-3 alone is insufficient to meet the applicant’s burden of proof.

19First, the applicant has not provided evidence that corroborates Ms. Yang’s statements in the OCF-3. The only medical evidence the applicant filed is the clinical notes and records (“CNRs”) of Dr. P. Pang, her family doctor.⁹ The only clinical note relating to her accident-related injuries is dated November 3, 2017.¹⁰ In that note, Dr. Pang did not refer to dizziness. He stated that the applicant experienced pain in her neck and back at 90 or 95% of the full range of motion for the motions he tested. It is not clear that these limits on the applicant’s range of motion affected her ability to perform the essential tasks of her employment as a server. Finally, there is no evidence that Dr. Pang recommended that she take two to three months off work.

20Second, the OCF-3 is dated November 15, 2017. Even if the applicant was substantially unable to perform the essential tasks of her employment as of that date, it does not necessarily follow that she continued to be unable from April 17, 2018 onward. To the contrary, she resumed her pre-accident employment on May 15, 2018, and started work at another restaurant on May 21, 2018.¹¹ While she was employed from May to September 2018, she earned substantially more per week than before the accident.¹² She stopped working in September 2018 to go on maternity leave, and not because she was unable to work due to her accident-related injuries.¹³

21Third, Dr. Soon-Shiong and Dr. Seon opined that the applicant was not substantially unable to perform the essential tasks of her employment. The applicant did not refute these opinions or make any arguments as to why they should not be accepted.

22I conclude that the applicant has not established that she is entitled to an IRB before or after the 104-week mark.

Did the Applicant Sustain a Predominantly Minor Injury?

23Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits, including the cost of assessments. Minor injuries are subject to the treatment framework in the MIG.

24A minor injury is defined in s. 3 of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

25The onus is on the applicant to prove that she is not subject to the $3,500.00 limit on benefits and treatment under the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

26The applicant was diagnosed with sprains and strains of the cervical and lumbar spine and whiplash associated disorder of the cervical spine.¹⁴ These are minor injuries as defined in s. 3 of the Schedule. The applicant alleges that she suffers from two non-minor injuries: chronic pain in her back and neck, and a psychological impairment.

27The respondent denies that the applicant suffers from chronic pain or that she sustained a psychological impairment. It relies on the two independent assessment reports:

a. Dr. Soon-Shiong opined that although the applicant reported experiencing pain, there were no objective signs of ongoing organic pathology or physical impairment;¹⁵ and

b. Dr. Seon opined that the applicant was experiencing “mild emotional difficulties” that did not impair her overall function and did not warrant a psychological diagnosis.¹⁶

28For the reasons that follow, I find that the applicant has not established that she sustained a non-minor injury.

Chronic Pain

29Chronic pain may qualify as a non-minor injury if it constitutes chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability: 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at para 28. The pain must be distinct from ongoing or recurring pain, which on their own are classified as sequelae of a minor injury.

30The applicant largely relies on the descriptions of her injuries in the disputed OCF-18s and the OCF-3.¹⁷ However, these claim forms are not evidence capable of establishing that an insured person has sustained a non-minor injury or that the proposed services are reasonable and necessary: Siow v Allstate Insurance Company of Canada, supra at para 13; PR v Aviva Insurance Company, 2021 CanLII 90554 (ON LAT) at para 24.

31The only medical evidence filed by the applicant regarding her accident-related injuries is Dr. Pang’s CNRs. There are only three entries up to July 13, 2020, the date Dr. Pang provided his CNRs to the applicant:¹⁸

a. The first entry is dated November 3, 2017, the day after the accident. Dr. Pang diagnosed the applicant with strains of the cervical and lumbar spine.¹⁹ He ordered an x-ray of the applicant’s spine, which was conducted the same day. The x-ray identified disc disease caused by degenerative narrowing of several discs in the lumbar spine;²⁰

b. The second entry, dated December 11, 2019, concerns medical issues unrelated to the accident;²¹ and

c. The third entry is dated March 3, 2020. Dr. Pang noted that the applicant reported having experienced low back pain for three days. He attributed the pain to the applicant’s lumbar disc disease.²²

32These entries indicate that the applicant did not report back or neck pain after November 3, 2017 until March 3, 2020, and that at the latter appointment, Dr. Pang attributed her low back pain to a degenerative spine condition rather than the accident.

33Dr. Soon-Siong’s and Dr. Seon’s reports are the only other medical evidence in the record. They were completed on March 26, 2018, roughly 4.5 months after the accident. Both assessors noted that the applicant reported experiencing pain, but opined that any such pain did not impair her functional abilities.²³ As noted above, the applicant did not refute their findings or make any arguments as to why they should not be accepted.

34I conclude that the applicant has not established that she suffers from chronic pain constituting a non-minor injury.

Psychological Impairment

35Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule.

36The applicant relies on the disputed OCF-18s to prove that she sustained a psychological impairment. The OCF-18s for physiotherapy state that her injuries include “disorders of initiating and maintaining sleep [insomnias].”²⁴ The OCF-18 for a psychological assessment appends a “Pre-Assessment Screening Report” stating the applicant’s reported psychological symptoms, including pain, headaches and dizziness, disturbed sleep, impaired memory and concentration, reduced appetite, emotional distress, depression, anxiety, irritability, fatigue, and fear.²⁵ Dr. S. McDowell, the author of the report, opined that the applicant suffered from a psychological impairment, and required a full psychological assessment including psychometric testing and a clinical interview.²⁶

37The respondent argues that OCF-18s and pre-assessment screening reports appended to OCF-18s are not valid evidence of a non-minor injury. It notes that the applicant has produced no medical evidence that corroborates the claims in these documents. It relies on Dr. Seon’s opinion that the applicant was experiencing “mild emotional difficulties” that did not interfere with her overall function and did not warrant a psychological diagnosis.²⁷

38I find that the applicant has not established that she suffered a psychological impairment. As noted above, the OCF-18s on their own are insufficient to meet her burden of proof. There is no mention of psychological symptoms in Dr. Pang’s clinical notes and records, and the applicant has provided no other evidence that corroborates the claims made in the OCF-18s and the Pre-Assessment Screening Report.

39I give little weight to the Pre-Assessment Screening Report. The methodology of the pre-assessment screening is unspecified, but it evidently was not a full-fledged assessment with psychometric testing or a clinical interview. Dr. McDowell’s opinion appears to be based solely on the applicant’s self-reported symptoms. However, there is no evidence that corroborates that self report. The applicant denied experiencing many of the same symptoms to Dr. Seon, including driving anxiety, fear, or avoidance, nightmares or waking up at night with a startled response, changes in appetite, anxiety, and depression.²⁸

40Furthermore, I do not accept Dr. McDowell’s opinion that the applicant has a psychological impairment because “she is experiencing many of the symptoms commonly found in individuals suffering from post-accident psychological impairment.”²⁹ A psychological impairment is not a single psychological disorder. It can be caused by an array of psychological conditions with different symptoms that affect people’s lives in different ways. The fact that the applicant has symptoms that can be observed in this array of conditions is unpersuasive on its own.

41I conclude that the applicant has not established that she sustained a psychological impairment.

42Because I find that the applicant has not established that she suffers from chronic pain or that she sustained a psychological impairment, she has not established that she suffered a non-minor injury, and continues to be limited to $3,500.00 in medical and rehabilitation benefits.

Is the Applicant Entitled to the OCF-18s in Dispute?

43Given that the applicant has exhausted the $3,500.00 in benefits available to her, she is not entitled to the OCF-18s in dispute. It is therefore unnecessary to consider whether the proposed physiotherapy services and psychological assessment are reasonable and necessary.

Is the Applicant Entitled to an Award Under s. 10 of Regulation 664?

44Section 10 of Regulation 664 provides that an award may be ordered in addition to the benefits and interest to which an insured person is entitled if the insurer has unreasonably withheld or delayed payments. I have found that the applicant is not entitled to the benefits or cost of assessment in dispute. Consequently, she is not entitled to an award with respect to those benefits.

Is the Applicant Entitled to Interest?

45As there are no overdue payments, the applicant is not entitled to interest.

ORDER

46The applicant is not entitled to an IRB from April 17, 2018 to date and ongoing.

47The applicant continues to be subject to the $3,500.00 limit on medical and rehabilitation benefits and to treatment under the MIG.

48The applicant is not entitled to the OCF-18s in dispute or interest.

49The applicant is not entitled to an award under s. 10 of Regulation 664.

50The application is dismissed.

Footnotes

1. 1O Reg 34/10 as amended.
2. 2RRO 1990, Reg 664: Automobile Insurance.
3. 3Explanation of Benefits dated March 29, 2018. Respondent’s Written Submissions, Tab 18 at 117.
4. 4Disability Certificate (“OCF-3”), dated November 15, 2017. Applicant’s Written Submissions, Tab 3.
5. 5Record of Employment dated September 25, 2018; Record of Employment dated September 29, 2018; Employment Insurance Payments. Respondent’s Written Submissions, Tab 4 at 35-36, 38. The record does not show what, if any, employment or other income the applicant received after March 2, 2019.
6. 6Dr. G. Soon-Shiong, Insurer’s Examination Report, dated March 26, 2018. Respondent’s Written Submissions, Tab 12 at 78.
7. 7Dr. T. Seon, Insurer’s Examination Report, dated March 26, 2018. Respondent’s Written Submissions, Tab 13 at 91.
8. 8Supra note 4 at 3.
9. 9Clinical notes and records (“CNRs”) of Dr. P. Pang, dated November 3, 2017. Applicant’s Written Submissions, Tab 2.
10. 10Ibid at PDF page 3.
11. 11Records of Employment dated September 25, 2018 and September 29, 2019. Respondent’s Written Submissions, Tab 4 at 35-36.
12. 12Ibid; Employer’s Confirmation Form (“OCF-2”), dated January 11, 2018. Applicant’s Written Submissions, Tab 10 at PDF pages 6-7.
13. 13Supra note 11.
14. 14CNRs of Dr. P. Pang, dated November 13, 2017. Supra note 9 at PDF page 3; Dr. G. Soon-Shiong, Insurer’s Examination Report, dated March 26, 2018. Supra note 6 at 77.
15. 15Supra note 6 at 77.
16. 16Supra note 7 at 90.
17. 17Applicant’s Written Submissions, Tabs 1, 3, 4, 7.
18. 18Supra note 9 at PDF page 1.
19. 19Ibid at PDF page 3.
20. 20Ibid at PDF page 5.
21. 21Ibid at PDF pages 3-4.
22. 22Ibid at PDF page 4.
23. 23Supra note 6 at 77; supra note 7 at 90.
24. 24OCF-18 dated January 24, 2018. Applicant’s Written Submissions, Tab 4 at 10; OCF-18 dated March 18, 2018. Applicant’s Written Submissions, Tab 7 at 10. Original square bracketing.
25. 25OCF-18 dated September 5, 2018. Applicant’s Written Submissions, Tab 1 at 11-12.
26. 26Ibid at 12.
27. 27Supra note 7 at 90.
28. 28Ibid at 86-87.
29. 29Supra note 25 at 12.