Licence Appeal Tribunal

Citation: Hui Fang Lin v. Allstate Canada, 2022 CanLII 109479

Licence Appeal Tribunal File Number: 20-008190/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:

Hui Fang Lin Applicant

and

Allstate Canada Respondent

DECISION

Vice-Chair: Beverly Brooks

Appearances:

For the Applicant: Hui Fang Lin, Applicant Yu Jiang, Paralegal

For the Respondent: Danielle Ralph, Counsel

Heard: By Way of Written Submissions

Background

1Hui Fang Lin, the applicant, was involved in an automobile accident on May 16, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent, Allstate Canada, and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2The main issue in dispute is the income replacement benefit (“IRB”). The applicant was paid IRB starting one week after the accident. After the applicant attended two s. 44 insurer’s examination (“IE”) on March 13, 2019 and March 27, 2019, the assessors concluded that she did not have a substantial inability to perform the essential tasks of her job and the respondent stopped her IRB payments on April 15, 2019. The applicant is maintaining that she has substantial inability to perform the essential tasks of her job and that she is entitled to a weekly IRB. The applicant is also claiming entitlement to medical and rehabilitation treatment and assessment plans in dispute.

3The onus is on the applicant to demonstrate, on a balance of probabilities, that she suffered a substantial inability to perform the essential tasks of her pre-accident employment in order for her to receive an IRB.

4With respect to the treatment and assessment plans in dispute, the onus is also on the applicant to demonstrate that the physiotherapy sessions and the in-home assessment are reasonable and necessary.

Issues

5The issues in dispute are as follows:

1. Is the applicant entitled to income replacement benefits in the amount of $350.00 weekly from April 15, 2019 and ongoing?

2. Is the applicant entitled to a medical benefit in the amount of $1,463.03 for physiotherapy services submitted in a treatment plan (“OCF-18”) dated March 10, 2019 by Easy Health Centre?

3. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for an in-home assessment submitted in an OCF-18 dated April 10, 2019 by Somatic Assessments & Treatment Clinic?

4. Is the applicant entitled to interest pursuant to s. 51 of the Schedule?

Result

6I find the following:

1. The applicant has not met her onus to demonstrate that she is entitled to any additional IRBs;

2. The physiotherapy treatment plan is reasonable and necessary;

3. The in-home assessment is not reasonable and necessary; and

4. The applicant is entitled to interest relating to the physiotherapy treatment plan, pursuant to section 51 of the Schedule.

Analysis

Income Replacement Benefit

7Section 5(1) of the Schedule sets out the test for entitlement of income replacement benefits. The applicant is entitled to income replacement benefits if she can establish that she was employed at the time of the accident, and as a result of and within 104 week of the accident, suffered a substantial inability to perform the essential tasks of her employment. The applicant bears the onus of proving, on a balance of probabilities, that she is entitled to an income replacement benefit in the amount of $350.00 per week for the time period of April 15, 2019 to date and on going.

8Section 6 of the Schedule states that an income replacement benefit is payable for the period in which the applicant suffers an inability to perform the essential tasks of her or his employment. The insurer is not required to pay for the first week of the disability or after the first 104 weeks of disability unless as a result of the accident the applicant is suffering a complete inability to engage in employment for which she or he is reasonably suited by education, training or experience.

9Based on the evidence, I find that the applicant failed to prove, on a balance of probabilities, that she suffers from a substantial inability to perform the tasks of her pre-accident employment as a waitress. The applicant has not met her burden of proving her entitlement to IRB and, therefore, I find that the applicant is not entitled to an IRB for the time period in dispute.

10The applicant started to receive IRB a week after the accident. The applicant was pregnant at the time of the accident. A week after the accident the applicant was given a note by her doctor to start pregnancy leave. The applicant gave birth on September 14, 2018 and was on maternity leave until September 2019. The applicant attended two s. 44 IEs in March 2019 (a physiatry assessment on March 13, 2019 and a psychological assessment on March 27, 2019). The Multidisciplinary Report, which included both assessments, was issued on April 5, 2019. Based on this report, the assessors concluded that she did not have a substantial inability to perform the essential tasks of her job and the respondent stopped her income replacement benefit payments on April 15, 2019. The applicant is maintaining that she did have a substantial inability to perform the essential tasks of her job and that she should be paid IRB for the period from April 15, 2019 to date and ongoing.

11The applicant submits that her job duties include repetitive and prolonged bending, lifting-carrying, pushing pulling and reaching. She directs me to the OCF-18 by physiotherapist Ms. L. Yang, submitted for physiotherapy treatments to confirm this list of duties.¹

12The applicant has not returned to work since the accident. In her submission, she maintains that she is unable to resume her pre-accident work duties because of physical pain and psychological impairments. In support of her claim that she is unable to perform the essential tasks of her employment, the applicant has presented the following evidence:

1. The clinical notes and records of her family physician, Dr. K. Lai, from May 23, 2018 to June 13, 2018;

2. An OCF-3 Disability Certificate dated May 23, 2018, prepared by Ms. Yang, a physiotherapist;

3. The January 28, 2020 notes and records of Dr. J. Wong, a physiatrist, who examined the applicant after a referral by her family doctor.

13On May 23, 2018 (a week after the accident), the applicant consulted her family physician, Dr. Lai, with her concerns about nausea, dizziness, neck pain and poor sleep that she attributed to the accident. In his clinical notes and records, Dr. Lai documented that the applicant’s lower back pain and her difficulties sleeping were related to her pregnancy.² During the applicant’s subsequent visit on June 13, 2020, Dr. Lai noted various physical and psychological issues that the applicant was experiencing including sleepiness, dizziness, nausea, neck pain. In response to the applicant’s complaints, Dr. Lai prescribed several types of medication including Quetiapine, Sertraline and Trazodone which are antidepressants, and Vimovo, which is a non-steroidal anti-inflammatory.³ Dr. Lai’s clinical notes and records include no reference to the applicant’s ability to perform the essential tasks of her employment. Moreover, Dr. Lai made no recommendation for the applicant to refrain from work or modify her duties at work. The applicant’s next appointment with her doctor was not until July 2, 2019. At that time, she complained mainly about lack of sleep and her family doctor diagnosed her with aches and pains.⁴ Dr. Lai’s clinical notes and records do not attribute these symptoms to the accident.

14Ms. Yang prepared a Disability Certificate for the applicant dated May 23, 2018, which outlined the applicant’s inability to perform the tasks of her job for a duration of more than twelve weeks.⁵ In the Disability Certificate, Ms. Yang noted that the severity of the injury, stress and pregnancy were preventing the applicant’s return to work.⁶ Ms. Yang recommended physiotherapy treatment in an OCF-18 dated March 20, 2019 (one of the issues in dispute). In her proposed treatment plan, Ms. Yang states that although there was some improvement, the applicant was still experiencing ongoing pain of her neck, back and shoulders. In the treatment plan, Ms. Yang affirms that because of the applicant’s accident-related injuries she is unable to perform the essential tasks of her job and that she suffered a complete inability to carry on a normal life.⁷ It should be noted that this is the language of the disability certificate and not a written comment by Ms. Yang.

15The applicant saw Dr. Wong on January 28, 2020, regarding ongoing headaches and pain in her neck and back, at the referral of Dr. Lai. Dr. Wong wrote in his clinical notes that the applicant was suffering from “myofascial strain of neck and back”⁸ and recommended medication such as Paxil, Celexa and Prozac but the applicant refused to take them because she was worried about the side effects. Dr. Wong’s clinal notes and records include no indication that the applicant was unable to perform the essential tasks of her pre-accident job because of her accident-related injuries.

16Dr. Wong found that the applicant had a myofascial strain of the stain and back and recommended medication but made no comment in his letter of January 28, 2020 to Dr. Lai about the applicant’s ability to perform the essential tasks of her pre-accident job. Dr. Wong affirmed that the applicant’s accident-related injuries prevent her from carrying out the tasks of her employment and normal life when he submitted an OCF-18 recommending an attendant care in-home assessment.⁹

17The respondent’s position is based on the s. 44 multidisciplinary assessment report which was completed by Dr. A. Oshidari, a physiatrist, and Dr. C. Notarfonzo, a psychologist, dated April 5, 2019. The report concluded that the applicant suffered from strain/sprain of the spine and tension headaches, and she was diagnosed with adjustment disorder and vehicular phobia. Dr. Oshidari concluded that the applicant “failed to reveal any specific structural or physiological abnormality”¹⁰ and that “she does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.”¹¹ Dr. Notarfonzo noted in her report that the applicant suffers from Adjustment Disorder and specific phobia (driving, passenger travel).¹² As previously stated, Dr. Notarfonzo noted in her report that the applicant’s accident-related psychological impairments do not cause her to suffer substantial inability to perform the essential tasks of her employment.¹³

18I have been provided with no medical evidence contemporaneous with the time period which the applicant claims an IRB. There are very few medical reports or doctors’ clinical notes within the relevant time period that provide me with an in depth understanding of the applicant’s limitations and their impact on her abilities to perform the essential tasks of her pre-accident employment. Dr. Lai, the applicant’s family physician, and the other treating physicians to whom Dr. Lai referred the Applicant, make no comment on the applicant’s ability to perform the essential tasks of her pre-accident employment. Dr. Notarfonzo stated that the applicant’s accident-related psychological impairments do not cause her to suffer substantial inability to perform the essential tasks of her employment.¹⁴ The applicant’s physiotherapist, Ms. Yang, and her physiatrist, Dr. Wong, provide opinions that are anomalous with the information in the applicant’s treating physicians CNRs. Physiotherapist Yang and Dr. Wong suggest that the applicant is unable to complete the essential tasks of her employment whereas Dr. Lai’s clinical notes and records include no objective evidence which indicates that the applicant is disabled from working. Dr. Oshidari stated in his IE assessment report dated April 5, 2019 that the applicant failed to reveal any specific structural or physiological abnormality¹⁵ and that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.¹⁶

19I prefer the opinions of Dr. Oshidari and Dr. Notarfonzo because of their healthcare specialist qualifications and because their reports are based on detailed physical and psychological testing of the applicant in addition to physical examination. For example, Dr. Oshidari conducted a neurological examination of the applicant while he was examining her on March 13, 2019 and concluded that her cranial nerves were within normal limits.¹⁷ He also stated in his report that her muscle tone and power were at pre-accident levels. Dr. Notarfonzo administered four psychological tests on the applicant including a clinical assessment of depression and pain, a pain patient profile, a pain disability index and a motor vehicle anxiety questionnaire.¹⁸ The pain patient profile test is specifically designed to assess those who experience emotional distress as a result of a physical trauma such as an accident. The questionnaire has a validity index that determines the probability of random responses, inadequate reading comprehension and symptom magnification. It should be pointed out that the applicant’s physicians relied only on physical examination of the applicant and the patient’s self reporting when they examined her. Moreover, it should be noted that some of the applicant’s physicians came to a similar conclusions as Dr. Oshidari and Dr. Notarfonzo. For example, Dr. Wong, a physiatrist to whom the applicant’s family doctor referred her, did not state in his report that the applicant was not capable of performing her pre-accident employment tasks, when he examined her on January 28, 2020, which was within a year after Dr. Oshidari examined her.

20The applicant has failed to discharge her onus to prove on a balance of possibilities that she suffers from an inability to perform the essential tasks of her job as a result of the accident. The applicant has provided evidence that illustrates the connection between her accident-related impairments and her inability to perform her pre-accident job (Disability Certificate by Ms. Yang and an OCF-18 from Dr. Wong) but it is but it is not contemporaneous with the period she claims IRBs and is outweighed by the reports of Dr. Oshidari and Dr. Notarfonzo.

21Having found that the applicant failed to meet her onus to demonstrate that she meets the “substantial inability” test for an IRB within the first 104 weeks following the accident, it follows that she is unable to meet the “complete inability” test to qualify for an IRB beyond 104 weeks following the accident.

Physiotherapy

22Given the goals of the physiotherapy treatment plan, the effectiveness of this type of treatment on reducing the applicant’s pain in the past and the numbers of medical practitioners who have recommended this treatment to the applicant, I find the physiotherapy treatments reasonable and necessary.

23The goals of the physiotherapy treatment plan dated March 20, 2019 are pain reduction and increased strength and range of motion to enable the applicant to return to activities of normal living and pre-accident work activities.¹⁹ Under the Activity Limitations section of the treatment plan, Ms. Yang affirmed that the applicant’s impairments affect her ability to carry out the tasks of her employment and of normal life.²⁰ When asked to describe the activities limited by the impairment, Ms. Yang’s response in the treatment plan was “All activities requiring repetitive-prolong bending, lifting-carrying, pushing-pulling and reaching are limited by the impairment”.²¹

24Within one week of the accident, the applicant started massage and heat application sessions at the Easy Health Rehabilitation Centre. She stopped when she had her baby in September 2018 and then resumed these treatments in November 2018.²² It should be noted that this activity is self-reported and it is difficult to ascertain whether she has continued these treatments since that time. The applicant reported a 50% improvement from this type of treatment, according to Dr. Oshidari’s IE report dated April 5, 2019.²³ Dr. Lai also comments in his clinical notes and records that the applicant found that the chiropractor was helpful.²⁴

25A number of physicians have recommended to the applicant that she continue physical therapy given her ongoing neck and back pain. On July 23, 2019, the applicant consulted Dr. G. Lee, a chiropractor who recommended stretches and exercises when she complained of ongoing lower back and neck pain.²⁵ The applicant saw her family physician on the same date and complained of pain in the neck and low back. Dr. Lai’s noted that the applicant has not had any exercise and that he advised her to engage in stretches and exercises.²⁶ The applicant saw Dr. Wong, on January 28, 2020 about her neck and back pain. Dr. Wong noted in his letter to Dr. Lai, that the applicant had myofascial strain of the neck and back and recommended medication which the applicant refused because she was worried about the side effects.²⁷ Dr. Wong also notes in his letter to Dr. Lai that the applicant is undertaking physiotherapy treatments and that there is some benefit although the pain recurs after a few days.²⁸ Ms. Yang’s notes from December 12, 2018 to March 13, 2019 illustrate that the applicant’s physical wellbeing was improving and pain was decreasing from exercises and massage treatments.²⁹

26The respondent submits that there was no medical evidence at the time of the treatment plan to indicate that the applicant suffered from accident-related impairments that would necessitate the treatment. The respondent relies on the report provided by Dr. Oshidari who assessed the applicant on March 13, 2019, a week before the treatment plan was submitted. Dr. Oshidari concluded in his assessment report that the applicant sustained a sprain/strain of the cervicolumbar spine and tension headache as a result of the accident and recommended no further physical treatment.

27Dr. Oshidari claims the applicant requires no further treatment but at the same time he reports that the applicant still experiences discomfort and pain in her neck and upper and lower back. He notes in his physiatry report that the applicant experiences intermittent discomfort, tightness, fatigue and pain in the lumbar area.³⁰ Given the various reports by medical practitioners about the applicant’s physical and psychological well being and her abilities to perform the essential tasks of her job and the activities of daily living, I find that the applicant is well enough to perform the essential tasks of her job as she prepares meals at home. At the same time, she is not completely well enough to function fully given that she still experiences neck and back pain that is serious enough that her family doctor and health care specialists are prescribing prescription medication as well as physical therapy. I, therefore, find that the applicant is entitled to the physiotherapy treatment sessions as they may enable her to become fully physically functional.

28This conclusion does not contradict the reasoning for not awarding the applicant a continuation of IRB. This decision differentiates between different levels of physician functioning whereby the applicant can be found to not be physically impaired sufficiently to warrant continuing IRB but, at the same time, more minor physical ailments demand some type of therapy.

Occupational Therapy In-home Assessment

29Although Dr. Wong and Ms. Yang indicate in their respective OCF-18s that the applicant does not have the ability to perform her essential tasks of pre-accident employment and normal life, none of the applicant’s other medical practitioners, including her family doctor, are of this view. In her submission, the applicant indicates that she is able to perform most of her household tasks although her husband helps her. I am, therefore, of the view that the occupational therapy in-home assessment is not reasonable or necessary.

30The goals of the occupational therapy in-home assessment plan are to return to activities of normal living and to pre-accident work activities.³¹ The activities include attendant care determination – completion of form 1, document support activity for the claim form, planning service and counselling, promoting health and preventing disease.³²

31The applicant reported independence with her activities of daily living. The applicant told both Dr. Oshidari and Dr. Notarfonzo that she was independent with respect to all activities of daily living, contrary to her submission that she had to rely on her partner to help her with household tasks. When the applicant was assessed by Dr. Oshidari during the multidisciplinary assessment on March 13, 2019, Dr. Oshidari recorded that the applicant remained “completely independent in all activities of daily living”.³³ Dr. Oshidari also stated his assessment failed to reveal any specific structural or physiological abnormality and that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.³⁴ When being assessed by Dr. Notarfonzo the applicant reported that she is able to able to perform self-care tasks independently and that she is preparing food for her children, washing dishes, doing laundry and shopping for groceries.³⁵ Dr. Notarfonzo stated in her psychological assessment report that the applicant’s current psychological impairments are not preventing her from performing the essential tasks of her job.³⁶

32The applicant’s family doctor reports in his clinical notes and records that she is vacuum cleaning once a week and that when she arrives for her appointment, she is neatly groomed.³⁷ Dr. Lai also states in his clinical notes and records that the applicant is performing cleaning chores daily.³⁸ The functionality reported to Dr. Lai indicates that the applicant suffers no functional impairment significant enough to warrant an in-home occupational therapy assessment.

Interest

33I find that interest is due on the cost of the treatment plan for physiotherapy sessions starting from the date of denial of the treatment plan.

Conclusion

34Having reviewed the evidence, I find that the applicant has not demonstrated that she is entitled to IRB as none of her physicians have concluded that she is unable to perform the essential tasks of her pre-accident employment.

35I find that the treatment plan for physiotherapy sessions is reasonable and necessary.

36I find that the treatment plan for in-home assessment is not reasonable and necessary.

37I find that the applicant is entitled to interest on the cost of the physiotherapy treatment, pursuant to s. 51 of the Schedule.

Footnotes

1. 1Applicant’s Document Brief, OCF-18 for physiotherapy services, dated March 20, 2019, Ms. Yang, Physiatrist, Tab 7, page 7.
2. 2Applicant’s Document Brief, Clinical notes and records of Dr. Lai, Tab 3, page 9 to 11 (pages 31 to 33 in submission).
3. 3Applicant’s Document Brief, Prescription Summary from Food Basics Pharmacy, Tab 4, page 3.
4. 4Respondent’s Document Brief, Dr. Lai’s Clinical Notes and Records, July 9, 2019, Tab 9, page 7 (page 100 of the submission)
5. 5Respondent’s Document Brief, Disability Certificate, Easy Health Centre, Ms. Yang, Tab 16, page 4 (page 139 of submission).
6. 6Respondent’s Document Brief, Disability Certificate, Easy Health Centre, Ms. Yang, Tab 16, page 4 (page 139 of submission).
7. 7Respondent’s Document Brief, Disability Certificate, Easy Health Centre, Ms. Yang, Tab 16, page 3.
8. 8Respondent’s Document Brief, Records from Dr. Wong, Tab 11, page 2.
9. 9Respondent’s Document Brief, OCF-18, Attendant Care, Dr. Wong, Tab 11, page 5 (page 234 of the submission).
10. 10Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Oshidari, Physiatry Assessment, Tab 8, page 7 (page 79 of the submission).
11. 11Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Oshidari, Physiatry Assessment, Tab 8, page 7 (page 79 of the submission).
12. 12Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Notarfonzo, Tab 8, page 18 (page 90 of the submission).
13. 13Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Notarfonzo, Tab 8, page 19 (page 91 of the submission).
14. 14Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Notarfonzo, Tab 8, page 19 (page 91 of the submission).
15. 15Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Oshidari, Tab 8, page 6 (page 78 of the submission).
16. 16Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Oshidari, Tab 8, page 7 (page 79 of the submission).
17. 17Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Oshidari, Tab 8, page 5 (page 77 of the submission).
18. 18Respondent’s Document Brief, Multidisciplinary Assessment Report, April 5, 2019, Dr. Notarfonzo, Tab 8, page 15 (page 87 of the submission).
19. 19Respondent’s Submission, OCF-18 dated March 10, 2019, Tab 27, page 6 (page 226 of submission).
20. 20Respondent’s Document Brief, OCF-18, dated March 10, 2019, Tab 27, Page 5 (page 225 of the submission).
21. 21Respondent’s Document Brief, OCF-18, dated March 10, 2019, Tab 27, Page 5 (page 225 of the submission)
22. 22Respondent’s Submission, Multidisciplinary Assessment, Physiatry Report, April 5, 2019, Dr. Oshidari, Tab 8, page 3 (page 75 of submission).
23. 23Respondent’s Submission, Multidisciplinary Assessment, Physiatry Report, April 5, 2019, Dr. Oshidari, Tab 8, page 3 (page 75 of submission).
24. 24Applicant Document Brief, Records from Dr. Kevin Lai (2nd set), page11.
25. 25Applicant’s Document Brief, Records from Dr. Kevin Lai, (2nd set), page 10.
26. 26Applicant’s Document Brief, Clinical Notes and Records, Dr. Lai, Tab 3, page 9 and 10.
27. 27Applicant’s Document Brief, Dr. Wong’s Letter to Dr. Lai, January 28, 2020, Tab 5, page 2.
28. 28Applicant Document Brief, Dr. Wong’s Letter to Dr. Lai, January 28, 2020, Tab 5, page 5.
29. 29Applicant’s Document Brief, Patient Records, Easy Health Centre Records, Tab 6, pages 36 to 42.
30. 30Respondent’s Document Brief, Multidisciplinary Assessment, Physiatry Report, April 5, 2019, Dr. Oshidari, page 4 (page 76 of the submission).
31. 31Respondent’s Document Brief, OCF-18 dated April 10, 2019, Tab 28, page 6 (page 235 of the submission).
32. 32Respondent’s Document Brief, OCF-18 dated April 10, 2019, Tab 28, page 8 (page 237 of the submission).
33. 33Respondent’s Document Brief, Multidisciplinary Assessment, Physiatry Report, April 5, 2019, Dr. Oshidari, Page 4 (page 76 of the submission).
34. 34Respondent’s Document Brief, Multidisciplinary Assessment, Physiatry Report, April 5, 2019, Dr, Oshidari, Page 7 (page 79 of the submission).
35. 35Respondent’s Document Brief, Multidisciplinary Assessment, Psychology Report, April 5, 2019, Dr. Notarfonzo, Page 14 (page 86 of the submission).
36. 36Respondent’s Submission, Multidisciplinary Assessment, Psychology Report, April 5, 2019, Dr. Notarfonzo, Page 19 (page 91 of submission).
37. 37Respondent’s Document Brief, Dr. Lai’s Clinical Notes and Records, Tab 29, page 240.
38. 38Respondent’s Document Brief, Dr. Lai’s Clinical Notes and Records, Tab 29, page 241.```