Qu v. Allstate Insurance Company of Canada, 2022 CanLII 2658

Qu v. Allstate Insurance Company of Canada

Citation: Qu v. Allstate Insurance Company of Canada, 2022 ONLAT 20-004796/AABS

Licence Appeal Tribunal File Number: 20-004796/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:

Zhi Qu

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

Michael Unea, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on December 7, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant, Zhi Qu (“Mr. Qu”), was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2Mr. Qu was the seat belted driver of a vehicle which was t-boned on the passenger by another vehicle. Mr. Qu claims he sustained serious physical and psychological injuries from the accident.

ISSUES

3The issues to be decided in this hearing are as follows:

i. Is the applicant entitled to income replacement benefits in the amount of $225.00 weekly from May 29, 2019 to date and ongoing, less any amounts paid?

ii. Is the applicant entitled to a medical benefit in the amount of $2,969.08 for chiropractic treatment, proposed by EZ Physio in a treatment plan (“OCF-18”) dated July 3, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $948.10 ($3,004.20 less $2,056.10 approved) for psychological treatment, proposed by Somatic Assessments & Treatment Clinic in an OCF-18 dated November 14, 2019?

iv. Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4Based on the evidence before me and on a balance of probabilities, I find the following:

i. The applicant is not entitled to income replacement benefits.

ii. The applicant is not entitled to the OCF-18 for chiropractic treatment in the amount of $2,969.08.

iii. The applicant is entitled to the unapproved amount of $948.10 for the OCF-18 for psychological treatment.

iv. The applicant is not entitled to an award.

v. The applicant is entitled to interest in accordance with s. 51 of the Schedule.

ANALYSIS

Is the applicant entitled to an income replacement benefit?

5I find Mr. Qu is not entitled to income replacement benefits (“IRBs”) because the evidence does not support that he suffers a substantial inability to perform the essential tasks of his pre-accident employment within 104 weeks of the accident, as a result of the injuries sustained from the accident. Further, regarding entitlement to post-104 week IRBs, Mr. Qu has not met his onus in establishing that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited, based on his education, training, and experience. The reasons for these findings are outlined below.

6Mr. Qu was involved in a prior motor vehicle accident on May 7, 2017 and he reported ongoing low back pain to his family doctor, Dr. J. Lai two months prior to the subject accident. The subject accident was reported to his family doctor on December 14, 2018.² Complaints related to the subject accident included pain in the areas of his back, neck, and shoulders and a history of depression was noted. Two months prior to the subject accident, Dr. Lai referred Mr. Qu to Dr. J. Wong, physiatrist and Dr. Lai also referred him for a psychiatric evaluation on December 14, 2018.³

7Dr. Wong assessed Mr. Qu on February 4, 2019 to address ongoing pain in the neck and back since the May 2017 accident which increased following the subject accident. Dr. Wong diagnosed Mr. Qu with myofascial injury of the neck, upper back, and lower back muscles with right elbow epicondylitis. Dr. Wong further notes Mr. Qu sufferers from an anxiety problem and notes it is a barrier to his recovery.⁴ I find opining on Mr. Qu’s psychological condition is outside of Dr. Wong’s scope as a physiatrist. Further, Dr. Wong does not note that Mr. Qu is precluded from returning to work based on his physical impairments. Therefore, I find Dr. Wong’s report is not helpful in determining Mr. Qu’s entitlement to IRBs.

8Prior to the subject accident, Mr. Qu worked at a warehouse and his job contract ended on July 22, 2018. His essential job duties included long periods of standing, upper body co-ordination, heavy lifting, focus and concentration. At the time of the accident, he was receiving employment insurance (“EI”) benefits. Mr. Qu was paid IRBs as a result of this accident from December 14, 2018 to August 23, 2019 as confirmed by the summary of accident benefits paid.⁵ This was not challenged by Mr. Qu. Based on this evidence, I accept that Mr. Qu was paid IRBs until August 23, 2019. A letter issued by the respondent dated May 29, 2019 claimed an IRB overpayment in the amount of $932.14.⁶

9Mr. Qu relies on the psychological assessment report of Dr. B. Cook, psychological associate.⁷ Dr. Cook assessed Mr. Qu to determine if Cognitive Behaviour Therapy would be appropriate for his psychological rehabilitation. Dr. Cook references the subject accident and diagnosed Mr. Qu with Major Depressive Disorder and Adjustment Disorder with Anxiety. Dr. Cook further notes that Mr. Qu is experiencing appetite and sleep disturbance, driving avoidance behaviour, and that he is experiencing interference with his cognitive processes including attention/concentration and short-term memory.⁸ This is also noted in the clinical notes and records (“CNRs”) of Dr. Lai which note Mr. Qu suffers from feelings of hopelessness/worthlessness, insomnia, anxiety, depression, and mood disturbances since the accident.⁹

10I afford little weight to the psychological assessment report in support of Mr. Qu’s entitlement to IRBs for the following reasons. The report does not reference the prior motor vehicle accident of May 2017. I find Dr. Lai’s CNRs support that Mr. Qu was still experiencing ongoing low back pain two months prior to this accident and Dr. Lai referred Mr. Qu to Dr. Wong, a physiatrist as a result. Dr. Lai also referred Mr. Qu to a psychiatrist on December 14, 2018 when Mr. Qu reported the subject accident to Dr. Lai on this date. I find this evidence generally supports Mr. Qu was experiencing physical and psychological impairments prior to the subject accident. Further the CNRs of HF Connecting Health¹⁰ note that Mr. Qu was being treated in July/August 2018 for issues relating to depression, insomnia, lack of appetite, and fear while driving. I find these are the same symptoms which Dr. Cook referenced within his report and attributed to the subject accident.

11While I accept that Dr. Cook has diagnosed Mr. Xu with psychological impairments resulting from the accident, there is no mention within Dr. Cook’s report of the physical and psychological impairments sustained from the May 2017 accident. Further, Dr. Cook’s report does not address IRBs. The report does not describe Mr. Qu’s pre-accident job duties, nor opine on Mr. Qu’s ability to return to his pre-accident job duties. Therefore, I find Dr. Cook’s report provides little persuasive value in assisting me with determining whether Mr. Qu suffers a substantial inability to perform his pre-accident job duties as a result of injuries sustained from the subject accident.

12A disability certificate (“OCF-3”) dated November 1, 2019¹¹ was completed by Dr. R. Tavares, chiropractor which supports Mr. Qu has a substantial inability to perform the essential tasks of his employment at the time of the accident and within 104 weeks of the accident. Dr. Tavares notes that Mr. Qu suffers from physical and psychological impairments resulting from the accident and these are affecting both his activities of daily living and his psychological/emotional symptomatology. I do not find this OCF-3 persuasive in determining entitlement to IRBs for the following reasons. I find providing a psychological perspective is outside of Dr. Tavares’ scope as a chiropractor. Under the Injury and Sequela Information (Extended) section of the OCF-3, Dr. Tavares lists a number of physical impairments but there are no further details included in the OCF-3 which note how these impairments impact Mr. Qu’s ability to perform his job duties, or noting what Mr. Qu is unable to do. Further, aside from this OCF-3, no further corroborating medical evidence has been produced by Mr. Qu to support entitlement to IRBs. For example, the CNRs of Mr. Qu’s family doctor, Dr. Lai, make no reference that Mr. Qu cannot return to work, or that he requires any modifications or accommodations to be able to return to work.

13The respondent relies on a multidisciplinary insurer examination (“IE”) report dated April 8, 2019¹² which contains a physiatry IE assessment report from Dr. M. Ko, physiatrist and a psychological IE report issued by Dr. A. Biswas, psychologist. Both IE reports note that Mr. Qu does not suffer a substantial inability to perform his pre-accident employment tasks. Dr. Biswas issued a subsequent psychological IE report on December 2, 2019 regarding IRB entitlement and the opinion of Dr. Biswas remained unchanged.¹³

14The respondent submits that Mr. Qu has not provided any particulars regarding whether he has returned to work since the accident, nor provided a copy of his employment file from one-year pre-accident to date, despite Mr. Qu consenting to produce this information as noted in the Order dated October 2020.¹⁴

15The respondent relies on surveillance evidence to support that Mr. Qu has worked since the accident. The surveillance report¹⁵ notes that on the dates of August 14, 15, 22, 2019, Mr. Qu was observed leaving the driveway of his residence and traveling to Can America Life Care, his pre-accident employer. The surveillance report notes Mr. Qu was observed entering a Sprinter truck and travelled in the truck to make deliveries. Mr. Qu was observed lifting and carrying heavy boxes in and out of residences and walking up and down stairs. The surveillance report notes Mr. Qu was observed not using any assistive devices and showed no signs of physical restriction/impairment. The surveillance report which included photographs from the video footage taken was not challenged by Mr. Qu.

16I find the surveillance evidence generally supports that Mr. Qu was performing work for his pre-accident employer in August 2019 and that the activities observed through surveillance as noted in the report included, walking, lifting, and standing. I find these activities are the same activities described in Mr. Qu’s submissions relating to his pre-accident job duties. Mr. Qu did not produce either the particulars relating to whether he returned to work or his employment file, despite both of these items being ordered. Mr. Qu has not provided an explanation as to why they were not produced. I have drawn an adverse inference and I find that the requested productions which were not produced would likely not have supported Mr. Qu’s entitlement to IRBs.

17A CNR from Dr. Lai on March 23, 2020 references the following “Note for work x1 weeks”.¹⁶ There was no explanation provided by Mr. Qu regarding this CNR. I find this CNR supports on a balance of probabilities that Mr. Qu was most likely working around the time this CNR was created.

18I find Mr. Qu has not met his onus of establishing his entitlement to post-104 week IRBs. There is no medical opinion or report produced by Mr. Qu which address that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited, based on their education, training, and experience.

19Based on the reasons above, I do not find Mr. Qu is entitled to receive IRBs from August 24, 2019. I find Mr. Xu has not established that he meets the test for IRBs within 104 weeks of the accident or post-104 weeks since the accident.

Is the applicant entitled to a chiropractic treatment plan in the amount of $2,969.08?

20Mr. Qu submits that physical therapy provided relief for his physical injuries and it was recommended by Dr. Lai and the treating clinic, EZ Physio.

21An OCF-18 dated July 3, 2019 was submitted by EZ Physio Inc. which recommended 14 sessions of stimulation to the back muscles and exercises.¹⁷ This OCF-18 was denied by the respondent on July 22, 2019 because another OCF-18 in the amount of $3,279.39 also dated July 3, 2019 which recommended 16 sessions of stimulation to the back muscles and exercises was fully approved by the respondent on July 22, 2019. The respondent submits both OCF-18s are identical and overlap in timing in relation to when they were submitted.

22I find the OCF-18 in the amount of $2,969.08 is duplicative and is therefore not reasonable and necessary. I find this treatment plan proposes the identical treatment as proposed in the OCF-18 of the same date in the amount of $3,279.39, with the exception of proposing 14 (not 16) sessions of treatment. The identical goals and barriers to recovery are noted in both OCF-18s. The OCF-18 in the amount of $3,279.39 was approved in full, by the respondent as confirmed in a letter to the applicant.¹⁸

Is the applicant entitled to the unapproved amount of $948.10 for psychological treatment?

23I find the applicant is entitled to the unapproved amount of $948.10 for the psychological treatment. Mr. Qu’s position is that 10 sessions of cognitive behaviour therapy for 1.5 hours per session are reasonable and necessary as this is the recommendation made by his psychological treatment providers, Dr. Cook and Anthony Lee, registered social worker.¹⁹ Mr. Qu relies on the Tribunal decision C.M. and Intact Insurance Company²⁰ in which the adjudicator determined that the 1.5 hours per session for psychological treatment, proposed by the applicant’s treating psychologist was reasonable and necessary and the time approved at 1.0 hour per session recommended by the IE assessor was rejected.

24The respondent partially approved the OCF-18 for 10 sessions at 1.0 hour per session. The respondent relies on the psychological IE report of Dr. Biswas dated December 2, 2019 which recommends 10 sessions, 1.0 hour per session of psychotherapy based on a cognitive behavioural framework.

25I find 10 sessions of cognitive behaviour therapy at 1.5 hours per session are reasonable and necessary. The December 2, 2019 report of Dr. Biswas notes that Mr. Qu already received 10-12 sessions of psychological treatment, notes his prognosis is guarded and recommended a further 10 sessions of treatment. However, Dr. Biswas does not provide an explanation for recommending the treatment sessions be 1.0 hour each. I find the 10 sessions at 1.5 hours each, recommended by Mr. Qu’s treatment providers is preferred. I am persuaded by C.M. and Intact Insurance Company. I find the decision is directly on point. I accept that Mr. Qu’s psychological treatment providers possess a strong understanding of his psychological impairments based on their history of treating him. I find their recommendation regarding the treatment time per session is based on their knowledge and expertise in addressing Mr. Qu’s specific impairments.

Is the applicant entitled to a claim for an award?

26I do not find Mr. Qu is entitled to an award. I find that he has not established that the respondent has unreasonably withheld or delayed payment of benefits.

27Mr. Qu submits that the respondent has breached its duty of good faith and has not fairly handled his claim. Mr. Qu relies on the partially approved OCF-18 from Somatic Assessment and Treatment Clinic. Mr. Qu submits that the respondent failed to consider his barriers, and failed to assess and re-assess the claim as new evidence became available. Mr. Qu requests an award of 50% for the amounts which were unreasonably withheld.

28The respondent submits its decision regarding the denial of benefits was based on medical evidence and the opinions rendered by its section 44 IE assessors.

29I accept that the respondent has relied on medical evidence and the opinions of its IE assessors in determining Mr. Qu’s entitlement to benefits. While Mr. Qu does not agree with the denial of these benefits, I do not find Mr. Qu has established that there was an unreasonable delay or withholding of payments and therefore Mr. Qu is not entitled to an award.

CONCLUSION

30The applicant is not entitled to an income replacement benefit, the OCF-18 for chiropractic treatment in the amount of $2,969.08, or an award.

31The applicant is entitled to the unapproved amount of $948.18 for the OCF-18 for psychological treatment and interest in accordance with s. 51 of the Schedule.

ORDER

32The applicant’s claim for the following benefits is dismissed:

i. The applicant is not entitled to income replacement benefits.

ii. The applicant is not entitled to the OCF-18 for chiropractic treatment in the amount of $2,969.08.

iii. The applicant is not entitled to an award.

33The applicant is entitled to the following benefits:

i. The applicant is entitled to the unapproved amount of $948.10 for the OCF-18 for psychological treatment.

ii. The applicant is entitled to interest in accordance with s. 51 of the Schedule.

Released: January 10, 2022

_________________________

Kimberly Parish, Adjudicator

Footnotes

1. 1Ontario Regulation 34/10, Statutory Accident Benefits Schedule - Effective September 1, 2010.
2. 2Tab 1 of applicant’s submissions. Clinical Notes and records (“CNRs”) of Dr. J. Lai, dated October 17, 2018 and December 14, 2018, at pages 1, 2.
3. 3Ibid, referral to Dr. Wong October 17, 2018 and to Markham Stouffville hospital for psychiatric evaluation on December 14, 2018, at pages 5, 6.
4. 4Tab 3 of applicant’s submissions, assessment report of Dr. Wong, dated February 4, 2019, at pages 3,4.
5. 5Tab 2 of respondent’s submissions, summary of accident benefits payments including amount paid for IRBs, at page 21.
6. 6Tab 3 of respondent’s submissions, letter from respondent claiming IRB overpayment dated May 29, 2019, at page 23.
7. 7Tab 6 of applicant’s submissions, psychological assessment report of Dr. B. Cook dated May 3, 2019, included within records from Somatic Assessments and Treatment Clinic, September 3, 2019, at pages 88-97.
8. 8Ibid, at pages 91, 95, 96.
9. 9Supra, note 2, CNR of Dr. Lai, dated August 16, 2019, at page 3.
10. 10Tab 2 of applicant’s submissions, CNRs of HF Connecting Health, dated July 27, 2018 and August 17, 2018, at pages 3, 4, 11, 12,
11. 11Tab 13 of respondent’s submissions, OCF-3 dated November 1, 2019
12. 12Tabs 14 and 15 of respondent’s submissions, physiatry IE report of Dr. Ko and psychological IE report of Dr. Biswas dated April 8, 2019, at pages 112-130.
13. 13Tab 16 of respondent’s submissions, psychological IE report of Dr. A. Biswas dated December 2, 2019, at page 171.
14. 14Tab 1 of respondent’s submissions, Case Conference Report and Order, dated October 2, 2020, at page 18.
15. 15Tab 5 of respondent’s submissions, Centric Investigation Services surveillance report and video footage photographs dated September 10, 2019, at pages 32-72.
16. 16Tab 10 of respondent’s submissions, CNR of Dr. Lai, dated March 23, 2020, at page 98.
17. 17Tab 18 of respondent’s submissions, both OCF-18’s dated July 3, 2019 from EZ Physio Inc. in the amounts of $2,969.08 and $3,279.39, at pages 180-200.
18. 18Tab 21 of respondent’s submissions, letter from respondent to applicant dated July 23, 2019 advising approval of OCF-18 in the amount of $3,279.39.
19. 19Tab 6 of applicant’s submissions, records from Somatic Assessments dated May 28, 2019, including psychological assessment progress report dated November 10, 2019, at page 4.
20. 20C.M. and Intact Insurance Company, 2020 CanLII 14419 (ONLAT), paragraphs 36-38.```