Lee v. Allstate Insurance Company of Canada, 2022 CanLII 45258

Citation: Lee v. Allstate Insurance Company of Canada, 2022 ONLAT 20-005186/AABS

Licence Appeal Tribunal File Number: 20-005186/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:

Shui Yim Lee

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Shui Lee, Applicant Yu Jiang, Paralegal

For the Respondent: Richard Campbell, Counsel

HEARD: In Writing

OVERVIEW

1Shui Yim Lee, (“the Applicant”), was involved in an automobile accident on February 25, 2019, and sought benefits from Allstate Insurance Company of Canada, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied income replacement benefits (“IRBs”) by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in this hearing are:

a. Is the Applicant entitled to IRBs in the amount of $165.00 for the period from March 4, 2019 to-date and ongoing?

b. Is the Applicant entitled to an award pursuant to O. Reg. 664 because the Respondent unreasonably withheld or delayed payments to the Applicant?

c. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant is not entitled to the benefits claimed or an award.

4Interest is not payable as no payments were overdue.

BACKGROUND

5The Applicant was the front-seat passenger in a vehicle which was struck from behind on a small-town road in snowy weather. Emergency medical service personnel attended at the scene of the accident and documented that the Applicant complained of neck pain, headache, and lethargy. She was taken by ambulance to the hospital but left the hospital without being assessed by doctors.

6The Applicant later met with A. Afifi, physiotherapist, and started treatment on March 19, 2019. Physiotherapist Afifi completed a Disability Certificate of the same date and in it identified that the Applicant sustained numerous injuries as a result of the accident, including whiplash associated disorder, shoulder and low back issues, nervousness, anxiety, nightmares, headaches, dizziness, and sleep issues. It was also noted that the Applicant was unable to complete the essential tasks of her employment for a period of more than 12 weeks and that a 2017 accident was a condition or injury that affected her ability to perform her work tasks prior to the accident. No other relevant information on the Applicant’s pre- or post-accident health was included in the Disability Certificate.

7The Applicant then met with her family physician, Dr. C. K. Yeung, on March 24, 2019. Clinical notes and records, (“CNRs”), document that the Applicant complained of neck and whole back pain, aggravated by movement such as heavy lifting and mopping the floor. Dr. Yeung’s “presumptive diagnosis” was neck and back injury, insomnia, post-traumatic stress disorder (“PTSD”), depression, and anxiety. The record notes that the Applicant was already enrolled in a physiotherapy program and that Dr. Yeung offered a psychological referral, but the Applicant declined to pursue this treatment.

8The Applicant’s health history includes injuries sustained in an accident on April 7, 2017. From that accident, she sustained injuries to her neck, shoulders, bilateral arms and hands, right ankle, back, as well as headaches, insomnia, depression, and anxiety. The Applicant was not working at the time of the subject accident and had not recovered from the 2017 injuries. As noted in Dr. Yeung’s CNRs, on November 29, 2018, the Applicant complained of ongoing neck and mid-back pain and insomnia from the April 2017 accident and ongoing ankle pain and swelling from a April 2018 incident. Dr. Yeung noted a “presumptive diagnosis” of accident-related neck and back injury in several pre-accident appointments. As a result of those injuries, the Applicant was advised to avoid all activities that could aggravate her symptoms. It was also noted that the Applicant was taking Zopiclone for sleep and Tylenol and Advil for pain and swelling, on an as-needed basis. A note from a visit with Dr. Yeung on March 7, 2018, documented similar injuries but also include a provisional diagnosis of cervical radiculopathy, insomnia, depression, and anxiety.

9The Applicant submits that her injuries from the April 2017 accident were exacerbated by the subject accident. She further submits that she intended to return to work but was unable to do so following the subject accident.

10The Respondent submits that the Applicant was unable to work prior to the accident as a result of injuries related to the 2017 accident and the incident in April 2018 when she sprained her ankle. To the Respondent, the Applicant’s current complaints are not related to the subject accident.

ANALYSIS

11IRBs are payable to the Applicant if she can prove on a balance of probabilities that she is unable to perform the essential tasks of her employment as a result of accident-related impairments.

12I find that the disability exhibited by the Applicant is as a result of injuries which pre-date the subject accident. She is not entitled to the IRBs claimed as a result.

13The Applicant was employed as a cashier in a supermarket at the time of the accident. She submits that her work requires long hours that include prolonged standing, upper body and limb coordination, concentration, and focus. From the Applicant’s perspective, her injuries from the April 2017 accident were exacerbated by the subject accident. She submits that she intended to return to work prior to the subject accident but continuous pain and psychological impairments make her unable to do so. She feels that she is unable to maintain steady employment and engage in employment in a competitive, real-world setting, taking into account employer demands for reasonable hours and productivity.

14The Respondent contends that the Applicant has provided no evidence to illustrate she is unable to work as a result of the subject accident thus, she has not met her burden to prove entitlement to IRBs. It highlights that Dr. Yeung never addressed the disability test for IRBs and never opined that the Applicant was disabled as a result of the subject accident or that she should refrain from work. To the Respondent, the Applicant was unable to work due to the 2017 accident and the ankle injury in 2018.

15The Applicant was employed, but not working at the time of the accident. Dr. Yeung’s CNRs include various notes to “whom it may concern” stating that the Applicant is unable to go to work for the periods from April 11, 2017 to May 8, 2017, April 30, 2018 to June 9, 2018, and July 31, 2018 to November 6, 2018. The notes include no other information. Entries in Dr. Yeung’s CNRs indicate that the absences were due to ongoing back, neck, and ankle pain, as well as psychological sequalae such as depression, anxiety, and insomnia.

16Dr. Yeung completed a Disability Certificate dated April 4, 2019, which listed her injuries as “head injury” and “back injury” and anticipated that the duration of her disability would be 9-12 weeks. The document indicated that the IRB was not applicable but found that the Applicant sustained a complete inability to carry on a normal life as a result of the subject accident. The Disability Certificate serves as the basis to apply for IRBs but does not automatically entitle the Applicant to IRBs. It remains incumbent upon her to provide corroborating evidence to support her claim that she is unable to work as a result of the subject accident.

17The corroborating evidence from Dr. Yeung fails to demonstrate that the Applicant is unable to complete her essential work tasks as a result of the subject accident. For example, prior to the subject accident, Dr. Yeung consistently advised the applicant to avoid activities that aggravate her symptoms, and the recommendations from Dr. Yeung remained the same following the accident. Remarkably, Dr. Yeung gave the Applicant notes to excuse her from working following the first accident in 2017 and her ankle injury in 2018 yet, there are no such notes following the subject accident.

18Contrary to the Applicant’s submissions, there is no evidence to show that the Applicant intended, or was able, to return to work at the time of the accident. Dr. Yeung’s CNRs include no notes that indicate that the Applicant intended to return to work. Likewise, the CNRs do not include any evidence of a discussion or planning for the Applicant to return to work. The employment file from the supermarket includes no indication that the Applicant was capable of or intended to return to work prior to the subject accident. The Applicant’s submissions are not evidence.

19The July 21, 2019 report and February 17, 2020 addendum by Dr. S. McDowall, psychologist, are unpersuasive. The documents essentially combine the Applicant’s two accidents into one event. When addressing her post-accident health, the report refers to it in relation to the “subject accidents”. This fails to appreciate that this hearing pertains to the 2019 accident only, as the Respondent is not liable to pay IRBs for an impairment that pre-dates the subject accident.

20Dr. McDowall made no comment on whether the Applicant is disabled from working. The documents do not address the test for IRBs but, instead, state that the Applicant is unable to return to the level of functioning she had prior to the subject accidents. This conclusion does not mean that the Applicant is otherwise unable to complete the essential tasks of her employment.

21The Applicant’s treatment records do not demonstrate an inability to complete the essential tasks of a supermarket cashier. The initial assessment record from Total Recovery Rehab Centre lists the Applicant as “not working” at the time of the subject accident and refers to the 2017 accident. The initial intake form notes that the Applicant reported pain in the neck and back, dizziness, headaches, numbness, concentration issues, disturbed sleep, and decreased tolerance for standing and walking. There are treatment records that note neck, shoulder, and back pain, but there is no indication throughout the CNRs that indicate the Applicant is disabled from working as a result of the pain.

22The Insurer’s Examination (“IE”) reports dated August 16, 2019, concluded that the Applicant did not suffer a substantial inability to complete the essential tasks of her employment. D. Westbrook, physiotherapist, assessed the Applicant and determined that her employment was classified as “light work” and noted that her work schedule involved shifts from 4 to 6 hours, up to 5 days a week. It also noted that the Applicant was not working at the time of the accident, was seeking lighter work, and is currently not looking for work. Physiotherapist Westbrook completed physical demands testing. It was noted that the Applicant exhibited self-limiting behaviour and stopped participation in 8 of 18 tasks before specific physical signs of a safe maximal effort were observed. In short, the report concluded that the Applicant is capable of “light work” for a full 8-hour shift.

23Dr. A. Marchie, physiatrist, assessed the Applicant and determined that she did not suffer from an impairment that causes a substantial inability to complete her essential work tasks. According to Dr. Marchie, the Applicant reported that she sustained an increase in neck and back pain following the accident, increasing in both areas from a 7/10 to 8/10 and that she has experienced no improvement in any of her pain symptoms. From the assessment and review of the Applicant’s medical record, Dr. Marchie concluded that the Applicant sustained soft tissue injuries to her neck and back, and bilateral shoulder sprain/strain due to the subject accident but does not suffer a substantial inability to perform the essential tasks of her employment.

24Dr. K. Spovak, psychologist, assessed the Applicant and determined that, from a psychological perspective, the Applicant does not suffer a substantial inability to perform the essential tasks as a supermarket cashier. Dr. Spovak diagnosed the Applicant with an Adjustment Disorder with both Anxiety and Depressed Mood and Specific Phobia (driver anxiety) but felt that these injuries pre-dated the subject accident. Dr. Spovak highlighted that the Applicant was off work at the time of the subject accident, due to ongoing symptoms from the first accident. Further, the IE assessor found it difficult to determine whether the subject accident exacerbated the Applicant’s symptoms due to the reports of little change in pre-accident activities of daily living and in her overall emotional distress. It was also noted in the report that, at the time of the assessment, the Applicant was seeking work as a restaurant cashier, as she believed it would be less physically demanding – suggesting that she is psychologically healthy enough to return to work as a cashier.

25The Applicant sustained physical and psychological injuries as a result of an accident in 2017. She was symptomatic from those injuries and not working at the time of the accident. I am unable to conclude from the evidence that the subject accident had any meaningful contribution to the Applicant’s current level of impairment. No healthcare provider has opined that the Applicant is unable to work during the period claimed, should refrain from work as a result of the subject accident, or suffers from any meaningful disability as a result of the subject accident. To me, the evidence suggests that the subject accident had little impact on the Applicant’s health. As a result, I find that the disability exhibited by the Applicant pre-dates the subject accident and that it would be present regardless of whether the accident occurred. Thus, I find that the Applicant is not entitled to IRBs as a result of the impairments arising from the subject accident.

AWARD

26Pursuant to section 10 of O. Reg. 664, the Applicant may be entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit.

27Having concluded that the Applicant is not entitled to IRBs, it follows that no benefits were unreasonably withheld or delayed. Thus, the Applicant is not entitled to an award.

CONCLUSION AND ORDER

28The Applicant was unable to work at the time of the accident due to injuries that pre-date the accident. The impairments sustained in the subject accident do not impair the Applicant from completing the essential tasks of a supermarket cashier. Thus, I find on a balance of probabilities that she is not entitled to the IRBs claimed.

29The Application is dismissed.