Zhang v. Dominion of Canada General Insurance Company (Travelers), 2022 CanLII 93714

Licence Appeal Tribunal

Citation: Zhang v. Dominion of Canada General Insurance Company (Travelers), 2022 ONLAT 20-011681/AABS

Licence Appeal Tribunal File Number: 20-011681/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:

Emily Yukyu Zhang

Applicant

and

Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION AND ORDER

ADJUDICATOR: Claudette Leslie

APPEARANCES:

For the Applicant: Yu Jiang for the Applicant

For the Respondent: Dilraj Sandhu for the Respondent

HEARD: In Writing, October 11, 2021

OVERVIEW

1The applicant was involved in an automobile accident on June 22, 2018 and sought insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by the respondent insurer, Dominion of Canada General Insurance Company (“Travelers”). The applicant disagreed with the denials and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on March 8, 2021, and consequently the matter proceeded to a written hearing.

ISSUES

2The issues before me are as follows.

i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185 per week from July 21, 2018, to date and ongoing?

ii. Is the applicant entitled to $4,654.52 for physiotherapy services, proposed by Total Recover Rehab Centre (“TRRC”) in a treatment plan/OCF-18 (“plan”) dated October 3, 2019?

iii. Is the applicant entitled to $1,047.34 ($3,701.88 less $2,654.54) for psychological services proposed by Somatic Assessments and Treatment Clinic (“Somatic”) in a treatment plan dated December 11, 2018?

iv. Is the applicant entitled to $1,467.34 ($4,121.88 less $2,654.54) for psychological services proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated October 22, 2019?

v. Is the applicant entitled to $1,827.34 ($4,121.88 less $2,294.54) for psychological services proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated March 17, 2020?

vi. Is the applicant entitled to $16,112.81 for a catastrophic (“CAT”) assessment proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated November 15, 2019?

vii. Is the applicant entitled to $1,450 ($3,650 less $2,200) for a concussion assessment proposed by Total Recovery Rehab Centre in a treatment plan dated July 31, 2019?

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

3Withdrawn issues: The applicant withdrew the following claims in her hearing submissions:

• $180 (balance of $3,223.84) for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 dated June 27, 2019;
• $2,200 for a FAE Assessment proposed by Total Recovery Rehab Centre in a treatment plan dated June 17, 2019;
• $3,650 for a TMJ Assessment, proposed by Total Recovery Rehab Centre in a treatment plan dated August 5, 2019;and
• $200 for tutoring services, submitted on June 11, 2019 (withdrawn in the applicant’s reply submissions).

Page limit request

4As part of her submissions, the applicant requested the indulgence of the Tribunal to increase the page limit of her written arguments from the maximum of 15 ordered, to the 21 pages submitted, as due to the nature of the claims, the increased page count was necessary to present a full understanding of her case. The respondent did not comment on the applicant’s request in its submissions although its submissions adhered to the page count set at the case conference. While parties are required to comply with the Tribunal’s orders, I find it would not be prejudicial to allow the applicant’s request. Considering that the respondent did not appear to object, and it would also have had an opportunity to make submissions of a similar length if requested, I have allowed the increased page limit in this case.

RESULT

5Considering all of the relevant evidence provided, I find as follows:

a. The applicant is not entitled to a non-earner benefit in the amount of $185 weekly for the period specified.

b. The applicant is entitled to $4,654.52, less the transportation and progress report charges, for physiotherapy services, proposed by TRRC in a treatment plan dated October 3, 2019.

Other than amounts already approved/paid, the applicant is only entitled to the cost of the 0.5 hour shortfall for each treatment session, regarding each of the following treatment plans. The applicant is also not entitled to transportation costs relating to each visit, nor the cost of documentation, translation and report writing sought in the March 17, 2020 plan.

c. $1,047.34 less transportation costs, for psychological services proposed by Somatic in a treatment plan dated December 11, 2018; d.) $1,467.34 for psychological services proposed by Somatic in a treatment plan dated October 22, 2019; e.) $1,827.34 for psychological services proposed by Somatic in a treatment plan dated March 17, 2020.

f. The applicant is not entitled to $16,112.81 for a CAT Assessment proposed by Somatic in a treatment plan dated November 15, 2019.

g. The applicant is not entitled to $1,450 representing the balance of the $3,650 for a concussion assessment proposed by TRRC in a treatment plan dated July 31, 2019.

BACKGROUND

6On June 22, 2018, the applicant was a pedestrian, volunteering at an outdoor food festival and was in the process of guiding a car to a stall spot. She was struck by the vehicle which was apparently moving at a low speed. The applicant reported to one of the physicians consulted that initially she went home, but after she reported the incident to her mother, she was brought back to the scene of the accident, ambulance was called and she was taken to the emergency.

7The Scarborough Hospital records from two attendances, indicate the applicant was struck on the right side, impacting her leg, knocking her to the pavement, where she hit her head, and scraped her right cheek. The applicant reported persistent vertigo, headache and nausea, her left hand and hip hit the car, her left hand was bruised and she experienced left knee pain She did not blackout but was confused. The applicant was released from the hospital, given oral medication for presenting symptoms with an uncertain diagnosis of a possible concussion. She had an x-ray scan of her hand, her hip and leg on the right and it was determined she had no fractures.

8A few days later on June 25, 2018 she met with her family physician, Dr. Dennis Woo, due to pain concerns and nausea. There were discussions of likely concussion, although there were no specifics regarding this possibility. She was directed to treat her pain with over the counter pain killers as needed. Weeks later, the applicant continued to complain of vertigo, dizziness and vision problems, finding it difficult to read. The applicant was 15 years old at the time of the accident and she had just completed Grade 10. The applicant went on to Grade 11 in the fall of 2018. The next year she completed her Grade 12 studies was admitted to the University of Guelph to pursue studies in veterinary medicine.

The Law, EVIDENCE and Analysis

9It is the applicant’s position that the evidence she provides establishes that she sustained serious physical and psychological injuries and she is entitled to the full amounts of each of the benefits claimed, plus interest. The respondent takes the opposite view and argues that the evidence does not support the applicants claims, and unless otherwise noted, it has paid the benefits she is entitled to in accordance with the Schedule. My findings as they relate to each of the issues in dispute, are based on the relevant evidence submitted.

Non-earner benefit (NEB)

10The test for entitlement to NEBs is found in s. 12(1) and (3) of the Schedule which provide as follows:

12. (1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

13. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

14. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was neither employed nor a self-employed person after completing his or her education and before the accident, in a capacity that reflected his or her education and training.

(3) The insurer is not required to pay a non-earner benefit,

(a) for the first four weeks after the onset of the complete inability to carry on a normal life;

(b) before the insured person is 18 years of age;

(c) for more than 104 weeks after the accident; or

(d) if the insured person is eligible to receive and has elected under section 35 to receive either an income replacement benefit or a caregiver benefit under this Part.

Is the applicant barred from seeking NEB because she turned 18 years of age after the 104-week post accident period?

11The above issue, although not explicitly indicated as such, was raised by the respondent as a preliminary issue in its response submissions. In essence, I gather that the respondent’s response to this claim is that the applicant is barred from proceeding with this claim. I must therefore first address this issue before turning my mind to the applicant’s claim for NEB.

12In its submissions, the respondent argues, and confirms the fact that the applicant was 15 years old at the time of the accident. She turned 18 years of age on September 4, 2020, two years and approximately three months later and more than 104 weeks after the accident occurred . Therefore, in keeping with the above provision s.12.(3)(b) of the Schedule, it is the respondent’s position that the applicant was not eligible for NEB within the104 week post accident period, as she was not 18 years old during that period. The applicant submits that the respondent’s interpretation of the provisions is wrong. She points out that the provisions stipulate that the insurer shall pay non-earner benefits to minors, who were in high school, as in this case, or in elementary school at the time of the accident and suffered a complete inability to carry on a normal life as a result. Considering the consumer protection objective of insurance law, the applicant argues that section 12(3)(b) simply requires the insurer to pay NEB benefits for the post accident 104-week period, when the minor turns 18 years of age.

13Both parties refer to the case of Rizzo v. Rizzo Shoes Ltd. 1998 CanLII 837 (SCC) which dictates that the words of an Act must “be read in their entire context and grammatical and ordinary sense with the scheme and object of the, and the intention of parliament” (page 41). Considering the arguments of both parties, and my understanding of the provisions, for the reasons that follow I find that the applicant is not disentitled from applying for NEB.

14A plain reading of the provisions s.12(1) 2i. indicates that: an insurer ”shall” (emphasis added) pay a NEB benefit to a person who sustained an accident-related impairment if, the individual was, among other things, enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident”. There is no dispute here that the applicant was a high school student, who went on to Grade 11 studies the fall of 2018. As such, she meets the eligibility requirement to apply for NEB.

15Section 12(3)(b) goes on to state that the insurer is not required to pay a non-earner benefit, before the insured person is 18 years of age. Read in conjunction with the preceding provision in section 12(1)2i regarding being in school as a condition that the insured person must meet to qualify for a NEB, and considering the intent of the Schedule, this section refers to when, meaning at what age, the benefit is payable. In other words, the NEB benefits are payable once the individual turns 18 years of age and not before that time. It does not say that the individual must be 18 years old at the time of the accident to be eligible to apply for non-earner benefits. If not, in my mind it raises the question of when and how would a minor who meets the test for NEB within the two-year period post-accident receive payment of the benefit? It is based on my understanding of the provisions and the intent for consumer protection under insurance law that I find the applicant meets, at the very least, the threshold requirement to apply for NEB. I will now turn to the issues in dispute, including whether the applicant meets the test for non-earner benefit payment.

Issue i.: Is the applicant entitled to a NEB of $185 per week from July 21, 2018, to date and ongoing?

16Section 3(1) of the Schedule defines “impairment” as “a loss or abnormality of a psychological, physiological or anatomical structure or function”. The phrase, “complete inability to carry on a normal life” is defined under s. 3(7)(a) of the Schedule as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

17Therefore, even though I have found that the applicant qualifies to apply for NEB in this case, the benefit is not automatically paid. The applicant must meet the NEB test of whether she suffered a complete inability to carry on a normal life within the 104-week period of the accident. In other words, I must consider whether accident-related injuries continuously prevented the applicant from engaging in substantially all of the activities in which she ordinarily engaged before the accident. The 2-year period in question here is therefore July 21, 2018 to June 21, 2020. The burden rests with the applicant to prove, on a balance of probabilities, that as a result of the accident impairments, she suffered a complete inability to carry on a normal life within the 104-week period following the accident.

18I must decide not only what are the impairments the applicant sustained but also: a) what were her life circumstances and activities prior to the accident; and b) post-accident, was she continuously prevented from engaging in substantially all of the activities she ordinarily engaged in before the accident as a result of accident related injuries.

19The Ontario Court of Appeal in Heath v. Economical Mutual Insurance Company, 2009 ONCA, 391(“Heath”), provided the most extensive examination and analysis of the proper approach to interpret the test for NEB. I have relied on the principles of this decision to guide my analysis of the applicant’s entitlement in this matter, including the following:

a. There must be a comparison of the applicant’s activities and life circumstances before the accident to her activities and life circumstances after the accident;

b. It requires more than taking a snapshot of the applicant’s life in the time frame immediately preceding the accident. It involves an assessment of her activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case;

c. All of the pre-accident activities in which the applicant ordinarily engaged must be considered. However, greater weight may be assigned to those activities which the applicant identifies as being important to her pre-accident life;

d. The applicant must prove that her accident-related injuries continuously prevent her from engaging in substantially all of her pre-accident activities. This means that the disability or incapacity must be uninterrupted. The term “continuously prevents” means that the applicant must prove “disability or incapacity of the requisite nature, extent or degree is and remains uninterrupted”;

e. The phrase “engaging in” should be interpreted from a qualitative perspective. Even if an Applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity;

f. Where pain is a primary factor that allegedly prevents the insured person from engaging in his or her former activities, the question is not whether the individual can physically perform these activities, but whether the degree of pain experienced either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

20The applicant submits that she had no health issues prior to the accident. She asserts that the impairments she sustained as a result of the accident, have caused her difficulty in engaging in a number of activities she ordinarily engaged in including housekeeping tasks and completing her studies; essentially preventing her from living a normal life. Ms. Zhang contends that in keeping with the principles of the Heath decision, she is entitled to a non-earner benefit and she believes the evidence she provided supports her entitlement to the benefit. The respondent takes a different view. It argues that the claim should be dismissed, in part because contrary to the applicant’s assertion, the evidence shows that she thrived and was successful in her studies, during the period in question.

The evidence

21The impairments sustained as a result of the accident are important to the extent that they shed light on the applicant’s ability to function after the accident. The evidence submitted essentially provides an overview of injuries, and the multi-disciplinary areas of treatment and consultations the applicant received or explored. Missing is a thorough comparison of her life or activities she could do before the accident, and to what extent, if any she could no longer engage in those activities after the accident. The applicant relies on and submits the following evidence for consideration.

22Hospital emergency documents indicate that on June 22, 2018 the applicant arrived at hospital by ambulance. She reported that a “slow moving car tapped her”. The applicant presented with minor injuries including “bruising at base of left thumb…given Advil”. She was examined, received X-rays of her right hip and leg which confirmed she did not have any fractures. The applicant received pills for her vomiting and dizziness and was discharged with a diagnosis of “side pain – R”. She was advised to follow up with her family doctor. The attending physician noted in the report a “likely risk concussion”.

23The applicant followed up with family doctor, Dr. Dennis Woo on June 25, 2018 who told her to take over the counter Tylenol to manager her pain and return on June 28. On her second visit, she continued to complain of dizziness, so Dr. Woo sent her to the emergency room for follow up. Again, no abnormalities were found. The attending physician at the hospital advised her to monitor her condition closely. She continued to follow up with Dr. Woo regarding various complaints, dizziness and vision issues, leg numbness etc. as noted in his January 8, April 30, May 23, and July 15, 2019 clinical notes and records (“CNR”).

24The respondent points out that the applicant’s family physician’s diagnosis is that she sustained soft tissue injuries and there is no mention of a concussion. It further draws my attention to the fact that in reporting the accident to hospital physician, the applicant reported that the vehicle was travelling at low speed, she did not lose consciousness, and that her chief complaint was headaches.

25The applicant began seeing a new family physician in 2019, Dr. Jessica Chin. Dr. Chin’s November 11, 2019 notes document the following: the applicant was “still feeling dizzy, lasting 1-2 seconds, headache and sometimes complete darkness when she stands up…”. The applicant also reported being scared when sitting in the back of a car or crossing the road and that in her Grade 12 studies she seemed to need a longer time to respond and remember. Dr. Chin’s examination revealed normal results in her areas of examination, including an eye examination conducted. Dr. Chin observed that the applicant was healthy and was not taking medication. “Looks well. “Neuro grossly intact” and Dr. Chin had a question mark next to post-concussion syndrome. The applicant’s mother wanted to have an MRI done. Dr. Chin indicated that an MRI would have to be ordered by a pediatrician and she referred the applicant to a concussion clinic.

26An MRI completed on December 6, 2019, under the heading “Impression” states “ No significant intracranial abnormality is seen. A cause of headaches is not identified.” In a subsequent, November 12, 2020 phone consultation, the applicant reported to Dr. Chin that she was still having daily headaches . The applicant also stated that her studies involved looking at a computer all day. At home, she reported it was noisy and there was no quiet space to study. She indicated she was not doing well at school, because she was unable to focus causing her to fail exams and assignments.

27On December 4, 2019, the applicant met with pediatrician Dr. Renee Tseng. The applicant reported her symptoms last occurred several months prior to the date of the consultation, that her temperament or attitude had changed negatively, that her grades had dropped from 80s to 60s in Grade 12, and that her parents were pressuring her a lot academically. Dr Tseng examined the applicant and with a question mark next to post-concussion syndrome, referred her to Holland Bloorveiw (“HB”) a kids’ rehabilitation hospital, for a multi-disciplinary approach to address her concussion-like symptoms. In her notes, Dr. Tseng indicates that the applicant’s mother, who was also in attendance, was not agreeable to the referral, as she was of the view that accident related, post-concussion symptoms were the main reason the applicant was struggling in school.

28The respondent points out that at a June 12, 2020 follow up with Dr. Tseng the applicant reported her symptoms had improved since the December 2019 visit. She told the doctor that her memory and concentration were much better, she rarely had vision black outs and blurry vision, her mood was better, although, she occasionally had headaches and dizziness which were usually triggered by stress. The applicant also reported she felt better with sleep, and she was pleased to have been accepted into her desired veterinary program at university. Dr. Tseng notes that the applicant denied any current symptoms and therefore, a “full neurological exam is deferred”.

29The evidence indicates that the applicant attended at the HB upon Dr. Tseng’s referral. CNRs of her consultation with Dr. Peter Rumney at the clinic on July 21 and 24, 2020 indicate that a multi-disciplinary approach to treatment was planned to include, occupational therapy, social work, physiotherapy and psychology. The goal was to address issues including sleep, attention and memory. Here also, Dr. Rumney notes that the vehicle struck the applicant at a low speed, and that she reported that her symptoms started then. Of note, the applicant reported that she had taken Grade 10 math during the summer in an effort to boost her mark “because she was not content with current grade…mark did improve; went back to grade 11 – took 8 credits; math continued to be a challenge…”. The applicant was expected to continue with physiotherapy massage and counselling as part of her treatment. Dr. Rumney ruled out post-concussive issues and documents that his cranial examination was unremarkable, as was other testing conducted.

30A July 28, 2020 intake note at the clinic indicates under concussion history and MRI imaging , “no findings”. As expected, the applicant met with various medical professionals at HB including occupational therapist (OT), Andrea Hickling, Kim Moody, physiotherapist, Dr. Janine Hay, neuropsychologist, and Tess Bardikoff, RSW, for psychosocial support. CNRs documentation includes the following: July 28,2020 “diff concentration memory, focus, on-line learning problematic not able to see her teachers”; OT notes of August 14, 2020,indicate, tension in neck may be contributing to headaches; September 30, 2020 her treating specialists met with the applicant and her mother over Zoom to discuss safe discharge strategies for ongoing support. Among the recommendations offered to the applicant were: focus on transition to university, managing stress and navigating challenges, including those involving her parents objection to her moving into residence while attending university.

31Reportedly, the applicant wanted to continue receiving psychosocial support, especially in dealing with stressful situations including isolation created by the COVID 19 pandemic. Of note, social worker Tess Bardikoff pointed out that while, as a social worker, she could not provide a diagnosis, she told the applicant that “concussion is not a permanent disability”. Although the applicant told Tess Bardikoff that her pet turtles were comforting to her, the social worker refused to sign the letter allowing the applicant to take the turtles to university, because she did not consider them to be stress management service animals.

32The evidence also shows that the applicant started a course of treatment at TRRC shortly after the accident, including physiotherapy, to relieve pain, in areas of complaint including her neck, shoulder pain, and muscle tension. Overall, the clinic concluded that the applicant suffered from chronic injuries and pain. Physiotherapist Qi Xu completed a disability certificate (“OCF-3”) dated August 6 2018, noting that: the applicant cannot carry on normal life because of fatigue, poor sleep, hard to concentrate, low energy for activities such as shopping and she was less social and unable to continue school and that her limitations were likely to persist for more than 12 weeks. Physiotherapist Xu diagnosis is as follows:

Sprain and strain of lumbar spine, sprain and strain of other and unspecified parts of lumbar spine and pelvis, muscle strain, sprain and strain of hip, pain in limb, sprain and strain of cervical spine, sprain and strain of joints and ligaments of other and unspecified parts of neck, radiculopathy, sciatica, post-concussion syndrome, concussion, cervicalgia, dorsalgia, pain in thoracic spine, lumbago with sciatica, low back pain, abnormal posture, difficulty in walking, not elsewhere classified, pain in joint, contusion of hip, dizziness and giddiness, malaise and fatigue, disturbance of activity and attention; mild cognitive disorder, nightmares; disorders of the sleep-wake schedule.

33A May 6, 2019 chiropractic re-assessment report by Dr. Georgia Palantzas of TRRC notes that the applicant had a head injury at accident and she demonstrated, concussion and post-concussion symptoms, pain in areas including the “neck pain, middle and lower back, shoulder, bilateral hip , right knee and lower leg pain…” The applicant told the chiropractor that with rest the pain was less, and the pain caused her extreme difficulties performing household chores such as cooking, self care (washing her back, clothing herself) to some extent. I gather from an August 3, 2019 Otolaryngology – Head & Neck Surgery report that the applicant was also seen and examined by Dr. Brad Hubbard, a concussion specialist, where the applicant again expressed concerns that her Grade 12 marks had dropped considerably since the accident.

34The applicant also submitted an updated OCF-3, dated September 24, 2020. The certificate is completed by physiotherapist, Ahmed Afifi of TRRC. The diagnosis is similar to the previous one completed in August of 2018 by physiotherapist Xu, including: “injury of muscle and tendon at neck level; dislocation sprain and strain of joints and ligaments of thorax…of joints and ligaments of lumbar spine and pelvis…of joints and ligaments of shoulder girdle…dizziness and giddiness; headache…nonorganic sleep disorders…slowness and poor responsiveness…unspecified nervousness…”

35Physiotherapist Afifi indicates that the applicant suffered a complete inability because of “injuries affecting most of her ADLs at home, at school and her social life as well.” Specifically, physiotherapist Afifi notes, “she is not unable to continue secondary/post-secondary activities, unable to perform housekeeping tasks due to the number of injuries and due to the severity of the dizziness and back pain.” The physiotherapist indicated that follow up X-ray, Ultrasound, MRI, Psych evaluation were needed.

36The applicant’s evidence also indicates that she attended Somatic Assessments and Treatment Clinic, to determine, the nature and extent to which she suffered from psychological or emotional difficulties, as a direct result of the accident. Psychotherapist, Mandy Fang,(supervised by psychologist Dr. Sharleen McDowall) in her September 13, 2018 report notes that despite her progress, the applicant wanted to resume psychological treatment to manage her personal stressors “that she believes have been worsened by the index MVA”, and especially as she was transitioning to post-secondary studies. An April 24,2020 psychological counselling progress report, by registered psychotherapist Merlin Tong (also supervised by Dr. Sharleen McDowall), indicates that the applicant’s primary concern reported as a result of the accident, was difficulty with concentration and memory. She received eight (8) psychotherapy treatments from May 1, 2020 to July 2, 2020.

37Overall, it is the respondent’s position that the evidence submitted by the applicant provides no indication that the accident directly contributed to her emotional condition. The indication, according to the respondent, is that family issues were the main contributors to the applicant’s emotional issues/stressors. These included pressure by her parents regarding academic expectations; concerns with isolation inherent in virtual learning, COVID 19 pandemic circumstances; lack of quiet study space at home and her family’s strong objection to her desire to move into residence/live independently for her first year of university. The respondent further argues that the evidence establishes that the applicant was a full time student who graduated from high school without delay in June 2020. She had good marks leading to her admission to University of Guelph in the Fall of 2020; as evidenced by her private school report card showing final grades in the 90 percentile range.

Is the applicant, as a result of accident related impairments continuously prevented from engaging in substantially all of the activities in which she ordinarily engaged before the accident?

38Considering all the relevant evidence presented, including the applicant’s reporting of alleged changes in her pre and post-accident life, and the guiding principles established in the Heath decision, I find that the applicant has not established, on a balance of probabilities, that she is continuously prevented from engaging in substantially all of the activities in which she engaged prior to the accident. In arriving at this decision I have considered, the applicant’s life before and after the accident relevant to the injuries sustained as a result of the accident.

Pre and post accident activities

39Other than stating that prior to the accident she was of good health and fully independent with personal care and housekeeping tasks, the applicant did not expressly outline her pre-accident activities and life circumstances. From the applicant’s self-reporting in the evidence provided, I have deduced that the applicant was a high school student , who was 15 years old at the time of the accident. It was summer time, and she was assisting at a food festival, and that she returned to school beginning her grade 11 studies when the new school year started in the fall of that year. In her own words by way of reporting to various treatment practitioners, I gather that her pre and post-accident activities included the following:

• She went jogging with her mother and father after dinner prior to the accident. She no longer joined them due to her injuries.
• She previously performed household chores. In her May 19, 2019 to chiropractor Palantzas, she reported that she had extreme difficulty with household chores such as cooking, cleaning vacuuming, sweeping, mopping, dish washing, laundry, gardening, grocery shopping; as well as difficulties on and off with some self-care activities.
• She was an active, outgoing, easy-going person, who participated in social activities with friends and family, prior to the accident. Post accident, due to among other things, fear, she was unable to engage in such enjoyable activities, resulting in moodiness and irritability; she argued more with her parents; she avoided going out to social functions, meeting and talking to people and became more isolated.
• Prior to the accident she was able to cross the street without anxiety; afterwards she reportedly was unable to cross without an escort and is said to have squeezed her mother’s arm enough, during crossing, to cause bruising.
• She developed sleeplessness due to pain and frightening nightmares, after the accident, causing her to be “tired all the time”.
• Her appetite deteriorated after the accident, although she has maintained her pre accident weight.
• Prior to the accident, the applicant reported that she had no difficulties with her studies or with maintaining her grades, and she enjoyed reading. Since the accident, she indicated that she finds it difficult to concentrate and memorize information, and she often had to re-read things in order to retain information. This caused her anxiety about her schoolwork. She reported, "I am about to enter my senior years, and they are very important. If l can't focus while I am reading, l am worried that my grades will be negatively affected."

Injuries sustained

40What are the injuries that allegedly prevented the applicant from living a normal life after the accident? The applicant did not point out what the accident-related injuries are that allegedly prevented her from engaging in substantially all activities of her normal life. The evidence indicates as follows.

41Physical injury: She did not sustain any fractures as a result of the accident. However, the disability certificate of August 2018, (over a month post- accident) completed by a physiotherapist, documents a number of physical injuries sustained as a result of the accident, including pain in her neck, right hip and a dull pain right leg when walking, as well as dizziness and vomiting. The later, updated disability certificate, dated September 24, 2020 (more than two years post accident), also completed by a physiotherapist, chronicles similar conditions, including: various muscle, tendon, joints, ligaments and pain when walking. As in the previous certificate, it appears that the applicant reported experiencing dizziness, giddiness, headaches, sleep disorder, slowness and poor responsiveness. I make this observation based on the fact there is nothing indicating that the physiotherapists conducted tests for same. The same applies in terms of their headache, concession and post concussion syndrome diagnosis.

42Emotional/psychological impairments: The applicant repeatedly told various practitioners that after the accident she began experiencing memory, focus and concentration problems, causing difficulties with her studies and maintaining good grades. She was particularly concerned and anxious about her schoolwork, and grades. Although, the evidence indicates that she refused the opportunity to have a CT scan conducted when she attended hospital at the onset, the applicant contends that she had sustained a concussion. While chiropractor Palantzas in her May 6,2019 report observed “concussion and post-concussion symptoms are present”, I find no conclusive expert diagnosis to this effect. However, I find the result of the MRI conducted, to be a reliable source in this regard. It reveals a normal result and that the cause of her headaches was not identified. I also gather from the applicant’s consultations with various medical professionals, her headaches, emotional/stress issues, nausea, vomiting complaints were presumed to be attributable to various likely factors other than the accident, including disagreements with her parents, lack of quiet study space, making the transition to post-secondary studies and pressure to achieve high grades/excel at school.

The evidence does not establish entitlement

43The applicant claims she was an energetic person with an active lifestyle, who has experienced many adverse changes in her home, social and school life since the accident. However, this is not conveyed in the evidence she submitted. Her evidence/submissions provide no details relating to her pre-accident activities including how often and how much time she devoted to such activities. There is insufficient information provided for me to reasonably compare her pre and post accident activities. For example, other than jogging, there is no information provided about what extracurricular activities she engaged in and how much time she devoted to such activities. Similarly she provides no information that would allow me to compare the household chores she indicated she was responsible for; whether they were daily, weekly or monthly occurrences, or how her self-care activities were impacted. She gives no indication as to how much and how often she socialized with her friends and in what way they engaged. Without these details/information I have no way of determining whether the applicant was prevented from engaging in substantially all of the reported pre-accident activities in which she ordinarily engaged, without interruption.

44One thing is clear from the evidence provided is that her schoolwork and good grades were critical to both the applicant and to her parents. My read of the evidence is that the applicant was fully engaged in that regard, as evidenced by the fact that she was motivated to improve her grade(s), specifically in mathematics, which admittedly she found difficult, by taking a summer program; and the fact that she was able to complete all levels of her senior high school years studies, on time and with grades that garnered her admission to the university program of her choice. On a balance of probabilities, I find no evidence that would lead me to make a finding that her accident-related injuries continuously prevented her from engaging in substantially all the activities in which she ordinarily engaged before the accident, that would warrant entitlement to NEB. The applicant is not entitled to the benefit.

Issues ii. – vii. above: Whether the applicant is entitled to the medical benefits and cost of examinations as follows:

ii.) $ 4,654.52 for physiotherapy services, proposed by TRRC in a treatment plan/OCF18 (“plan”) dated October 3, 2019; iii.) $1,047.34 ($3,701.88 less $2,654.54) for psychological services proposed by Somatic in a treatment plan dated December 11, 2018; iv.) $1,467.34 ($4,121.88 less $2,654.54) for psychological services proposed by Somatic in a treatment plan dated October 22, 2019; v.) $1,827.34 ($4,121.88 less $2,294.54) for psychological services proposed by Somatic in a treatment plan dated March 17, 2020; vi.) $16,112.81 for a CAT Assessment also proposed by Somatic in a treatment plan dated November 22/15, 2019; and vii.) $1,450.00 ($3,650 less $2,200) for a Concussion Assessment proposed by TRRC in a treatment plan dated July 31, 2019.

45A plain language reading of Sections 14 and 15 of the Schedule will guide my analysis. Sections 14 and 15 of the Schedule provide in part, that the insurer shall pay for all “reasonable and necessary expenses” incurred by an insured person as a result of the accident for such services as medical, chiropractic, psychological, occupational therapy and physiotherapy services. While the Schedule does not define the terms “reasonable and necessary”, a realistic interpretation must include among other things whether the expenses and services proposed or incurred are related to impairments caused by the accident, the goals of the treatment, and whether such goals will be achieved by the services proposed or incurred.

46With regard to medical assessment costs, I must also consider the following provisions. Section 15(1) provides that the insurer shall pay for “all reasonable and necessary” expenses incurred as a result of an accident, in conjunction with Section 25(1)3 of the Schedule which states that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. In all cases, the burden rest with the applicant to prove, on a balance of probabilities, the reasonableness and necessity of the denied plans.

47The evidence before me establishes that the applicant sustained soft tissue injuries as reflected in the first disability certificate of August 6, 2018 and the subsequent one of September 24, 2020. As a result, she sought treatment at TRRC to relieve pain, reportedly including physical pain in her shoulder/neck , right hip and leg areas, muscle tension, as well as dizziness/headaches. Overall, the clinic concluded that the applicant suffered from chronic injuries and pain. Given that the applicant began an extended physical therapy treatment at TRRC in August of 2018, a couple of months after the accident, I will first address the treatment plans numbers ii. and vii. above. She initially reported, among other things numbness in her leg(s), pain in neck and hip. During the course of treatment, the clinic recommended the treatment plans in question, which were denied by the respondent.

Total Recovery Rehab Centre Plans

48Physiotherapy treatment ii.: The plan dated October 3, 2019, proposes 16 sessions each of physiotherapy, active therapy, massage therapy performed by the treating physiotherapist, totalling $3,990.08; $240 for transportation to the sessions; $244.24 for progress reporting, and $200 for the examination/reassessment. The goals of the plan , include: pain reduction, increased strength and increased range of motion. The applicant submits that the proposed plan for physiotherapy services, 16-months post accident, is reasonable and necessary as the treatment addresses her ongoing physical impairments resulting from the accident. To this end, she points to the fact that she began physical therapy at the clinic a couple of months after the accident; and while she continued to report back and neck pain for example, well beyond the 12-week duration indicated in the August 2018 disability certificate, the treatment , in keeping with the goal of the plan, did provide some pain relief.

49The applicant also points out that the findings of IE assessor Dr. M. Dziedzic, conducted on December 4, 2019, more than a year post-accident, and the goals of the treatment plan are similar, although the physiatrist ultimately denies that the plan is reasonable and necessary. For example, Dr. Dziedzic conducted a physical examination and found lumbar spine restrictions of 50% in full and forward flexion and that there was some pain and numbness in the lower extremities. Among other things Dr. Dziedzic notes that the applicant would benefit from an exercise program including stretching and strengthening exercise along with postural exercise, which the applicant points out are similar to the goals of the treatment plan in question. The respondent disagrees and submits that as per by Dr. Dziedzic’s report, the applicant had achieved maximum medical recovery by then. It argues that nothing in the applicant’s evidence leading up to that point indicates otherwise, including illegible CNRs of her attendance at TRRC which seem to indicate that her last attendance was in May 2019.

50For the following reasons, I am satisfied that the treatment proposed is reasonable and necessary. Starting shortly after the accident, the evidence indicates that the applicant’s pain complaints, in specified areas of her body, were well documented by various medical practitioners. As is documentation that her treatment, including at TRRC, was primarily undertaken to address these areas of complaint or injuries. TRRC’s CNRs, although relatively illegible, do indicate that she attended for treatment on numerous occasions after the accident, a few times in 2019 including what appears to be in May 2019. She was initially assessed by chiropractor Dr. G. Palantzas in December 2018 and reassessed in May 2019. At the reassessment, the applicant continued to report headaches, dizziness, as well as pain at her neck, back, shoulders, hips, right knee, and right lower leg. Dr. Palantzas’ examination confirmed pain of various severity in these areas; and diagnosed the applicant with among other things, chronic pain.

51The October 3, 2019 treatment plan in question indicates to me that she continued to seek treatment more than a year after the accident. The follow up assessment done by IE assessor Dr. Dziedzic a couple months later, records 50% spine restriction some pain and numbness in the lower extremities. Taken as a whole, both the subjective and objective evidence not only indicates that the applicant was consistent in her complaints of ongoing pain in specific areas of her body, and as per the findings of the IE assessor she had been receiving treatment of same for some time, but also that she did garner relief from the kind of treatment undertaken. In the plan, treating physiotherapist, Afifi mentions that pain, tightness and chronic pain limits most activities. Considering all of the relevant evidence provided, I can only conclude that the similar, treatment proposed makes good sense, is “reasonable”; and as demonstrated, is critical for pain relief, in other words “necessary”.

52The applicant is entitled to this treatment plan, less $240 transportation cost because as the respondent points out, as per the Superintendent’s Guideline No. 04/16 relating to Transportation and s. 3(1) of the Schedule, the applicant lives within the 50 km deductible range, and transportation is therefore not payable. I also agree with the respondent that the $244.24 for progress reporting is not considered to be a reasonable and necessary medical or rehabilitation expense contemplated by section 15 and 16 of the Schedule.

53Concussion assessment vii.: Dr. Bradley Hubbard of TRRC proposed a $3,650 concussion assessment plan, on July 31, 2019. The amount comprises: concussion assessment of $2,000, completion of the plan and OCF18, $200, file review and involvement in subsequent dispute resolution of $1,000, transportation cost of $50 and translation charges $400. Neither party denies the fact that the respondent approved and paid the amount of $2,200 covering the cost of the assessment and for completion of the plan. The respondent did not approve or pay the remaining cost for file review, transportation and translation charges, leaving the outstanding total of $1,450.

54Other that submitting that in keeping with s. 25(1), (3), and (5) a of the Schedule and based on the injuries sustained, the applicant provides me with no submissions for consideration as to why the outstanding costs are reasonable and necessary, or payable. On the other hand, the respondent contends that the outstanding balance is neither payable nor contemplated under the Schedule. I agree with the respondent.

55Section 25(5) caps the “fees and expenses for conducting any one assessment or examination” as $2,000. In my view, conducting the concussion assessment would include conducting a review of documents and all expenses must be included in the $2,000 cap. If as indicated by the respondent the $1,000 represents “involvement in subsequent dispute resolution” the amount is not payable, as there is no indication that it represents a reasonable and necessary cost contemplated by the Schedule. Regarding transportation, the cost is not payable because the applicant lives within 50 km of the clinic. Without any submissions to the contrary from the applicant, I agree that the transportation cost does not represent a reasonable and necessary cost and it is not payable, nor is the claim for translation. There is no indication that the applicant required language interpretation services to participate in the assessment, or any of the processes involved. The applicant is not entitled to the total outstanding amount claimed.

Somatic Assessments & Treatment Clinic plans iii. – vi.:

iii.) $1,047.34 ($3,701.88 less $2,654.54) for psychological services proposed by Somatic in a treatment plan dated December 11, 2018; iv.) $1,467.34 ($4,121.88 less $2,654.54) for psychological services proposed by Somatic in a treatment plan dated October 22, 2019; v.) $1,827.34 ($4,121.88 less $2,294.54) for psychological services proposed by Somatic in a treatment plan dated March 17, 2020; vi.) $16,112.81 for a CAT Assessment also proposed by Somatic in a treatment plan dated November 22/15, 2019.

56The above four assessments proposed by Somatic are before me. On December 11, 2018, October 22, 2019 and March 17, 2020, iii., iv. and v. above, psychologist, Dr. McDowall proposed additional psychological therapy treatments of 1.5 hours duration per session. The respondent arranged for Dr. Liza Weiser to conduct IE assessment(s). Subsequent to the assessment(s) and the resulting IE assessor’s report(s), the respondent partially approved the plans, reduced to one hour sessions . It is the applicant’s position that her medical records document her ongoing struggles with sleeping, anxiety, memory and concentration, phobias and general psychological issues since the accident, demonstrating that the longer treatment sessions are warranted.

57The respondent recognizes that the applicant is seeking the shortfall with respect to the above three psychological treatment plans proposed by Dr. McDowall. The insurer then indicates that it has received invoices for treatment from the clinic totalling $11,216.80; it has paid $9,435.41 to Somatic; leaving a balance owing of $1,781.39. The respondent then concedes and indicates its intention to pay the amount of $1,781.39, plus interest to Somatic, as it relates to the invoiced treatments only. At the same time the respondent maintains its denial of transportation expenses in relation to the treatment plans in dispute. Again, the respondent asserts that the 50 km deductible applies in each plan.

58While this does not provide me with a direct response to the outstanding amounts indicated in each plan, based on the submissions of both parties, I draw the following conclusions. It appears that the applicant is seeking approval for the full 1.5 hour duration for each treatment session proposed by Dr. McDowall, in each of the plans, instead the of the one hour approved by the respondent. In turn, it would appear that the respondent, in conceding, now agrees to pay for 1.5 hour instead of 1-hour sessions. However, if this is not the case, I find that the 1.5 hour session is warranted. Why? The evidence indicates that since the accident, the applicant has completed and transitioned from high school to university studies, while dealing with a number of emotional and psychological issues including: decreased ability in memory and concentration, headaches, and poor sleep. While there is some indication that her symptoms may not be all accident related, and that stressful life situations may be a factor, it appears that the symptoms surfaced after the accident. The applicant had extensive psychological treatments at Somatic, which no doubt was a vital coping mechanism. In my view, her patient-physician, relationship with her treating psychologist, leads me to believe that Dr. McDowell, would have a better understanding of the appropriate duration for each treatment session, as opposed to that of the IE assessor’s who would have had limited interaction with the applicant.

59With regard to other costs indicated in the plans, the burden of proof rests with the applicant to provide me with her position as to why such costs are payable. The applicant makes no mention of such costs, nor does she provide me with any submissions for consideration regarding such costs. Without any submissions from the applicant, I find the respondent’s denial letters in each case and its reasoning for denying some of the costs to be the most reliable. Other than the expenses already approved in each plan, plus the cost for the additional half an hour for each treatment session, I agree with the respondent’s reasoning for maintaining its denial of the transportation costs in all three treatment plans: December 11, 2018, October 22, 2019 and March 17, 2020. The respondent further points out that in the March 17, 2020 plan it did not approve the cost of documentation and report writing in the amount of $360, because it had previously approved that cost on a prior treatment plan, and had subsequently not received any progress reports, including at the time of writing. The applicant did not deny/dispute the respondent’s assertion in her reply submissions. All considered, I find that the applicant is only entitled to the shortfall amount for the 1.5 hour per session for each psychological treatment.

vi.: Is the applicant entitled to $16,112.81 for a CAT Assessment proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated November 15, 2019?

60In this plan, Dr. Shobhan Vachrajani, a physician at Somatic, proposes multi-disciplinary catastrophic impairment assessments conducted by Dr. Vachrajani, the doctor proposing the assessments, occupational therapist, Raymond Wong, psychologist, Dr. McDowall, and chiropractor Dr. Georgia Palantzas. The applicant submits that, the medical evidence provided, supports these assessments given that she suffers from post-concussive syndrome, ongoing headaches and psychological impairment along with neck, shoulder and lower back pain. As such, the proposed assessments, in keeping with section 25 provisions, are “reasonable” for her to properly, further explore whether she has sustained a catastrophic impairment.

61The respondent denied the CAT Assessment and maintained that it is not payable. The respondent points out that there is a lack of medical evidence to indicate a reasonable apprehension that the applicant suffered a catastrophic impairment. Specifically, the respondent argues that the applicant has not provided requested school and academic records to realistically determine her accident-related medical condition more than a year post-accident; no additional medical records, explanation or criteria for which the applicant was seeking catastrophic impairment determination were provided in support of the proposed treatment plan; and there is no indication of any communication, intake or interview with the applicant as a basis for the proposed treatment/assessment plan.

The plan is not reasonable and necessary

62For the reasons that follow, I find that the plan is not “reasonable and necessary”. Section 45 of the Schedule allows an insured person to apply to the insurer for a determination of whether the individual sustained impairments that meet the definition of catastrophic impairment, as set out under s. 3.1(1) of the Schedule. I agree with and follow the LAT case 16-002858 (C.A. v. Intact Insurance Company, 2018 CanLii 130861 (ON LAT) ) that, similar to determining whether a medical/rehabilitation benefit is payable under section s. 15 of the Schedule, it is well established that the correct test for determining a catastrophic impairment treatment plan, is whether each proposed area of medical assessment is “reasonable and necessary”; in order to then determine, in keeping with s 25 whether the fees charged for each assessment are reasonable expenses. The areas of assessment in the CAT Assessment are: general medicine, occupational therapy, psychology and chiropractic. Are assessments in these areas of medicine, reasonable and necessary? The evidence does not convince me that they are.

63As always, it is up to the applicant to prove, on a balance of probabilities, that each assessment recommended in the treatment plan is reasonable and necessary and, if so, that the fees charged are reasonable. I agree with the respondent that there is no supporting medical attachments or information that would support, or trigger, the areas of assessment indicated in the treatment plan. If, as it appears the applicant indicates the documentary medical evidence she provided will suffice for all of the issues in dispute, including the proposed areas of assessment, then in my view she has failed to meet her burden of proof.

64The facts in this matter are that a slow moving car tapped the applicant, she fell, sustained bruising, there was some vomiting and dizziness, and complaints of headache. Later on the applicant displayed both emotional and psychological complaints. Both the initial hospital physicians and her family doctors prescribed medication, and later having reviewed various imaging and X-ray, ascertained the applicant had no fractures, and although she reported concussion-like symptoms, the MRI was negative in that regard. It is also notable that the applicant declined to have a CT scan done initially, as indicated in the hospital report. Undeniably, the applicant sustained some physical and psychological injuries.

65However, there is ample evidence that the applicant followed up with her family physician and specialists in various areas of medicine, who monitored and treated both her physical and psychological condition, on an ongoing basis and for an extended period of time. At no time did any of her treating physicians opine that she may have been catastrophically impaired: not family doctors Woo and Chin, and in fact Dr. Chin observed that the applicant was healthy, the MRI showed nothing abnormal, and the source of her headaches was indeterminable. In the June 2020 consultation with pediatrician Tseng , the applicant stated her symptoms had improved, her memory and concentration were better, and that her occasional headaches were usually triggered by stress. As a result of this consultation, Dr. Tseng deferred plans for a full neurological examination.

66The applicant was also evaluated by and received treatment from a multi-disciplinary team at HB including , occupational therapy, social work, physiotherapy and psychology. She also consulted with Dr. Georgia Palantzas, a specialist in chiropractic. At no time did any of these physicians, or specialists, including concussion specialist, Dr. Brad Hubbard, note any suspicion of catastrophic impairment. Notably, the applicant was discharged from HB on December 23, 2020 without recommendation for further treatment.

67My review of the evidence provided shows that the applicant received both physical and psychological treatment, including in the areas of practice pinpointed in the CAT Assessment , over an extended period of time. In my view, the evidence establishes that with treatment, on a balance of probabilities, her condition improved over time, as opposed to worsening to the point of warranting a catastrophic impairment assessment treatment plan. The fact that Ms. Zhang was able to complete her senior years of high school studies without delay, achieve good marks, including improving her marks in the challenging subject of math , and was able to enroll in post-secondary studies in her area of choice, demonstrates that her accident-related condition had improved over time. The applicant expressed a similar improvement in her June 12, 2020 consultation with Dr. Tseng when she informed the doctor that her symptoms had improved, her memory and concentration were better, her mood was good, she slept better and she was particularly pleased to have been accepted into veterinarian studies at university.

68Considering the totality of the evidence, I find that the proposed assessment plan and areas of assessment are unsupported, as the recommending physician provides no supporting documentation that the occupational therapy, psychology, and chiropractic assessments are reasonable and necessary. Therefore, the cost of the CAT Assessment is not reasonable or necessary and it is therefore denied.

Issue viii.: Whether the applicant is entitled to interest

69The applicant is entitled to interest on any overdue payment of the following claims: a) $4,654.52, less the transportation and progress report charges and translation , for physiotherapy services, proposed by TRRC; and b) the cost of the one half hour shortfall portion for each session of the following Somatic treatment plans: $1,047.34, for psychological services, dated December 11, 2018; $1,467.34 for psychological services dated October 22, 2019; and $1,827.34 for psychological services in a treatment plan dated March 17, 2020. Interest is payable in accordance with section 51 of the Schedule.

CONCLUSION AND ORDER

70I order that:

(a) The applicant is entitled to payment of:

• $4,654.52, less the transportation, translation and progress report charges, for physiotherapy services, proposed by TRRC in a treatment plan dated October 3, 2019.
• the one-half hour shortfall portion for each treatment session indicated in the Somatic treatment plans dated: December 11, 2018; October 22, 2019; and March 17, 2020.
• interest on any overdue payment of the above benefits.

(b) The following claims are dismissed:

• A non-earner benefit (NEB);
• $1,450, representing the balance of a concussion assessment proposed by TRRC; and
• $16,112.81 for a CAT Assessment proposed by Somatic.