Citation and File Number

Citation: Nian v. Security National Insurance Company, 2023 ONLAT 22-006920/AABS

Licence Appeal Tribunal File Number: 22-006920/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:

Qiong Nian

Applicant

and

Security National Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Qiong Nian, Applicant Sareena Samra, Counsel

For the Respondent: Crystal Krandel, Claims Representative Taylor Cawley, Counsel Kevin Temple, Counsel

Interpreter: Mandarin Jing Tao, Lillian Zhao, Jade Yu

Court Reporter: Guido Riccioni

HEARD: by Videoconference: October 3, 4, and 5, 2023

OVERVIEW

1Qiong Nian (“Q.N.”), the applicant, was involved in an automobile accident on October 25, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Q.N. was denied benefits by the respondent, (“Security National”), and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2A case conference was held but the parties were unable to resolve the issues in dispute. The matter proceeded to a 3-day videoconference hearing. At the start of the videoconference hearing, the applicant advised that several issues had been withdrawn. Accordingly, the decision will focus on the remaining issues in dispute.

PRELIMINARY ISSUES

3Is Q.N. statute barred pursuant to s. 55(1)(2) from proceeding with her claim for income replacement benefit as she failed to submit to an insurer’s examination under s. 44 of the Schedule?

ISSUES

4The issues in dispute are:

i. Is Q.N. entitled to an income replacement benefit (“IRB”) in the amount of $324.83 per week from November 2, 2019 to August 1, 2020 and from June 1, 2021 to date and ongoing?

ii. Is Security National liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to Q.N.?

iii. Is Q.N. entitled to interest on any overdue payment of benefits?

RESULT

5Q.N. is barred from proceeding with her claim for IRBs for the period of November 2, 2019 to August 1, 2020 for failing to comply with the requirements pursuant to s. 44 of the Schedule during the period of eligibility.

6Q.N. is not entitled to IRBs for the period of June 1, 2021 and ongoing.

7No interest or an award are payable.

ANALYSIS

Q.N.’s claim for pre-104 IRBs is statute barred due to her non-compliance pursuant to s. 44

8Section 55(1)2 of the Schedule sets out that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44, but the insured person has not complied with its request for attendance.

9The parties agree that Q.N. returned to work on August 1, 2020. The dispute centres around whether Q.N. is entitled to IRBs from November 1, 2019 ongoing, as she claims, or only from June 1, 2020 ongoing, as Security National argues. I find that Q.N. is statute barred from proceeding with her claim for IRBs for the period of November 2, 2019 to August 1, 2020 due to her non-compliance pursuant to s. 44 of the Schedule.

10Security National raised the preliminary issue of non-attendance, claiming that Q.N. is statute barred from claiming entitlement to IRBs for the period of November 2, 2019 to August 1, 2020 due to her failure to attend a s. 44 insurer examination during this period of entitlement. It submits that she failed to provide a reasonable explanation for her non-attendance, and after several attempts to reschedule, Security National deemed her non-compliant under s. 44.

11Q.N. submits that she should not be precluded from pre-104-week IRB entitlement. She relies on the following evidence in support of her position:

i. February 25, 2020 – Notice regarding s. 44 insurer examinations (“IEs”) for IRB was received;

ii. March 4, 2020 - attendance at s. 44 IEs confirmed;

iii. March 4, 2020 – Q.N. sent a reschedule request (for March 5, 2020), attended March 5, 2020;

iv. March 20, 2020 – request to attend IEs on April 3, 7, 9, 2020;

v. March 30, 2020 – reschedule request due to emergency medical appointments;

vi. June 1, 2020 – request sent to attend June 17, 2020 IE;

vii. June 9, 2020 – refused to attend June 17, 2020 IE due to COVID concerns, requested IEs to be rescheduled in July 2020;

viii. August 5, 2020 – letter from Security National that IRBs are suspended due to s. 44 non-attendance of June 17, 2020 IE; and

ix. August 18, 2020 – Notice that Q.N. is not entitled to IRB/NEB.

12Q.N.’s position is that Security National failed to provide reasonable options to conduct the IEs and that it failed to do an IE during the pre-104 period.

13Security National argues that all of its notice letters met the requirements set out in the Schedule. Specifically, the July 2020 letter which noted the specific benefit (IRB), the type of IE that was scheduled (psychological), and the “medical and other reasons” for which the IE was required. Further, the letter advised of who the IE was scheduled with, and all other IE location details.

14I agree with Security National. There is no ongoing obligation on the insurer to continue to reschedule its IEs. I find that Security National’s accommodation of Q.N.’s previous reschedule requests was reasonable, particularly during the COVID protocols during the pandemic. I find that the notice letter complied with the requirements under s. 44. Q.N. argues that there was no option provided for virtual assessments. I find that on the grounds of the COVID protocols in place during the pandemic, that allowed IE centres to conduct in-person assessments, Q. N. does not present a valid argument. There was no requirement of Security National to offer the option of virtual assessments on this basis. Further, I note that Q.N. in fact attended two other in-person IEs during the same period that the psychological IE was scheduled for.

15For these reasons, I find that Q.N. is statute barred from pursuing her claim for IRBs for the period of November 2, 2019 to August 1, 2020 because she failed to attend a properly scheduled IE under s. 44 during this period of eligibility. I now turn to the issue of post-104 IRB entitlement.

Q.N. is not entitled to post-104 IRBs

16To qualify for IRBs after 104 weeks after the accident, or post-104 mark, the insured person must suffer from a complete inability to engage in any employment for which they are reasonably suited by education, training or experience. In the present case, Q.N. reached the 104-week mark on October 25, 2021.

17It is well-established that in order to prove entitlement to IRBs, an applicant must provide evidence of the essential tasks of their employment and demonstrate that they are substantially unable to perform the essential tasks of that employment or any other employment for which they are reasonably suited by education, training or experience. Failing to produce evidence of an injury or impairment which prevents the applicant from performing the essential tasks of their employment is a failure to meet the onus of proof, resulting in a failed claim of entitlement.

18Q.N. testified that she is self-employed as the owner of We Nail Salon. Q.N. saw her family physician the day of the accident, complaining of hand and face pain. She further testified that she took time off work after the accident and returned to work approximately the beginning of August 2020. It should be noted that she closed her business in 2020 on two occasions due to the COVID protocols that were enforced during the pandemic and not as a result of her injuries. Her evidence was that she notified Security National that she was off work since April 2021 and she was unable to find a replacement, and she was unable to do the work due to concentration issues.

19On cross-examination, Q.N. testified that she made various visits to her family physician, Dr. Humaid after the accident. Notably, at the initial post-accident visit, she did not report an inability to work. Additional evidence showed that the records of her treatment provider, Easy Physio, show only two visits on record; a January 18, 2020 visit to Dr. Humaid was not accident-related (presented with a complaint of a rash); an April 13, 2020 visit to Dr. Humaid was again with a complaint of a rash, no mention of the accident. More recently, on February 23, 2023, Q.N. reported to her treating physician that her lower back pain improved after a few weeks, and she only experienced sporadic low back pain.

20Further on cross-examination, Q.N. testified that during the August 14, 2020 s. 44 insurer examination with Dr. Nesterenko, general physician, she reported that she had resumed pre-accident self-employment about one week post-accident. Additionally, in the January 15, 2021 s. 44 report of Dr. Belfon, general physician, Q.N. reported that she could not work for two months post-accident due to a right hand burn. She also reported that she returned to work after two months to full-time duties, closing in March 2020 due to COVID, reopening in August until COVID measures forced a closure in December 2020. Notably, Q.N. reported (s. 44 report dated September 30, 2022) to Ms. Li, occupational therapist, that she made the decision to close her business due to the pandemic. She made a similar statement in the October 25, 2022 s. 44 report of Dr. Ko, physiatrist, that she returned to work the next day after the accident, and continued until the COVID lockdown; and continued to work until the third lockdown, at which point she decided to close her business.

Post-104 Functioning

21From a physical perspective, Q.N. testified that she was able to return to work and perform modified duties, during the periods that the business remained open during COVID. She reported having special training and skills that required her to perform some of the more advanced procedures, despite having difficulty concentrating.

22Regarding her psychological well-being, Q.N. testified having difficulty concentrating, which she claimed impacted her work. Her position is that as a result of continuing pain and focus issues, she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

23I disagree that Q.N. suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. First, Q.N. did not report any psychological complaints to another family physician, Dr. Bora. Second, in the September 23, 2022 report of Dr. Saghatoleslami, psychologist, Q.N. reported in the Post-Accident Activities of Daily Living (“ADLs”) & Employment Status sections, that she was able to perform her ADLs, and had returned to work full-time. While Q.N. disagreed with Dr. Saghatoleslami’s report, she did not offer any differing report from what was noted. On re-direct, Q.N.’s testimony was that it was not culturally appropriate to talk about psychological issues. I place little weight on this testimony, because Q.N. was very forthcoming when she was talking about her concentration issues while under oath. I was further persuaded by the evidence that she reported a return to full-time duties, despite her alleged psychological impairment.

24For the reasons set out above, I find that Q.N. did not suffer significant psychological impairments that caused her to suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

26Having determined that no benefits are outstanding, no interest is payable.

Award

27Q.N. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

28I find that award is not appropriate. As there are no benefits found payable, there is no award that is payable.

ORDER

29Q.N. is statute barred from proceeding with her claim for pre-104 IRBs for the period of November 2, 2019 to August 1, 2020, as she failed to attend a properly schedule s. 44 insurer examination.

30Q.N. failed to demonstrate entitlement to post-104 IRBs for the period of June 1, 2020 ongoing.

31No interest or an award is payable.

Released: November 29, 2023

__________________________

Derek Grant Adjudicator