Xu v. Aviva General Insurance Company, 2023 CanLII 23556

Citation: Xu v. Aviva General Insurance Company, 2023 ONLAT 21-000958/AABS

Licence Appeal Tribunal File Number: 21-000958/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:

Bo Fan Xu

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Melanie Sousa, Counsel

For the Respondent: Yu Jiang, Paralegal

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Bo Fan Xu (the “applicant”) was involved in a motor vehicle accident on September 13, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that he sustained physical and psychological injuries as a result of a t-bone accident. He claims entitlement to a non-earner benefit (“NEB”), compensation for lost educational expenses, three treatment plans for physical and psychological services, interest on all incurred treatment, as well as an award due to the insurer’s unreasonable withholding or delaying of benefits.

3In response, Aviva argues the applicant has not proven he meets the NEB test, and that he has not proven that his accident-related injuries were the cause of his inability to continue in school, resulting in the claimed tuition expenses. Further, the respondent submits that the applicant has not proven two treatment plans in dispute to be reasonable and necessary, that the applicant is asking for an unacceptably high hourly rate for one treatment plan, and that it follows that no interest is owed as a result. Aviva also argues that the award claim should be dismissed as the applicant has provided no submissions on this issue.

ISSUES IN DISPUTE

4The following issues are in dispute:

1. Is the applicant entitled to an NEB in the amount of $185.00 per week from October 12, 2019 to date and ongoing? (The applicant clarified in his submissions that the correct period of entitlement being sought is October 12, 2019 to May 11, 2021.)

2. Is the applicant entitled to $9,426.14 for educational expenses in an expense form/OCF-6 dated March 6, 2020?

3. Is the applicant entitled to $1,778.10 for chiropractic services, proposed by Easy Health Centre, in a treatment plan/OCF-18 dated January 9, 2021?

4. Is the applicant entitled to $1,620.29 for physiotherapy services, proposed by Easy Health Centre, in a treatment plan/OCF-18 dated April 10, 2021?

5. Is the applicant entitled to $1,041.88 ($3,701.88 less $2,660.00 approved) for psychological services, proposed by Somatic Assessments and Treatment Clinic, in a treatment plan/OCF-18 dated May 31, 2021?

6. Is the applicant liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5I find that:

i. The applicant is not suffering from a complete inability to carry on a normal life as a result of the accident, and is therefore not entitled to an NEB.

ii. The applicant is not entitled to $9,426.14 for educational expenses in an expense form/OCF-6 dated March 6, 2020.

iii. The applicant is not entitled to $1,778.10 for chiropractic services in a treatment plan/OCF-18 dated January 9, 2021.

iv. The applicant is not entitled to $1,620.29 for physiotherapy services in a treatment plan/OCF-18 dated April 10, 2021.

v. The applicant is not entitled to $1,041.88 ($3,701.88 less $2,660.00 approved) for psychological services in a treatment plan/OCF-18 dated May 31, 2021.

vi. The applicant is not entitled to an award.

vii. The applicant is not entitled to interest.

ANALYSIS

The Non-Earner Benefit (NEB)

Does the applicant suffer from a complete inability to carry on a normal life?

6I find that the applicant is not entitled to an NEB. He has not proven that he suffers from a complete inability to carry on a normal life as a result of the accident in accordance with s. 12(1) of the Schedule.

7Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” 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.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which generally requires a comparison of the applicant’s pre-accident and post-accident activities.

8The applicant takes the position that he qualifies for the NEB from October 12, 2019 to May 11, 2021, the date when the respondent notified him that it was denying the NEB. He claims that the injuries sustained in the accident—specifically whiplash associated disorder with complaint of neck pain with musculoskeletal signs, sprain and strain of the thoracic and lumbar spine, sprain and strain of shoulder and sacroiliac joints, sprain and strain of the medial collateral ligament of his right knee, tension-type headache, and non-organic sleep disorder—resulted in him suffering a complete inability to carry on a normal life. Further, he submits that he is entitled to the NEB until the “date of stoppage” even if he does not meet the NEB test because the insurer did not pay the NEBs after the filing of his Disability Certificate/OCF-3 dated October 26, 2020. In support of his claim, he relies on this OCF-3, along with the three OCF-18s in dispute dated January 9, 2021, April 9, 2021, and May 31, 2021, and a psychological assessment report by Dr. Sharleen McDowall, psychologist, dated May 18, 2021.

9The respondent argues that the applicant is not entitled to the NEB for any period of time, citing primarily that the applicant has not met his burden of proving that he suffers from a complete inability to carry on a normal life. In addition, the respondent submits that the “date of stoppage” is incorrect, as it never paid the benefit due to the applicant’s non-compliance with its s. 33(1) requests on November 9, 2020. The respondent also argues that if the applicant is deemed to be entitled to an NEB, that the benefit be limited to the period between November 23, 2020 (four weeks after submission of the OCF-3, pursuant to s. 12(3)(a) of the Schedule) and May 11, 2021, the date of the denial letter, as noted above.

10I agree with the respondent. The applicant has not proven that he suffers from a complete inability to carry on a normal life due to injuries sustained in the accident. Nor has the applicant followed the provisions of the Schedule regarding entitlement to an NEB for any period of time.

11I am not persuaded by the applicant’s evidence, as it is not contemporaneous with the accident and is limited in scope. The applicant relies almost entirely on the OCF-3, even though it was not submitted until October 26, 2020, over one year post-accident. The OCF-3 also notes only soft-tissue injuries as a result of the accident, and that the applicant suffered a complete inability to carry on a normal life for an estimated 9-12 weeks. This does not support his claim to an NEB for almost 19 months.

12In addition, there is little medical evidence to support the claim. The chiropractic and physiotherapy OCF-18s in dispute dated January 9, 2021 and April 10, 2021, respectively, both dealing with physical injuries sustained in the accident, are not supported by independent medical evidence. The applicant submitted no medical evidence regarding his physical injuries and treatment outside of these OCF-18s, which are of limited value as a result. The OCF-18s were also submitted well over a year after the accident. Accordingly, I assign these OCF-18s minimal weight.

13I have a similar view of the psychological medical evidence of the applicant, submitted in the OCF-18 dated May 12, 2021 and the psychological assessment report dated May 31, 2021. While I do not dispute Dr. McDowall’s diagnosis of Adjustment Disorder with Mixed and Anxiety and Depressive Mood and Specific Phobia (Travel), she does not mention the NEB test or provide a comparison of the applicant’s activities before and after the accident as outlined in Heath. Dr. McDowall records the applicant as saying that he was not cooking as often at home post-accident, and that he was not doing much cleaning or tidying at his home because of pain. In my view, however, the absence of corroborating medical documentation and the absence of a more detailed comparison of pre- and post-accident activities means that the applicant’s self-reported claims are not enough to meet the NEB test.

14I prefer the medical evidence of the respondent, which is more thorough regarding the applicant’s physical and psychological injuries, and also directly references the NEB test. Aviva relies on a multidisciplinary insurer’s examination (“IE”) report dated May 10, 2021 conducted by Dr. Allan Kopyto, general practitioner, Dr. Paul Derry, psychologist, and Lisa Slapinski, occupational therapist. Dr. Kopyto found the applicant to display a normal range of motion and noted no abnormalities, tenderness, or effusion. He found that the applicant did not suffer from a complete inability to carry on a normal life as a result of the accident. Dr. Derry diagnosed the applicant with an Adjustment Disorder with Anxious and Depressed Mood as a direct result of the accident, but noted that this psychological impairment “by itself” did not prevent the applicant from carrying on a normal life.

15As a result of her in-home assessment, Ms. Slapinski concluded that the applicant was independent with self-care activities and that he displayed functional mobility in completing various household tasks. Although Ms. Slapinski did not specifically refer to the NEB test, the test results and wording of her report make it clear to me that she concludes that the applicant does not suffer from a complete inability to carry on a normal life. I give the report of personal observations and testing carried out by Ms. Slapinsnki more weight with regard to the NEB test than the report of Dr. McDowall, as the latter is based almost entirely on the self-reporting of the applicant. Finally, Ms. Slapinski’s remark that “the examinee demonstrated the functional ability to independently manage his daily activities using pacing” is enough to infer agreement with both Dr. Kopyto and Dr. Derry on the NEB test.

16In conclusion, I find that the applicant has not met his burden and proven that he is suffering from a complete inability to carry on a normal life as a result of the subject accident.

Is the applicant entitled to an NEB for any period between October 12, 2019 to May 11, 2021?

17Additionally, I find that the applicant is not entitled to an NEB for any period of time during which he was eligible between October 12, 2019 and May 11, 2021, as submitted.

18As the OCF-3 was not completed until October 26, 2020 and submitted to Aviva on the following day, and because of the four-week waiting provision in the Schedule, no NEB can be owed to the applicant prior to November 23, 2020. Submitting an OCF-3 is the principal requirement to establish entitlement to an NEB, as set forth in s. 36(2) of the Schedule. Section 36(3) of the Schedule makes it clear that an applicant is not entitled to an NEB before a completed OCF-3 is submitted. Further, s. 12(3)(a) of the Schedule states that an applicant is not eligible for an NEB until four weeks after the accident. As a result, the applicant is not eligible for any NEB prior to November 23, 2020.

19I also find that the applicant is not eligible for an NEB during the period of time between November 23, 2020 and May 11, 2021. The respondent notes in its submissions that the applicant submitted his Application for Accident Benefits/OCF-1 and Election of Benefits/OCF-10 forms on March 16, 2020, and that Aviva sent correspondence to the applicant requesting additional information (namely an OCF-3) pursuant to s. 33(1) of the Schedule on March 25, 2020. The respondent states in its submissions that the applicant did not respond to this request until the OCF-3 was submitted on October 27, 2020, in contravention of s. 33(1), which states that the applicant shall provide requested information within 10 business days of the request. Since the applicant did not address this assertion, and because the respondent submitted documentation proving that the March 25, 2020 request was made, I accept the respondent’s position as an accurate statement of the facts. As a result, I conclude that the respondent met the requirements of s. 33(1), while the applicant failed to comply.

20I further find that the applicant is not owed an NEB as a result of s. 33(8) of the Schedule. Section 33(8)(a) of the Schedule states that if an applicant who does not initially comply with s. 33(1) subsequently complies with that subsection, the insurer “shall resume payment of the benefit, if a benefit was being paid.” Section 33(8)(b) adds that an insurer shall also “pay all amounts that were withheld during the period of non-compliance, if the applicant provides a reasonable explanation for the delay in complying with the subsection.” As there were no benefits being withheld here due to the applicant’s non-compliance with s. 33(1) of the Schedule, the applicant cannot be entitled to a resumption of payment of the NEBs pursuant to s. 33(8)(a). Since the payments never started, it follows that they cannot be resumed. And as there has been no explanation of the delay between the request for the OCF-3 on March 25, 2020 and the submission of the document on October 26, 2020 (there is no mention of this at all in the applicant’s written submissions), the applicant is not entitled to any payments withheld during the period of non-compliance.

21Accordingly, I find that the applicant is not entitled to an NEB for any of the periods that he was eligible, including the time between the submission of the OCF-3 on October 26, 2020 and Aviva’s denial on May 11, 2021. He has not demonstrated a complete inability to carry on a normal life as a result of the accident, nor has he proven eligibility to the NEB for a more limited term as argued by the applicant in his submissions. Therefore, he is not entitled to any NEB.

Lost Educational Expenses

Is the applicant eligible for lost tuition expenses as a result of the accident?

22I find the applicant is not entitled to any claimed lost educational expenses, as he has not proven that he was unable to continue with his university courses as a result of the accident, pursuant to s. 21(1)(b) of the Schedule.

23Section 21(1) of the Schedule sets out the eligibility criteria for entitlement to lost educational expenses incurred by or on behalf of an insured person who sustains an impairment as a result of an accident if:

a. at the time of the accident, the insured person was enrolled in a program of elementary, post-secondary or continuing education; and

b. as a result of the accident, the insured person is unable to continue the program.

24Section 21(2) of the Schedule provides the respondent with the right to request a Disability Certificate/OCF-3 from a person who applies for reimbursement of lost educational expenses. Section 21(4) stipulates that the applicant is not entitled to any lost education expenses until a completed OCF-3 is provided. Section 21(5) defines “lost educational expenses” as “expenses incurred before the accident for tuition, books, equipment or room and board in respect of the program term or program year in which the insured person was enrolled at the time of the accident, if the expenses are related to the program that the insured person is unable to continue.”

25Here, there is no dispute regarding process. The respondent does not challenge that the applicant was enrolled at university at the time of the accident, and that this satisfies s. 21(1)(a) of the Schedule. The respondent also accepts that the OCF-3 was submitted appropriately, pursuant to s. 21(2).

26At issue is whether the applicant’s accident-related injuries were the cause of the lost educational expenses. The applicant submits that he was “required” to re-take three university courses as a result of injuries sustained in the accident and he therefore meets the requirement in s. 21(1)(b). The respondent denies that the applicant has proven a link between his accident-related injuries and his re-taking of courses. Further, the respondent submits additional evidence from the applicant’s academic record indicating that he did not experience any academic hardship and that he did not withdraw from any courses as a result of the accident.

27I agree with the respondent. There is no evidence that the applicant’s accident-related injuries impaired his ability to continue with his university studies, as alleged. The applicant’s submissions contain just two paragraphs that address the claim for lost educational expenses. Moreover, there is no actual argument made in these brief sections. They simply note the claim itself and record the three specific courses that the applicant says that he needed to re-take (BUTM 105: Business in a Networked Society; BUTM 109: Communication Skills for Leadership; and INDS 150 Communication Engagement & Services) as a result of his injuries, along with the tuition cost for each course. As a result, the applicant has provided virtually no argument to support his claim for lost educational expenses.

28Medical evidence alluded to by the applicant does not support such a claim, either. The OCF-3 dated October 26, 2020 does not describe any injury-related issues that would have caused issues with university courses during the 2019-2020 academic year. While the OCF-3 states the applicant suffered a complete inability to carry on a normal life as a result of the accident for an estimated 9-12 weeks, this is in reference to the 2020-2021 academic year, not the 2019-2020 academic year after the accident when he claims accident-related issues prevented him from completing his university courses. At any rate, the OCF-3 includes no information on how the applicant’s injuries were affecting the applicant’s studies, regardless of academic year.

29The OCF-18 and psychological assessment of Dr. McDowall contain limited support for the educational expenses claim, so I assign them little weight. The OCF-18 dated December 1, 2020 notes that the applicant reported failing several courses after the accident due to concentration difficulties, physical pain, and lack of energy. However, these self-reported observations in Dr. McDowall’s OCF-18 are not supported by objective medical reports and diagnoses, nor the psychological assessment completed later by the same Dr. McDowall. This assessment, dated May 18, 2021, ascribes much of the applicant’s depression and anxiety to the financial burden of repairing his car due to damage incurred in both the first accident and then a secondary tire blow-out that apparently caused the vehicle to be written off. Also, no specifics are provided in this assessment about the courses failed or how the applicant’s accident-related injuries caused him to be unable to complete his studies.

30I prefer the evidence of the respondent, which is more thorough and offers more specifics regarding the applicant’s academic record. There is no indication in the multidisciplinary IE report authored by Dr. Kopyto, Dr. Derry, and Ms. Slapinski that the applicant was unable to continue with his studies following the accident for medical reasons, beyond his self-reported complaints that are not supported by objective evidence.

31For example, the applicant told both Dr. Kopyto and Dr. Derry that he was repeating his second year at university and that his grades had dropped from the 80s to the 50s. Problematically, the academic transcripts submitted by the respondent do not support such an assertion. The transcripts show that the applicant received B-, C-, and D+ grades in the semester before the accident, not the higher marks that the applicant claimed during the multidisciplinary assessment. Furthermore, the transcripts show that the applicant did not fail two of the three courses mentioned in his submissions, as alleged, instead receiving a D+ in his “Business in a Networked Society” course and a D- in his “Communication Skills for Leadership” course. The transcripts also show that he apparently did not re-take the course he failed, “Communication Engagement & Services,” as alleged. Finally, the transcripts demonstrate that the applicant continued to attend classes following the accident without any break or extended absence, and that he actually improved his grades in a number of courses in the January, May, and September 2020 semesters, and in the January 2021 semester.

32The applicant’s academic transcripts from 2019 through January 2021 alone indicate that he does not qualify for lost educational expenses. He continued to attend classes following the accident. There is no demonstrated decline in his academic performance to reflect the alleged impact of his accident-related injuries. He did not fail two of the courses he claimed to have had to re-take as a result of the accident, and he did not re-take the other course, as alleged. As a result, the applicant has not met his burden of proving that he could not continue in his academic program as a result of the accident, and therefore he does not meet the criteria of s. 21(1)(b) of the Schedule.

33For the above reasons, the applicant is not entitled to lost educational expenses.

The Treatment Plans

Is the applicant entitled to the chiropractic and physiotherapy treatment plans?

34I find that the applicant is not entitled to the chiropractic and physiotherapy treatment plans in dispute, as he has not proven them to be reasonable and necessary.

35To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

36The applicant has not submitted sufficient medical evidence to support his assertion that the two OCF-18s in dispute, dated January 9, 2021 and April 10, 2021, are reasonable and necessary. He relies solely on the OCF-18s to support his claim, and submits no supporting medical documentation. I assign them little weight, as OCF-18s are not sufficient evidence on their own without the support of medical analysis. The absence of such medical documentation is particularly relevant here, in my estimation, as these OCF-18s were submitted well over a year after the accident.

37I find the OCF-18 recommendations were made without fully acknowledging the applicant’s previous rounds of similar, if not identical, therapy. The OCF-18 dated January 9, 2021 notes that the previous treatment plan “worked out effectively” and relieved muscle spasms and associated pain, but does not explain why more treatment is required if the previous therapy was successful. More information is provided in the OCF-18 dated April 10, 2021. However, I assign limited weight to the recommendations in this plan. This added information consists entirely of the respondent’s complaint that he had reached just 30% improvement, an assertion that is unsupported by medical evidence. The OCF-3, for example, notes solely soft-tissue injuries, while Dr. Kopyto diagnosed the same in his IE, stating that the applicant sustained uncomplicated musculoligamentous strains to his neck and back in the accident. Dr. Kopyto does not assess the applicant with regard to these treatment plans, although he found no impairment related to the subject accident. It is clear to me that Dr. Kopyto does not believe that the applicant requires additional physical therapy, and I see nothing in the medical evidence that would compel me to disagree with his report.

38Consequently, the applicant is not entitled to the chiropractic and physiotherapy treatment plans in dispute.

Is the applicant entitled to the psychological treatment plan?

39I find that the applicant is not entitled to the unapproved portion of the psychological treatment plan in dispute.

40The crux of this dispute is a disagreement over the hourly amount payable for the social work treatment recommended in this OCF-18, dated May 31, 2018. While Aviva did not dispute the reasonable and necessary nature of this OCF-18, the insurer agreed to fund the social worker providing the therapy in dispute at a rate of $100.00 per hour, not the $149.61 submitted on the treatment plan.

41I agree with the respondent. It relies on the maximum fee schedule provided in the Financial Services Commission of Ontario’s (“FSCO”) Professional Services Guideline (the “Guideline”), and notes that the $149.61 rate is applicable to psychologists or psychology assistants, not the registered social worker as was proposed to provide the recommended treatment in the OCF-18. Aviva notes that the Guidelines do not include an hourly rate for such social workers, but that it decided on the $100.00 hourly rate as it is similar to the $92.21 maximum allowed for social workers by the Workplace Safety and Insurance Board (“WSIB”).

42The applicant offers no explanation for the $149.61 rate in his submissions, noting only that the respondent did not provide an explanation for the denial of a portion of the OCF-18 in dispute. This is incorrect, however, as Aviva’s partial approval letter dated June 7, 2021 states at the bottom of page one that the insurer will not pay the $149.61 rate as it is the rate for psychologists and psychological associates in the Guideline, not social workers. Aviva further notes in this letter that there is no established rate for social workers in the Guideline. The insurer does not outline the rest of its rationale for the $100.00 rate in this letter, but I find that its denial was proper.

43As a result, I accept that $100.00 is a reasonable hourly rate for the registered social worker assigned to complete the treatment recommended in the psychological treatment plan in dispute.

44For the above reasons, the applicant is not entitled to the remaining unapproved portion of the psychology treatment plan.

Award

45I find that the applicant is not entitled to an award under s. 10 of Reg. 664, as there are no payments due to the applicant. Furthermore, the applicant did not make any submissions regarding an award for me to consider.

Interest

46I find that the applicant is not entitled to interest, as there are no overdue benefits.

ORDER

47The application is dismissed, and I find that:

i. The applicant did not suffer a complete inability to carry on a normal life as a result of the accident, and is therefore not entitled to an NEB.

ii. The applicant is not entitled to $9,426.14 for educational expenses in an expense form/OCF-6 dated March 6, 2020.

iii. The applicant is not entitled to $1,778.10 for chiropractic services in a treatment plan/OCF-18 dated January 9, 2021.

iv. The applicant is not entitled to $1,620.29 for physiotherapy services in a treatment plan/OCF-18 dated April 10, 2021.

v. The applicant is not entitled to $1,041.88 ($3,701.88 less $2,660.00 approved) for psychological services in a treatment plan/OCF-18 dated May 31, 2021.

vi. The applicant is not entitled to an award.

vii. The applicant is not entitled to interest.