Citation: Zhao v. Coseco Insurance Company, 2023 ONLAT 20-013381/AABS

Licence Appeal Tribunal File Number: 20-013381/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:

Rong Jie Zhao

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Yu Jiang, Paralegal

For the Respondent:

David Raposo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rong Jie Zhao (“the Applicant”) was involved in an automobile accident on March 13, 2019, and sought benefits from Coseco Insurance Company (“the Respondent”) pursuant to 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 and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

ISSUES

2The issues referred to me in this hearing are as follows:

1. Is the Applicant entitled to non-earner benefits (“NEBs”) in the amount of $185.00 per week for the period from April 11, 2019 to March 13, 2021?

2. Is the Applicant entitled to a medical benefit in the amount of $16,712.81 for catastrophic impairment assessments proposed by Total Recovery Rehab Centre in a treatment plan dated August 1, 2019?

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

RESULT

3I find that the Applicant is not entitled to the benefits claimed. No interest is payable.

BACKGROUND

4The Applicant was struck by a car while crossing an urban intersection. She was taken by ambulance from the scene of the accident to the hospital, where she was examined due to right hip and knee pain. Diagnostic imaging revealed a nondisplaced fracture of the right medial femoral condyle and a torn right anterior cruciate ligament (“ACL”). The Applicant’s leg was then casted at a fracture clinic, and that cast remained in place until it was removed on April 23, 2019, about 6 weeks following the accident. The Applicant was provided a prescription for physiotherapy to increase her range of motion (“ROM”) and perform strengthening exercises following the removal of her cast.

5The Applicant claims that her injuries disable her from carrying on a normal life, thus entitling her to NEBs. She further submits that her injuries rise to the level to warrant a catastrophic impairment assessment. The onus is on the Applicant to demonstrate that she is entitled to the benefits claimed.

6The Respondent contends that the Applicant has credibility issues and that her complaints are primarily related to a prior motor vehicle accident in 2016 or other pre-existing conditions and her injuries do not require a catastrophic impairment assessment.

7Indeed, the Applicant was involved in an accident on October 6, 2016 whereby she struck the open door of a parked car while riding her bicycle. The Applicant’s psychological injuries from the 2016 accident were significant enough to prompt her and her insurer to conduct multidisciplinary assessments to determine whether she sustained of catastrophic impairment as a result of that accident.

8While the Applicant had an opportunity to make reply submissions and address the Respondent’s submissions, she chose not to do so.

ANALYSIS

Non-Earner Benefits

9I find that the Applicant has failed to meet her burden to prove that she suffers a complete inability to carry on a normal life as a result of the accident.

10Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to her activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

11Pursuant to section 36(3) of the Schedule, the Applicant is not entitled to NEBs for any period before an OCF-3 is submitted.

12The Applicant provided no compelling evidence demonstrating that she suffers from a complete inability to carry on a normal life as a result of the accident on March 13, 2019. Her submissions direct me to no evidence documenting the change in her ability to engage in her pre-accident activities and merely states that she “does very little in the day and this is a significant change form her pre-accident lifestyle.” Although none of her submissions on NEBs direct me to the evidence, I have nevertheless reviewed the evidence in light of her claim for NEBs and my findings are as follows.

13I find that the reports proffered by Dr. S. McDowall, psychologist, to be inconsistent and contradictory to one another, and give them no weight. The Applicant was assessed by Dr. McDowall about a year prior to the subject accident, for a psychological assessment with respect to an Application for a Determination of Catastrophic Impairment. The subsequent report dated April 27, 2018 concluded that the Applicant sustained a catastrophic impairment as a result of the October 6, 2016 accident, noting that she sustained a Class 3, Marked Impairment, in the domains of Activities of Daily Living, Social Functioning, and Concentration and a Class 4, Marked Impairment, in the domain of Adaptation. Notable, Dr. McDowall stated that “Ms. Zhao reported seldomly communicating with her friends and family. She rarely goes out due to feeling nervous and anxious in outdoor environments.”

14In contrast, the assessment report for the subject accident, dated July 14, 2019 does not adequately address the Applicant’s pre-accident state. It notes the following:

Ms. Zhao confirmed that she was involved in a previous motor vehicle accident that took place on October 6, 2016. She was travelling as a cyclist when a motorist in a parked vehicle suddenly opened the driver’s side door, striking Ms. Zhao and knocking her to the ground. She suffered significant physical and psychological difficulties as a result of that accident.

15Yet, the July 14, 2019 report also states that:

“(b)efore the (2019) accident, (the Applicant) functioned well in daily living, maintained a healthy lifestyle and enjoyed an active social life.” Dr. McDowall concluded the report by finding that, as a result of the March 13, 2019 accident, the Applicant suffers from a Major Depressive Disorder, Post-Traumatic Stress Disorder (“PTSD”), and Specific Phobia (Travel).

16Dr. McDowall made no effort to address the conflicting accounts of the Applicant’s psychological health which pre-dated the subject accident. While it is possible that the Applicant recovered from her injuries following the assessment in 2018 but prior to the 2019 accident, Dr. McDowall’s 2019 report provides no information or analysis regarding her health status or recovery from psychological injuries sustained in the 2016 accident. Further, the July 14, 2019 report included no review of the Applicant’s medical records, not even the April 27, 2018 report completed by the same service provider. The conflicting accounts and failure to contemplate the extent of the Applicant’s pre-accident injuries compels me to give the July 14, 2019 report no weight.

17I find that the OCF-3 dated March 20, 2019 and the Initial Assessment Report (“IAR”) dated April 8, 2019, both completed by Dr. G. Palanzas, chiropractor, are unpersuasive. Although the OCF-3 notes that the Applicant is unable to carry on a normal life as a result of the accident, it lists injuries that the Applicant did not sustain in the accident. The list of injuries in the OCF-3 and the IAR include ailments such as a concussion, post-concussion syndrome, and chronic post-traumatic headaches, yet the Applicant never sustained a head injury in the subject accident. The IAR also misgenders the Applicant throughout the entirety of the document. Whereas records from the hospital where the Applicant attended following the accident state that the Applicant “did not fall” from the collision and there is no reference to a head injury or headaches. Her application for accident benefits makes no reference to headaches or a head injury. I give the OCF-3 no weight given the clear discrepancy between the injuries listed in it and the injuries reported at the hospital and in the application for accident benefits.

18Similarly, the Pre-Accident Normal Life Activity Profile, dated June 28, 2019 is uncompelling evidence of a complete in ability to carry on a normal life. The document, completed by the Applicant, notes that her pre-accident hobbies and leisure activities included: singing, dancing, playing badminton and tennis, as well as shopping, socializing with friends, and watching TV. Yet this document includes no information on the change in the Applicant’s ability to engage in these tasks and includes no opinion or recommendation from a healthcare professional regarding the Applicant’s ability to engage in these tasks.

19I find that the in-home report by occupational therapist R. Wong, dated March 20, 2019, also fails to address the Applicant’s pre-accident status. Occupational therapist Wong noted that the Applicant reported that she was a very healthy person prior to the March 13, 2019 accident and never mentions the 2016 accident. Thus, there is no consideration for the Applicant’s pre-existing condition as it relates to her current presentation. Further, the assessment occurred at a time immediately following the accident when the Applicant’s right leg was casted and is therefore not a representation of the Applicant’s functionality once her cast was removed on April 23, 2019.

20The progress report by physiotherapist A. Afifi, dated August 1, 2019, also holds little weight. This document misgenders the Applicant and notes that the Applicant suffers from an inability to complete her ADLs and do heavy lifting, low energy and fatigue, headaches and dizziness, and difficulty with stairs. The report notes that the Applicant requires help with ADLs and housekeeping tasks. Though, the Applicant lives alone and denied using the services of a personal support worker to other assessors.

21The Applicant’s family physician’s clinical notes and records are not indicative of a complete inability to carry on a normal life. Dr. M. Lai noted that the Applicant’s right knee had normal range of motion by August 22, 2019. Relevant to the period of claim for NEBs, the Applicant complained of fluid on her right knee during visits on August 22, September 5 and December 5, 2019, March 12, and May 12, 2020. However, Dr. Lai advised her to continue with physiotherapy and use a warm compress. There is no indication in the records from those visits that the Applicant is unable to carry on a normal life as a result of the accident.

22In contrast, the insurer’s examination (“IE”) reports conclude that the Applicant suffers no impairment of the magnitude that would preclude her from carrying on a normal life. The report by S. Szainwald, occupational therapist, dated February 11, 2020, noted that the Applicant’s primary complaints were right knee pain at night or while walking, anxiety when near a vehicle and with respect to being subject to surveillance, occasional headaches, left shoulder and low back pain. She reported independence with ADLs, resumed shopping and community activities. The Applicant was assessed, and occupational therapist Szainwald found that the Applicant’s range of motion throughout her body was within functional limits. There were no cognitive deficits observed during the assessment. Although the Applicant’s anxiety related to surveillance was noted, I see no evidence demonstrating that it causes the Applicant to suffer a complete inability to carry on a normal life. Occupational therapist Szainwald concluded that the Applicant is independent with all self-care and no attendant care is required.

23In addition, the June 7, 2021 IE report of Dr. C. Karabatsos, orthopaedic surgeon, found no evidence of any residual impairment and no exacerbation of a prior injury. Dr. Karabatsos noted in the report that the Applicant’s only complaint was residual sporadic knee pain and general disfunction with the joint. Further, the Applicant denied any injury as a result of the 2016 but reported independence with ADLs both before and after the accident. Dr. Karabatsos examined the Applicant and concluded that there was no evidence of any residual impairment, no exacerbation of a prior injury as a result of the accident, and that no further treatment is warranted. The assessment included a review of extensive medical records, including Dr. Lai’s and Dr. McDowall’s, amongst others.

24Surveillance reports indicate that the Applicant is mobile and able to access the community. The report dated May 21, 2019 by Intrepid Investigators notes that the Applicant was subject to surveillance on six days and concludes that the Applicant went to work on three of the days and was in the community on another day. Similarly, the report dated June 21, 2021 notes that the Applicant was subject to surveillance on five days and was observed accessing the community on three of those days. I acknowledge that the surveillance reports are not determinative of the Applicant’s functionality or her ability to access the community. However, the reports clearly show the Applicant engaging in what appears to be normal life activities such as going to work and accessing the community such as grocery shopping, and the Applicant has made no attempt to address the evidence. I infer from the Applicant’s silence in reply that she does not dispute the conclusions drawn by the Respondent as a result of this information.

25Lastly, I note that the Applicant failed to submit a completed disability certificate for the period she claims NEBs. The disability certificate was submitted to the Respondent via fax on November 14, 2019. Thus, she would not be entitled to any benefits before November 14, 2019 regardless of her health status prior to then.

26I have considered the evidence and submissions and conclude that the Applicant has not met her onus to demonstrate that she suffers a complete inability to carry on a normal life as a result of the subject accident. Thus, I find that she is not entitled to NEBs, nor interest.

The Catastrophic Impairment Assessment Plan dated August 1, 2019

27I find no evidence that suggests that the Applicant’s accident-related injuries rise to the level to warrant a catastrophic impairment assessment.

28While assessments are speculative in nature, there must be reasonable evidence to suggest that the Applicant suffers from the ailment(s) for which the assessment seeks to investigate. Here, the Applicant has provided no evidence to demonstrates that she may suffer from a catastrophic impairment as a result of the accident.

29As noted previously in this decision, the medical reports which hold weight indicate that the Applicant exhibits minimal to no impairment. Dr. Karabatsos assessed the Applicant and found no evidence of any residual impairment and no exacerbation of a prior injury. Occupational Therapist Szainwald concluded that the Applicant is independent with all self-care and no attendant care is required. The reports by Dr. McDowall and Dr. Palanzas are unpersuasive as noted above.

30The treatment plan dated August 1, 2019 includes little information about the Applicant and why the assessment is reasonable and necessary. The document lists injuries which are consistent with the injuries listed in the OCF-3, including the erroneous reports of concussion and concussion-related impairments. Otherwise, there is no other information in the treatment plan, or accompanying it, that addresses the Applicant’s impairments.

31The Applicant seeks no benefits that require a catastrophic impairment determination. While her initial claim for ACBs exceeded the non-catastrophic impairment limits by just over $200.00, I nevertheless conclude on the evidence that her need for ACBs has decreased significantly since that time. The Applicant’s cast was removed on April 23, 2019 and documents indicate that she never sought the services of a PSW while her leg was casted. Further, a review of the evidence leads me to concluded that there is no indication that the Applicant’s disability increased after that date. As of October 18, 2021, the Applicant had consumed $22,579.57 in medical and rehabilitation benefits, leaving a balance of $42,420.43 remaining in her medical and rehabilitation benefit funding limit.

32Considering the above, I find that a catastrophic impairment assessment is not reasonable and necessary as a result of the subject accident.

INTEREST

33Interest is payable on the overdue payment of benefits, pursuant to section 51 of the Schedule. Having found no benefits are payable or overdue, it follows that no interest is payable.

CONCLUSION

34I find that the Applicant has not met her onus to demonstrate that she suffers a complete inability to carry on a normal life as a result of accident-related impairments.

35Likewise, the Applicant has not demonstrated that the catastrophic impairment assessment she seeks is reasonable and necessary as a result of the subject accident.

36The application is dismissed.