Licence Appeal Tribunal File Number: 20-013268/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:
Qi Xuan He
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Yu Jiang, Paralegal
For the Respondent: Samuel Davies, Counsel
HEARD: By way of written submissions
OVERVIEW
1Qi Xuan He (“the Applicant”) was involved in an automobile accident on March 6, 2020, and sought benefits from Aviva Insurance Canada (“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 income replacement benefits (“IRBs”) by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in this hearing are:
i. Is the Applicant entitled to IRBs at the rate of $400.00 per week for the period from March 14, 2020, to-date and ongoing?
ii. Is the Respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the Applicant has not met her onus to demonstrate that she is entitled to IRBs as claimed.
4No award or interest is payable.
BACKGROUND
5The Applicant was the passenger of a vehicle which was struck from behind while stopped at a suburban intersection. There is no evidence showing that she sought any medical attention on the day of the accident, but she met with physiotherapist A. Afifi on March 11, 2020 and was assessed. Physiotherapist Afifi completed a disability certificate dated March 11, 2020 and, in it, diagnosed the Applicant with headache, whiplash associated disorder, dizziness and giddiness, back pain, sprain and strains of the back and shoulder, sleep disorders, malaise and fatigue, nervousness, and anxious (avoidant) personality disorder. The disability certificate indicated that the Applicant was unable to work as a result of her accident-related injuries. The estimated duration of the Applicant’s disability is more than 12 weeks, “due to the severity of injuries and multiple injuries.”
6The Applicant claims that she is unable to work as a result of her accident-related injuries. She also submits that she has failed to sustain her pre-accident work duties and that pain and psychological impairments render her unable to maintain steady employment. To her, the Respondent’s refusal to pay IRBs has caused severe stress and difficulty. The Applicant also submits that the Respondent neglected to revisit her entitlement to IRBs when it determined she sustained an injury that is not included in the minor injury definition in section 3 of the Schedule.
ANALYSIS
IRBs
7I find that the Applicant has not met her onus to demonstrate that she is unable to perform the essential tasks of her employment as a result of accident-related impairments.
8Pursuant to section 5(1)1 of the Schedule, IRBs are payable to the Applicant if she can prove on a balance of probabilities that she is unable to perform the essential tasks of her employment as a result of accident-related impairments.
9Pursuant to section 36(3) of the Schedule, the Applicant is not entitled to IRBs for any period prior to submitting a disability certificate.
10The Onus is on the Applicant to establish that she meets the IRB test for eligibility.
Period of Entitlement
11Considering the submission date of the disability certificate, and section 36(3) of the Schedule, I find that that the Applicant is not entitled to IRBs for any period prior to October 28, 2020.
12The evidence demonstrates that the Applicant submitted a disability certificate on October 28, 2020. The Respondent provided the fax correspondence whereby the disability certificate was delivered. The correspondence is dated October 28, 2020 and has a date stamp of October 28, 2020. The Applicant never refuted the evidence, despite having an opportunity to make reply submissions.
Does the Applicant suffer a substantial inability to perform her essential tasks of employment?
13I find that the Applicant is not entitled to IRBs because there is insufficient evidence to determine the Applicant’s essential tasks of employment. In addition, the evidence before me does not demonstrate that she suffers from any significant impairment as a result of the accident.
Essential Work Tasks
14The documents submitted by the Applicant fail to demonstrate her essential tasks of employment. The two Employer’s Confirmation Forms dated March 10, 2020 state that the Applicant was employed part-time at two different companies. For one company, her job title is “sales” and the description of her employment is “marketing.” For the other company, her job title is “sales,” and the description of her employment is “marketing promotion.” Both documents include no information on the Applicant’s essential tasks of employment, despite including a prompt for it.
15The Applicant’s essential work tasks are not identified in any other document she provided. The report by R. Wong, occupational therapist, dated June 18, 2021, and the report by M. Fang, psychotherapist, dated July 18, 2021, include no information on the essential tasks of the Applicant’s employment. At best, the two documents note that the Applicant was a sales representative at a multi-level marketing company, but they provide no information on the tasks involved in her role as sales representative.
Impairments
16I am unable to conclude that the Applicant suffers a substantial inability to complete her essential tasks of employment as a result of the accident.
17The Applicant is not entitled to IRBs simply because she sustained an impairment or an injury that is not a minor injury. She must demonstrate that she sustained an impairment as a result of the accident and that impairment prevents her from completing the essential tasks of her employment.
18The Applicant met with her family physician on April 2, 2020 but made no accident-related complaints. In fact, the Applicant never reported the accident to her family physician. While she is not required to report the accident or accident-related injuries to her family physician, I infer that, in light of the other evidence before me, the lack of involvement of the Applicant’s family physician indicates that the Applicant’s impairments do not rise to the level that she claims.
19The June 18, 2021 report by occupational therapist Wong fails to objectively document the extent of the Applicant’s injuries, rendering it unpersuasive. The report concludes that the Applicant requires $1,372.43 of attendant care services per month for services including: two hours a day for assisting the Applicant with preparing, serving, and feeding meals; 30 minutes per day for cleaning the bathroom and bed hygiene; and 25 minutes per day to bathe and dry the Applicant. The report notes that the Applicant demonstrated restrictions in her neck, low back, and bilateral shoulders. However, there are no objective range of motion (“ROM”) or other such functional assessments documented in the report that would support this conclusion and the assessor failed to explain the extent of the decreased ROM. This evidence does not demonstrate that the Applicant meets the test for IRBs because it is entirely possible for a person to exhibit a decrease in ROM yet maintain an ability to complete the essential tasks of their employment.
20The psychological assessment report by M. Fang, psychotherapist, supervised by Dr. S. McDowall, psychologist, dated July 18, 2021, does not indicate that the Applicant suffers a substantial inability to complete the essential tasks of her employment. The report notes that the Applicant reported that her physical injuries are affecting her quality of life and work performance. The report further states that the Applicant decided to stop working until she feels better physically. Despite the Applicant’s reports, psychotherapist Fang or Dr. McDowall provided no medical opinion on whether the Applicant is precluded from completing her essential work tasks as a result of psychological injuries.
21The insurer’s examination (“IE”) report by Dr. D. Mandel, psychologist, dated March 1, 2021, does not conclude that the Applicant is unable to complete her essential work tasks as a result of accident-related impairments. Dr. Mandel conducted a clinical interview and psychometric testing for the report. The report concluded that the Applicant met the DSM-5 diagnostic criteria for Adjustment Disorder with mixed anxiety and depressed mood as well as specific phobia (driving). The report never addressed the Applicant’s ability to complete her essential tasks of employment, but noted that she has not returned to work since the subject accident due to feeling unwell physically and mentally, as well as due to the Covid-19 pandemic.
22The IE report of Dr. M. Nestrenko, family physician, dated August 13, 2021, concluded that the Applicant demonstrated functional ROM in her neck, back and shoulders and found no ongoing objective musculoskeletal impairment attributable to the accident. Dr. Nestrenko noted that the Applicant’s neurological examination was unremarkable.
23The balance of the evidence does not demonstrate that the Applicant suffers from an impairment that would preclude her from working as a sales representative. The evidence includes no recommendation for her to limit her work or any other activities as a result of accident-related injuries. Essentially, the Applicant claims an inability to work but, this is not supported by her healthcare providers. Thus, I find that she has not met her onus to demonstrate that she suffers a substantial inability to complete the essential tasks of her pre-accident employment.
AWARD
24The Applicant may be entitled to an award pursuant to Regulation 664 if the Respondent is found to have unreasonably withheld or delayed the payment of benefits.
25Having found that no benefits are payable, it follows that no payments were unreasonably withheld or delayed.
CONCLUSION
26The Applicant has not met her onus to demonstrate that she is entitled to IRBs as claimed.
27The Application is dismissed.
Released: March 20, 2023
__________________________
Brian Norris
Adjudicator