Chan v. Travelers Insurance Company of Canada, 2023 CanLII 34481

Citation: Chan v. Travelers Insurance Company of Canada, 2023 ONLAT 20-008316/AABS

Licence Appeal Tribunal File Number: 20-008316/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:

Chung Fai Chan

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Dylan Crosby, Counsel

HEARD: By way of written submissions

OVERVIEW

1Chung Fai Chan (“the Applicant”) was involved in an automobile accident on October 29, 2018 and sought benefits from Travelers Insurance Company of 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 benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue to be addressed at this hearing is:

i. Is the Applicant’s claim for income replacement benefits (“IRBs”) barred by reason of failure to comply with sections 32(1), 36(2), and 36(3) of the Schedule?

SUBSTANTIVE ISSUES

3The substantive issues in dispute are:

i. Is the Applicant entitled to IRBs in the amount of $237.12 per week for the period from May 6, 2019 to December 1, 2019?

ii. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

iii. Is the Applicant entitled to medical benefits recommended as follows:

(i) $1,300.00, less $1,074.36 approved by the Respondent, for a chiropractic treatment plan by Total Recovery Rehab, dated January 26, 2019;

(ii) $4,088.56 for a chiropractic treatment plan by Total Recovery Rehab, dated March 30, 2019;

(iii) $2,200.00 for a psychological assessment plan by Somatic Assessments and Treatment Clinic, dated April 11, 2019; and

(iv) $3,701.88 for a psychological treatment plan by Somatic Assessments and Treatment Clinic, dated May 4, 2020?

iv. Is the Applicant entitled to an award under Regulation 664 because the Respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

4The Applicant is barred from proceeding with his claim for IRBs as he failed to notify the Respondent of the circumstances to his claim for the benefit in accordance with section 32(1) of the Schedule.

5The Applicant sustained a minor injury as a result of the accident.

6The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

BACKGROUND

7The Applicant was the driver of a vehicle which was struck by another vehicle as he entered a parking lot. He sought no medical attention at the scene of the accident, and no ambulance or hospital records have been tendered. The Applicant claims that he is unable to work and suffers from chronic pain and psychological injuries as a result of the accident.

ANALYSIS

Preliminary Issue – The Applicant is procedurally barred from claiming entitlement to IRBs

8The Applicant first claimed entitlement to IRBs when he submitted his disability certificate (“OCF-3”) dated November 7, 2018. The Respondent sought insurer’s examinations (“IEs”) in response and scheduled them for January 2, 7, and 9, 2019. By letter dated December 28, 2018, counsel for the Applicant wrote to the Respondent and advised that the Applicant returned to work in December 2018. In the same letter, counsel for the Applicant advised that his application for IRBs was withdrawn and requested that the IEs be cancelled. The Respondent subsequently cancelled the IEs.

9On February 13, 2020, more than a year after the Applicant withdrew his claim for IRBs, his counsel wrote to the Respondent and advised that the Applicant was off work for the period from May 6 to December 1, 2019 and enclosed paystubs and T4 documents for dates ranging from 2018 to May 5, 2019.

10The Respondent submits that the Applicant failed to give notice of his intention to claim benefits, pursuant to section 32(1) of the Schedule. To the Respondent, it was incumbent on the Applicant to provide timely notice that he stopped working after he withdrew his claim for IRBs.

11I agree with the Respondent and find that the Applicant is barred from pursuing entitlement to IRBs as claimed by operation of 32(1) of the Schedule.

12Section 32(1) of the Schedule provides that an Applicant who intends to apply for a benefit shall give the Respondent notice of the intention no later than the seventh day after the circumstances arise that give rise to the benefit, or as soon as practicable after that day.

13The Applicant has no explanation for failing to advise the Respondent that he stopped working effective May 6, 2019. He never advised the Respondent until nearly a year later, on February 13, 2020. The Applicant’s untimely notice precludes the Respondent from adjusting the Applicant’s claim at a time that is contemporaneous with the claim. In fact, the Applicant submits that he returned to work by the time he advised the Respondent that he missed time from work.

14Contrary to the submissions from the parties, the Applicant was not required to submit a new disability certificate, and the Respondent was not required to request one. While it is difficult for the Applicant to substantiate his claim without a new disability certificate, there is no provision in the Schedule which compels the Applicant to submit a new one. Rather, the Applicant was required to advise the Respondent of his intention to return to his IRB claim in a timely fashion to permit the Respondent the opportunity to adjust the claim at the time it was made – not in hindsight, nearly a year later. Similarly, there is no provision in the Schedule that compels the Respondent to request a new disability certificate from the Applicant, nor to seek an IE in response to the claim. Given the timing of the Applicant’s notice, it is unreasonable to force the Respondent to assess the Applicant after he has returned to work and no longer claiming entitlement to IRBs.

The failure to produce income records draws an adverse inference

15In the alternative, If I am wrong in my application of section 32(1), I find that the Applicant has failed to comply with a Tribunal order to produce post-accident employment records. As a result, I draw an adverse inference that the records were not produced because they are detrimental to the Applicant’s claim. The Applicant’s employment records are relevant for the determination of his entitlement to IRBs because such records would substantiate his claims that he was off work for seven months and/or demonstrate any income earned during the period of claim. The employment records could indicate a certain level of functionality or that the Applicant was working during the period he claims that he was unable to do so. Additionally, the Respondent is permitted to make deductions on the quantum of IRBs payable at the rate of 70% of any post-accident gross income earned by the Applicant, pursuant to section 7(3) of the Schedule.

16Lastly, medical records from the Applicant’s family physician indicate that the Applicant was working during the period he claims IRBs. A visit to Dr. C. Tang, family physician, on November 27, 2019 documents the Applicant’s complaint of back pain, due a lot of heavy lifting at work. It is reasonable for the Respondent to seek additional information in the form of employment records in light of this self-reporting.

17I conclude that the evidence was withheld because it was detrimental to the Applicant’s claim that he was unable to complete the essential tasks of his employment for the period from May 2 to December 1, 2019. The case conference report and order specifies that the Applicant was ordered to produce his tax returns and notices of assessment for the years 2017, 2018, and 2019, and his employment files and pays stubs following the accident. Despite the Tribunal order, the Applicant never produced the employment records for the period in dispute and has provided no explanation for his failure to disclose this relevant information.

18The onus is on the Applicant to demonstrate entitlement to the benefits claimed. Having failed to produce the relevant information that would confirm whether he earned income during his period of claim, it follows that he has failed to demonstrate that he is entitled to IRBs at the rate of $237.12 per week.

The Applicant sustained a minor injury

19The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

20The Applicant submits that he suffers from chronic pain and psychological injuries, which are not included in the minor injury definition. The Respondent discounts the Applicant’s evidence and submits that the opinions of the insurer’s examination (“IE”) assessors should be preferred.

21I agree with the Respondent and find that the Applicant sustained a minor injury as a result of the accident.

I find no evidence of an accident-related chronic pain condition

22Chronic pain conditions are not included in the minor injury definition. In order to establish that he has a chronic pain condition, the Applicant must demonstrate that his pain causes a functional impairment which adversely affects his well-being or that he meets the criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment “AMA Guides”). A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

23The Applicant claims that he suffers from neck and back pain as well as persistent left shoulder pain and left-hand numbness. He submits that his pain impairs his ability to complete everyday activities. The Respondent submits that the Applicant has not been diagnosed with chronic pain syndrome and suggests that the Applicant’s shoulder pain unrelated to the accident and more likely a repetitive strain injury from work. I agree with the Respondent.

24The Applicant’s left shoulder complaints pre-date the accident. The clinical notes and records of Dr. S. Wong, family physician, dated June 28, 2017 indicate that the Applicant complained of left upper limb numbness for about six months and was prescribed Vimovo as a result. The Applicant’s left shoulder issue persisted and is noted in a visit on July 3, 2017, whereby the Applicant stated that he was unable to work as a result of the injury. On November 8, 2018, in his first post-accident visit, the Applicant reported mostly chest pain and no left shoulder injury. An assessment during that visit indicated that his musculoskeletal examination was unremarkable. In fact, the Applicant’s first post-accident complaint of shoulder pain documented in his family physician’s records was June 2, 2020, or about 20 months following the accident.

25At most, the Applicant’s intermittent back and neck pain appears to be sequalae of his soft tissue injuries, and there is no evidence demonstrating that the Applicant suffers from a functional impairment as a result of ongoing pain. Like the Applicant’s shoulder issues, he complained of ongoing back pain and was diagnosed with degenerative changes prior to the accident. At most, it appears that the Applicant sustained uncomplicated sprain and strain injuries to his neck and back, as noted by Dr. S. H. Hosseini, in the physiatry assessment report dated July 24, 2019. Otherwise, the Applicant has provided insufficient evidence that would contradict Dr. Hosseini’s findings.

26Lastly, I find that the Applicant does not meet the criteria for a chronic pain condition, as outlined in the the AMA Guides. The Applicant has not provided any prescription summaries, nor any indication he is dependent on prescription drugs or other substances. He is not excessively dependent on healthcare providers, spouse, or family and exhibited no secondary deconditioning due to disuse or failure to restore pre-accident function. The Applicant continues to work and has exhibited minimal symptoms of a psychological injury.

27Having found that the Applicant’s pain complaints are primarily unrelated to the accident with no demonstrable functional impairment, and that he does not meet the criteria in the AMA Guides, I conclude that the Applicant has not sustained a chronic pain condition which would constitute an injury that is not included in the “minor injury” definition in section 3 of the Schedule.

The applicant has not established he suffered a psychological injury

28I find that the psychological symptoms reported by the Applicant do not rise to the level to conclude he suffered a psychological injury as a result of the accident.

29Psychological injuries are not included in the minor injury definition. The onus is on the Applicant to demonstrate that he sustained a psychological injury as a result of the accident and that the injury is more than sequelae of his soft tissue injuries.

30The Applicant submits that he suffers from depression or a depressive episode, and specific phobia as a result of the accident, according to the reports of Dr. S. McDowall, psychologist, dated April 7, 2019, and B. Cook, psychological associate, dated April 21, 2020. The Respondent submits that the Applicant sustained no psychological injury, according to the report of Dr. S. Moshiri, psychologist, dated June 14, 2019.

31I agree with the Respondent and prefer the opinion of Dr. Moshiri over Dr. McDowall and Mr. Cook. Dr. Moshiri’s conclusion is consistent with the balance of the evidence, finding that the Applicant demonstrated average levels of depression, insignificant anxiety, and no formal psychological condition. Dr. Moshiri noted that the Applicant reported independence with his personal care, had resumed cooking and household chores following the accident, and that the accident had no psychological affect on his ability to complete his activities of daily living. The Applicant never reported any psychological symptoms to his family physician until January 13, 2020, when he complained to Dr. Tang of anxiety related to inconsistent work since the accident. Dr. Tang noted that it was likely post-traumatic stress disorder and depressive symptoms following the accident, affecting his functioning. Dr. Tang counseled the Applicant on prescription medication for anxiety, but the Applicant declined. Dr. Tang wrote a referral letter for a psychiatric assessment and treatment to “whom it may concern”, relating the need to the subject accident. However, despite the recommendation in the letter, Dr. Tang never referred the Applicant to a psychiatrist or psychologist. The Applicant made no further complaints of a psychological nature to Dr. Tang, until December 17, 2020, when the Applicant was experiencing psychological symptoms related to a family member’s cancer diagnosis. In total, the Applicant made one accident-related psychological complaint to Dr. Tang, who recommended further assessment or treatment, but made no referral for same. The level of psychological symptoms exhibited by the Applicant, as outlined in Dr. Tang’s records and the report of Dr. Moshiri, do not rise to the level to warrant a conclusion that the Applicant sustained a psychological injury as a result of the accident.

32I find the psychological pre-screen report by Dr. S. McDowall to be unpersuasive in light of the other evidence. The pre-screen report was based on an interview conducted by an unknown person and endorsed by Dr. McDowall. It concludes that the Applicant is stressed about returning to work with his injuries, was forced to resign his position, and is unable to cope with his physical symptoms, becoming irritable and impatient. The pre-screen report notes that the Applicant exhibits avoidance behaviours but does not explain what those behaviours are. Yet, the Applicant continued to drive and travel as a passenger following the accident, returned to work in some capacity, and mostly returned to his pre-accident functioning as it relates to his activities of daily living and personal care.

33Similarly, Mr. Cook’s April 21, 2020 report is unpersuasive as its conclusions are anomalous to the balance of the Applicant’s medical record. For this assessment, the Applicant reported limited physical function and an inability to complete chores around the house as a result of the accident. Mr. Cook concluded that the Applicant scored in the severe range for depression and anxiety, diagnosed him with a moderate depressive episode and specific phobia, driver-passenger, and recommended psychotherapy. Yet, previously in the report Mr. Cook acknowledged that the Applicant resumed factory work post-accident and returned to driving, albeit with caution.

34The Applicant’s unsupported reports of having seen a psychologist cause me to question the validity of his psychological injury claim. The Applicant reported to Dr. Tang and Dr. Moshiri that he saw a psychologist bi-weekly following the accident, but there is no evidence that occurred. Compounding the issue, the Applicant was ordered to produce the clinical notes and records of his treating psychologist, but he has failed to do so. Other than his comments to Dr. Tang and Dr. Moshiri, there is no evidence the Applicant engaged in psychological treatment. It appears that the Applicant either never saw a psychologist and misled the assessors, or he saw a psychologist but neglected to provide those records, despite his claims of a psychological injury. Either way, this diminishes the credibility of the Applicant’s reports to the assessors.

35Together, the limited compelling evidence of a psychological injury induces me to conclude that the Applicant has not suffered a psychological injury as a result of the accident. His injuries are rightfully characterized as a predominantly minor injury.

The disputed plans are not reasonable and necessary

36Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit on treatment.

No interest is payable

37Interest is payable on the overdue payment of benefits pursuant to section 51 of the Schedule. Having found that no payments went overdue, it follows that no interest is payable.

No award is payable

38The applicant 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.

39The Applicant submits that the Respondent unreasonably withheld the payment of medical benefits by failing to seek another opinion in response to Mr. Cook’s report. However, having concluded that the Applicant sustained a minor injury, it follows that no benefit was unreasonably withheld or delayed. The Respondent is not required to seek a medical opinion every time the Applicant submits a new piece of medical evidence and, instead, it is permitted to assess it in light of the evidence already obtained.

CONCLUSION AND ORDER

40The Applicant is barred from proceeding with his claim for IRBs as he failed to notify the Respondent of the circumstances to his claim in accordance with section 32(1) of the Schedule.

41The Applicant sustained a minor injury as a result of the accident.

42The Applicant is not entitled to the treatment and assessment plans in dispute because they propose treatment outside of the MIG and the $3,500.00 funding limit on treatment for a minor injury.

43No interest or award is payable.

44The Application is dismissed.