Citation: Zhu v. Allstate Insurance Company of Canada, 2023 ONLAT 21-002528/AABS

Licence Appeal Tribunal File Number: 21-002528/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:

Wen Li Zhu

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Jessica Meyerovich, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Wen Li Zhu, the applicant, was involved in an automobile accident on October 26, 2019, and sought benefits 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2At the case conference on November 15, 2021, the parties settled the majority of the issues in dispute, leaving the only issues for this written hearing as being whether the applicant is entitled to a s. 10 award and interest.

ISSUES

3The issues in dispute are:

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

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

RESULT

4I find that the applicant is not entitled to an award or interest.

ANALYSIS

Section 10 award

5The applicant seeks an award under s. 10 of Regulation 664 due to the respondent’s unreasonable withholding and delaying of the payment of benefits. Although she does not specify the amount of the award she seeks, she submits that the respondent has acted in a high-handed and inflexible manner and that it created unreasonable barriers to benefits that had been supported by medical evidence.

6Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonably withheld or delayed the payments.

7The applicant had filed an application with the Tribunal with respect to the respondent’s failure to remove her from the Minor Injury Guideline (“MIG”) and denial of OCF-18s relating to chiropractic and physiotherapy treatment and various assessments. The applicant submits that the medical evidence clearly established that she suffered from serious psychological impairments, post-concussive symptoms and chronic pain as a result of the subject accident. However, the respondent did not remove the applicant from the MIG or approve the treatment plans, until the case conference on November 15, 2021, more than two years post-accident.

8The applicant submits that the respondent acted unreasonably by denying her access to treatment and keeping her within the MIG. She further argues that the adjuster’s log notes indicate that the respondent was aware of the applicant’s severe depression and passive suicidal ideations, as early as December 2, 2019. However, it did not approve the treatment plans or remove the applicant from the MIG until two years later. The applicant further submits that the respondent did not conduct a s. 44 psychological assessment and denied her requested s. 25 assessment despite medical evidence establishing her serious psychological impairments.

9The respondent argues that it acted diligently, fairly and in good faith in adjusting the applicant’s claim. It submits there were two types of OCF-18s submitted by the applicant – physical and psychological treatment plans. The respondent contends that the physical treatment plans were submitted first, and that it properly denied the physical treatment plans based on a s. 44 insurer’s examination (“IE”) assessment. However, the psychological treatment plans were not submitted until the MIG limits were exhausted, one year and two months after the accident.

10The respondent submits that at the time the OCF-18 dated December 18, 2020 for a psychological assessment was submitted, it only had clinical notes and records (“CNRs”) from the applicant’s family physician for one month post-accident, up until November 18, 2019. This was despite the fact that it had requested updated and pre-accident CNRs numerous times. The respondent contends that the limited CNRs it had in its possession, indicated that the majority of the applicant’s psychological complaints were related to a pre-accident marital breakdown and were not accident-related.

11It further argues that it did not have any pre-accident CNRs which were vital to understanding whether the applicant’s psychological impairments were due to the accident or from pre-marital issues. The respondent submits that it did not receive these requested CNRs until June 1, 2021, just a few months prior to the case conference. Given the applicant’s failure to provide medical information needed to assess the claim, the respondent argues that there is no evidence that the respondent engaged in unreasonable conduct.

12Upon review of the evidence, I do not find that the applicant has established that the respondent unreasonably withheld or delayed payments.

13Although I agree with the applicant that the CNRs of her family physician indicate that she suffered from numerous psychological impairments post-accident, including severe depression and at times passive suicidal ideation and post-concussive symptoms, much of this medical record was not provided to the respondent until a few months before the case conference.

14The respondent submitted correspondence indicating that it requested pre-accident and updated CNRs on November 28, 2019, December 31, 2019 and January 29, 2020. When denying the applicant’s OCF-18 for a psychological assessment on December 18, 2020, the respondent again requested pre-accident CNRs. At the time this OCF-18 was denied, it only had CNRs up until November 18, 2019 (three weeks post-accident). This requested information was not provided to the respondent until six months later, in June 2021.

15The CNRs the respondent had at the time the OCF-18 for a psychological assessment was submitted, comprised of entries for the month post-accident. While they do indicate that the applicant reported some passive suicide ideation, depression, fear, anxiety and possible stress disorder, I agree with the respondent that the limited CNRs also indicate that the applicant’s marriage breakdown was reported to be a significant factor in her mental health impairments. Further, Dr. Xu, the applicant’s family physician, indicated that the applicant was a new patient (attending for the first time post-accident), and as such, she did not have knowledge of the applicant’s prior mental health history. Therefore, it was not unreasonable for the respondent to request the applicant’s updated and pre-accident CNRs, in order to assess whether the applicant’s mental health complaints were caused by the accident, or her prior relationship. The November 2018 CNRs also indicated that Dr. Xu was already referring the applicant to mental health supports through the government-funded One Link program.

16The applicant subsequently submitted an OCF-18 dated August 13, 2021 for psychological treatment. I agree with the applicant that at the time the treatment plan for psychological treatment was submitted, the respondent had received evidence of the applicant’s psychological impairments. Some of the updated and pre-accident CNRs were provided to the respondent on June 1, 2021. Further, in a s. 25 psychological assessment dated July 12, 2021, Dr. Sharleen McDowell and Ms. Mandy Fang, MSW, diagnosed the applicant with major depressive disorder with mixed anxiety and specific phobia, travel. However, this denial was only a few months before the case conference, where the applicant was removed from the MIG and the treatment plans were approved. In addition, the respondent submits correspondence indicating that the remainder of Dr. Xu’s CNRs were provided only five days prior to the case conference.

17Finally, with respect to the denial of the OCF-18s for chiropractic and physiotherapy services, I agree with the respondent that they were denied on the basis of Dr. Oshidari’s s. 44 assessment. Further, at the time of the denial of these treatment plans, the respondent had limited CNRs by which to assess the applicant’s physical impairments. Although these OCF-18s were subsequently approved, I note that insurer’s are not held to a standard of perfection. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award is payable.

Interest

18Although interest was listed as a separate issue in dispute for this written hearing, neither the applicant nor the respondent provided any specific submissions on the issue of interest. Without any specific submissions or evidence on this issue, I am unable to find that the applicant has met her onus to prove that interest is owing.

ORDER

19I find that the applicant is not entitled to an award or interest.

20The application is dismissed.