Licence Appeal Tribunal File Number: 21-011437/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:
Zi Xiu Zhang
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Jonathan Burton, Counsel
For the Respondent: Kathleen Mertes, Counsel
HEARD: In writing
OVERVIEW
1Zi Xiu Zhang (the “applicant”) was involved in an automobile accident on May 31, 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 Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In her written submissions, the applicant added the issue of an award, which was not objected to. Therefore, I allowed this matter to be added to the issues in dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit of $155.25 per week from November 7, 2020, to the two-year mark?
ii. Is the applicant entitled to an income replacement benefit of $185.00 per week from May 31, 2021, to date and ongoing?
iii. Is the applicant entitled to the assessments proposed by Fairview Physiotherapy and Rehab Centre, as follows:
i. $3,383.06 for physiotherapy services, in a treatment plan, submitted on March 2, 2022, denied on March 22, 2022, and
ii. $2,322.04 for physiotherapy services, in a plan, submitted on November 8, 2019, denied on October 27, 2020?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4The applicant is not entitled to an income replacement benefit for the pre-104 period.
5The applicant is not entitled to an income replacement benefit for the post-104 period.
6The applicant is not entitled to $3,383.06 and $2,322.04 for physiotherapy services, as she has not shown that these treatments are reasonable.
7The applicant is not entitled to interest or an award.
ANALYSIS
The applicant is not entitled to an income replacement benefit of $155.25 per week from November 7, 2020, until May 30, 2021.
8The applicant submits she is entitled to an income replacement benefit (“IRB”) because she was working at the time of the accident, and, as a result of and within 104 weeks after the accident, she suffers a substantial inability to perform the essential tasks of her employment. The respondent disagrees.
9The applicant submits that before her accident, she worked a data entry job and also ran a skincare business. The applicant submits that as a result of the accident, she was unable to work and then COVID-19 made it impossible for her skincare business to recover. The applicant submits she suffers from psychological impairments and chronic pain and is battling unrelated breast cancer.
10The applicant acknowledges that she received an IRB from the respondent after her accident. The applicant also noted that she tried to return to her data entry job in September 2019 for financial reasons.
11The applicant relies on the disability certificate (“OCF-3”) of her family doctor, Dr. Milton Schachter, dated February 20, 2020. Dr. Schachter found that the applicant was unable to perform the essential tasks of her employment as a result of the accident and that the applicant could also return to work on modified hours and duties, with the additional comment of “RTW Sept 2019”.
12The applicant also relies on the clinical notes and records (“CNR”s) of Dr. Schacter who, she submits, diagnosed the applicant with chronic pain on December 8, 2020.
13The applicant also relies on the CNRS of Dr. Pierre Joseph Kirwin, physiatrist, who ordered that the applicant undergo imaging of her back. A magnetic resonance image (“MRI”) dated August 23, 2020, found that the applicant had a mild disc bulge. The applicant also relies on a letter from Dr. Kirwin, dated February 24, 2020, where, after examining the applicant, the doctor diagnosed her with chronic cervical thoracic pain.
14The applicant also relies on a letter from her employer, dated June 7, 2021, which confirms that the applicant’s working hours and duties have been reduced since the accident. The applicant submits that this evidence shows she is entitled to an IRB, subject to deductions for post-accident income.
15The applicant also relies on the psychological assessment report of Dr. Zhuhui Li, psychologist, dated June 17, 2021. Dr. Li diagnosed the applicant with Somatic Symptom Disorder with Predominant Pain: Moderate, Specific Phobia - Situational: Vehicular and Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr. Li noted that the applicant commented that her physical pain and distress have interfered with her activities of daily life (“ADL”s) as her pain prevents the applicant from working. Dr. Li also noted that the applicant said she had to stop her skincare business and reported not being able to work productively at her office job.
16The applicant also relies on her Employer Confirmation Form (“OCF-2”), dated October 7, 2019, related to her skincare business earnings and an OCF-2, dated June 6, 2019, related to her data entry earnings.
17The applicant refers to the substantial inability test found in Ledenko v. State Farm Mutual Automobile Insurance Co., 2001 CarswellOnt 5099, 2001 ONFSCDRS 18. The applicant submits that the test is whether it is realistic and reasonable in all the circumstances, to expect the applicant to return to work, given her ongoing symptoms. The applicant further submits that based on F. (D.) v. Wawanesa Mutual Insurance Co., 2006 CarswellOnt 5646, 2006 ONFSCDRS 140, the insurer must then compare the applicant’s pre- and post-accident working ability.
18The respondent argues that the applicant is not entitled to an IRB, as she does not suffer a substantial inability to perform the essential tasks of her employment under the Schedule.
19The respondent submits the applicant was receiving an IRB from June 8, 2019, until November 7, 2020, when the IRB was terminated based on the Multidisciplinary Assessment Report Insurance Examination (“IE”) of Dr. Sukhinder Bhangu, physiatrist, and Dr. Randy Silverman, Psychologist, dated October 13, 2020.
20Dr. Bhangu opined that the applicant did not suffer from a substantial inability to perform the essential tasks of her pre-accident, self-employment activities. Instead, Dr. Bhangu opined that the applicant should gradually return to her self-employment activities.
21Dr. Silverman found that the applicant suffered from adjustment disorder with Mixed Anxiety and Depressed Mood. However, Dr. Silverman raised validity concerns regarding the applicant’s responses and was unable to be definitive regarding the severity of her adjustment disorder. Dr. Silverman opined that it was likely less severe and that overall, her symptomology was not supported by her testing. Dr. Silverman opined that from a psychological perspective, the applicant is not suffering a substantial inability to perform the essential tasks of her skincare business or as a data entry clerk.
22The respondent submits that the June 7, 2021, regarding the applicant’s reduced hours from her data entry employer cannot be supported by her financial records. The respondent relies on the personal banking records of the applicant, which show that during the period from September 3, 2019, until February 25, 2020, the applicant received “work payments” was earning approximately $1,600.00 per month from her data entry work, likely at her pre-accident level of twenty hours per week.
23The respondent submits that the applicant’s reduced work income at her skincare business was not due to her accident impairments, but rather because of the COVID-19 pandemic The respondent further relies on the applicant’s financial records from August 23, 2019, until February 25, 2020, and show she earned a gross income of $1,500.00 related to her skincare business.
24The respondent also relies on the applicant’s Canada Revenue Agency’s (“CRA”) Income Tax Notice of Assessment (“NOA”) of 2020, which shows she earned $18,000.00 in income. The respondent relies on the applicant’s NOA of 2021, which shows the applicant earned $18,601.00 in income. The respondent submits that these documents further show that the applicant has not suffered financial losses related to her employment as a result of the accident, and therefore, does not suffer a substantial inability to perform the essential tasks of her job.
25The applicant submits that little to no weight should be afforded to Dr. Bhangu’s IE, as the doctor failed to acknowledge the applicant’s chronic pain. The applicant also submits that Dr. Bhangu referred to Dr. Kirwin but gave no weight to the doctor’s findings.
26The applicant also argues that Dr. Bhangu failed to appreciate the applicant’s cancer diagnosis, the closing of her skincare business and the COVID-19 pandemic as factors impacting her. The applicant relies on the CNRs from North York General Hospital from May 31, 2016, until February 7, 2022, to support her cancer diagnosis and treatment.
27The respondent disagrees with this argument, as Dr. Bhangu addressed the applicant’s pre-existing neck and back pain, her treatments with Dr. Kirwin, her breast cancer diagnosis in 2021 and the impacts of COVID-19. Therefore, the respondent submits the evidence of Dr. Bhangu should be afforded full weight.
28To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
29I find that the applicant has not suffered a substantial inability to perform the pre-accident, essential tasks of her employment as a result of the accident-related injuries.
30I found Dr. Schachter’s OCF-3 confusing, as it indicated that the applicant suffered a substantial inability, but could also return to work, and then noted that she had already returned to work. I did not find it persuasive that the applicant suffers a substantial inability to perform the essential tasks of her employment as a result of her accident-related injuries.
31I also did not find the applicant’s argument that the applicant’s chronic pain caused a substantial inability persuasive. Though I agree that Dr. Schachter's CNRs show that the doctor found that the applicant’s back pain became chronic, he did not comment on her abilities concerning her work tasks. The same can be said for Dr. Kirwin’s evidence, which again, did not speak to the legal test in dispute. Therefore, I did not afford their evidence much weight.
32I also considered Dr. Li’s report, however, given that Dr. Li did not conduct any testing concerning the applicant’s abilities concerning her ADLs, I found her evidence in this regard to be unpersuasive. This is because this evidence is entirely based on the subjective reporting of the applicant’s symptoms, and again, does not speak to the legal test. Therefore, I did not afford this evidence much weight.
33I must respectfully disagree with the applicant’s interpretation of the legal test of Ledenko from the Financial Services Commission of Ontario (“FSCO”). I refer the applicant to paragraph 33 of the decision, which sets out that an applicant must show that she is substantially unable to perform the essential tasks of her pre-accident employment. The portion of decision that the applicant relies on must be read within the context of the entire paragraph, which reads:
To establish her entitlement to benefits, the Applicant must prove, on a balance of probabilities, that she is substantially unable to perform the essential tasks of her pre-accident employment. A "substantial inability" is an impairment that to a substantial, significant or important degree, prevents the insured person from doing her job on a sustainable, productive and remunerative basis. It is not sufficient to establish entitlement that returning to work will aggravate the insured person’s symptoms. On the other hand, the insured person is not required to prove that working will cause further injury. The test is whether it is realistic and reasonable, in all the circumstances, to expect the insured person to return to work given her ongoing symptoms.
34This paragraph captures section 5(1) of the Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98. This section is similar to the current section (1) of the Schedule.
35Though Dr. Bhangu did not speak specifically to the applicant’s chronic pain during his assessment, I chose to afford this evidence weight. I found that Dr. Bhangu considered the CNRs of Dr. Kirwin, and despite Dr. Kirwin’s findings, did not find that the applicant suffered a substantial inability. Though the applicant may not agree with the doctor’s findings, said findings are based on the doctor’s physical examination and are for the Tribunal to consider.
36In terms of the applicant’s cancer diagnosis, based on the evidence of the parties, the applicant was diagnosed with cancer after Dr. Bhangu’s assessment. More importantly I was not directed evidence related to the applicant’s cancer diagnosis being an accident-related impairment. Therefore, I did not find this argument persuasive.
37I also found Dr. Silverman’s evidence persuasive, as, it spoke directly to the legal issue in dispute; based on the applicant’s assessment, the doctor opined that her diagnoses did not prevent her from substantially being able to perform the essential tasks of either of her jobs.
38I also found the respondent’s arguments related to the applicant’s financial documents valid; I would have expected the applicant to be earning less money in the period from September 3, 2019, until February 25, 2020, had she suffered a substantial inability to perform the essential tasks of either of her jobs. Given this unexplained inconsistency, I did not find the applicant’s letter from her data entry job persuasive. Therefore, I find that the applicant is not entitled to the pre-104 income replacement benefit.
The applicant is not entitled to an income replacement benefit of $185.00 per week from May 31, 2021, to date and ongoing
39To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience. This is a stricter test for eligibility when compared to the pre-104-week IRB test.
40The applicant relied on the evidence she submitted in support of her pre-104 IRB entitled.
41The respondent submits that if the applicant was able to return to her pre-accident job as a data entry clerk, she cannot meet the post-104 test of having suffered a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience. Therefore, she is not entitled to the IRB.
42I agree with the respondent that the applicant is not entitled to the post-104 income replacement benefit. The applicant has not addressed the issue that she can engage in some of her work activities, albeit on an allegedly reduced basis.
43Moreover, I was not presented with any direct evidence from the applicant that spoke to her work abilities during the disputed period, the tasks of her employment, the tasks she was unable to complete, or her education, training or experience. Without this information, the applicant has not met her evidentiary burden under the Schedule and is not entitled to the post-104 income replacement benefit.
The applicant is not entitled to the treatment plans for physiotherapy and massage services
44To receive payment for a treatment and assessment plan under s.14, 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.
45Since the applicant is seeking entitlement to two OCF-18s, namely one for $3,383.06 for physiotherapy services, submitted on March 2, 2022, and the other for $2,322.04 for physiotherapy services, submitted on November 8, 2019. As both OCF-18s deal with the same modality of treatment, with similar goals and the same provider, I will address both issues at once.
46The applicant submits that based on the evidence she relied upon for her IRBs, she has shown that she suffers from chronic pain that would benefit from physical therapy. Based on this, the applicant submits that the disputed OCF-18s are reasonable and necessary.
47The applicant specifically relies on the physiatry assessment report of Dr. Kirwin, dated May 5, 2021. Dr. Kirwin submits that the applicant has participated in physiotherapy by paying for it out of pocket. Dr. Kirwin recommends that the applicant should continue with her current therapies for her chronic pain.
48The applicant relies on the matter of Amoa-Williams v. Allstate, [2000] OFSCID No 93 (FSCO Arb), 2000 ONFSCDRS 96, and submits this decision provides the leading guidance on reasonableness and necessity under the Schedule.
49The applicant submits that pursuant to General Accident Assurance Co. of Canada v. Violi (FSCO Appeal P99-00047), 2000 ONFSCDRS 177, the Tribunal must consider the following factors when considering if a benefit is reasonable and necessary: “The treatment goals, as identified, are reasonable, these goals are being met to a reasonable degree, and the overall costs [not just financial, but also investment of time of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.”
50The respondent submits that the disputed OCF-18s were not reasonable and necessary as a result of the applicant’s accident-related injuries. The respondent submits that based on Scarlett v. Belair Insurance, 2015 ONSC 3635, the applicant bears the burden of proving that the disputed OCF-18s are reasonable and necessary and has not done so.
51The respondent relies on the IE of Dr. Bhangu dated April 29, 2022, which addressed the disputed OCF-18 in the amount of $3,383.06. Dr. Bhangu found the OCF-18 was not reasonable and necessary, as the applicant suffered from soft tissue injuries, strains and sprain as a result of the accident. The doctor opined that the applicant had reached maximum medical recovery from her accident-related injuries.
52The respondent also submits that some of the injuries of this OCF-18 were not accident related, as the disputed OCF-18 noted that the applicant reported that since her cancer surgery, she’s had pain in her arms, elbows and hand tingling. Therefore, the respondent submits that this OCF-18 is not reasonable and necessary to address the applicant’s accident-related injuries.
53The respondent also relies on the IE of Dr. Bhangu dated October 13, 2020, which found that the applicant, from a physical perspective, suffered mainly soft tissue sprains and strains to her spine. Dr. Bhangu found that the OCF-18 for $2,322.04 was not reasonable and necessary, as she has likely reached maximum medical recovery.
54I find that the applicant is not entitled to the disputed OCF-18s for physiotherapy, as she has not shown that they are reasonable and necessary. I agree that Amoa-Williams and Violi provide guidance on the reasonable and necessary legal test with respect to OCF-18s.
55I did not find the evidence relied upon by the applicant, meaning the OCF-18s, on their own to be persuasive that the treatments are reasonable and necessary. I would have expected Dr. Schachter or Dr. Kirwin to make comments in their CNRs regarding if physiotherapy was reasonable and necessary to address the applicant’s accident-related injuries, how much therapy she required and the length of the sessions. This evidence was not provided to the Tribunal.
56Though Dr. Kirwin recommended that the applicant continues with her “current regime”, including her current therapy, the doctor also stated this should include “the stretching exercises of her spine extremities and regular walking.” I would have expected Dr. Kiriwn to provide more information on why the disputed OCF-18s were reasonable and necessary in light of their goals, treatment length, treatment services and costs. This was not the case. Therefore, I find that the disputed OCF-18s are not reasonable and necessary.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits have been found owing to the applicant, so no interest is warranted.
Award
58The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since there are no payments unreasonably delayed or withheld, the applicant is not entitled to an award.
ORDER
59The applicant is not entitled to an income replacement benefit for the pre-104 period.
60The applicant is not entitled to an income replacement benefit for the post-104 period.
61The applicant is not entitled to $3,383.06 and $2,322.04 for physiotherapy services, as she has not shown that these treatments are reasonable.
62The applicant is not entitled to interest or an award.
Released: September 21, 2023
Stephanie Kepman
Adjudicator