Wu v. Aviva General Insurance, 2023 CanLII 93015

Citation: Wu v. Aviva General Insurance, 2023 ONLAT 21-008868/AABS

Licence Appeal Tribunal File Number: 21-008868/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:

Xiaojun Wu

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kevin Lundy

APPEARANCES:

For the Applicant: Xiaojun Wu, Applicant

For the Respondent: Lynda Mantha, Representative

Interpreter: Hussein Pirani, Counsel Kimberley Tye, Counsel Jessica Ross, Law Clerk Ya Jun (Mandarin language)

Court Reporter: Alyssa Scott

HEARD: by Videoconference: September 11, 2023

OVERVIEW

1Xiaojun Wu (the ‘applicant’) was involved in an automobile accident on April 14, 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 General Insurance (the ‘respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.

PRELIMINARY ISSUES

The Applicant’s Adjournment Request

2At the start of the hearing, the applicant requested an adjournment on the basis that he was not represented by legal counsel and was unprepared to conduct the hearing on his own. I denied the applicant’s oral adjournment request for the following reasons.

3Rule 16 of the Licence Appeal Tribunal Rules (August 21, 2023) (the ‘Tribunal Rules’) sets out the procedural rules governing adjournment requests.

4Rule 16.1 requires that a party requesting an adjournment of a hearing use the Tribunal’s form for requesting an adjournment and serve it on the other parties to the appeal and file it with the Tribunal. The completed form must include all submissions and evidence in support of the request. Rule 16.1 also states that failure to provide a completed form, supporting submissions and evidence will result in the request not being considered by the Tribunal.

5The applicant did not serve or file the required form requesting an adjournment and, unless I find that he meets the criteria set out in Rule 16.2 of the Tribunal Rules, I need not consider his request.

6Rule 16.2 provides that a request for an adjournment may be made orally before an adjudicator at an adjudicative event. However, oral requests will only be allowed in compelling circumstances where the party did not and could not have known of the circumstances giving rise to the adjournment request prior to the event.

7In this case, the applicant did have actual knowledge of the circumstances giving rise to the adjournment request. The applicant had not had legal counsel since at least May 25, 2023. The previous hearing scheduled to take place May 29, 2023 was adjourned because the applicant’s representative had removed himself from the record and the applicant has since made little progress in retaining a new representative. Further, on August 28, 2023, the applicant made a written request for an adjournment of this hearing for the same reasons he requested an adjournment orally on the hearing date.

8I find that the applicant was aware of the circumstances giving rise to the present adjournment request in time to file a written request for an adjournment in compliance with Rule 16.1 but did not do so and has not satisfied me that he should be allowed to bring this motion for the adjournment at the hearing.

9I allowed the parties to make submissions with respect to the adjournment request and, even had I allowed the motion to be heard, I would have dismissed the adjournment request for the following reasons.

10Rule 16.3 of the Tribunal Rules sets out the factors the Tribunal may consider when deciding whether to grant an adjournment. I have considered those factors and specifically find as follows.

a. The Age of the File: The application was filed more than two years ago and relates to an accident more than four years ago and has already been adjourned once at the request of the applicant. Further delay would undermine the Tribunal’s mandate for timely resolution of disputes and unduly prejudice the respondent as it had prepared for the hearing in good faith and was ready to proceed.

b. Previous Adjournments: The matter was scheduled for a four day videoconference hearing commencing on May 29, 2023 pursuant to a case conference report and order (‘CCRO’) dated November 30, 2022. On May 25, 2023, the applicant’s counsel advised the respondent and the Tribunal that he was removing himself as legal representative due to a breakdown of the solicitor-client relationship. On May 29, 2023, the applicant was not prepared to represent himself at the hearing and requested an adjournment to obtain new legal representation. The applicant’s request for an adjournment was granted, peremptory on the applicant proceeding on the next hearing date.

c. Prejudice to the Parties: As the hearing has been adjourned once before, a further delay would prejudice the respondent as it had prepared for the hearing in good faith and was ready to proceed. Contrary to the applicant’s claim in his adjournment request dated August 28, 2023, counsel for the respondent denied receiving any notice that the applicant intended to seek an adjournment following the prior hearing date of May 29, 2023. Counsel advised that the applicant had not communicated with him at all since the prior date, despite his several attempts to contact the applicant over whether he had obtained new representation. The applicant did not contest these submissions at the hearing. I find that a further adjournment would prejudice the respondent who was prepared to proceed on the scheduled hearing date.

d. The respondent opposed the appellant’s request for an adjournment.

The Respondent’s Motion for Dismissal

11The respondent filed a motion for the dismissal of the application on the grounds that by failing to retain new legal representation or adequately prepare for the hearing, the applicant should be deemed to have abandoned his application. However, as the applicant called into the videoconference and requested an adjournment to obtain new representation, I find that he demonstrated a good faith intention to participate in the proceeding, albeit not on the scheduled dates. Similarly, following the denial of his adjournment request, he chose to proceed with the hearing and represent himself rather than withdraw his application. None of these actions are consistent with abandonment of the application. As a result, the respondent withdrew the motion.

The Respondent’s Motion Challenging the Applicant’s Expert Witnesses

12The respondent also filed a motion pursuant to Rule 10.4, challenging the applicant’s witnesses, family doctor Dr. Yunlong Pu, and chiropractor Dr. Nejad Sahin, on the basis that the applicant had not produced any reports from either proposed witness or submitted any of the documents required by Rule 10.2 in relation to expert witnesses.

13However, as the applicant ultimately called no witnesses, the respondent abandoned this motion as moot.

ISSUES

14The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from January 25, 2021, to date and ongoing?

2. Is the applicant entitled to psychological services in the amount of $2,200.00, proposed by Perfect Choice Psychological Services in a treatment plan/OCF-18 (‘plan’) submitted on October 26, 2020?

3. Is the applicant entitled to chiropractic services in the amount of $2,230.62, proposed by Shahin Health Care Management Group in a plan submitted on September 21, 2021?

4. Is the respondent liable to pay an award under section 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

15I find that the applicant is not entitled to:

i. An income replacement benefit;

ii. Psychological services in the amount of $2,200.00, proposed by Perfect Choice Psychological Services in a plan submitted on October 26, 2020;

iii. Chiropractic services in the amount of $2,230.62, proposed by Shahin Health Care Management Group in a plan submitted on September 21 2021;

iv. An award under section 10 of Regulation 664; or

v. Interest on any overdue payment of benefits.

ANALYSIS

16On April 14, 2019, the applicant was driving on Highway 401 near Oshawa when his vehicle was struck from behind. The other driver failed to remain at the scene of the collision and had not been identified as of the date of the hearing. There was no secondary impact and the vehicle’s airbags did not deploy. The applicant did not lose consciousness and was able to exit his vehicle independently and without assistance. Although emergency personnel attended at the scene, the applicant was not transported to the hospital. The applicant testified that he suffered physical and psychological trauma as a result of the accident.

17The applicant acknowledged that he has been involved in two prior motor vehicle accidents, one of which occurred in 2017. He testified that he received an injury to his right eye from the 2017 accident. However, while he received laser surgery in 2018, he had fully recovered from his injuries by the time of the present accident.

Issue 1: Entitlement to an Income Replacement Benefit

18I find that the applicant failed to submit sufficient evidence to demonstrate on the balance of probabilities that he is entitled to an income replacement benefit (‘IRB’).

19At the time of the accident, the applicant was self-employed as a contractor involved in computer training and consulting. Paragraph 2 of subsection 5(1) of the Schedule provides that the insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person was a self-employed person at the time of the accident and suffers as a result of and within 104 weeks after the accident, a substantial inability to perform the essential tasks of his or her self-employment.

20Although the accident occurred on April 14, 2019, the applicant did not submit his OCF-3 Disability Certificate (‘OCF-3’) until November 30, 2020, approximately 85 weeks post-accident. Pursuant to subsection 32(3) of the Schedule, an insurer is not required to pay a weekly benefit until it is in receipt of the OCF-3. At the hearing, the applicant blamed his prior legal representative for any omissions or delays in submitting required documents and stated that he simply assumed that the OCF-3 had been submitted.

21However, as noted in K.A. v. Intact Insurance Company, 2020 CanLII 94779 at paragraph 14 (ON LAT), the requirement that the applicant submit an OCF-3 before becoming entitled to claim an IRB is mandatory and cannot be waived by the Tribunal. I find that the applicant is barred from claiming an IRB for the period prior to filing the OCF-3 on November 30, 2020.

22The applicant also did not submit any reports pursuant to section 25 of the Schedule or any clinical notes and records or reports from service providers to demonstrate his entitlement to an IRB.

23The only document that the applicant submitted that asserted entitlement to an IRB was the OCF-3 itself. However, this document simply contains a broad statement that the applicant is unable to complete his work tasks without providing information with respect to what those tasks are or the extent of the disability. Regarding this deficiency, I find the decision cited by the respondent, Gao v. Aviva Insurance Canada, 2022 CanLII 120024 (ON LAT) at para. 14 (‘Gao’), to be persuasive. In Gao, the adjudicator held that the Disability Certificate did not provide sufficient detail as to the essential tasks of employment or how the impairments prohibited the applicant from completing them. Similarly, I do not find the OCF-3 in the present case represents compelling evidence of the applicant’s entitlement to an IRB.

24By contrast, the respondent submitted medical evidence in support of its position that the applicant has failed to demonstrate that he does not qualify for IRBs, none of which was substantively challenged by the applicant.

25On January 15, 2021, Dr. John Presvelos conducted a general practitioner assessment of the applicant. The applicant advised Dr. Presvelos that he works as a computer programmer and has been self-employed since 2015. Although the applicant was vague with regards to his work tasks and hours, Dr. Presvelos found that the essential tasks of his employment involve sitting at a computer, clicking and typing, all of which he could still do. Dr. Presvelos concluded in his report, dated January 22, 2021, that although the applicant sustained chronic myofascial back and neck pain as a direct result of the accident, he does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a computer programmer.

26On January 11, 2021, psychiatrist Dr. Bruce Ballon conducted a psychiatric assessment of the applicant. In his assessment report dated January 22, 2021, Dr. Ballon stated that, “I cannot state the subject MVA is related to any psychiatric condition present.” During this assessment, the applicant reported that from a psychiatric perspective, he experienced no significant functional impact from the accident. When Dr. Ballon asked if he had developed any psychiatric issues, such as anxiety or mood issues, the applicant replied he did not think so. When asked why he thought this assessment was arranged, he stated he at first thought it was for a physical assessment, as he did not think he required any mental health treatment. He thought perhaps the assessment was arranged to make sure there were no other problems.

27When Dr. Ballon asked the applicant if he thought he could benefit by speaking with a psychotherapist to deal with stress, he stated he did not think this assistance was needed. When asked if he needed any driving courses to help reduce any residual anxiety regarding driving, the applicant stated that he did not. He did advise Dr. Ballon he would like to continue his physical rehabilitation treatment, which has greatly helped his pain and helped his mood improve due to the reduction of the pain. Dr. Ballon ultimately concluded that from a psychiatric perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a direct result of the motor vehicle accident. Although the applicant noted some errors in Dr. Ballon’s description of his educational history, he did not contest the medical substance of the report.

28At the hearing, the applicant suggested that he may not have comprehended the questions asked during these assessments due to a language barrier. However, Dr. Ballon reported that he twice asked the applicant if he had any concerns with speaking English during the assessment, as many of his answers were often vague or involved very sparse information. He replied he did not need an interpreter for his native language and said he understood the conversation. When Dr. Presvelos conducted a similar inquiry, the applicant refused the potential services of an interpreter. As well, on his OCF-1 Application for Accident Benefits, the applicant indicated that his “language spoken” was English.

29The OCF-3 submitted by the applicant indicates that the applicant returned to work with modified duties and hours. According to Dr. Presvelos’ report, the applicant estimated working approximately 25 hours per week following the accident.

30Similarly, the income tax returns provided by the applicant suggested that his injuries did not substantially interfere with his ability to operate his business. These records established that his net business income actually increased in 2019, the year in which the accident occurred. While his net business income was $5,856.18 for 2017 and $7,910.29 in 2018, it rose to $11,059.00 in 2019. The applicant agreed with the calculations in the tax documents and noted that they had been prepared by a qualified accounting professional.

31The tax returns also indicate that in 2020 and 2021, the applicant received funding from the Canada Emergency Response Benefit (‘CERB’). The applicant did not deny that the CERB was only available to businesses who closed their doors due to the COVID-19 pandemic, but not to those unable to operate their businesses as a result of a non-COVID-19 related illness or reason such as injuries caused by a motor vehicle accident. In the absence of any explanation to the contrary, I agree that the applicant’s receipt of this funding suggests that the applicant was able to operate his business or at least held himself out to the Canada Revenue Agency as being able to do so.

32In light of all of the evidence, I find that the applicant failed to meet his evidentiary burden to demonstrate on the balance of probabilities that he suffers from either a complete or substantial inability to perform the essential tasks of his self-employment.

Issues 2 and 3: Treatment Plans for Psychological and Chiropractic Services

33I find that the applicant failed to submit sufficient evidence to demonstrate on the balance of probabilities that he is entitled to the services set out in the disputed treatment plans.

34The applicant bears the evidentiary onus to demonstrate on the balance of probabilities that the requested treatment plans are reasonable and necessary.

35Although the applicant testified that he found the treatments that he attended helpful, he failed to submit any clinical notes or records or expert reports to establish that either of the two treatment plans submitted are reasonable or necessary or that they describe reasonable objectives. It is well-settled that an OCF-18 on its own is neither sufficient nor compelling evidence to prove entitlement or that treatment is reasonable and necessary.

36As a result, I find that the applicant failed to meet his evidentiary onus to demonstrate on the balance of probabilities that the requested treatment plans are reasonable and necessary.

Interest

37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As I find that no benefits are owing, no interest is payable.

Award

38The applicant sought an award under section 10 of Regulation 664. Under section 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. The applicant bears the onus to establish the respondent’s liability for this remedy on the balance of probabilities.

39I find that the respondent properly denied the IRB and the treatment plans in accordance with the medical evidence produced. The respondent clearly explained its reasons for denying the applicant’s claims and received no further communication from him or his legal representative before the application to the Tribunal was filed. As there was no evidence that either the adjuster on the file or her manager unreasonably withheld or delayed payments, the applicant has not demonstrated that the respondent is liable to pay an award.

ORDER

40I find that the applicant is not entitled to:

a. An income replacement benefit;

b. Psychological services in the amount of $2,200.00, proposed by Perfect Choice psychological services in a plan submitted on October 26, 2020;

c. Chiropractic services in the amount of $2,230.62, proposed by Shahin Health Care Management Group in a plan submitted on September 21 2021;

d. An award under section 10 of Regulation 664; or

e. Interest on any overdue payment of benefits