Licence Appeal Tribunal File Number: 22-010434/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:
Yan Yin
Applicant
and
Allstate Insurance
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Yu Denise Jiang, Paralegal
For the Respondent:
Kristen Slaney, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Yan Yin, the applicant, was involved in an automobile accident on December 18, 2020, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue(s) in dispute is/are:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $109.13 per week from December 26, 2020 to December 17, 2022?
ii. Is the applicant entitled to an income replacement benefit in the amount of $185.00 per week post 104 week from December 18, 2022 to ongoing?
iii. Is the applicant entitled to $130.00 for medical services, proposed by SWAT Health in a treatment plan/OCF-18 (“plan”) dated April 5, 2022?
iv. Is the applicant entitled to $5.00 for medication, submitted on a claim form (OCF-6) dated October 17, 2022?
v. Is the applicant entitled to $5.00 for medication, submitted on a claim form (OCF-6) dated November 29, 2022?
vi. Is the applicant entitled to $5.00 for medication, submitted on a claim form (OCF-6) dated December 19, 2022?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an income replacement benefit.
4The applicant is not entitled to reimbursement of medication.
5The applicant is not entitled to interest or an award under s.10 of O. Reg 664.
ANALYSIS
The applicant has not proven entitlement to an income replacement benefit in the 104 weeks following the accident
6I find that the applicant has not proven entitlement to an IRB.
7To 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.
8The applicant was self employed as an art teacher at the time of the accident.
9The applicant submits that she suffers from ongoing pain and psychological impairments which impede her ability to work.
10The respondent submits that the applicant is not entitled to an income replacement benefit as her pre-accident self-employment loss entitles her to an IRB in the amount of $0.00.
11There is a two-pronged test to the determination of an IRB. The first prong is a determination of the quantum of the benefit based on the applicant’s employment history. The second prong is the determination of the substantial inability to perform the essential tasks of her employment through medical evidence.
12The applicant has submitted her tax returns to establish the quantum of her entitlement. The respondent has submitted a report by Davis Martindale, Chartered Professional Accountants, who have calculated the entitlement to benefits based on these tax returns.
13Section 4(3) of the Schedule defines a self-employed person’s weekly income or loss from self-employment at the time of the accident as the amount that would be 1/52 of the amount of the person’s income or loss from the business for the last completed taxation year.
14From the tax returns submitted by the applicant, Davis Martindale calculated the applicant’s Gross Employment Income from self-employment to be a loss of $1,505. This is the business loss for the last completed taxation year prior to the accident.
15I do note that the applicant did have other income on her tax return. However, this income, which was a pension from China and rental income, does not meet the definition of Gross Employment Income.
16Based on this business loss, Davis Martindale has calculated that the applicant’s entitlement for a weekly income replacement benefit is $0.00 in accordance with the Schedule.
17The applicant has not addressed this calculation in her reply, nor has she provided any submissions or evidence in support of the $109.13 per week which is being sought.
18Therefore, as the applicant has not proven entitlement to the quantum for the disputed IRB, I find that it is unnecessary to evaluate the medical reasons for an IRB entitlement. The applicant is not entitled to an IRB in the first 104 weeks following the accident.
The applicant has not proven an entitlement to an income replacement benefit post-104 weeks
19To 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.
20Per s.7(2)(ii) of the Schedule, the amount being sought is $185 per week.
21The applicant submits that she suffers from a complete inability to engage in any employment.
22The respondent submits social media posts of the applicant compiled by Centric Investigation Services.
23The social media posts beginning December 17, 2022 (104 weeks post-accident) show the applicant is engaged in her self-employment activities.
24On December 17, 2022, she posted a painting that she had sold.
25On December 29, 2022, she posted a video of her sketching a picture.
26On February 4, 2023, she posted a video of her painting roses.
27On January 10, 2023, she posted a video of a painting signed and dated January 2023.
28On January 24, 2023, and April 20, 2023, she posted videos of her students painting.
29I find that these videos and photos show that the applicant has returned to her self employment activities.
30The applicant did not address these social media posts in her reply.
31Therefore, I find that she is not entitled to an IRB for the period following 104 weeks post accident as she has not shown an inability to engage in any employment.
The applicant is not entitled to reimbursement of prescription medication
32To receive payment for a treatment and assessment plan under s. 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.
33The applicant’s submissions on these issues are as follows:
34“Throughout the course of the Accident Benefits Claim the Applicant has benefited from the prescribed medication. The medication is reasonable and necessary.”
35The respondent submits that there is no medical evidence to support the reasonableness or necessity of the prescriptions in relation to this accident.
36The applicant has submitted three OCF-6 forms which are in dispute.
37On October 17, 2022, an OCF-6 was submitted for a prescription for Dayvigo 5MG dispensed on September 30, 2022.
38In Dr. Sharma’s clinical notes and records, there is a note documenting a September 30, 2022 visit. This visit was in relation to persistent nasal congestion and cough. There is no reference made to any accident-related injuries or impairments. As this prescription is not connected to the accident, I find that the applicant has not proven that this prescription is reasonable or necessary to treat an accident-related injury or impairment.
39On November 29, 2022, an OCF-6 was submitted for a prescription for Dayvigo 5MG dispensed on November 29, 2022.
40In Dr. Sharma’s clinical notes and records, there is a note documenting a November 28, 2022 visit. This visit was in relation to rhinitis, a recent thyroid ultrasound and tinnitus. There is no reference made to any accident-related injuries or impairments. As this prescription is not connected to the accident, I find that the applicant has not proven that this prescription is reasonable or necessary to treat an accident-related injury or impairment.
41On December 19, 2022, an OCF-6 was submitted for a prescription for Naproxen 375MG dispensed on December 3, 2022.
42In Dr. Sharma’s clinical notes and records, there is a note documenting a December 3, 2022 visit. This visit was concerning a subsequent motor vehicle accident the applicant was involved in on December 2, 2022. As this prescription is directly linked to injuries sustained in the subsequent accident, I find that the applicant has not proven that this medication is reasonable or necessary to treat an injury or impairment as a result of the December 18, 2020 accident. The applicant is not entitled to reimbursement for this OCF-6.
43For the reasons above, I find that the applicant has not proven entitlement to reimbursement for the three OCF-6 forms submitted.
Interest
44As no benefits are owing, no interest is payable.
Award
45As I have found that no benefits have been unreasonably withheld, there is no basis on which to consider an award under s.10 of O.Reg 664.
ORDER
46For the reasons above, I find that:
i. The applicant is not entitled to an Income replacement benefit;
ii. The applicant is not entitled to reimbursement for medications submitted on the OCF-6 forms;
iii. The applicant is not entitled to interest or an award under s. 10 of O.Reg 664; and
iv. This application is dismissed.
Released: October 23, 2024
__________________________
Julian DiBattista
Vice-Chair