Citation: Tsang v. Allstate Insurance Company of Canada, 2024 ONLAT 22-013174/AABS

Licence Appeal Tribunal File Number: 22-013174/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:

David H W Tsang

Applicant

and

Allstate Insurance Company of Canada*

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Ryan Olson, Paralegal

For the Respondent:

Andrew E Franklin, Counsel

HEARD:

By way of written submissions

OVERVIEW

1David H W Tsang, the applicant, was involved in an automobile accident on June 2, 2021, 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.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $149.87 per week from January 1, 2022 to June 1, 2023?

ii. Is the applicant entitled to an income replacement benefit in the amount of $185.00 per week from June 2, 2023 ongoing?

iii. Is the applicant entitled to the assessments proposed by Total Recovery Rehabilitation Clinic, as follows:

1. $1,300 for physiotherapy services, in a treatment plan dated August 11, 2021; and

2. $4,463.90 for chiropractic services, in a treatment plan dated May 18, 2022?

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

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

RESULT

3The applicant has not proven entitlement to the benefits in dispute.

4This application is dismissed.

ANALYSIS

The applicant is not entitled to an Income Replacement Benefit

The applicant is not entitled to an IRB between January 1, 2022 and June 1, 2023

5I find that the applicant is not entitled to an IRB within 104 weeks of the accident.

6To 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.

7The applicant relies on a psychological report of Dr. Sharleen McDowall, psychologist, to support the entitlement to an IRB. The applicant submits that during this assessment, the applicant stated that due to the physical requirements and long hours of walking and standing required for his job, he is unable to return to work.

8The applicant has provided no further evidence to support the fact that he is unable to perform the essential tasks of his employment.

9The respondent submits that the clinical notes and records of Dr. Derek Ng, the applicant's family physician do not support the claim that the applicant is unable to perform the essential tasks of his employment.

10The respondent further submits a physiatry assessment conducted by Dr. Melody Nguyen on April 27, 2022 and a psychology assessment conducted by Dr. Shulamit Mor on May 5, 2022 show that the applicant is able to perform the essential tasks of his employment.

11I give the applicant's comments made to Dr. McDowall limited weight as they are self-reported statements made by the applicant and not medical diagnosis or opinion. Dr. McDowall did not conclude that the applicant is unable to perform the essential tasks of his employment. Her only recommendation was that the applicant partake in cognitive behavioural therapy.

12The clinical notes and records of Dr. Ng show the applicant saw Dr. Ng on June 9, 2021. Dr. Ng advised the applicant to monitor symptoms at this time and see a physiotherapist. Dr. Ng did not discuss the applicant's ability to work.

13There is evidence the applicant saw Dr. Ng six more times between this initial visit and September 14, 2022. These subsequent visits were all unrelated to the accident. Injuries from the accident were not discussed with Dr. Ng beyond the initial visit.

14Dr. Mor diagnosed the applicant with Mild Adjustment Disorder with Specific (driving) phobia. However, Dr. Mor concluded, that from a psychological perspective, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a manager of a restaurant.

15Dr. Nguyen found that the applicant sustained soft tissue sprain and strain injuries and does not suffer a substantial inability to perform the tasks of his employment.

16The medical evidence presented demonstrates that, while the applicant did sustain injuries in the accident, these injuries did not impact his ability to perform the essential tasks of his employment.

17Therefore, I find that the applicant has not met the burden of proof to show entitlement to an IRB in the first 104 weeks post-accident.

The applicant is not entitled to an IRB from June 2, 2023 to date and ongoing

18I find that the applicant is not entitled to an IRB post-104 weeks after the accident.

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.

20As I have found above that the applicant has not demonstrated a substantial inability to perform the tasks of his employment, and no new evidence has been presented for the period beginning 104 weeks post-accident, I find that the applicant also does not suffer a complete inability to engage in any employment for which he is reasonably suited.

21I find that the applicant is not entitled to an IRB for the period beginning 104 weeks post-accident and ongoing.

The applicant is not entitled to rehabilitation benefits

22I find that the applicant is not entitled to the rehabilitation benefits in dispute.

23To 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.

24The applicant submits that the treatment plans in dispute are reasonable and necessary as evidenced by the clinical notes and records of Dr. Ng. On June 9, 2021 Dr. Ng advised the applicant to see a physiotherapist. The applicant further submits that his ongoing pain was reported to Dr. McDowall during her assessment.

25The respondent submits that Dr. Ng's recommendation for physiotherapy immediately after the accident cannot be used to justify continued rehabilitation indefinitely. The respondent further submits that the applicant had received $2,200.00 of physiotherapy treatment under an OCF-23 submitted on June 9, 2021.

26The respondent further submits that Dr. Nguyen found that the applicant's soft tissue injuries had healed and that his back pain would continue to improve if he followed a self-directed exercise regimen.

27I agree with the position of the respondent. Dr. N's recommendation that the applicant seek rehabilitative care from a physiotherapist in the days following the accident does not, in and of itself, meet the applicant's burden.

28The contemporaneous notes of Dr. Ng corroborate Dr. Nguyen's findings. Despite interacting with Dr. Ng on November 24, 2021, December 19, 2021, March 30, 2022 and September 14, 2022, there were no further documented instances of the applicant reporting accident-related injuries or impairments following the initial visit of June 9, 2021.

29I give limited weight to the applicant's self-reporting of pain to Dr. McDowall during his psychological assessment for two reasons. Firstly, there is no medical diagnosis or finding contained within Dr. McDowall's report that would support a treatment plan for physical therapy. Secondly, the applicant's report of pain is not corroborated with the contemporaneous clinical notes and records of Dr. Ng.

30As the medical evidence adduced does not recommend or support continued intervention, the applicant has not met his burden.

31I find that the applicant has not proven, on the balance of probabilities, that the disputed treatment plans are reasonable or necessary.

Interest

32As no benefits are owing, no interest is payable.

Award

33As no benefits have been withheld, there is no basis for which to consider an award under s.10 of O.Reg 664.

ORDER

34For the reasons above I find that the applicant:

i. Is not entitled to an income replacement benefit;

ii. Is not entitled to chiropractic treatment or physiotherapy;

iii. Is not entitled to interest; and

iv. Is not entitled to an award under s.10 of O.Reg 664.

35This application is dismissed.