Anne Francis Lu v. Economical Insurance, 2024 CanLII 108208

Licence Appeal Tribunal

Citation: Lu v. Economical Insurance, 2024 ONLAT 22-008735/AABS

Licence Appeal Tribunal File Number: 22-008735/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:

Anne Francis Lu

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Pamela Vlasic, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Anne Francis Lu, the applicant, was involved in an automobile accident on September 30, 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, Economical Insurance, 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. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to an income replacement benefits ("IRB") in the amount of $400.00 per week from October 8, 2021 to date?

iii. Is the applicant entitled to $4,229.56 for physiotherapy services from Total Recovery Rehab Centre proposed by Ahmed Afifi, physiotherapist, in a treatment plan (OCF-18) dated January 20, 2022?

iv. Is the applicant entitled to $3,981.88 for psychological services from Somatic Assessments & Treatment Clinic proposed by Dr. Sharleen McDowall, psychologist, in a treatment plan (OCF-18) dated January 13, 2022?

i. 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 demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, it is not necessary to consider whether the treatment plans for physiotherapy services and psychological services are reasonable and necessary and, therefore, no interest is payable.

4The applicant is not entitled to an income replacement benefit.

ANALYSIS

The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s.18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that she should be removed from the MIG based on her accident-related psychological impairments.

8To this end, the applicant relies on her Disability Certificate (OCF-3) dated October 5, 2021 completed by Ahmed Afifi, physiotherapist, the report of Dr. Sharleen McDowall, psychologist and various clinical notes of family physician, Dr. Kris Cheng. The applicant relies on her OCF-3, which indicates she sustained accident-related injuries of headache, dizziness and giddiness, disturbance of activity and attention, slowness and poor responsiveness, whiplash, pain in thoracic spine, sprain and strain of the thoracic spine, radiculopathy, sleep disorder, malaise and fatigue, nervousness, anxious [avoidant ] personality disorder, state of emotional shock and stress, unhappiness, cramp and spasm, dislocation, and sprain and strain of the joints and ligaments of the shoulder girdle.

9The applicant relies on Dr. McDowall's psychological report dated December 17, 2021, in finding the applicant has emotional problems and avoidance behaviour after the accident. Dr. McDowall points out that the applicant did not return to delivering food on her bicycle after the accident. Dr. McDowall further indicates the applicant avoids driving. Although, Dr. McDowall diagnosed the applicant with major depressive disorder and specific phobia, there are no complaints to Dr. Cheng of an accident-related psychological condition.

10In response, the respondent submits that the applicant's injuries are soft tissue injuries and fall within the definition of minor injury under the Schedule. The respondent relies on the clinical notes and records of Dr. Cheng and Michael Garron Hospital records.

11The respondent submits that Dr. McDowall did not review any medical documents in preparing her report. The respondent submits that the applicant did not report any psychological symptoms to her treating physician, Dr. Cheng. The respondent further submits that the applicant attended Michael Garron Hospital after the accident on April 14, 2022 for an unrelated overdose and she did not report any psychological conditions or interest in counseling at that time.

12I agree with the respondent that there is no indication that Dr. McDowall reviewed any documentation as part of her report and that she relied heavily on the applicant's self-reports. The assessment was also conducted virtually by Mandy Fang, psychotherapist. As such, Dr. McDowall made a diagnosis of major depressive disorder and specific phobia without the benefit of interviewing the applicant directly or reviewing any documentation.

13Overall, I find that the applicant has not met her onus of establishing on a balance of probabilities that she sustained accident-related injuries that warrant removal from the MIG.

The applicant is not entitled to the disputed treatment plans

14Since I have found that the applicant's accident-related injuries do not remove her from the MIG and the parties agree that the MIG limit of $3,500.00 has been exhausted, it is not necessary for me to consider whether the plans are reasonable and necessary. The applicant is not entitled to the disputed treatment plans.

The applicant is not entitled to an income replacement benefit

15The applicant seeks an IRB for the period of October 8, 2021 to date and ongoing which covers both the period of 104-weeks after the accident and post-104 weeks after the accident.

a) Pre-104 Week IRB

16To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-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 asks 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.

17The applicant submits that she was employed as a food deliverer on the date of the accident, but she did not submit any income documentation. The applicant further submits she was unable to return to work as a food deliverer after the accident because she was required to use a bicycle as an essential task of her pre-accident employment.

18The respondent submits that the applicant was self-employed as a delivery person before and after the accident. The applicant completed an Application for Accident Benefits (OCF-1) dated October 1, 2021 and an Employer's Confirmation of Income form (OCF-2) dated October 14, 2021 indicating she was self-employed at the time of the accident. Further, the respondent submits that the evidence is contradictory regarding the date the applicant returned to work after the accident. Although the applicant submits that she has not returned to work, it is the respondent's position that her tax records from Food on Delivery show post accident income. The respondent further submits the applicant has not provided sufficient income documentation of her self-employment before or after the accident.

19The applicant has not produced any evidence that she was receiving an income based on employment as a food deliverer at the time of the accident or whether she suffered a substantial inability to perform the essential tasks of her employment as a food deliverer within 104 weeks after the accident. The applicant makes no submissions regarding the name of her employer or the duties of her pre-accident employment other than use of a bicycle.

20I find that the applicant has not met her burden of proving on a balance of probabilities that she was earning an income as a food deliverer before the accident. As a result, the applicant has not established her entitlement to an IRB based on her pre-accident employment as a food deliverer. Therefore, there is no calculation of an IRB based on the applicant's employment as a food deliverer.

21In addition, the applicant has made no submissions regarding her employment as a food deliverer, other than she used her bicycle. The applicant has not produced any medical evidence that she was unable to use her bicycle as a result of the accident. As a result, I find the applicant has not met her burden of establishing entitlement to an IRB based on her employment as a food deliverer.

b) Post-104 weeks after the accident

22The test for entitlement to post-104-week IRB changes. To 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.

23I find that that since the applicant has not met her burden of establishing entitlement to an IRB to 104 weeks, there is no need to address her entitlement to a post-104-week IRB.

c) Quantum of IRB

24Although the applicant submits that she is entitled to an IRB in the amount of $400.00 per week from October 8, 2021 to date, she has made no submissions in support of a calculation of an IRB.

25The respondent submits that the applicant has not produced sufficient employment documentation to calculate an IRB. The tax information produced from 9595228 Canda Inc (Food on Delivery) suggests the applicant continued to work after the accident.

26I find that the applicant has not provided evidence of income documentation from her employment as a food deliverer. As the applicant did not meet the test for an IRB, there is no need to calculate the quantum of an IRB and there is insufficient documentation to make a calculation.

The applicant is not entitled to interest and an award

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

28Under s.10 of Reg.664, 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.

29Since there are no benefits owing, there is no interest or an award payable to the applicant.

ORDER

30For the reasons set out above, I find that:

i. The applicant has failed to demonstrate that removal from the MIG is warranted. As the MIG limits have been exhausted, it is not necessary to consider whether the disputed treatment plans are reasonable and necessary;

ii. The applicant is not entitled to an income replacement benefit, interest, or an award, and;

iii. The application is dismissed.