Citation: Zhang v. Aviva General Insurance, 2024 ONLAT 22-011299/AABS

Licence Appeal Tribunal File Number: 22-011299/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:

Xiang Zhang

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Yu Denise Jiang, Paralegal

For the Respondent: Jessica Bacopulos, Counsel

HEARD: In Writing

OVERVIEW

1Xiang Zhang, the applicant, was involved in an automobile accident on November 14, 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, Aviva General 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?

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 20, 2022, to ongoing?

iii. Is the applicant entitled to $270.00 ($1,300.00 less $1,030.00 approved) for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18 (“plan”) dated January 19, 2022?

iv. Is the applicant entitled to $4,069.56 for physiotherapy services, proposed by Total Recovery Rehab Centre in a plan dated February 24, 2022?

v. Is the applicant entitled to $70.00 for the cost of a doctor’s visit, submitted on a claim form/OCF-6 dated December 20, 2021?

vi. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic in a plan dated January 26, 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 has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to an IRB in the amount of $400.00 per week from March 20, 2022, to ongoing.

5The applicant is not entitled to the treatment and assessment plans dated January 19, 2022, February 24, 2022, and January 26, 2022.

6The applicant is not entitled to $70.00 for the cost of a doctor’s visit.

7The applicant is not entitled to interest or an award.

ANALYSIS

MIG

8Section 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.”

9An 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 injury or 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 or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that he should be removed from the MIG on the basis that he suffers from a psychological injury and chronic pain as a result of the accident.

11For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.

Psychological Injuries

12I find that the applicant has not established that he suffers from a psychological injury as a result of the accident that would warrant removal from the MIG.

13The applicant submits that psychologist Dr. Sharleen McDowall noted in her psychological pre-screen dated November 24, 2021, that the applicant had pre-existing psychological difficulties that had been exacerbated by the accident. Dr. McDowall also noted that the applicant was complaining of nightmares almost every night, driving avoidance, and irritability resulting from the accident. The applicant also relies on the clinical notes and records of walk-in clinic physician, Dr. Heung Wing Li, dated November 20, 2021, to corroborate the applicant’s complaints of poor sleep and driving phobia for which he was prescribed medication for what was listed as post-traumatic stress disorder at the time.

14The respondent submits that the only evidence the applicant has provided to support his claim is the pre-screen psychological report from Dr. McDowall. The respondent argues that Dr. McDowall’s report did not employ any psychometric testing with validity checks and did not provide a diagnosis based on objective measures. The respondent submits that little, if any, weight should be placed on Dr. McDowall’s pre-screen. The respondent relies on the psychological assessment report of Dr. Fabio Salerno dated March 3, 2022, which found that there was insufficient objective evidence to support a psychological impairment as a result of the accident.

15I find that the evidence before me does not support the applicant’s position. I agree that the clinical notes and records of Dr. Li are limited to a single visit on November 20, 2021. While I accept that the applicant does not have a regular family physician, there is no indication that there has been any medical or psychological follow-up since that time.

16On November 20, 2021, Dr. Li indicated that the applicant had not driven since he was involved in an accident two years earlier. While Dr. Li noted that the applicant reported waking up easily and had nightmares and phobia within a car, he also noted that the applicant had no cognitive problems, and that he had normal mental competence. Dr. Li recommended that the applicant go out and socialize, and that he participates in stress management treatment. However, I find that there is no indication in the note as to whether or not Dr. Li’s recommendation was related to psychological injuries sustained as a result of the subject accident or the applicant’s previous 2019 accident.

17I prefer Dr. Salerno’s psychological assessment report over Dr. McDowall’s pre-screen findings. Dr. Salerno confirmed that the applicant’s hesitancy to drive was as a result of his 2019 accident and that this persisted at the time of the subject 2021 accident. The applicant also reported to Dr. Salerno that he had not driven since the 2019 accident. Most importantly, Dr. Salerno incorporated validity testing which called into question the accuracy of the applicant’s subjective report of symptoms and his endorsements on the remining psychometric tests with respect to over-reporting and negative response bias. Dr. McDowall did not incorporate any validity or objective testing measures as part of her pre-screen, and her recommendations were based entirely on the applicant’s own self-reporting. As a psychologist, I have also put greater weight on Dr. Salerno’s findings compared to Dr. Li’s single walk-in clinic office note a few days after the accident indicating post-traumatic stress disorder.

18I accept that the applicant likely has some accident-related psychological symptoms, but I am not satisfied, on a balance of probabilities that he sustained a psychological injury as a direct result of the accident that would warrant removal from the MIG.

Chronic Pain

19I find that the applicant has not demonstrated that he suffers from a chronic pain condition that warrants removal from the MIG.

20An insured may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to simply have chronic pain – it must be accompanied by functional impairment.

21The applicant relies on the clinical notes and records of Dr. Li to corroborate his consistent report of neck, shoulder, and low back pain that is aggravated by standing and flexion.

22The respondent submits that contrary to the applicant’s submissions, the records provided by the applicant do not support that he has any chronic pain.

23The applicant relies on a single clinical note from Dr. Li dated November 20, 2021, just a few days after the accident. In that clinical note, Dr. Li diagnosed the applicant with a neck and back sprain/strain but there has been no follow-up with Dr. Li since that time. The applicant has not provided any other records from a treating medical practitioner since November 20, 2021, that would support a consistent report of ongoing pain or chronic pain with functional impairment, as submitted by the applicant. Again, the burden of proof lies with the applicant.

24I find that the applicant has not demonstrated that on a balance of probabilities that he suffers from chronic pain with functional impairment that would warrant his removal from the MIG. As a result, I find that the applicant’s predominantly minor injuries are correctly captured within the MIG.

25The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. According to the CCRO dated June 13, 2023, the parties agreed that the MIG limits have been exhausted.

26The treatment plans in dispute propose goods and services that fall outside the MIG. As a result, I find that the applicant is not entitled to the treatment and assessment plans in dispute dated January 19, 2022, February 24, 2022, and January 26, 2022. The applicant is only entitled to treatment up to the MIG limits.

Claim Form Expense

27I find that the applicant is not entitled to $70.00 for a visit with Dr. Li that was submitted on an expense form dated December 20, 2021.

28The applicant did not provide any evidence or submissions regarding this issue. The applicant only referred to medication that was reasonable and necessary, but that is not what is in dispute on the claim form.

29The respondent submits that at the time of the accident the applicant was an international student enrolled in his final year of study at an Ontario college. As part of the applicant’s valid study permit, the respondent argues that it is mandatory for international students registered in an active degree program to be enrolled in the University Health Insurance Plan. This plan covers physician fees, emergencies, and provides some coverage to students for hospital visits.

30In the absence of any responsive submissions or evidence from the applicant to support how the expense for the visit with Dr. Li is reasonable and necessary, I find that the applicant has not met his onus. For that reason, I am not satisfied on a balance of probabilities that the applicant is entitled to the doctor’s visit expense as claimed.

Income Replacement Benefits

31I find on a balance of probabilities that the applicant is not entitled to an IRB in the amount of $400.00 from March 20, 2022, and ongoing.

32To 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.

33To 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.

34The applicant submits that prior to the accident he was working in a physically demanding part-time role at a furniture warehouse that required prolonged hours of standing, concentration, and focus. The applicant submits that he has been unable to maintain steady employment since the accident due to a combination of ongoing pain and psychological impairments, as well as the fact that he has not completed any higher-level education that would enable him to do sedentary work. Again, the applicant was attending college full-time and in his final year of study at the time of the accident.

35The respondent relies on the orthopaedic assessment report of Dr. Jacqueline Auguste dated March 8, 2022. Dr. Auguste diagnosed the applicant with minor cervical and lumbar sprains/strains as a result of the accident, with no neurological impairment. Dr. Auguste also noted that the applicant continued to perform his usual housekeeping and home maintenance activities, there were no reported changes in his social activities since before the accident, and the applicant had not attempted to return to any type of work since the accident. The respondent submits that Dr. Auguste concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his work as a part-time furniture warehouse labourer and delivery worker.

36The respondent also relies on the psychological report of Dr. Salerno, dated March 8, 2022. Dr. Salerno found that from a psychological perspective, there was insufficient objective evidence of accident-related psychological symptoms that would prevent the applicant from performing his pre-accident employment tasks.

37Though the applicant submits that his physical and psychological injuries have prevented him from maintaining any steady employment since the accident, the applicant has presented limited objective evidence to support his claim. Apart from a disability certificate dated November 24, 2021, that was completed by the applicant’s chiropractor Dr. Georgia Palantzas, he has not provided opinions from any other health practitioner that would support his continued entitlement to IRBs past the stoppage date of March 20, 2022. This is in relation to the applicant’s ability to perform the essential tasks of his pre-accident employment, or any employment or self-employment for which he would be reasonably suited by education, training, or experience.

38I am persuaded by Dr. Salerno and Dr. Auguste’s corroborating conclusions that from both psychological and physical perspectives, the applicant does not suffer a substantial inability to perform the essential tasks of employment as a warehouse labourer and delivery worker. I have also given weight to the applicant’s self-report to Dr. Salerno that he has not resumed his full-time studies since the accident as a result of his injuries or impaired function, but rather because of issues renewing his study permit. According to Dr. Salerno, the applicant reported that if the applicant’s study permit was renewed, he would readily resume his full-time college studies.

39For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to an IRB in the amount of $400.00 per week after March 20, 2022.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

Award

41The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

42Having determined that no benefits are payable, it follows that no benefits were unreasonably withheld or delayed and the applicant is not entitled to an award as a result.

ORDER

43The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.

44The applicant is not entitled to an IRB in the amount of $400.00 per week from March 20, 2022 to ongoing.

45The applicant is not entitled to the treatment and assessment plans dated January 19, 2022, February 24, 2022, and January 26, 2022.

46The applicant is not entitled to $70.00 for the cost of a doctor’s visit.

47The applicant is not entitled to interest or an award.