Licence Appeal Tribunal File Number: 22-013828/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:
Zheng Yu Fang
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Ryan Olson, Paralegal
For the Respondent: Oliver Gorman-Asal, Counsel
HEARD: By way of written submissions
OVERVIEW
1Zheng Yu Fang (the “applicant”) was involved in an automobile accident on February 18, 2022, 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 Allstate Insurance (the “respondent”) and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
[2] The issues in dispute are: i. Are the applicant’s injuries predominantly minor as defined in section 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 May 28, 2022 to present and ongoing? iii. Is the applicant entitled to physiotherapy services in the amount of $3,749.56, proposed by Uheal Rehab Centre in a treatment plan (“OCF-18”) submitted on August 29, 2022? iv. Is the applicant entitled to medication expenses in the amount of $11.72, submitted on a claim form (“OCF-6”) dated June 22, 2022? v. Is the applicant entitled to assistive device expenses in the amount of $683.00, submitted on an OCF-6 dated November 22, 2022? vi. Is the applicant entitled to a psychological assessment in the amount of $2,200.00, proposed by Somatic Assessments and Treatment Clinic in an OCF-18 submitted on May 4, 2022? vii. Is the applicant entitled to medication expenses in the amount of $11.72, submitted on an OCF-6 dated December 20, 2022? viii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant? ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to any of the disputed OCF-18s or OCF-6s. The applicant is not entitled to an IRB and no interest is payable. The respondent is not liable to pay an award.
ANALYSIS
Applicability of the MIG
4I find the applicant has not demonstrated he should be removed 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.”
6The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.
7For this matter, the applicant submits he should be removed from the MIG because of psychological impairment.
8The applicant submits he suffers from accident-related psychological injuries (i.e., insomnia, driving avoidance, diminished cognitive functioning, fatigue, accident-related flashbacks, and feelings of anxiety and depression) that he reported to multiple health practitioners. The applicant asserts that the section 44 Insurer’s Examination (“IE”) completed by Dr. Shulamit Mor (psychologist) should not bear any weight because Dr. Mor’s conclusions are at odds with the testing results and interview data obtained during Dr. Mor’s assessment. The applicant relies on the clinical notes and records of Dr. Kaiyan Su (family physician), and an OCF-18 completed by Dr. Sharleen McDowall (psychologist) on May 4, 2022.
9The respondent submits that the applicant’s MIG submissions are unsupported by evidence, and specifically with respect to whether the applicant was actually assessed by Dr. McDowall and whether Dr. McDowall is qualified to offer medical opinions on sleep conditions. The respondent also argues that Dr. Su’s records report only mild anxiety in June 2022 and specifically note no further anxiety or depression after that. The respondent contends that the records of the sleep clinic attended by the applicant make no mention of the accident and that the applicant has not led evidence to establish his diagnosed sleep condition (i.e., sleep apnea) is caused by the accident. The respondent relies on the IE reports of Drs. Mor and Christopher Boulias (physiatrist).
10The applicant’s account of his insomnia is inconsistent and I did not place full weight on this evidence. I accept the applicant complained of insomnia starting nearly four months after the accident to Dr. Su on June 2, 2022, and that he was prescribed Zopiclone to address this condition that same day, with refills prescribed on September 29, 2022, and December 1, 2022. However, I am not persuaded that the applicant’s insomnia occurred “directly following the subject accident” as he submits. The applicant points to the June 2022 entry in Dr. Su’s notes that says the applicant reported he “had a MVC in Feb 2022 then has insomnia.” In fact, the applicant denied experiencing insomnia during his first documented post-accident consultation with Dr. Su on February 28, 2022. Rather, he complained of snoring and daytime sleepiness. As referenced in the respondent’s submissions, Dr. Su referred the applicant to the Malvern Sleep Clinic to query sleep apnea. The subsequent sleep study report completed by Dr. Anushya Chelvanathan (respirologist) on April 8, 2022, indicates the applicant told Dr. Chelvanathan he took about five minutes to fall asleep at bedtime and averaged seven to eight hours of sleep per night. In my view, this evidence establishes that the applicant’s insomnia did not start until roughly four months after the accident. The applicant’s claim of insomnia as an accident-related psychological impairment is further diminished by Dr. Su’s opinion—as documented in his entries of June 2022, September 2022, and December 2022—that the applicant’s sleep difficulties were associated with sleep hygiene as opposed to psychological factors arising from the accident.
11The psychological symptomology documented in the OCF-18 by Dr. McDowall on May 4, 2022, is not supported by the entries in Dr. Su’s clinical notes and records. Dr. McDowall indicates the applicant complained of being emotionally distressed and was reportedly struggling with fear, anxiety, frustration, irritation, and fatigue. At Part 6 of the OCF-18 where accident-related injuries are documented, Dr. McDowall lists phobia, nightmares, nonorganic sleep disorders, irritability, and anger. But there is no mention of psychological symptomology in Dr. Su’s February 2022 entry (i.e., the only documented visit prior to Dr. McDowall’s consultation). Further, the notes entered by Dr. Su a month after Dr. McDowall completed the OCF-18 say the applicant reported only mild anxiety. Dr. Su’s subsequent clinical record entries in September and December of 2022 indicate the applicant had no depression or anxiety. The applicant’s claim is further hindered because he does not direct me to a referral made by Dr. Su to Dr. McDowall for psychological treatment or assessment, and I was not pointed to any complaints of phobia, nightmares, irritability, or anger voiced to Dr. Su by the applicant since the accident.
12Taken together on a balance of probabilities, I find this evidence does not support the applicant’s claim that he suffered an accident-related psychological impairment. I therefore decline to remove him from the MIG on this basis.
The applicant’s entitlement to an IRB
13I find the applicant has not demonstrated entitlement to an IRB.
Within 104 weeks after the accident (up to February 18, 2024)
14To receive payment for an IRB under section 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 his employment, which tasks he is unable to perform and to what extent he is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
15The applicant submits he was working full-time as a store manager at the time of the accident. He says he stopped working immediately after the accident, and attributes this to driving anxiety, lack of motivation, and pain symptoms. The applicant says he sustained accident-related physical injuries to his chest, neck, and shoulders that render him unable to complete his employment tasks owing to decreased tolerances in sitting, standing, walking, lifting, and carrying as well as headaches that limit most activities. The applicant asserts that the IE completed by Dr. Mor should not be given any weight because he misinterpreted the applicant’s reasons for not returning to work and did not consult any of Dr. Su’s records. The applicant’s submissions indicate he relies on the disability certificate (“OCF-3”) and OCF-18 completed by Dr. Richard Tavares (chiropractor) on February 24, 2022, and August 29, 2022, respectively.
16The respondent submits that the applicant failed to establish entitlement to an IRB because he led no evidence about his impairments, limitations, or how they affect his ability to perform his pre-accident job. The respondent maintains that Dr. Su’s records confirm the applicant had no anxiety or depression and make no mention of an inability to work or accident-related injuries. The respondent relies on the IE reports of Drs. Mor and Boulias, as well as the clinical notes and records of Dr. Su.
17I find that the applicant failed to substantiate his essential employment tasks with evidence, which hampered his case. His submissions indicate these tasks included accounting, seating customers, and handling inventory. He says these tasks often involved prolonged sitting, standing, and walking in a “fast-paced” working environment. However, submissions are not evidence, and the applicant did not point to an employer’s confirmation form (“OCF-2”), a job description for his position, or other such documents to provide evidence of these work tasks.
18Similarly, the applicant directed me to little evidence of disability that supports his IRB claim outside of the OCF-3 and OCF-18 he referenced in his submissions. I find this is insufficient to meet the applicant’s onus. The OCF-18 was not, in fact, completed by Dr. Tavares as submitted by the applicant. It was completed by Afifi Ahmed (physiotherapist) and I was not pointed to evidence that substantiated Dr. Tavares had a role in preparing or supervising the preparation of the OCF-18. While I agree that Part 6 of the OCF-3 indicates the applicant is substantially unable to complete his essential employment tasks, there is no indication as to how Dr. Tavares arrived at this opinion because he offers no explanation as to what the applicant’s essential work tasks are, or how his injuries impair the execution of those tasks. Similarly, Mr. Ahmed’s opinion is not persuasive because he does not differentiate limitations in employment tasks from activities of normal life at Part 8(b) of the OCF-18, offering only that the applicant is unable to work as a store manager.
19I further diminished the weight of Dr. Tavares’ and Mr. Ahmed’s opinions because the applicant’s submissions do not point to corroborating medical evidence in the records of Dr. Su, or otherwise. The submissions make no mention of physical injuries or complaints to Dr. Su after the accident, nor do they direct me to an opinion voiced by Dr. Su on the applicant’s ability to perform his essential work tasks.
20For completeness, in terms of the applicant’s ability to perform his essential work tasks from a psychological perspective, Dr. McDowall’s OCF-18 indicates she does not know if the injuries she documents at Part 6 affect the applicant’s ability to carry out his employment tasks. Further, the treatment goals specified at Part 9 do not include returning the applicant to his pre-accident work activities. In my view, this does not support the applicant’s IRB claim.
After the first 104 weeks that followed the accident (from February 19, 2024, and onwards)
21To receive payment for a post 104-week IRB under section 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
22The applicant’s submissions do not differentiate his evidence on the basis of the post 104-week period, although he argues that the summation of his injuries rendered him “unable to competitively engage in pre-accident employment for which he is suited by education, training, or experience.” The respondent submits the applicant has not led evidence on the post 104-week period test, explaining that the applicant failed to substantiate his education, training, and experience in particular.
23I am not persuaded that the applicant has shown he meets the post 104-week IRB test. The applicant did not point to a medical opinion in evidence that supported a complete inability to work per section 6(2)(b) of the Schedule.
24It follows too that if the applicant’s evidence pertaining to his injuries and limitations falls short of proving a substantial inability to perform his job duties, that this same evidence is also insufficient to prove a complete inability to work in any employment or self-employment for which he is reasonably suited by education, training, or experience, which is a higher bar to meet. Accordingly, I find no basis to conclude the applicant has met his evidentiary onus per section 6(2)(b) of the Schedule to prove he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
The disputed OCF-18s and OCF-6s
25The case conference report and order (“CCRO”) for this matter indicates that the parties agreed to identify any amounts remaining under the MIG limit in their written submissions. While the parties failed to do this, both their submissions attribute the denial of the disputed treatment plans and expenses to the MIG. I therefore conclude, on balance, that the MIG is exhausted. This being the case, and owing to the applicant’s failure to persuade me he should be removed from the MIG, I find it unnecessary to consider the reasonableness and necessity of the OCF-18s and OCF-6s in dispute.
Interest
26Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Interest does not apply in this case because there are no overdue benefits.
Award
[27] The applicant seeks 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. In this case, the applicant argues that: i. The respondent ignored the medical records of the applicant’s treating practitioners and assessors; ii. The applicant is vulnerable and sustained serious injuries as a result of the accident; iii. The Tribunal needs to set precedents to ensure deterrence to insurers; and iv. The respondent acted in a highhanded manner.
28The respondent submits that the applicant’s arguments are vague and do not identify any specific issues with its handling of the claim. The respondent adds that the applicant failed to point to supporting evidence and does not explain what medical records were ignored or what behaviour constitutes high-handedness (i.e., excessive, imprudent, stubborn, inflexible, unyielding, or immoderate).
29I agree with the respondent. The applicant’s submissions do not point to evidence of ignoring medical records or provide examples of “high-handed” behaviour that reaches the threshold of an award. I am persuaded that the remaining two factors advanced by the applicant have little bearing on whether the respondent unreasonably withheld or delayed the payment of benefits.
ORDER
30The applicant remains in the MIG and is not entitled to any of the disputed OCF-18s or OCF-6s. The applicant is not entitled to an IRB and no interest is payable. The respondent is not liable to pay an award.
Released: December 16, 2024
__________________________
Michael Beauchesne Adjudicator