Jiang v. Certas Home and Auto Insurance, 2024 CanLII 70362

Citation: Jiang v. Certas Home and Auto Insurance, 2024 ONLAT 22-003601/AABS

Licence Appeal Tribunal File Number: 22-003601/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:

Jie Hao Jiang

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Anil Hampole, Counsel

For the Respondent: Adam Fox, Counsel

HEARD: By way of written submissions

OVERVIEW

1Jie Hao Jiang, the applicant, was involved in an automobile accident on March 15, 2019, 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, Certas Home and Auto Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute as listed in the Case Conference Report and Order dated February 21, 2023 (“CCRO”) are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 18, 2020 to March 13, 2021?

ii. Is the applicant entitled to a medical benefit in the amount of $3,157.52 for chiropractic treatment, proposed by Point Grey Physio in a treatment plan (“OCF-18”) submitted on May 28, 2020?

iii. Is the applicant entitled to a medical benefit in the amount of $4,490.80 for chiropractic treatment, proposed by Uheal Rehab Centre in an OCF-18 submitted on February 17, 2022?

iv. Is the applicant entitled to a medical benefit in the amount of $3,701.88 for psychological treatment, proposed by Somatic Assessment and Treatment Centre in an OCF-18 submitted on February 16, 2022?

v. Is the applicant entitled to a medical benefit in the amount of $97.82 for prescription expenses, submitted on a claim form (OCF-6) dated June 17, 2019?

vi. Is the applicant entitled to assessments in the amount of $14,750.81 for CAT Assessments, proposed by Somatic Assessment and Treatment Centre in an OCF-18 submitted on April 1, 2022?

vii. Is the applicant entitled to a medical benefit in the amount of $1,604.48 for visitor expenses, submitted on a claim form (OCF-6) dated June 28, 2022?

viii. Is the applicant entitled to a medical benefit in the amount of $296.78 for prescription expenses, submitted on a claim form (OCF-6) dated December 13, 2022?

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

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

RESULT

3I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to the OCF-18s in dispute, or interest;

iii. The applicant is not entitled to the expenses listed in the OCF-6 forms; and

iv. The respondent is not liable to pay an award.

ANALYSIS

Non-earner benefit (“NEB”)

4I find that the applicant has not established entitlement to NEBs.

5Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

6The applicant is only requesting payment of NEBs from September 18, 2020 to March 13, 2021. In its submissions the respondent confirmed that while NEBs were initially paid post-accident, they were suspended on September 18, 2020 as a result of the applicant’s non-attendance at an insurer’s examination (“IE”). Although it unclear from the submissions whether the applicant subsequently attended the IE, the respondent is not requesting that the applicant be barred from proceeding with the issue of NEBs pursuant to s. 55 of the Schedule. Rather, the respondent argues that the applicant has not met his onus to prove an entitlement to NEBs after September 18, 2020.

7The applicant argues that he was unable return to any activities of normal living after the accident due to his ongoing pain and diagnoses of Major Depressive Disorder, PTSD and Somatic Symtom Disorder. The applicant relies on a s. 25 psychological assessment report of Dr. Pojhan dated October 5, 2019 and the clinical notes and records (“CNRs”) of his family physicians Dr. Heung-Wing Li and Dr. Nancy Lin to establish his psychological impairments and ongoing pain.

8I find that the applicant has not led sufficient evidence of a complete inability to carry on a normal life during the period in dispute.

9The applicant has provided limited submissions on his substantive entitlement to NEBs. He has not provided any details of his pre-accident activities or demonstrated how his participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to him, how he is prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities, as required by Heath and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, it is difficult to compare the applicant’s pre and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

10Further, the bulk of the evidence referenced by the applicant in support of his claim for NEBs stemmed from 2019, the period that the applicant was already receiving the specified benefit. However, I note the respondent’s submissions that in July 2020 the applicant travelled to China and did not return until December 2021, approximately 18-months later. No evidence has been provided by the applicant, other than one untranslated letter, as to any medical treatment sought or reported impairments during this period either physical or psychological.

11As such, I agree with the respondent that the applicant has not led any contemporaneous medical evidence to establish that his accident-related impairments continuously prevented him from engaging in substantially all of his pre-accident activities during the period in dispute.

12Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

13The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.

The OCF-18s dated May 28, 2020 and February 17, 2022 for chiropractic services are not reasonable and necessary

14The applicant argues that both OCF-18s for chiropractic services are reasonable and necessary to address his ongoing pain and decreased range of motion in his cervical, thoracic, lumbar spine, shoulder and hip. He submits that the proposed treatment is needed for his recovery.

15The respondent contends that the applicant has not met his onus to prove that the proposed treatment is reasonable and necessary. It relies on its s. 44 physiatry assessment report dated April 21, 2022. Dr. Naaman found that the physical examination revealed inconsistencies during the examination and did not find any objective evidence of an impairment. He opined that from a physical standpoint, the applicant did not require any further formal treatment.

16I agree with the respondent that the applicant has not established entitlement to the proposed chiropractic treatment. The applicant reported to his own psychological assessor Dr. Pojhan that despite attending for physiotherapy, chiropractic and massage treatment regularly in the six months post-accident, he had experienced “no improvement in his condition”. Nor has the applicant directed me to any evidence that such treatment was recommended by his family physicians Dr. Heung-Wing Li and Dr. Lin.

17Further, to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment or ongoing pain. Rather, particularly in the case of ongoing, multiple treatment plans, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. The applicant does not direct me to any evidence that such previous treatment has been effective in reducing his pain, increasing his range of motion or strength. Although the applicant stated that he had attended physiotherapy treatment while in China for eighteen months, no records have been provided from such a treating clinic or to establish progress with treatment.

18For the foregoing reasons, I find that the applicant has not led sufficient evidence to establish that the denied treatment is reasonable and necessary.

The applicant has not established that the remaining OCF-18s and OCF-6s are reasonable and necessary

19The CCRO listed as issues in dispute a number of additional OCF-18s and OCF-6s listed at para 2(iv) - (viii) above. The applicant has not provided any submissions on these OCF-18s and OCF-6s, nor are they listed as issues in dispute in his written hearing submissions. The applicant further has not provided copies of these OCF forms as part of his evidence for this written hearing.

20Without any specific submissions, evidence or copies of the applicable OCF forms, I find that the applicant has failed to establish entitlement to same.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

22As no benefits are overdue, no interest is payable under s. 51.

Award

23The 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. The applicant submits that the respondent has unreasonably withheld payment of NEBs and the two chiropractic OCF-18s.

24I find that the applicant has not established a basis for an award. After reviewing the evidence and submissions of the parties I found that the applicant had not established entitlement to any of the issues in dispute. As such, the applicant has not met his burden to prove that any payments have been unreasonably withheld or delayed.

ORDER

25For the foregoing reasons I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to the OCF-18s in dispute, or interest;

iii. The applicant is not entitled to the expenses listed in the OCF-6 forms; and

iv. The respondent is not liable to pay an award.