Chen v. Economical Insurance Company, 2024 CanLII 81190

Citation: Chen v. Economical Insurance Company, 2024 ONLAT 21-010745/AABS

Licence Appeal Tribunal File Number: 21-010745/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:

Jing Min Chen

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Keisha De Coteau-Nedd, Counsel

HEARD: By way of written hearing

OVERVIEW

1Jing Min Chen, the applicant, was involved in an automobile accident on September 29, 2020, 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 Mutual Insurance Company, 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 $4,115.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan submitted on May 13, 2021 and denied on May 26, 2021;

iii. Is the applicant entitled to $225.63 ($1,300.00 less $1,074.37 approved) for chiropractic services, proposed by Point Grey Physio in a treatment plan submitted on December 16, 2020 and denied on December 29, 2020;

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessment and Treatment Clinic in a treatment plan dated November 13, 2020;

v. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 8, 2021 to date and ongoing;

vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant; and

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

RESULT

3The applicant’s accident-related injuries are outside of the MIG as he suffers a psychological impairment.

4The applicant is not entitled to $4,115.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan submitted on May 13, 2021 and denied on May 26, 2021.

5The applicant is entitled to $225.63 ($1,300.00 less $1,074.37 approved) for chiropractic services, proposed by Point Grey Physio in a treatment plan submitted on December 16, 2020 and denied on December 29, 2020.

6The applicant is not entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessment and Treatment Clinic in a treatment plan dated November 13, 2020.

7The applicant is not entitled to an income replacement benefit.

8The applicant is entitled to an award pursuant to Reg. 664 in the amount of $75.00.

9The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.

PROCEDURAL ISSUES

10The respondent states that the applicant was ordered to produce various documents in the Case Conference Report and Order of Adjudicator Rai, dated April 3, 2023, and failed to do so. The respondent submits that, as in Darteh v. Wawanesa Insurance, 2022 CanLII 57400, a negative inference should be drawn against the applicant.

11The Tribunal has the discretion to draw a negative inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control (or is equally available to all parties) and such evidence is material to the dispute. The applicant declined to make any submissions in reply. He has not provided any explanation as to why he failed to comply with the Tribunal’s order. I find that where there are relevant documents missing, I may draw a negative inference from the applicant’s failure to provide them. I will address the relevant documents as they arise in my analysis below.

ANALYSIS

Application of the Minor Injury Guideline

12Section 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.”

13An 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.

14The applicant submits that he suffers from chronic pain and psychological impairments, including depression and anxiety, and should thus be removed from the MIG. The respondent disagrees.

15I find that the applicant has proven on a balance of probabilities that he has a psychological impairment as a result of the accident that warrants his removal from the MIG.

16In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae.

17The applicant’s chiropractor, Dr. Palantzas, submitted an OCF-3 form on October 2, 2020, which indicated that the applicant had disordered sleep and nervousness. The applicant visited a general practitioner, Dr. Heung Wing Li, on October 14, 2020. The applicant reported to Dr. Li that he was driving slower and was experiencing nightmares. In addition to diagnosing physical injuries, Dr. Li diagnosed the applicant with complex PTSD. He recommended psychological support, and prescribed Cymbalta and Zopiclone. Dr. Li referred the applicant for a psychological assessment for PTSD and insomnia.

18A treatment plan for a psychological assessment was prepared on November 13, 2020 by Dr. Sharleen McDowall, psychologist. The treatment plan includes a pre-screening report, which indicates that the applicant suffered from nightmares, racing thoughts, sleep difficulties, headaches, difficulties with concentration and memory, anxiety in a vehicle, and a lack of energy. Dr. McDowall recommended a full psychological assessment battery, including psychometric tests and a thorough clinical interview to determine a diagnosis and treatment needs. She also opined that the applicant’s injuries should not fall under the MIG, given his ongoing pain and psychological impairments.

19The respondent submits that Dr. McDowall’s treatment plan was never submitted to Economical Insurance Company, and therefore the pre-screen report should be “summarily dismissed” pursuant to ss. 38(2) and 38(3) of the Schedule. I do not find that the pre-screen report should be excluded from evidence if the sole reason is that the treatment plan was not properly submitted to the insurer through HCAI. It still forms part of the evidentiary record, as it provides information related to the applicant’s psychological condition at the time it was created. In the section below, however, I will address the application of ss. 38(2) and 38(3) and whether the treatment plan is properly before me as an issue at this hearing.

20Further, the respondent submits that very little weight should be afforded to Dr. McDowall’s pre-screen, as she did not complete any clinical or validity testing, and did not provide any DSM-5 diagnosis (provisional or otherwise). Had Dr. McDowall’s pre-screen report stood alone, I would have been inclined to agree. However, I find that the pre-screen report has corroborative value when viewed alongside Dr. Li’s diagnoses, treatment recommendations, and prescriptions.

21On December 28, 2020, the applicant reported poor mood, sleep difficulties, nightmares, and phobia with driving and crossing the road to Dr. Li, who again recommended psychological support and PTSD management, and prescribed medication for the applicant’s psychological difficulties. On February 26, 2021, the applicant advised Dr. Li that his mood was not good, and his sleep and appetite were decreased.

22The applicant advised Dr. Li on June 25, 2021 that he was under more stress lately, and had decreased sleep. On July 31, 2021, Dr. Li again prescribed medication for insomnia and psychological issues.

23The respondent argues that the applicant did not report any psychological impairments or issues to Dr. Howard Platnick (general practitioner) or Timothy Hartog (kinesiologist), its s. 44 assessors. However, there is no indication that the assessors asked about those impairments and that the respondent reported in the negative. There is no indication in either report that the applicant’s psychological condition was assessed at all. There is no discussion with respect to sleep, anxiety, or PTSD, despite the assessors having reviewed Dr. Li’s clinical notes up to February 26, 2021. Dr. Platnick did not comment on the applicant’s psychological condition, but no explanation was provided as to why. I do not find that any conclusions can be drawn about the applicant’s psychological condition based on what the s. 44 assessors chose not to assess, especially given the information in the medical records they had at their disposal.

24The applicant’s family physician provided a diagnosis of PTSD, prescribed medication for his psychological conditions, referred him for a psychological assessment, and recommended psychological support. Around the same time, Dr. McDowall’s pre-screen report also indicates that the applicant was experiencing psychological difficulties that warranted exploration. I find that on a balance of probabilities, the applicant sustained a psychological impairment that warrants his removal from the MIG.

$4,115.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan submitted on May 13, 2021 and denied on May 26, 2021

25I find that this treatment plan is not payable.

26To 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.

27This treatment plan was submitted on May 13, 2021, by Ahmed Afifi, physiotherapist, at Total Recovery Rehab Centre. Mr. Afifi indicated that the applicant still had significant limitations due to decreased range of motion, weakness, and pain. The goals of the treatment were pain reduction, increased range of motion, increase in strength, return to activities of normal living, and return to modified work activities.

28The applicant submits, generally, that the respondent denied the applicant’s benefits based on “uncertain conclusions” provided by its assessors, and did not provide the applicant with “medical and all of the other reasons” why they refused to pay for the proposed treatment, as required by s. 38(8) of the Schedule. It submits that the mandatory payment provisions of s. 38(11) are therefore triggered.

29Under s. 38(8), an insurer has the obligation to provide the insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial (FC v. Aviva Insurance Canada, 2020 CanLII 63586). If those reasons are not provided, the consequence under s. 38(11) is that the insurer cannot take the position that the MIG applies with respect to this treatment plan, and must pay for the goods and services described therein.

30I do not accept the applicant’s argument. In its letter of May 26, 2021, the respondent explained that it believed the applicant belonged in the MIG, and referred the applicant for a s. 44 assessment, which he subsequently attended with Dr. Platnick. The letter also indicated that the respondent had not received any clinical notes and records to substantiate ongoing accident-related injuries. The applicant has not explained what it means by “uncertain conclusions”. Dr. Platnick’s opinion was that the applicant sustained soft tissue injuries. The applicant does not specify what his issue is with the wording of this denial letter, or any denial letter. The applicant had previously been advised in another letter on December 29, 2020, that Dr. Palantzas indicated that the MIG applied, and that funding under the MIG had been exhausted. While perhaps the respondent could have re-stated this, I do not believe that under the circumstances it had an obligation to do so. I accordingly do not find that the denial letter was deficient such that s. 38(11) would apply.

31With respect to whether the treatment plan is reasonable and necessary, the applicant submits that he has continued to complain of pain, and therefore the treatment plans in dispute should be approved to assist in recovery. He argues that further treatment, in the form of physical rehabilitation, is needed to address his impairments. He does not mention anything about the contents of this treatment plan specifically, or how the proposed treatment will assist in his recovery.

32It is not necessarily enough that Dr. Li recommended physiotherapy around the time the treatment plan was submitted. If the applicant was not deriving much of a benefit from treatment, and was unable to meet the goals as indicated in the treatment plan, it would be difficult to justify that this treatment was reasonable.

33Dr. Li’s notes indicate that in February 2021, the applicant’s consistent pain complaint was to his shoulders, which he told him remained unchanged. It appears that he was attending physical therapy around that time, although the records before me are sparse. I have no way of knowing the type of therapy he received, to what area of his body, and whether it was making any difference. In fact, in November 2020, he reported to Dr. McDowall that his weekly physical therapy was only temporarily helpful, and his pain always returned between sessions. He made a similar report to Dr. Platnick.

34The applicant states in his submissions that all treatment has been incurred, however there are no records before me from Mr. Afifi or Total Recovery Rehab Centre. I find that it is appropriate for me to draw an adverse inference from this fact, and this tilts the balance of my analysis in the respondent’s favour.

35For the reasons above, I find that the applicant has not met his burden of proof to show that this treatment plan was reasonable and necessary at the time it was submitted.

$225.63 ($1,300.00 less $1,074.37 approved) for chiropractic services, proposed by Point Grey Physio in a treatment plan submitted on December 16, 2020 and denied on December 29, 2020

36I find that the remainder of this treatment plan is reasonable and necessary.

37The only reason why this treatment plan was denied at the time was because the applicant had run out of funds under the MIG. The respondent’s position with respect to this treatment plan is that the applicant’s status in the MIG precludes him from receiving the remainder of the funds set out in the treatment plan. As noted above, I have determined that the applicant does not belong in the MIG.

38Around the time the treatment plan was submitted, Dr. Li indicated that the applicant was suffering from shoulder pain and episodic lower back pain, and he recommended physiotherapy. I find that in the few months after the accident, it was reasonable for the applicant to continue with the proposed clinic-based treatment regimen to try and meet the goals as indicated in the treatment plan, namely pain reduction, increase strength, increased range of motion, return to activities of normal living, and return to pre-accident work activities. I therefore find the remainder of this treatment plan, $225.63, was reasonable and necessary at the time it was submitted.

$2,200.00 for a psychological assessment, proposed by Somatic Assessment and Treatment Clinic in a treatment plan dated November 13, 2020

39I find that the applicant is not entitled to the psychological assessment.

40The applicant submits that the treatment plan is reasonable and necessary, as the medical records confirm his psychological impairments, and he should have an opportunity to explore the extent of these injuries.

41The respondent argues that the treatment plan was never submitted to the respondent via the Health Claims for Auto Insurance system (“HCAI”), and in fact was sent to Intact Insurance instead, as indicated on the top of the first page of the document. It appears that it only came to the respondent’s attention in September 2021, after the applicant initially submitted its application to the Tribunal.

42S. 38(2) of the Schedule states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit, assessment, or examination that was incurred before the insured person submits a treatment and assessment plan (except under certain circumstances).

43S. 64(7) states that certain documents listed under s. 66, which includes treatment plans, must be delivered to the insurer only in a manner specified by the Guideline. If the Guideline specifies that a document is to be delivered to a central processing agency, the document shall be delivered not to the insurer but only to the central processing agency specified in the Guideline, and only in the manner specified in the Guideline. Health Claims for Auto Insurance Guideline, Superintendent’s Guideline No. 02/18, states that HCAI is the central processing agency, and reiterates that treatment plans must be delivered through HCAI and not directly to the insurer.

44The applicant did not make any reply submissions in response to the respondent’s argument. Without any explanation from the applicant, and in view of the incorrect address and insurer noted on the treatment plan, I find that it is more likely than not that the treatment plan was not delivered to the correct insurer. It was only delivered to the insurer in the applicant’s initial application to the Tribunal, which is not the manner required by the Schedule. As such, I find that the treatment plan is not payable.

Income Replacement Benefit

45I find that the applicant is not entitled to income replacement benefits.

46To 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. After 104 weeks, 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.

47The applicant submits that he is entitled to an income replacement benefit in the amount of $400.00 per week from August 8, 2021 to date and ongoing. He argues that, prior to the accident, he was working full time as an Uber and Lyft driver, and despite genuine efforts to return to work, he is unable to maintain steady employment. He argues that he does not have any higher education that would enable him to engage in sedentary work, and that his past work experience only qualifies him for driving.

48The respondent submits that it paid income replacement benefits to the applicant at a rate of $400 per week from October 7, 2020 to August 8, 2021, totalling $17,485.71. The respondent terminated the benefit as a result of Dr. Platnick and Mr. Hartog’s s. 44 assessments. The respondent also submits that it advised the applicant of a potential overpayment, and he was asked to provide a Declaration of Post-Accident Income and a copy of his rideshare statements. The applicant provided the Declaration of Post-Accident Income, showing income of $4,120, and his 2021 Income Tax Return, which showed a total income of $25,882. The respondent submits that these do not align. Further, the respondent argues that the applicant never provided a copy of his rideshare statements, and that the applicant remains non-compliant with s. 33, so no benefits are accordingly payable.

49I note that the only information provided by the applicant in this hearing with respect to his post-accident income was a financial report dated November 1, 2020, which calculated his entitlement to income replacement benefits up to that point. In his submissions, the applicant does not provide any information about whether he is working now. Despite his assertion that his past work only qualifies him for driving, there is evidence that he previously worked at Casino Rama. I have no information regarding what his role was at that job, or when he held it. Once again, the applicant has not made any submissions related to the reason for the termination of this benefit, namely the s. 44 reports.

50The applicant appears to be in breach of the case conference order of this Tribunal, in which he was directed to provide details of his income and employment. According to his tax return, he was employed and working in 2021, but he has provided no further information about that work. I have very few documents before me that would speak to the applicant’s medical condition at the time the benefit was terminated.

51The applicant has the onus of proving his entitlement to income replacement benefits. He has not discharged that onus. There is no reasonable evidentiary basis upon which to assess the quantum of the applicant’s income replacement benefit, nor his entitlement to it.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is applicable on the benefits that I have determined are owing, if incurred.

Award

53Under s. 10 of O. Reg. 664, the applicant may be entitled to an award of an amount up to 50% of the benefits and interest owed to him if I find that the respondent unreasonably withheld or delayed payments. I find that the applicant is entitled to an award in the amount of $75.00.

54The respondent was aware of the applicant’s psychological condition from Dr. Li’s medical records. As far as I can tell, the respondent did not request a psychological assessment under s. 44, and it did not direct Dr. Platnick to address the applicant’s psychological condition. The respondent also had in its possession Dr. McDowall’s treatment plan for a psychological assessment as early as September 2021. Whether it was a properly submitted treatment plan is not the question here; the respondent had in its possession the pre-screen report that corroborated the medical records of Dr. Li, further indicating that the applicant’s psychological condition should be looked into.

55The threshold for an award is high. However, I accept the applicant’s submission that the respondent ignored the medical evidence before it. The respondent has not provided any explanation for this. The respondent has an obligation to review the medical documents before it and adjust its claim fairly. In ignoring the medical evidence, the respondent did not fulfil its obligation and unreasonably withheld benefits to the applicant.

56In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay (Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649).

57In this case, not considering the applicant’s documented psychological condition when determining his status under the MIG provided a monetary advantage to the respondent. The conduct of ignoring medical evidence should be deterred. Without further information, I cannot comment on the applicant’s vulnerability or harm directed at him. I do not believe that the respondent’s behaviour attracts the full 50% maximum award allowable under O. Reg. 664. The only benefit that I have found the applicant is owed is $225.63 for chiropractic services. I find that $75.00 is an appropriate quantum for the award, plus interest pursuant to O. Reg. 664.

ORDER

58The applicant’s accident-related injuries are outside of the MIG as he suffers a psychological impairment.

59The applicant is not entitled to $4,115.12 for physiotherapy services, proposed by Total Recovery Rehab Centre in a treatment plan submitted on May 13, 2021 and denied on May 26, 2021.

60The applicant is entitled to $225.63 ($1,300.00 less $1,074.37 approved) for chiropractic services, proposed by Point Grey Physio in a treatment plan submitted on December 16, 2020 and denied on December 29, 2020.

61The applicant is not entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessment and Treatment Clinic in a treatment plan dated November 13, 2020.

62The applicant is not entitled to an income replacement benefit.

[63]

64The applicant is entitled to an award pursuant to Reg. 664 in the amount of $75.00.

65The applicant is entitled to interest on overdue payments pursuant to s. 51 of the Schedule.