Citation: Wang v. Aviva Insurance Company of Canada, 2025 ONLAT 24-001190/AABS

Licence Appeal Tribunal File Number: 24-001190/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:

Lianmin Wang

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Sareena Samra, Counsel

Ryan Olson, Paralegal

For the Respondent:

Jessica Bacopulos, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Lianmin Wang (“the Applicant”) was involved in an automobile accident on August 31, 2023 and sought benefits from Aviva Insurance Company of Canada (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided in this hearing is:

1. Is the Applicant barred from proceeding with her claim for benefits because the provider failed to submit information that was requested pursuant to section 46.2(1) of the Schedule?

SUBSTANTIVE ISSUES

3The substantive issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

2. Is the Applicant entitled to income replacement benefits (IRBs) in the amount of $359.70 per week for the period from October 13, 2023 to March 21, 2024?

3. Is the Applicant entitled to a medical benefit in the amount of $4,195.12 for physiotherapy services, proposed by Total Recovery Rehab Centre, in a treatment plan/OCF-18 (“plan”) dated September 1, 2023?

4. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, proposed by Somatic Assessments & Treatment Clinic, in a plan dated January 24, 2024?

5. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for an attendant care assessment, proposed by Total Recovery Rehab Centre, in a plan dated September 7, 2023?

6. Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $1,820.00 per month, for the period from September 1, 2023 to September 30, 2023?

7. Is the Applicant entitled to ACBs in the amount of $1,575.00 per month, for the period from October 1, 2023 to October 31, 2023?

8. Is the Applicant entitled to ACBs in the amount of $1,750.00 per month, for the period from November 1, 2023 to November 30, 2023?

9. Is the Applicant entitled to ACBs in the amount of $1,400.00 per month, for the period from December 1, 2023 to-date and ongoing?

10. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

11. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Respondent withdrew the preliminary issue.

5The Applicant is not entitled to IRBs.

6The Applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury.

7The Applicant is not entitled to the plans in dispute because they propose goods and services that fall outside the MIG.

8No ACBs are payable.

9No interest or award is payable.

BACKGROUND

10The Applicant was riding an e-bike that was struck by a right-turning vehicle. The collision knocked the Applicant over and she fell to the ground with the e-bike falling on her. The driver of the vehicle that struck the Applicant’s e-bike took her to the hospital immediately after the accident. At the hospital, the Applicant was assessed for left leg pain and mild abrasions to her right leg. X-rays at the hospital showed no acute injury and the Applicant was discharged with instructions to rest and alternative Tylenol and Advil.

11The Applicant was also diagnosed with a bone island subsequent to her hospital visit and radiological examinations. No clinical records or reports remark on the causality of the bone island. However, the insurer’s examination report by Dr. R. Saplys, dated January 15, 2024, concluded that the boney island was unrelated to the accident and pointed out in the report that the Applicant’s accident-related injury was to her tibia and the bone island is in the Applicant’s femur.

12The Applicant claims that she has developed psychological injuries as a result of the accident. She submits that she should not be subject to the MIG on this basis.

13The Applicant also claims that her accident-related injuries preclude her from completing the essential tasks of her employment and seeks entitlement to IRBs as a result.

ANALYSIS

14The onus is on the Applicant to demonstrate entitlement to the benefits claimed. For IRBs, she must demonstrate that she suffers a substantial inability to carry on the essential tasks of her employment, pursuant to section 5(1) of the Schedule. The test involves an assessment of the Applicant’s employment at the time of the accident, and whether her accident-related impairments cause a substantial inability to complete the essential tasks of that employment.

15For the medical and rehabilitation benefits claimed, she must first demonstrate that her injuries are not included in the minor injury definition in section 3 of the Schedule and therefore not subject to the $3,500.00 funding limit provided by section 18 of the Schedule. If successful in demonstrating that her injuries are not minor, she must then show that the plans in dispute are reasonable and necessary as a result of the accident.

Income Replacement Benefits (“IRBs”)

16I find that the Applicant has not demonstrated that she suffers a substantial inability to complete the essential tasks of her pre-accident employment as a warehouse packer.

17The Applicant claims entitlement to IRBs on the basis that she was substantially unable to perform the essential asks of her pre-accident employment. She submits that her employment at the time of the accident involved lifting, standing, bending, and using her hands to package items. She submits that her employment was physical in nature and required a significant amount of concentration. The Applicant submits that left leg and shin pain, weakness and fatigue are barriers to working. The Respondent submits that the Applicant has not provided any evidence to support her IRB claim other than her disability certificate. It further submits that surveillance evidence shows the Applicant driving an e-bike and working in a restaurant following the accident.

18I find that the Applicant has not demonstrated that her accident-related injuries cause a substantial inability to complete the essential tasks of her employment as a result of the accident. Aside from the disability certificate, there is no evidence indicating that the Applicant’s injuries impact her ability to complete her work tasks. The Applicant’s family physician, Dr. K. Cheng, never advised the Applicant to refrain from working or completing any tasks. Dr. Cheng’s clinical notes and records (“CNRs”) include a complaint of leg pain immediately following the accident however there are no such complaints thereafter and no indication that the Applicant is impaired from working due to pain. None of the Applicant’s other medical documents, including the psychological pre-screen report by psychotherapist Zhou, dated January 17, 2024, indicate that the Applicant has a substantial inability to complete any tasks as a result of the accident.

19I find the insurer’s examination (“IE”) report, dated January 22, 2024, more persuasive. Dr. Saplys, orthopaedic surgeon, and Dr. K. McCutcheon, psychologist, assessed the Applicant and reviewed Dr. Cheng’s CNRs and concluded that she did not suffer a substantial inability to complete the essential tasks of a warehouse worker. Dr. Saplys concluded that the Applicant sustained uncomplicated soft-tissue injuries to her left leg and that the bone island was in her femur and unrelated to the accident. Dr. McCutcheon noted that the Applicant had some depressive and anxious symptomology, but that it was subclinical and did not interfere with her ability to work as a packer in a warehouse.

20In addition to the IE reports, I find that the surveillance evidence indicates that the Applicant is working and thus able to complete the essential tasks of her employment. The investigation report, dated January 8, 2024, includes photographs of the Applicant inside a restaurant on three different dates in December 2023. The photos depict her in a uniform doing lifting and pouring tasks. The report also includes photos of the Applicant riding an e-bike and a traditional bike during the same period. The Applicant never disputed the surveillance evidence, nor did she deny that she was the subject depicted in the photographs.

21Having found no compelling evidence demonstrating that the Applicant is impaired form completing her essential tasks as a warehouse packer, it follows that I find that she has not met her onus to demonstrate entitlement to IRBs.

Compliance with section 36(4) of the Schedule

22I further find that the Applicant has not demonstrated entitlement to IRBs based on the Respondent’s alleged failure to comply with the Schedule.

23The Applicant claims entitlement to IRBs on the basis that the Respondent failed to comply with section 36(4) of the Schedule. She submits that the Respondent’s request for additional information in response to her application for IRBs failed to indicate the consequences of non-compliance with the request. She further submits that the Respondent failed to provide a valid denial of IRBs until January 23, 2024. The Respondent denies the Applicant’s claim that it failed to comply with the Schedule.

24Section 36(4) of the Schedule provides three options for insurers when responding to the submission of a disability certificate: it can pay IRBs, it can deny payment of IRBs with notice explaining the medical and any other reasons for the decision, or it can request additional information pursuant to section 33 of the Schedule.

25Subsection 33(1)1 permits the Respondent to seek any information reasonably required to assist it in determining the Applicant’s entitlement to a benefit. Subsection 33(6) provides that an insurer is not liable to pay a benefit in respect of a period which the insured person fails to comply with the request.

26The disability certificate was faxed to the Respondent on October 4, 2023. It states that the Applicant was unable to complete her essential tasks of employment as a result of the accident, and that modified work was not available to her. The document also noted that the Applicant suffered a complete inability to carry on a normal life as a result of the accident. The anticipated duration of her disability, according to her physiotherapist, was more than 12 weeks due to the number and severity of the injuries.

27The Respondent acknowledge receipt of the disability certificate on October 17, 2023, and in the same letter requested additional information regarding the Applicant’s income prior to the accident. The request was due to discrepancies between the Applicant’s income as indicated in her pre-accident paystubs versus the amounts listed by her employer on the employer’s confirmation form. The letter seeks a further breakdown from the Applicant to calculate her IRBs payable. Specifically, the Respondent requested a complete summary of all dates worked form August 3, 2023 to August 31, 2023, and a complete summary of hours worked and each date worked from August 3, 2023 to August 31, 2023. The Respondent provided a deadline of October 31, 2023 and advised that it will not be able to consider IRBs until the information is received.

28I find that the Respondent’s response to the disability certificate is compliant with section 36(4) of the Schedule. The response elects the third option and seeks additional information that is reasonably required to calculate any IRBs payable. The response is clear and unambiguous in that it highlights the discrepancy between the documents and seeks clarification for the information provided. Lastly, the response has a clear deadline for compliance. Accordingly, I find that the Applicant has not demonstrated that the Respondent failed to comply with the Schedule in its response to her claim for IRBs.

29Having determined that the Applicant has not demonstrated that she suffers a substantial inability to carry on her essential tasks as a warehouse packer, and that she has not demonstrated entitlement due to an incompliant response from the Respondent, it follows that the Applicant has not demonstrated entitlement to IRBs as claimed.

Minor Injury Guideline (“MIG”)

30The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequalae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

31For the following reasons, I find that the Applicant has not demonstrated that she sustained an injury in the accident that is not included in the minor injury definition.

32The Applicant submits that she should not be subject to the MIG due to psychological injuries sustained in the accident. She relies on the January 17, 2024 psychological pre-screen report by Y. Zhou, psychotherapist, who is supervised by Dr. M. Pojhan, psychologist. She highlights her complaints of deteriorating sleep quality due to nightmares, daytime fatigue, depressed mood, anxiety, increased irritability, driving anxiety, and a decline in her concentration following the accident. The Applicant submits that the symptoms reported in the pre-screen are consistent with the symptoms reported to Dr. K. McCutcheon, psychologist, in the IE report dated January 22, 2024. To the Applicant, the consistency of her self-reported complaints, together with the test results from the IE, confirm that she suffers from a psychological injury as a result of the accident.

33The Respondent submits that the Applicant has not been diagnosed with any psychological impairments by a qualified professional using objective testing measures. It submits that the Applicant’s treatment records submitted for this hearing are devoid of any complaints of a psychological nature. It relies on the IE report by Dr. McCutcheon, which concluded that the Applicant’s anxiety and depression symptoms were subclinical and not of a sufficient incapacitating degree.

34I find insufficient information to conclude that the Applicant sustained a psychological injury as a result of the accident.

35I give little weight to the pre-screen report, dated January 17, 2024. The Applicant never obtained, nor submitted the clinical notes and records (“CNRs”) from the Applicant’s treatment facility to provide a basis for why a pre-screen report was procured. The pre-screen report itself states that it was completed to provide compelling evidence to support the need for a psychological assessment.

36Moreover, the Applicant has led no other evidence to suggest she sustained a psychological injury as a result of the accident. Her family physician’s CNRs, which span the period from September 11, 2023 to June 11, 2024, do not include any record of a psychological complaint, nor any inquiry into the Applicant’s mental health status or a referral to another practitioner or specialist due to psychological complaints.

37I prefer the January 22, 2024 IE report by Dr. McCutcheon. In that report, Dr. McCutcheon assessed the Applicant via clinical interview, psychometric testing, and with a review of her medical records. The assessment was completed with an interpreter as English is the Applicant’s second language. Dr. McCutcheon concluded that the Applicant was experiencing some depressive and anxious symptoms, but that they were mild to moderate and did not reach the threshold for a diagnosable psychological condition. Dr. McCutcheon’s assessment is thorough and consistent with the balance of the Applicant’s medical record, which is absent of any complaints of a psychological nature.

38Having concluded that the Applicant has not demonstrated that she sustained a psychological injury as a result of the accident, it follows that she has not demonstrated that she sustained an injury that is not included in the minor injury definition, outlined in section 3 of the Schedule. Thus, I conclude that the Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

Attendant care benefits (“ACBs”) and the treatment plans in dispute.

39I find that the Applicant is not entitled to ACBs and the treatment plans in dispute because they are benefits limited to persons who sustained an injury that is not a minor injury.

40Pursuant to section 18(3) of the Schedule, funding for medical, rehabilitation, and attendant care benefits beyond $3,500.00 is contingent on the insured person not being subject to the MIG. Having determined that the Applicant is subject to the MIG, it follows that she is not entitled to ACBs or that an analysis of whether the treatment plans in dispute are reasonable and necessary is required.

41I further find that the Applicant has not demonstrated that she is entitled to ACBs based on the Respondent’s alleged non-compliance with the Schedule.

42The Applicant claims that the Respondent failed to provide medical reasons to deny her entitlement to ACBs and requested statutory declarations in response to the invoices for ACBs she submitted. To the Applicant, the Respondent’s non-compliance entitles her to ACBs for the period from the date of the accident to January 23, 2024, when she submits the first medical reason was provided.

43I find that the Respondent complied with the Schedule when it responded to the Applicant’s claim for ACBs on October 12, 2023. In that letter, the Respondent reiterated that it believed the Applicant’s injuries were a minor injury and that she was precluded from claiming ACBs because they are not available for persons who sustained a minor injury.

44Given that the Applicant sustained a minor injury, and that the Respondent complied with the Schedule in its response to her claim for IRBs, it follows that the Applicant is not entitled to ACBs, nor interest.

Interest

45Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

46The Applicant sought 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.

47The Applicant claims entitlement to an award on the basis that the Respondent ignored the fact that it received the documents it requested from her and it unfairly denied entitlement to benefits on the same basis. She is also critical that the Respondent denied entitlement to the plans in dispute despite still having funding for treatment pursuant to the MIG. The Respondent denies that the Applicant is entitled to an award and submits that she has not demonstrated that it unreasonably withheld or delayed the payment of benefits.

48I find no basis for an award.

49There is no evidence before me indicating that the Respondent acted in a manner that led to the withholding or delay of benefits payable to the Applicant. The initial information on the Applicant’s file indicated that she sustained predominantly soft-tissue injuries as a result of the accident, which are subject to the MIG and the $3,500.00 funding limit.

50The fact that there remains funding within the MIG limits on the Applicant’s claim is borne solely out of the Applicant’s own inaction. The letter from the Respondent to the Applicant, dated October 12, 2023, advised the Applicant that it pre-approved treatment funding up to $2,200.00, pursuant to the MIG, and that she can begin the treatment immediately and it will pay for the costs up to $2,200.00. It requests that the Applicant’s treatment provider submit a treatment confirmation form instead of the two plans submitted. To-date, there is no evidence indicating that the Applicant submitted the treatment confirmation form. Thus, any lapse in treatment is based solely on the Applicant’s refusal to engage in treatment pursuant to the MIG. Accordingly, I find no award payable as no payments were unreasonably withheld or overdue.

CONCLUSION AND ORDER

51The Applicant has not demonstrated that she suffers a substantial inability to complete the essential tasks of her pre-accident employment, thus she is not entitled to IRBs.

52The Applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury.

53The Applicant is not entitled to the plans in dispute because they propose goods and services that fall outside the MIG.

54No ACBs are payable.

55No interest or award is payable.