Citation: Zhang v. TD General Insurance Company, 2025 ONLAT 22-014069/AABS

Licence Appeal Tribunal File Number: 22-014069/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:

Xiao Ci Zhang Applicant

and

TD General Insurance Company Respondent

Decision

Adjudicator: Caley Howard

Appearances: For the Applicant: Anil Hampole, Counsel For the Respondent: Stefan Sistilli-Sguazzin, Counsel

Heard: By way of written submissions

Overview

1Xiao Ci Zhang, the applicant, was involved in an automobile accident on July 19, 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, TD General Insurance Company, 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. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from August 17, 2021 to August 17, 2023? ii. Is the applicant entitled to $3,961.73 for physiotherapy treatment, proposed by Easy Health Clinic in a treatment plan/OCF-18 (“plan”) submitted November 8, 2021? iii. Is the applicant entitled to $2,425.62 for an attendant care assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan submitted September 30, 2021? iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant? v. Is the applicant entitled to interest on any overdue payment of benefits?

Result

[3] I find: i. The applicant is not entitled to an NEB; ii. The applicant is not entitled to $3,961.73 for physiotherapy treatment; iii. The applicant is not entitled to $2,425.62 for an attendant care assessment; iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and v. The applicant is not entitled to interest as there are no overdue benefits.

Analysis

The applicant is not entitled to an NEB

4I find that the applicant is not entitled to an NEB for the period August 17, 2021 to August 17, 2023.

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 submits that his accident-related injuries caused him to suffer a complete inability to carry on a normal life between August 17, 2021 and August 17, 2023. In support of his claim, the applicant relies on the OCF-3 dated August 3, 2021, completed by Hadi Namati, physiotherapist, the occupational therapy assessment of Raymond Wong, occupational therapist, dated August 5, 2021; and the psychological assessment of Dr. Sharleen McDowall, psychologist, dated August 4, 2021.

7The respondent submits that the applicant has not met his onus of proving that he suffered a complete inability to carry on a normal life. The respondent further submits that the applicant had numerous injuries and pain complaints prior to the accident and his reduced independence since the accident was caused by a pre-existing condition and not by his accident-related injuries. In support of its position, the respondent relies on: the CNRs of Dr. Chan; the May 24, 2022 psychological assessment of Dr. Lawrence Tuff, psychologist; the May 24, 2022 occupational therapy in-home assessment report of Sheri Ashton, occupational therapist; and the May 24, 2022 attendant care assessment of Dr. Oleg Safir, orthopaedic surgeon.

8The parties agreed that the applicant was an 85-year-old retiree who was riding his bicycle when he was struck by a vehicle. The applicant submits that he sustained serious physical and psychological injuries including injuries to his right elbow, hand and wrist and pain in his right hip.

9I find that the OCF-3 completed by Ms. Nemati confirms her opinion that the applicant has suffered a complete inability to carry on a normal life, but provides no explanation for her opinion. I find that Ms. Nemati indicated that the expected duration of the applicant’s disability was 9-12 weeks. I find that this document alone does not prove that the applicant meets the test for entitlement to an NEB, particularly as it does not contain any explanation of the basis for Ms. Nemati’s opinion and it estimates a duration of 9-12 weeks when the applicant claims entitlement to an NEB for a period of two years.

[10] From the psychological assessment of Dr. McDowall, I find that the applicant reported enjoying the following pre-accident activities: i. Shopping almost daily for fresh vegetables; ii. Maintaining a healthy lifestyle; iii. Riding his bicycle around his neighbourhood as both a hobby and a form of exercise; iv. An active social life, including spending time with his grandsons; and v. Spending time in nature.

11I find that the applicant reported to both Dr. McDowall and to Raymond Wong that he functioned well in activities of daily living prior to the accident.

12I find that the applicant reported to Dr. McDowall that, after the accident, he needed assistance with dressing, showering and household chores. He also reported that he felt unsafe going outside and preferred to stay home except to attend medical appointments. He reported that he was unable to appreciate the activities that he previously enjoyed, and derived little pleasure from them. I find that Dr. McDowall opined that the applicant’s psychological functioning was significantly affected by the accident and diagnosed him with Adjustment Disorder with Mixed Anxiety and Depressive Mood, symptoms of PTSD and Specific Phobia (Travel).

13I find that Mr. Wong’s occupational therapy assessment was performed to determine the applicant’s care needs, and Mr. Wong did not provide an opinion as to whether the applicant had suffered a complete inability to carry on a normal life. However, I find that Mr. Wong’s functional assessment of the applicant did confirm that the applicant suffered difficulty with personal care tasks, such as showering, preparing meals and housekeeping, after the accident. I find that the applicant reported to Mr. Wong that he had a limited social life since the accident, due to his limited mobility and pain.

14I find that the applicant’s evidence was based on assessments performed on August 3, 4 and 5, 2021, which was just over two weeks post-accident and prior to the start of the period for which the applicant claims he is entitled to an NEB. The applicant has not directed me to evidence that his functional limitations continued throughout the claim period or for any portion thereof.

15The respondent relies on the CNRs of Dr. Chan. I find that the CNRs of Dr. Chan contain a note from Dr. Bill Manolopoulos, physician, dated July 26, 2021, indicating that the applicant had full range of motion in his elbow on that date and confirming that the elbow had not been fractured and did not require a cast. I further find that between August 2021 and August 2022, the applicant consulted with Dr. Chan approximately once per month for unrelated health conditions and other than a report of pain his buttock on October 26, 2021, I have not been directed to any other reports of pain attributed to the accident in Dr. Chan’s CNRs after the above-referenced consultation with Dr. Manolopoulos.

16I further find that Dr. Chan’s note of October 26, 2021 indicates that Dr. Chan explained to the applicant on that date that it was unlikely that the pain in his buttock was related to the accident. Rather, Dr. Chan’s note indicates that he suspects bursitis is the cause of the pain. In addition, Dr. Chan’s note of August 17, 2022 indicates that the applicant was independent in all activities of daily living until “recently”, when his wife started helping him with his shoes due to his bilateral pedal edema, a condition unrelated to the accident.

17The respondent also relies on the psychological assessment report of Dr. Tuff, in which Dr. Tuff opines that the applicant has not suffered a complete inability to carry on a normal life. I find that the applicant reported to Dr. Tuff, during his assessments on January 12 and March 31, 2022 that he no longer goes shopping with his wife or son, but he has been functionally independent with respect to his personal care since December 2021. He also reported to Dr. Tuff that he stopped socializing due to COVID, but that he still attends family functions.

18Similarly, the respondent relies on the in-home assessment of Sheri Ashton dated May 24, 2022, which was based on an assessment performed October 25, 2021. I find that the applicant reported to Ms. Ashton that, with the exception of riding his bicycle and housekeeping duties, the applicant had resumed most other pre-accident activities, including personal tasks and taking public transportation.

19Given the evidence of the applicant’s functional improvement by October 2021 and the lack of evidence that his initial functional limitations continued for any portion of the claim period, despite the applicant’s regular consultations with Dr. Chan, I find that the applicant has not demonstrated on a balance of probabilities that his accident-related impairments continuously prevented him from engaging in substantially all of the activities in which he ordinarily engaged before the accident throughout the claim period of August 17, 2021 to August 17, 2023. I find that the applicant is not entitled to an NEB.

The applicant is not entitled to the treatment plan for physiotherapy services

20I find that the applicant is not entitled to the treatment plan for physiotherapy services.

21To 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.

22The respondent disputes that the applicant’s injuries and complaints of pain were caused by the accident. The test to determine causation is the “but for” test. Causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries “but for” the subject accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

23The treatment plan for physiotherapy services, including massage therapy and acupuncture, was dated November 8, 2021 and completed by Sreejith Jayanth, physiotherapist. The goals of therapy were pain reduction, increased range of motion, increased strength, and return to activities of normal living.

24The applicant submits that the treatment plan is reasonable and necessary for his recovery. The applicant relies on the treatment plan, in which Mr. Jayanth notes that the applicant has range of motion deficiencies, pain and impaired gripping, lifting and bending functions.

25The respondent submits that the applicant suffered from various health conditions that caused him pain prior to the accident and that the applicant has not proven that his pain was caused by the accident. The respondent relies on the CNRs of Dr. Chan and the orthopaedic surgery assessment of Dr. Safir dated May 24, 2022.

26I find that the applicant has directed me to no contemporaneous evidence to confirm the symptoms that he reported to Mr. Jayanth in preparation of the treatment plan or to confirm that his symptoms were caused by the accident.

27I find that the report of Dr. Safir conflicts with the treatment plan because Dr. Safir reported that his examination of the applicant, which took place on December 15, 2021, revealed functional age-appropriate ranges of motion and showed no objective evidence of any significant musculoskeletal impairment as a result of the accident.

28I find that the CNRs of Dr. Chan dated October 26, 2021 demonstrate that the applicant reported pain in his right buttock, which the applicant attributed to the accident. I find that Dr. Chan’s notes indicate that Dr. Chan thought it unlikely that the pain was related to the accident and that he explained this to the applicant. Dr. Chan’s notes indicate that he suspects bursitis was the cause of the applicant’s pain on that date.

29As mentioned above, I find that the CNRs of Dr. Chan contain a note from Dr. Bill Manolopoulos, physician, dated July 26, 2021 confirming that the applicant’s elbow had not been fractured and did not require a cast. I further find that despite continuing to consult with Dr. Chan approximately once per month for unrelated health conditions, I have not been directed to any other reports of pain attributed to the accident in Dr. Chan’s CNRs after the July 26, 2021 consultation with Dr. Manolopoulos other than the above-referenced October 26, 2021 note.

30I place significant weight on the CNRs of Dr. Chan because, as the applicant’s family doctor, he saw the applicant on a regular basis both before and after the accident for unrelated health conditions. I find it likely that Dr. Chan was familiar with the applicant’s health as a whole and based his opinion on this extensive history with the applicant. I find that the CNRs of Dr. Chan concur with Dr. Safir’s opinion. I prefer the report of Dr. Safir over the treatment plan as a result.

31For these reasons, I find that the applicant has not proven, on a balance of probabilities, that the proposed physiotherapy services are reasonable and necessary because of the accident. Therefore, he is not entitled to the treatment plan.

The applicant is not entitled to the treatment plan for an attendant care assessment

32I find that the applicant is not entitled to the proposed attendant care assessment.

33The treatment plan for an attendant care assessment was submitted September 30, 2021 and was completed by Raymond Wong, occupational therapist. It sought funding for $2,425.62 for an attendant care assessment.

34The applicant submits that the treatment plan is reasonable and necessary. He relies on the treatment plan and on the August 5, 2021 attendant care assessment of Raymond Wong.

35The respondent submits that the applicant has not demonstrated that the treatment plan is reasonable and necessary. The respondent further submits that the treatment plan was not submitted until September 30, 2021, after it was incurred. Pursuant to s. 38(2) of the Schedule, the respondent is not liable to pay for an assessment that was incurred before the insured person submits a treatment and assessment plan, subject to certain exceptions.

36I find that the treatment plan was incurred on August 5, 2021 because that is the date on Mr. Wong’s report. The parties agreed that the treatment plan was submitted on September 30, 2021. I have not been directed to any evidence to indicate that any of the exceptions to s. 38(2) would apply in this case. Therefore, pursuant to s. 38(2) of the Schedule, the respondent is not liable to pay for the assessment.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

Award

38The 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 Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

39The applicant made no submissions with respect to the award.

40The respondent submits that it relied on the opinions of experts and assessed the medical evidence submitted to it throughout its adjustment of the applicant’s claim.

41As I have found that the benefits sought by the applicant were not unreasonably denied by the respondent in this case, and as the applicant has directed me to no evidence in support of his claim for an award, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

Order

[42] I find: i. The applicant is not entitled to an NEB; ii. The applicant is not entitled to $3,961.73 for physiotherapy treatment; iii. The applicant is not entitled to $2,425.62 for an attendant care assessment; iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and v. The applicant is not entitled to interest as there are no overdue benefits.