Licence Appeal Tribunal File Number: 23-012169/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:
Qiao Rong Chen
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Qiao Rong Chen (the “applicant”) was involved in an automobile accident on October 28, 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 Aviva General Insurance (the “respondent”) 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. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 16, 2021, and ongoing?
ii. Is the applicant entitled to $4,069.56 for physiotherapy benefits, proposed by Total Recovery Rehab Centre in a treatment plan/OCF-18(“plan”) submitted January 27, 2022, and denied February 22, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3In her written submissions the applicant clarified that the quantum of the IRB should be $196.00 weekly, rather than $400.00, weekly. The applicant further clarified that the disputed period of entitlement to the IRB was from November 4, 2021 (the date that the respondent commenced payment of the IRB) to July 11, 2022 (the day before the applicant returned to her pre-accident employment).
4The parties agree that the respondent had paid an IRB to the applicant from November 4, 2021, to April 24, 2022, in the amount of $98.00 per week. Therefore, for the period of November 4, 2021, to April 24, 2022, the applicant seeks the outstanding balance of the IRB quantum. For the period of April 25, 2022, to July 11, 2022, the applicant seeks IRB payments in the full amount of $196.00 weekly.
RESULT
5The applicant is not entitled to the outstanding balance of IRB payments for the period of November 4, 2021, to April 24, 2022.
6The applicant has not established entitlement to IRBs for the period of April 25, 2022, to July 11, 2022, in the amount of $196.00 per week.
7The applicant is not entitled to $4,069.56 for physiotherapy services.
8As no benefits are payable interest is not payable.
9The applicant is not entitled to an award.
ANALYSIS
IRB entitlement
10I find that the applicant is not entitled to an IRB from November 4, 2021, to July 11, 2022.
11In this case the respondent paid an IRB to the applicant from November 4, 2021, to April 24, 2022, in the amount of $98.00 per week. The respondent terminated the applicant’s further entitlement to the IRB based on an insurer’s examination under s. 44.
12To 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 her employment, which tasks she is unable to perform and to what extent she is unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that she meets the test.
13The applicant submits that the respondent’s IE assessor failed to identify the essential tasks of her employment to determine the clinical findings of whether the applicant does or does not suffer from a substantial inability to perform those tasks. In addition, the applicant argues that the IRB ought to be considered to July 11, 2022, as the applicant returned to her pre-accident employment as a restaurant server on July 12, 2022.
14The respondent argues that the applicant has not met her onus to prove entitlement to the IRB as her hearing submissions do not contain any medical evidence of an accident-related impairment. The respondent relies on the s. 44 multidisciplinary reports of Dr. Mian, general practitioner, and Nicole Azizli, psychologist dated March 31, 2022.
15In this case I find the multidisciplinary approach taken by the respondent in its termination of the IRB to be persuasive. The applicant did not provide supporting medical documentation to meet her onus to provide entitlement to IRBs. Instead, the applicant is reliant upon the respondent’s assessors perceived deficient findings that the applicant has not sustained a substantial inability to perform her duties as a restaurant server, I disagree for the following reasons.
16Crucially, the applicant has the onus to prove that she meets the substantial inability test in s. 5(1), and it is not sufficient to simply point out deficiencies in the respondent’s evidence. The applicant did not provide medical evidence supportive of her claim that she suffers from a substantial inability to complete the tasks of her pre-accident employment as a restaurant server.
17The applicant was involved in a previous motor vehicle accident in 2018. The applicant did not argue that the subject accident exacerbated her sprain/strain symptomology to her cervical and lumbar spine. In his report, Dr. Mian opined that the applicant’s ongoing subjective symptoms could not be verified by any objective findings upon his forty five-minute examination and file review of the applicant’s medical history and, as such, Dr. Mian concludes that there is no relationship to the subject motor vehicle accident that would lead to any ongoing musculoskeletal, neurological, or osseous impairments.
18Further Dr. Mian’s report indicates that he is aware and has considered the applicant’s pre-accident employment and Dr. Mian does base his consideration on the applicant’s substantial inability to return to her pre-accident employment as a restaurant server in his report and opines that the applicant’s injuries are transient soft tissue injuries. I accept Dr. Mian’s conclusions based on his extensive assessment of the applicant and because of Dr. Mian’s medical document review of the applicant’s accident related sequala from the 2018 accident and the subject accident.
19With respect to psychological impairments, the applicant similarly submits that the respondent’s psychological assessor Nicole Azizli did not consider her continued eligibility to the IRB because the essential tasks of the applicant’s employment are not listed in the body of the report.
20I disagree for the following reasons. Ms. Azizli conducted a thorough file review of the applicant’s documented medical history and her assessment of the applicant was four hours in length. In addition, Ms. Azizli in her report noted the applicant’s description of her pre-accident employment as fast-paced routine that requires memory, concentration interacting with co-workers and customers, long hours of standing, walking, bending, reaching, lifting, and carrying items. The applicant expressed to Ms. Azizli that she is limited in returning to work due to back pain and not her psychological issues.
21Ms. Azizli diagnosed the applicant to present with adjustment disorder with mixed anxiety and depressed mood; however, Ms. Azizli notes that the applicant herself attributes her psychological impairments to the 2018 accident.
22Finally, the applicant denied any psychological issues preventing her from returning to her job as a server and reported that her issues are primarily physical in nature. Therefore, I accept Ms. Azizli’s conclusion that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment because of her accident-related psychological injuries.
23Accordingly, I find that the applicant has not established that she suffers from a substantial inability to perform the essential tasks of her employment as a restaurant sever due to her physical and psychological injuries sustained in the accident.
24I find on a balance of probabilities that the applicant is not entitled to an IRB beyond April 24, 2022, because as of April 24, 2022, the applicant has not met her onus to prove that she continues to suffer from a substantial inability to perform the essential tasks of her employment.
IRB quantum and duration
25I find that the applicant is not entitled to an IRB in the amount of $196.00 per week from November 4, 2021, to April 24, 2022.
26Section 4(1) of the Schedule provides that “gross weekly employment income” means, in respect of an insured person, the amount of the person’s gross annual employment income, as determined under subsection (2), divided by 52.
27Section 4(2) of the Schedule provides that the gross annual employment income of an insured person who was not self-employed is whichever of the following amounts the person designates: (i) the person’s gross employment income for the four weeks before the accident, multiplied by 13; or (ii) the person’s gross employment income for the 52 weeks before the accident.
28The parties agree that the respondent paid the applicant an IRB in the amount of $98.00 weekly from November 4, 2021, to April 24, 2022; however, the applicant argues that the quantum of the IRB should be $196.00 weekly from November 4, 2021, to July 11, 2022. Having found that the applicant is not entitled to an IRB beyond April 24, 2024, my analysis of the quantum of the IRB will consider the period for which the respondent paid the applicant $98.00 per week (November 24, 2021, to April 24, 2022).
29The applicant submits that the respondent’s calculation of the quantum of the IRB is incorrect and should be $196.00 per week. The applicant in her submission calculates the quantum of the IRB to be $196.00 based on the following calculation: $280.00 X 70% = $196.00 per week.
30The respondent argues the applicant’s request to change the quantum and period of entitlement are baseless because the applicant has already amended the quantum and entitlement period prior to the case conference held on April 3, 2024. The respondent argues that the applicant should have brought a motion to the Tribunal prior to the hearing requesting a change of quantum and the period of entitlement and that it would be prejudicial to the respondent’s position and their ability to defend the issue. The respondent further argues that the applicant’s hearing submissions are the first time that the quantum and time frame of the IRB have been argued by the applicant since before the case conference was held.
31I find that the applicant has failed to demonstrate why the quantum of the IRB should be $196.00, weekly. The applicant did not submit a document brief as part of her submission but rather attached a few items that she is reliant upon such as the OCF-2 and the applicant’s pay stub. The OCF-2 states that the applicant’s weekly pre-accident income was $280.00 per week for the two weeks prior to the accident. The applicant’s pay stub shows the applicant’s income to be $560.00 for the two weeks prior to the accident, with no income before those two weeks.
32I find that the respondent correctly calculated the quantum of the IRB based on s.4(2) of the Schedule. $140.00 X 52 weeks = $7,280.00 gross annual income. Therefore $140.00 of weekly earnings times 70% = $98.00 per week. For this reason, I accept the respondent’s IRB calculation based on the report completed by Williams and Partners Forensic accountants that concludes the weekly IRB quantum is $98.00 weekly.
33Accordingly, I find that the applicant is not entitled to an IRB in the amount of $196.00 per week from November 4, 2021, up to April 24, 2022.
Physiotherapy treatment plan
34I find that the applicant is not entitled to $4,069.56 for physiotherapy services because it is not reasonable or necessary.
35To 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.
36The applicant submits that the disputed treatment plan for physiotherapy is reasonable and necessary and that the OCF-18 lists the goal and barriers to the applicant’s recovery and the plan lists additional reasons for proposed treatment outside of MIG limits. The applicant submits that the respondent’s IE assessor Dr. Mian’s report is statutorily deficient and erroneous. The applicant relies on the OCF-18 completed by Ahmed Afifi, physiotherapist, dated January 27, 2022, to establish her claim.
37The respondent argues that the applicant has not submitted objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment plan.
38The applicant did not provide any contemporaneous corroborating evidence to support her claim to the disputed OCF-18 for physiotherapy treatment outside of the OCF form itself. It is well-settled that an OCF-18 alone is not medical evidence sufficient to prove its reasonableness and necessity, and that the onus rests with the applicant to provide sufficient evidence to establish if the OCF-18 is reasonable and necessary. Without specific submissions or medical evidence, I am unable to find that she met her onus.
39I find on a balance of probabilities that the applicant is not entitled to $4,069.56 for physiotherapy services because she has not established that it is reasonable or necessary.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
Award
41The 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.
42As the respondent did not unreasonably withhold or delay the payment of a benefit from the applicant, an award is not payable.
ORDER
43It is ordered that:
i. The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from December 16, 2021, and ongoing.
ii. The applicant is not entitled to an Income replacement benefit in the amount of $196.00 per week from November 4, 2021, to July 11, 2022.
iii. The applicant is not entitled to $4,069.56 for physiotherapy services.
iv. As no benefits are payable interest is not payable.
v. The applicant is not entitled to an award.
Released: July 11, 2025
John Mazzilli
Adjudicator