July 04, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Wang and TTC
Date of Decision: May 1, 2018
Heard Before: Adjudicator Anne Morris
IRBs and MEDICAL BENEFITS: The applicant provides evidence to support all of her claims; insurer ordered to pay special award and interest
Ms. Xiao Ying Wang was injured in a bus accident on November 9, 2014 when she was a passenger on a TTC bus. A car went through a red light and struck the bus, causing the bus to mount the curb, strike a pole, a fire hydrant, a third vehicle parked in a parking lot, two more curbs, and a building. It is not disputed that the occupant of the car which went through the light died as a result of the accident although Ms. Wang was not aware of that or other details of the accident until later. She sought and was denied accident benefits from TTC, and when the parties were unable to resolve their disputes through mediation Ms. Wang applied for FSCO arbitration.
- Is Ms. Wang entitled to receive weekly IRBs at the rate of $400.00 per week from November 16, 2014 to date and ongoing less amounts paid by the Insurer, and less income earned?
- Is Ms. Wang entitled to receive medical benefits for the following:
- physical treatment in the amount of $3,562.52 pursuant to an assessment and treatment plan (OCF-18) dated July 8, 2015;
- cognitive therapy in the amount of $2,793.60 pursuant to an OCF-18 dated November 30, 2015;
- psychological counselling in the amount of $3,491.48 pursuant to an OCF-18 dated September 22, 2015?
- Is Ms. Wang entitled to ACBs at the rate of $551.28 for the period August 2, 2015 and ongoing?
- Is the Insurer liable to pay a special award because it unreasonably withheld or delayed payments to Ms. Wang?
- Is Ms. Wang entitled to interest for the overdue payment of benefits?
- Ms. Wang is entitled to IRBs at the rate of $400.00 per week from September 20, 2015 to November 6, 2016, and from May 22, 2017 to date and ongoing.
- Ms. Wang is entitled to receive medical benefits claimed.
- Ms. Wang is not entitled to ACBs beyond those already paid by the Insurer.
- The Insurer liable to pay a special award in the amount of $6,500.00.
- Ms. Wang entitled to interest for the overdue payment of benefits in accordance with the provision in the Schedule.
Ms. Wang was 54 years old at the time of the accident on November 9, 2014 working on a part-time basis as a PSW. She had been on a voluntary leave of absence from the institution from January 2, 2014 to May 20, 2014 so that she could concentrate on completing her schooling to become a registered practical nurse. She received her RPN certificate on November 11, 2014, shortly after the accident. Her plan had been to obtain RPN work at the institution where she already worked as a PSW. She stopped work as a PSW at the time of the accident. The Insurer paid IRBs until September 19, 2015. Ms. Wang remained off work until November 7, 2016 at which time she returned to her previous work as a PSW. She obtained the position of RPN at the same institution on December 22, 2016. She went off work again on May 21, 2017.
According to the emergency department record indicates that Ms. Wang was supine on the floor of the bus and complained of “subjective SOB” or shortness of breath with anxiety and complaining of “spine tenderness” and “bruises about right side of face.” X-rays of the chest and both knees were taken. She complained of “pain and soreness to both shoulders, right facial area and right-knee”. She was discharged home “ambulatory steady gait”. Ms. Wang’s evidence was that she was sitting facing forward in a single seat behind a row of three seats facing to the side. She struck her face on the pole. She also hit her knees and was thrown to the floor.
The disability certificate dated November 20, 2014 indicated that her injuries were “contusion of face with cellulitis, contusion of nose, knees, and spine with whiplash.” Ms. Wang underwent physio and was prescribed Tylenol 3 for a period of time
Ms. Wang continued to see her family doctor after the accident for her knees and neck and back pain. Her condition did not improve he ordered X-rays of the back and knees and a bilateral knee ultrasound which were unremarkable. The MRI of the right knee dated May 2, 2015 showed a small popliteal cyst and mild osteoarthritis of the patellofemoral joint with no other significant abnormality. The MRI of the left knee showed severe chondromalacia with underlying degenerative change. Ms. Wang’s then lawyer sent a copy of the MRI of the left knee to the Insurer by letter dated July 8, 2015.
In the meantime, Ms. Wang underwent physical therapy including for her knees, back, neck and shoulders. She also had psychological and occupational therapy. The Insurer paid for treatment following the accident in the approximate amount of $30,000.00 according to evidence at the Hearing. The Insurer also paid IRBs and ACBs.
On July 31, 2015 the then insurance adjuster on Ms. Wang’s claim wrote to Ms. Wang’s then lawyer, denying the OCF-18 dated July 8, 2015 for further physical therapy in the amount of $3,526.52. The adjuster indicated that previous OCF-18s on file showed no barriers to recovery but that Ms. Wang’s ongoing regions of complaint remained essentially unchanged, despite that Ms. Wang had undergone appropriate and lengthy physiotherapy since the accident. The adjuster required insurer examinations to be set up to assist in determining whether to pay for these goods and services.
Following the completion of the various insurer examinations, the Insurer terminated IRBs and ACBs effective September 19, 2015 by letters dated September 14, 2015. The Insurer also denied, by letter dated September 29, 2015, the treatment plan for psychological services dated September 22, 2015 in the amount of $3,491.48. The treatment plan for cognitive therapy services in the amount of $2,793.60 dated November 16, 2015 was denied by letter dated November 30, 2015.
The test IRBs is the “substantial inability to perform the essential tasks” of the employment engaged in at the time of the accident and I will deal with that period first. On the basis of the evidence the arbitrator was persuaded that Ms. Wang meets that test.
The Insurer denied the treatment plan for physical therapy at about the time of the MRI which showed chondromalacia patella. Ms. Wang has ongoing unresolved pain in other areas of the body. She testified that she paid for physical treatment on her own after the denial of benefits until she could no longer afford to do so. The Arbitrator considered this also to be an indication of the benefit which she felt from physical treatment. On the basis of the evidence Ms. Wang is entitled to the medical benefits in dispute.