Khashi v. Travelers Insurance Company of Canada, 2020 CanLII 103697

Citation and Parties

Citation: Khashi v. Travelers Insurance Company of Canada, 2020 CanLII 103697 Released: 12/21/2020 Tribunal File Number: 19-005457/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:

Shoaib Khashi Applicant

and

Travelers Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Kateryna Vlada For the Respondent: Sara Baum

Heard by way of written submissions

OVERVIEW

1Shoaib Khashi ("the applicant") was injured in an automobile accident on June 27, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The respondent refused to pay for certain benefits and, in response, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

(i) Is the applicant entitled to non-earner benefits ("NEBs") in the weekly amount of $185.00 from July 25, 2016 to July 24, 2018?

(ii) Did the applicant sustain a minor injury as defined under the Schedule?

(iii) Is the applicant entitled to a medical benefit in the amount of $2,144.94 for a psychological assessment recommended in treatment and assessment plan dated December 15, 2016?

(iv) Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

3The applicant is not entitled to NEBs.

4The applicant sustained a minor injury as defined under the Schedule.

5The applicant is not entitled to the psychological assessment plan because it proposes treatment which is not included in the methodologies provided by the Minor Injury Guideline.

6No interest is payable as no payments went overdue.

BACKGROUND

7The applicant was the driver of a vehicle that was travelling in the curb side lane. His vehicle was struck on the front driver's side by another vehicle which was attempting to make a right turn from the left lane. The impact caused the applicant's vehicle to hit the curb and, at some point during the events, the applicant struck his head on the interior roof of the vehicle. He was not treated for any injuries at the scene of the accident and was able to drive himself home in a rental vehicle.

8Two days later, the applicant visited Dr. T. Schapira, family physician, and complained of headaches, and neck and back soreness. He was advised to take Tylenol as required and go to the hospital if the headaches worsen.

9About a month after the accident, the applicant started treatment at North York Medical Rehabilitation. The treatment was administered pursuant to the Minor Injury Guideline (the "MIG") and was funded by the respondent. The applicant continued his treatment and, on December 15, 2016, sought further funding for a psychological assessment. The respondent denied funding for the assessment and maintains that the applicant sustained a minor injury as defined by the Schedule.

10The applicant claims that his injuries are not within the definition of a minor injury and that the MIG and the $3,500.00 funding limit on treatment should not apply. He also claims to suffer from a complete inability to carry on a normal life as a result of his accident-related injuries and, thus, claims entitlement to a non-earner benefit.

NON-EARNER BENEFITS ("NEBs")

11The applicant claims entitlement to NEBs pursuant to section 12 of the Schedule and submits that the respondent failed to properly deny his entitlement to the benefit, thus entitling him to it. The respondent submits that the applicant failed to dispute his entitlement to NEBs within the two-year limitation period and failed to prove he suffers from a complete inability to carry on a normal life.

12Based on the evidence before me, I find that the applicant is not entitled to NEBs for the following reasons.

Entitlement to NEBs

13In order to qualify for NEBs, the applicant must suffer a complete inability to carry on a normal life as a result of the accident and not qualify for an income replacement benefit. An analysis of whether the applicant suffers a complete inability to carry on a normal life includes a comparison of the insured's life activities pre-accident with those post-accident.

14In this matter, the respondent denied the applicant entitlement to any specified benefits because he was employed at the time of the accident and returned to work following the accident.

15The applicant claims entitlement to NEBs on the premise that it was never properly denied and because, despite returning to work following the accident, he suffered a complete inability to carry on a normal life. The applicant submits that, as noted in Galdamez v. Allstate Insurance Company of Canada ("Galdamez"), his employment status at the time of the accident does not render him ineligible for NEBs¹. Galdamez found that it is theoretically possible for an insured person to return to work and still suffer a complete inability to carry on a normal life due to an impairment that continuously prevents them from engaging in substantially all their pre-accident activities. He submits that the reason for the denial – that the applicant returned to work and thus didn't qualify for NEBs – was too "inaccurate" with the Schedule to "constitute a reason at all" and as a result, the limitation clock should not start.

16The respondent submits that the applicant has only noted changes in his life post-accident and that he failed to prove a complete inability to carry on a normal life. I agree with the respondent.

17I find that the respondent provided a valid denial, despite the reason being legally incorrect. While it may be legally incorrect considering Galdamez, as I've noted above, the denial is nevertheless clear and unequivocal, included reference to the applicant's right to dispute the decision, and was made within the timelines prescribed by the Schedule. A denial can be compliant with the Schedule while being legally incorrect, as the respondent noted in submissions².

18In addition, I find that the medical evidence fails to demonstrate that the applicant is continuously prevented from engaging in substantially all his pre-accident activities as a result of an impairment suffered in the accident. The OCF-3 completed by Dr. N. Wadehra, chiropractor, dated July 30, 2016 indicates that the applicant suffers a complete inability to carry on a normal life and estimates the duration to be 9-12 weeks. Dr. R. Khanna's clinical notes and records ("CNRs") note the applicant's complaints of low energy and backaches but make no indication that the applicant is disabled from participating in his pre-accident activities. Likewise, the CNRs from North York Medical and the psychological pre-screen completed by N. Amirkhanian both fail to demonstrate a complete inability to carry on a normal life because they identify no disabling symptoms or injuries.

19The medical record also indicates that the applicant maintained full-time employment and missed no work following the accident. In fact, Dr. Khanna's CNRs note the applicant has a history of working two jobs or, at the least, working double-shifts as noted in the December 27, 2016 entry. That the applicant, following the accident, returned to work at two jobs or on double-shifts, combined with the functionality described in the applicant's medical record, is proof that he is not suffering a complete inability to carry on a normal life. Working multiple jobs to support oneself and their family, as the applicant does, is commendable however, it will almost certainly disqualify that person from entitlement to NEBs, as it does for the applicant in this case.

Limitation Period

20The respondent also submits that the applicant failed to file his LAT Application within two years of its refusal to pay the benefit. However, an analysis on this issue is unnecessary because I found that the applicant did not meet the criteria to qualify for NEBs.

THE MINOR INJURY GUIDELINE (the "MIG")

21The 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 sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

22If an insurer deems an applicant's injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

23The applicant submits that he developed psychological injuries identified as unspecified mood (affective) disorder and neurotic disorder (unspecified) as a result of the accident. He submits that psychological injuries are not included in the minor injury definition and, as a result, he is entitled to reasonable and necessary medical benefits outside the methodologies in the MIG. The applicant also submits that his physical injuries fall outside the minor injury definition and, via reply, submits that his pre-existing back pain precludes his recovery within the MIG.

24The respondent submits that the psychological symptoms that the applicant experienced are sequalae of his minor injuries and fall within the MIG. It further submits that the applicant's physical injuries fall within the MIG, and that his pre-existing back pain is consistent with his post-accident back pain complaints - characterizing this as a return to baseline.

Psychological Injuries

25I find on the evidence that the applicant's psychological symptoms are sequalae of his minor injuries and they do not meet the threshold to warrant clinical intervention or removal form the MIG.

26Dr. Khanna's CNRs show no compelling psychological injury. The CNRs note the applicant complained of experiencing low energy, tiredness or fatigue on a few isolated incidents however, Dr. Khanna's CNRs indicate little concern for these symptoms. Dr. Khanna, when presented with complaints of tiredness, noted that the applicant was working "double-shifts" and made no referral to any experts to assess the applicant's psychological state. Likewise, the CNRs show no record of a prescription for medication related to fatigue and tiredness, or any psychological injury.

27The CNRs from North York Medical are uncompelling evidence of a psychological injury. The CNRs document that the applicant reported some fear of driving or driving anxiety during three visits to the clinic. The complaints, however, are contradicted in the balance of the evidence. The record shows that he continued to drive to and from work and was able to regularly drive his children to school.

28Dr. G. Challis, psychologist, assessed the applicant and found that his presentation was not indicative of any intrusive psychological symptomology and that his limited complaints are sequelae of his minor injuries and fall within the MIG definition. In the May 30, 2017 insurer's examination ("IE") report, Dr. Challis acknowledged that the psychometric testing indicated that the applicant exhibited mild anxiety and depression symptoms, notably his tiredness and fatigue, but maintained that the symptoms were not indicative of any intrusive psychological symptomology. Dr. Challis' conclusion aligns with Dr. Khanna's records in that it acknowledges the applicant's limited complaints were primarily tiredness and fatigue but notes that he continues to drive and has no need for psychological intervention.

29I find the December 15, 2016 pre-screen report of Dr. M. Lotfalizadeh, psychologist, and N. Amirkhanian, psychotherapist, unpersuasive. The pre-screen report finds the applicant to have a neurotic disorder, unspecified, and an unspecified mood disorder. However, the pre-screen report relies entirely on the applicant's self-reported symptoms, is unclear as to who provided the provisional diagnosis in it, and it was conducted for the primary purpose of accessing treatment funding beyond the $3,500.00 limit provided by the MIG. The pre-screen report includes no psychometric testing to evaluate the applicant's psychological complaints and test the validity of his self-reported symptoms. The treatment and assessment plan states that the pre-screen interview was conducted by psychotherapist Amirkhanian, who works under the supervision of Dr. Lotfalizadeh, but it fails to identify who made the provisional diagnosis contained in the report and whether that person is qualified to render a provisional diagnosis. The treatment and assessment plan noted that the pre-screen assessment was conducted in order to "deem compelling evidence that would support the need for a more thorough psychological assessment to determine a diagnosis and specific treatment" and concludes with additional comments which clarify that psychological injuries are excluded from the minor injury definition. To me, these comments together imply that the pre-screen interview and report was conducted for the primary purpose of accessing treatment funding beyond the $3,500.00 MIG funding limit.

30The treatment plan, as well as the applicant's medical record, show no compelling sign that the applicant sustained a psychological injury to the extent that the applicant requires further investigation.

Pre-existing and Physical Injuries

31The applicant also submits that his physical injuries remove him from the MIG and the $3,500.00 funding limit on treatment. However, he did not elaborate on this position. The respondent submits that all the physical injuries sustained by the applicant fall within the MIG and that he had intermittent back pain pre-accident and has returned to that baseline. Pursuant to section 18(2) of the Schedule, the funding limit may not apply if the applicant provides compelling evidence that he has a pre-existing medical condition, documented by a healthcare practitioner before the accident, that will prevent him from achieving maximal recovery if subject to the funding limit and goods and services authorized under the MIG.

32I find on the evidence that the applicant's physical injuries fall within the MIG. A minor injury includes one or more of a sprain, strain, whiplash associated disorder ("WAD"), contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. The disability certificate dated July 30, 2016 diagnosed the applicant with injuries which are included in the minor injury definition: a WAD, as well as dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis. The October 21, 2018 x-ray report finds no evidence of acute traumatic injury and the March 1, 2019 MRI report finds some degeneration in the low back but reports no evidence of protrusion or stenosis.

33From the evidence, the applicant's back pain pre-dates the accident and is mostly attributed to working on his feet for long hours. Prior to the accident in 2015, the applicant's family physician at the time, Dr. Scavuzzo, noted the applicant's back pain from working two jobs that require him to be on his feet and recommended physiotherapy and orthotics. In the July 4, 2016 application for accident benefits, the applicant reported he was working 82 hours a week. Following the accident, the applicant complained on ongoing back pain to a new family physician, Dr. Khanna. In a subsequent record in December 2016, the applicant again complained of tiredness and Dr. Khanna also noted that the applicant was working long hours. Dr. Khanna referred the applicant to physiotherapy on one occasion and, more recently, advised the applicant to continue exercises and use a spine support at work. There is no compelling evidence showing that the accident increased the applicant's ongoing back pain or that his pre-existing back pain precluded his recovery from the accident-related injuries.

34The disability certificate also notes tension-type headaches, other anxiety disorders, and disorders of initiating and maintaining sleep. However, these symptoms are sequalae of his sprain/strain injuries as noted in the May 30, 2017 IE report of Dr. Challis. Further, the applicant is not impaired by these symptoms and the injuries do not upset the predominance of the applicant's minor injuries.

THE DISPUTED TREATMENT PLAN

35I have found the applicant sustained a minor injury as defined by the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. The psychological assessment treatment plan proposes services which fall outside the MIG. Considering this, an analysis on entitlement to the psychological assessment plan is unnecessary.

INTEREST

36Pursuant to section 51, interest is only payable on overdue payments. No payments went overdue and, pursuant to section 51, no interest is owed as a result.

CONCLUSION

37There is no evidence showing that the applicant suffered a complete inability to carry on a normal life. He is not entitled to NEBs as a result.

38The applicant suffered a minor injury as defined by the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. As a result, he is not entitled to the cost of a psychological assessment because it proposed services which are not considered in the MIG.

39No interest is payable as no payments went overdue.

Footnotes

1. 12012 ONCA 508
2. 2See 16-000517 v Aviva Insurance Canada, 2017 CarswellONT 10926 and MC v. Aviva General Insurance Company, 2019 CanLII 12606