Nishankar v. Western Assurance Company, 2021 CanLII 322

Citation: Nishankar vs. Western Assurance Company, 2021 ONLAT 19-011719/AABS

Released Date: 01/07/2021

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:

Gowsalai Nishankar Applicant

and

Western Assurance Company Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Mariana Slomyanski, Counsel For the Respondent: Paul Omeziri, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Gowsalai Nishankar (“Ms. Nishankar”), was injured in an automobile accident on December 7, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Western Assurance Company (“Western Assurance”), the respondent.

2Western Assurance determined that all of Ms. Nishankar’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² Western Assurance also denied Ms. Nishankar’s claims for a psychological assessment, a chronic pain assessment and a neurological assessment. As a result, Ms. Nishankar submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on February 27, 2020 and a written hearing was scheduled.

4The written hearing was adjourned on consent of Western Assurance to September 8, 2020 following a motion by Ms. Nishankar to extend the originally scheduled submission deadlines.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Are Ms. Nishankar’s injuries as a result of the accident predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the $3,500.00 limit in the MIG?

(ii) Is Ms. Nishankar entitled to the following assessments recommended by Synergy Diagnostic and Assessment Centre:

(a) $2,200.00 in a treatment plan (“OCF-18”) for a chronic pain assessment dated December 21, 2018?

(b) $2,200.00 for a psychological assessment in an OCF-18 dated January 3, 2019?

(c) $2,200.00 for a neurological assessment³ in an OCF-18 dated January 29, 2019?

(iii) Is Western Assurance liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to Ms. Nishankar?

(iv) Is Ms. Nishankar entitled to interest on any overdue payment of benefits?

RESULT

6I find that Ms. Nishankar has not satisfied her burden of proving that her impairments require treatment beyond the MIG. I also find that Ms. Nishankar is not entitled to the proposed chronic pain assessment, the psychological assessment or the neurological assessment. As a result, Ms. Nishankar is not entitled to an award and no interest is payable.

ANALYSIS

The Minor Injury Guideline (“MIG”)

7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

8I find that Ms. Nishankar has failed to meet her onus of proving on a balance of probabilities⁴ that she suffers from chronic pain or that she sustained any psychological conditions or impairments as a result of the accident and, therefore, she is not removed from the MIG.

9To support her position that her injuries are outside of the MIG, Ms. Nishankar relied upon the three disputed OCF-18s that were dated over three-years post-accident.

10The December 21, 2018 OCF-18, which sought funding for a chronic pain assessment, included an initial assessment report by Dr. Farhan Khandwalla, chiropractor. In this initial assessment report, Dr. Khandwalla noted that Ms. Nishankar reported the following “persisting and ongoing” psychological complaints: decreased mood; sleep disturbances; daytime fatigue; concentration difficulties; memory problems; increased fear and avoidance behaviours; elevated stress; was depressed; and anxiety. Dr. Khandwalla also noted that Ms. Nishankar reported ongoing pain symptoms in her neck, bilateral shoulders, upper back, lower back, right foot and right knee pain as well as headaches and that Ms. Nishankar had difficulty with extending, bending, lifting and carrying, sustained walking and other prolonged activities.

11The January 3, 2019 OCF-18 that sought funding for a psychological assessment also referred to Dr. Khandwalla’s initial assessment report and included the same list of psychological complaints as set out in the December 21, 2018 OCF-18. A psychological pre-screen report by Sathis Kumar Srinivasan, registered psychotherapist, which followed a December 31, 2018 interview with Ms. Nishankar, was also included in the additional comments portion of this OCF-18. Mr. Srinivasan’s reported that Ms. Nishankar complained of the following conditions/injuries as a result of the accident: headaches; neck pain; a fear of driving a car as well as travelling as a passenger in a vehicle; intrusive thoughts of the accident; avoidance of travelling in a vehicle; decreased memory and diminished concentration after the accident; feeling overwhelmed and stressed; lacking motivation; frequent worrying about her health and future; and was easily frustrated and irritable.

12The January 29, 2019 OCF-18 that sought funding for a neurological assessment again referenced Dr. Khandwalla’s initial assessment and included the same list of psychologically-related sequelae as set out in the December 21, 2018 OCF-18. This OCF-18 also highlighted Ms. Nishankar’s report of “an initial accident-related impact to the head” and stated that Ms. Nishankar continues to experience frequent headaches.

13The information in the clinical notes and records (“CNRs”) of Dr. Komanthy Jayashankar, Ms. Nishankar’s family physician, however, are in complete contrast to the information provided in the OCF-18s regarding Ms. Nishankar’s accident-related complaints.

14After the accident, Ms. Nishankar first saw Dr. Jayashankar on December 14, 2014 and she was diagnosed with whiplash. On February 22, 2015, Ms. Nishankar saw Dr. Jayashankar again and complained of headaches “once in a while” and of dizziness. No diagnosis was made at that time and no further treatment recommendations were made. Dr. Jayashankar also noted in an April 10, 2015 CNR entry that Ms. Nishankar’s sleep was “OK.”

15The last accident-related complaint by Ms. Nishankar in Dr. Jayashankar’s CNRs was on May 20, 2015 wherein Ms. Nishankar complained of worsening headaches since the accident. At that time, Dr. Jayashankar queried if Ms. Nishankar’s headaches were related to other vision complaints and referred her to an ophthalmologist.

16Dr. Jayashankar’s CNRs contain no reports of any psychological complaints by Ms. Nishankar at any time post-accident to the final CNR entry date of January 5, 2020.

17Dr. Jayashankar’s CNRs do include physical complaints reported by Ms. Nishankar beyond May 20, 2015, however Dr. Jayashankar did not attribute these complaints to the accident. For example, Ms. Nishankar reported light-headedness and dizziness to Dr. Jayashankar on August 22, 2015, who described Ms. Nishankar as appearing well on this date. On September 26, 2015, it was determined that Ms. Nishankar’s dizziness was due to low iron. Dr. Jayashankar also reported on September 26, 2015 that Ms. Nishankar was otherwise doing well and that he had no other concerns.

18Two and a half years later, Ms. Nishankar complained of fatigue to Dr. Jayashankar on February 14, 2018. However, on March 7, 2018, Dr. Jayashankar confirmed that Ms. Nishankar was pregnant. At no time did Dr. Jayashankar attribute Ms. Nishankar’s single complaint of fatigue to the accident.

19On October 24, 2018, Ms. Nishankar complained of intermittent headaches and low back pain to Dr. Jayashankar. Dr. Jayashankar queried whether or not Ms. Nishankar’s headaches were spinal headaches and advised Ms. Nishankar to monitor them. No further action or treatment was taken at that time and Dr. Jayashankar did not attribute these complaints to the accident.

20Finally, on December 1, 2018, Ms. Nishankar complained of lower left side back pain for the past three days to Dr. Jayashankar. Ms. Nishankar reported that this pain radiated from her left lumbar side posteriorly down to her feet and that she had some foot numbness. Despite diagnosing her with a back sprain, this pain complaint had only been in existence for three days according to Dr. Jayashankar’s CNRs and not since the accident, as suggested by Ms. Nishankar.

21I place little weight on the information provided in the disputed OCF-18s regarding Ms. Nishankar’s accident-related complaints and, instead, place greater weight on Dr. Jayashankar’s CNRs which show no ongoing complaints of accident-related pain or any psychological complaints. Neither Dr. Khandwalla nor Mr. Srinivasan reconciled their comments of Ms. Nishankar’s ongoing and persistent pain since the accident and psychological complaints with the absence of such reports in Dr. Jayashankar’s CNRs. It is also not clear if Dr. Khandwalla or Mr. Srinivasan even reviewed Dr. Jayashankar’s CNRs as part of their initial or pre-screen reports and no information was provided on the length of time that Dr. Khandwalla or Mr. Srinivasan had spent with Ms. Nishankar.

22Furthermore, while the Insurer Examination (“IE”) Independent Psychology Evaluation report by Dr. Godwin Lau, psychologist, dated March 16, 2016 reported that Ms. Nishankar had a mild complaint of residual passenger anxiety, Dr. Lau opined that Ms. Nishankar’s condition was not severe enough to warrant a psychological diagnosis at that time. Dr. Lau’s opinion along with the absence of any psychological complaints in Dr. Jayashankar’s CNRs post-accident indicates to me that if Ms. Nishankar had any psychological complaints post-accident that they were nothing more than minor.

23For all of the reasons set out above, I find that Ms. Nishankar has failed to prove on a balance of probabilities that her injuries are outside of the MIG as a result of chronic pain or due to any psychological condition sustained as a result of the accident. As such, Ms. Nishankar is not removed from the MIG.

24As Ms. Nishankar had not exhausted the $3,500.00 medical and rehabilitation benefit limit available under the MIG prior to the deadline for the written hearing submissions,⁵ I must now determine if Ms. Nishankar is entitled to the proposed assessments.

25Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

26In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, Ms. Nishankar still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.⁶ To do so, Ms. Nishankar must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment. On the evidence, I find that Ms. Nishankar has failed to satisfy that onus and, therefore, she is not entitled to the proposed chronic pain, psychological and neurological assessments as they are not reasonable or necessary.

27As discussed above in paragraph [21], I afford little weight to the information provided in the disputed OCF-18s and, instead, place greater weight on Dr. Jayashankar’s CNRs regarding Ms. Nishankar’s accident-related complaints. As such, I find that Ms. Nishankar’s last reported accident-related pain complaint to Dr. Jayashankar was for headaches on May 20, 2015, some three and a half years prior to the submission of the OCF-18s to Western Assurance for the chronic pain assessment and for the neurological assessment. While Ms. Nishankar complained of low back pain and headaches to Dr. Jayashankar beyond May 20, 2015, these complaints were not constant since the accident and were not attributed to the accident by Dr. Jayashankar. As a result, I find that there is no objective evidence before me that I place weight on to suggest that Ms. Nishankar may suffer from chronic pain or from any neurological impairment as a result of the accident which would warrant a chronic pain or neurological assessment.

28Similarly, I find that there is no objective evidence before me that I place weight on to suggest that Ms. Nishankar may suffer from a psychological condition as a result of the accident that would warrant a psychological assessment in January 2019. As stated above in paragraph [16], there is no evidence before me that Ms. Nishankar made any psychological complaints to Dr. Jayashankar as a result of the accident. Further, while Ms. Nishankar may have had some residual passenger anxiety as reported by Dr. Lau in his March 16, 2016 IE report, there is no evidence before me to support a finding that Ms. Nishankar experienced continuing passenger anxiety from March 2016 to January 2019 when the OCF-18 for a psychological assessment was submitted to Western Assurance. Even if Ms. Nishankar did continue to suffer from a psychological impairment since March 2016 to January 2019, no explanation or information was provided for Ms. Nishankar’s almost three-year delay in submitting an OCF-18 for a psychological assessment after Dr. Lau’s report.

29Based on all of the reasons set out above, I find that Ms. Nishankar is not entitled to the proposed chronic pain, psychological and neurological assessments. Ms. Nishankar has failed to prove on a balance of probabilities that each proposed assessment is reasonable and necessary as there is no objective evidence upon which I place weight that suggests that she may have a condition for which she seeks the assessments.

Award

30Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

31As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

32As there are no benefits owing, no interest is payable.

CONCLUSION

33For the reasons outlined above, I find that Ms. Nishankar:

(i) has failed to prove on a balance of probabilities that her injuries are outside of the MIG;

(ii) is not entitled to the OCF-18s for the chronic pain, psychological or neurological assessments;

(iii) is not entitled to an award under O. Reg. 664;

(iv) no interest is payable; and

(v) this application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3This OCF-18 was originally set out in the Tribunal’s February 27, 2020 Order as seeking funding for an orthopaedic assessment. The OCF-18 before me, however, is seeking funding for a neurological assessment and, as such, I have corrected the issue in dispute between the parties.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24.
5. 5Standard Benefit Statement dated May 2, 2016, Respondent Written Submissions, tab 14.
6. 6Supra note 4.