Citation: Khatri v. Aviva General Insurance Company, 2022 ONLAT 20-011247AABS

Licence Appeal Tribunal File Number: 20-011247/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:

Rimpal Khatri

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATORS:

Richard Warr Thérèse Reilly

For the Applicant:

Satwant Merwar, Counsel

For the Respondent:

Ajay Shukla, Litigation Specialist

Yann Grand-Clement, Counsel

Court reporter:

Maureen Biscak

Heard by Videoconference:

August 23 and 24, 2022

1The applicant, Rimpal Khatri, was involved in an automobile accident on June 10, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent, Aviva General Insurance Company, and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2The matter proceeded to a videoconference hearing. At the hearing the applicant testified. The respondent called Dr. Robert Woods and Dr. Todd Walters.

ISSUES IN DISPUTE

3The following issues are to be decided:

(i) Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $397.97 per week from April 21, 2019 to June 10, 2020?

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

RESULT

4I find that the applicant has not met her onus in proving, on a balance of probabilities, that she is entitled to an IRB. The claim for interest is dismissed.

BACKGROUND

5The applicant is seeking an IRB. The parties agreed the claim for the IRB is restricted to the 104 weeks following the accident.

MOTION

6At the conclusion of the respondent’s evidence and prior to closing submissions, the respondent brought a motion to enter a letter into evidence.

7The letter was dated June 13, 2022. This was a letter from the respondent to the applicant requesting that the applicant attend for further IEs.

8The applicant also submitted that they were unaware that the respondent was bringing this late motion, and had the respondent brought it earlier in the hearing, then there would have been opportunity to cross-examine the IE assessors regarding the clinical notes and records authored after March 1, 2019.

9After hearing the submissions of both parties, we ruled that the letter of June 13, 2022 will not be allowed into evidence. The respondent had ample time to bring this motion on the first day of this hearing and to bring a motion to include new evidence right before closing submissions would not be procedurally fair.

Entitlement to IRBs within 104 weeks of the accident (April 21, 2019 to June 10, 2020)

10The test for eligibility to receive IRBs within 104 weeks of the accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident.

11During opening statements, the applicant stated that at the time of the accident she was the driver of the vehicle, and her husband was the passenger. They were stopped at a red light and their vehicle was struck from behind.

12At the time of the accident, the applicant had been employed as a lab technician assistant at Grande Cheese for approximately thirteen years.

13Immediately after the accident she was off work for three weeks but returned to work after this period. This was confirmed in the applicant’s testimony, that she did work as a lab tech assistant at Grande Cheese at the time of the accident. She returned to work post-accident on July 3, 2018 and worked until August 27, 2018.

14She remained at work for eight weeks but then left due to pain. She received an IRB at that time for approximately eight months. This benefit was terminated by the insurer in April 2019.

15The applicant testified that while she was off, she did receive an IRB in the amount of $397.97 per week from August 27, 2018 until April 21, 2019.

16The applicant then remained unemployed until she took a new, less physically demanding position at a car dealership in August 2021.

17The respondent in its opening statement submitted that the applicant sustained soft tissue injuries only.

18The respondent agrees that for a period of time the applicant did require an IRB, which it paid up until April 2019.

19The respondent terminated the applicant’s IRB as a result of Insurer Examination (“IE”) reports and findings from two IEs attended by the applicant in March 2019.

20The respondent asserts that the applicant is not entitled to an IRB after April 2019 as the applicant has not sustained an accident-related injury that has caused her to suffer a substantial inability to perform her pre-accident employment duties.

21The applicant testified that her tenure at Grande Cheese always involved her doing the same job.

22She described her duties as involving the monitoring of temperatures throughout the refrigerated plant, going to different locations throughout the plant to obtain product samples and then bringing those back to the lab. She was responsible for properly storing these product samples in the lab’s refrigerator and then testing these samples for quality control. She also had responsibilities ensuring cleaning protocols were adhered to.

23She was asked to provide a breakdown of her 7.5– 8-hour shift in terms of her activities. She testified her shift was a day shift commencing at 6:30 am and finishing at 2:30 pm. During that time 30 – 45 minutes would be spent at a desk completing reports. Walking the plant consisted of 2 – 3 hours per day. Standing at a workstation, processing product samples, consumed approximately 2 hours of her shift. She also testified that a portion of her day would be reporting to her manager, and sometimes that involved walking around the facility, including stairs, to seek them out. She described her duties as physically demanding.

24The applicant testified that Dr. Steven Rubenzahl is her family physician and has been for approximately 10 years. The clinical notes and records of Dr. Rubenzahl were submitted as evidence and entered as an exhibit in this hearing.¹ These clinical notes and records also contain summaries of sessions that the applicant had with Mr. Clement Ampong, a psychotherapist, to whom the applicant was referred by Dr. Rubenzahl. Neither Dr. Rubenzahl nor Mr. Ampong appeared as witnesses at this hearing.

25The applicant’s first visit with Dr. Rubenzahl after the accident was June 12, 2018. At this visit Dr. Rubenzahl noted the events of the accident as reported to him by the applicant. That being a rear-end collision while stopped at a red light in which the applicant had “typical forward back motion, brief daze”. She reported at the time of the accident she “couldn’t breathe” and “called 911”.

26Dr. Rubenzahl also noted that “neuro exam ok but very tender upper chest soft tissues, lower back and trapez with reduced neck rotation”. He noted a whiplash injury, that the applicant reported no pain relief from Advil, that her pain was worse at night, and that she found it hard to sit for any length of time. At this time Dr. Rubenzahl recommended physiotherapy and two days off work with reduced hours the following week. Dr. Rubenzahl also prescribed pain medications at this visit.

27On June 26, 2018, the applicant returned to Dr. Rubenzahl with complaints of back and shoulder pain. Dr. Rubenzahl recommended that the applicant try working half days the following week.

28The applicant returned to work July 3, 2018 but no evidence, through testimony or otherwise, was offered as to whether she followed Dr. Rubenzahl’s recommendation and only completed half days. The only notation that Dr. Rubenzahl made on July 3, 2018 was that the applicant was trying to work slowly.

29The clinical notes and records show that the applicant made several visits to see Dr. Rubenzahl in the following weeks on the following days in 2018: August 27, September 4 and 20, October 9, November 2, December 11, and in 2019 on: January 3, February 1, March 1, and March 28. These were all the visits to Dr. Rubenzahl before her IRB was terminated.

30There is a notation in Dr. Rubenzahl’s clinical notes and records of February 1, 2019 that states “again reviewed work does not have modified at all”. There is no context provided for this notation, but it is noteworthy as the applicant testified that she sent a doctor’s note to her employer regarding modified duties but did not get a response and did not recall ever having that discussion with her employer. She further testified that she never asked for modified duties.

31As a result of these visits, Dr. Rubenzahl noted consistent complaints from the applicant regarding back pains. Dr. Rubenzahl also notes several recommendations including continued physiotherapy, stretching, exercise, and weight loss. Dr. Rubenzahl also prescribed medications over this time to relieve the applicant’s symptoms.

32Dr. Rubenzahl also made referrals for diagnostic imaging of the applicant in late 2018. This included a CT scan of her spine which was ordered and completed in October 2018 and an MRI which was ordered in December 2018 and completed in January of 2019.

33Dr. Rubenzahl’s note in the record for the March 1, 2019 visit indicates “no further interventions, really needs steady exercise.” This notation appears to indicate that at that time, Dr Rubenzahl, did not believe the applicant had any limitations or impairments that would stop her from engaging in physical activity.

34In March 2019, the insurer had the applicant attend at two IEs. The first was with Dr. Todd Walters on March 19, 2019, and the second with Dr. Robert Woods on March 20, 2019.

35Both Dr. Walters and Dr. Woods testified at this hearing. Their reports that they generated from examining the applicant were also submitted as evidence². Dr. Walters is a licensed medical practitioner. He conducted an in-person musculoskeletal insurer’s examination of the applicant on March 19, 2019.

36Dr. Walter’s examination consisted of review of several medical documents including the clinical notes and records of Dr. Rubenzahl (from 2015 up to March 2019), diagnostic imaging, and several medical/insurance forms.³

37Dr. Rubenzahl had ordered both a CT scan of the applicant’s spine and an MRI of the applicant’s lumbar spine. The CT scan which was completed in October 2018 and the MRI in January 2019. This diagnostic imaging was available to both IE assessors and was part of their document review. Dr. Walters in his report stated the CT Scan and MRI documents show some mild underlying changes which do not appear to be traumatic.⁴ On November 2, 2018. Dr. Rubenzahl reviewed the CT scan of lumbar spine with the applicant. His notes state “mild bulge, mild stenosis L4/5, L5S1” and makes no comment as to whether or not these observations are as a result of the accident.⁵ On February 1, 2019, Dr. Rubenzahl notes “in to review MRI “ but makes no notation of results. On March 8, 2019, Dr. Rubenzahl notes “8 months post MVA with mild NFS changes on MRI”. ⁶ NFS was not explained by Dr. Rubenzahl who was not called to testify. There is no notation that NFS was caused or exacerbated by the accident.

38Both Dr. Walters and Dr. Woods conducted an interview of the applicant and received information about the accident, her pre-and post-accident activities, her medical interventions, and investigations up to the date of this examination and her employment history and duties.

39Dr. Walters also conducted a physical examination of the applicant including asking her to perform certain movements to demonstrate her mobility and any limitations.

40Based on his examination, Dr. Walter’s concluded in his report, “In my opinion, at this time she does not suffer substantial inability to perform the essential tasks of her pre-accident employment”.⁷

41Dr. Walters during his testimony described the applicant as having a minor residual impairment in her lumbar spine that would not impact her tasks as a lab tech assistant at Grande Cheese. Dr. Walters also testified that his understanding of the applicant’s employment tasks at Grande Cheese came mostly from the applicant’s self-reporting about those tasks.

42In his report Dr. Walters concludes that the applicant sustained injuries that are described as strains. He further concludes that these injuries are consistent with the accident and that they are consistent with the diagnostic imaging he reviewed. Dr. Walters also asserts that “scientific evidence supports a return to work as being therapeutic in the context of her strain injuries”.

43Dr. Woods is a Registered Psychologist. On March 20, 2019, he conducted an IE of the applicant.

44In both his report and during his testimony, Dr. Woods stated that he believed that the applicant was displaying signs and symptoms of an adjustment disorder and he could not rule out somatic symptom disorder. Dr. Woods did state that these were provisional diagnoses only as he believed the psychometric testing results were not conclusive. He stated in his report that the applicant’s impairment may not be clinically significant or reach the threshold of a diagnosis.⁸

45From his examination, Dr. Woods concluded that the applicant does not suffer from any psychological impairment that substantially prevents her from performing her pre-accident employment duties.⁹ Dr. Woods explained in his report and in his testimony that his understanding of the applicant’s employment tasks at Grande Cheese was derived from the applicant’s self-reporting of such.

46The applicant continued to see Dr. Rubenzahl throughout the remainder of 2019 through to 2021. The Disability Certificate (OCF-3)¹⁰ dated January 11, 2019 completed by Dr. Rubenzahl listed the injuries sustained as low back pain, an adjustment disorder and spinal stenosis, with an expected duration of 5 to 8 weeks.

47In a clinical note and record generated from a visit with Dr. Rubenzahl dated May 30, 2019, the doctor noted “[the applicant] needs to keep working through stress, pain, nightmares”. It is unlikely that Dr. Rubenzahl was specifically speaking about employment, however, again this remark indicates that the applicant should not be limited in her abilities.

48During her visit to Dr. Rubenzahl on July 11, 2019, the applicant described her pain as severe. Dr. Rubenzahl however, made a notation that he observed her gait as “normal”.¹¹

49She was asked about this during her cross-examination and agreed with the doctor’s notation. When asked about her walking ability in general in 2019 she described that she walked with a little difficulty that became worse with distance.

50In the clinical notes and records of Dr. Rubenzahl up to this July visit he does not describe any difficulties with walking. Dr. Woods does make a comment in his report that her gait was slow but “without obvious effort”.

51Dr. Mark Bryer, physician who conducted a neurological examination of the applicant and authored a report based on that examination dated April 27, 2019, noted in that report “there is no gait disturbance from what I can gather”.¹²

52The applicant continued her visits, every two to four weeks with Dr. Rubenzahl throughout the summer and into the autumn of 2019.¹³ Her complaints of pains in her low back and chest continued during these visits.

53On September 17, 2019, Dr. Rubenzahl notes that the applicant has not had any contact with her employer. This corroborates her testimony that she did not follow-up with enquiries about modifying her duties or making other accommodations for a possible return to work. After this visit Dr. Rubenzahl made a referral for the applicant to receive counselling with Mr. Ampong.

54In October 2019 the applicant started her counselling with Mr. Ampong who is a psychotherapist, Registered Social Worker (RSW), MSW (Master of Social Work) and MPA (Master of Public Administration).¹⁴ Her counselling began with an intake screening consultation which gave the applicant the opportunity to provide Mr. Ampong with some background information regarding the accident and her post-accident progress¹⁵.

55On May 25, 2020, the applicant had an appointment with Mr. Ampong who noted that for the past week the applicant had been going on short daily walks with her husband. Mr. Ampong noted that she also reported that “activities distract her and thus improve both emotional and cognitive functioning”.¹⁶ This is consistent with Dr. Rubenzahl’s advice throughout the applicant’s visits to her doctor, that exercise would have positive affects for the applicant’s management of her symptoms.

56The remainder of the clinical notes and records, those dated after June 2020, of Dr. Rubenzahl and Mr. Ampong are outside of the time for which the IRB is being sought. However, the applicant was asked about a notation made by Dr. Rubenzahl on July 22, 2021. In this note Dr. Rubenzahl tells the applicant that she “needs to try getting on with her life” and “that there are no further medical interventions that are going to change her current Sxs”. When asked about this during cross-examination, the applicant stated she believed that he was trying to motivate her. She was then asked if she returned to work and she replied, no. Mr. Ampong on July 29, 2021 discussed with the applicant “chronic pain and the need to resume her previous and work activities so her body could get adapted to her new work life.”¹⁷

57Dr. Rubenzahl never made any notation in his clinical notes and records from the applicant’s visits between April 2019 and June 2020, that the applicant should not or could not return to work. The applicant was asked about this during cross-examination with the question phrased, “after April 2019 no doctor said you cannot return to work? Any doctor?” The applicant replied that she only spoke to her family doctor and that she did not recall.

ANALYSIS AND DECISION

58The applicant has not met her onus of proving on a balance of probabilities that her accident-related injuries caused a substantial inability for her to perform the essential tasks of her pre-accident employment during the time-period of April 21, 2019 to June 10, 2020.

59The applicant did not present any expert opinions to support her claim that she meets the substantial inability to perform her pre-104 weeks employment and thus meets the IRB test as a result of the accident. She made submissions to that effect however submissions are not evidence.

60She testified that the activity that took up most of her shift at Grande Cheese was walking around the facility to collect product samples to be tested. There was no evidence presented in his hearing that any medical professional noted a significant impairment in her ability to walk. No medical professional indicated that the applicant could not walk or should not walk or that she could was substantially unable to perform her pre-accident work duties.

61To the contrary, there is evidence submitted that the applicant should have been active, not focusing on pain and attempting to return to her pre-accident activities, and that this would be beneficial to her recovery.

62The clinical notes and records of Dr. Rubenzahl, and the reports and testimony of the IE assessors all acknowledge that the applicant was experiencing some pain. However, there is no medical evidence presented by the applicant that the applicant could not return to her pre-accident employment. She has failed to meet the statutory test for an IRB claim.

63There was also no evidence of any communication between the applicant and her former employer Grande Cheese as to any accommodations, or modifications by Grande Cheese enabling the applicant to return to work on a modified basis. The applicant testified that these discussions did not occur. There is also no evidence submitted of an attempt to return to her pre accident employment.

64The applicant has not presented evidence that she suffered a substantial inability to perform the essential tasks of her pre-accident employment from April 21, 2019 to June 10, 2020 because of the subject accident.

65The applicant is not entitled to an IRB. The claim for interest is dismissed.

66The application is dismissed.

Released: November 10, 2022

________________________

Richard Warr

Adjudicator

________________________

Thérèse Reilly