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:

Kirushan Chandramohan

Applicant

and

Intact Insurance Company

Respondent

ADJUDICATOR:

Thérèse Reilly

APPEARANCES:

For the Applicant:

Michael Ettedgui, Counsel

For the Respondent:

Emily Schatzker, Counsel

Court Reporter:

Breanna Clancy

Held by Videoconference on:

February 28, March 1, 2 and 4, 2022

1The applicant was injured as a result of a motor vehicle accident on July 17, 2016. He applied for and sought an income replacement benefit (IRB) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). The respondent paid IRBs in the first 104 weeks after the accident but denied the IRB claim post 104 weeks on the basis that the applicant did not meet the post 104-week IRB test.

2The applicant disagreed with the respondent’s decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). The applicant maintains he is entitled to a post 104-week IRB due to his injuries. I find that based on the totality of the evidence, the applicant has not established he meets the post 104-week IRB test.

3The hearing proceeded by videoconference. The applicant, Ms. Melissa Paniccia, occupational therapist and Dr. Shrenik Parekh, psychiatrist all testified on the applicant’s behalf. The respondent called Dr. John Lee psychologist, Alexandra Birioukova, occupational therapist and Mr. Diamantis Zervas, vocational assessor. All the doctors and the occupational therapists were qualified at the hearing as experts in their respective areas of practice.

ISSUES

4The following are the issues to be decided:

Is the applicant entitled to a post-104-week income replacement benefit at the rate of $288.88 per week from October 16, 2018 to date and ongoing (the post 104-week IRB)?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the totality of evidence, the claim for the post-104-week IRB from October 16, 2018 to date and ongoing is dismissed. The claim for interest is also dismissed.

BACKGROUND

Employment at the Time of the Accident

6The applicant testified that prior to the accident he had been working part time and completed a co-op program during high school with Green and Ross, a tire and automotive centre. When the school year ended the applicant was hired by Green and Ross full time as an auto mechanic helper. He was working as an auto mechanic helper at the time of the accident. His last day of work was July 16, 2016. His employment duties involved mostly, lube, oil and tire changes. He had been working in this full-time position for about two weeks when the accident occurred. As a result of the injuries, the applicant never returned to work with Green and Ross or any other entity.¹ The applicant testified that he aspired to continue to work in this field but was told by his surgeon that he would not likely be able to return to this work due to its heavy lifting requirements.

The Statutory test for a Post 104 Week IRB Claim

7The applicant bears the burden of proving on a balance of probabilities that he is entitled to a post-104-week income replacement benefit in the amount of $288.88 per week from October 16, 2018 and ongoing.

8The statutory test for eligibility for an IRB post-104 weeks after the accident is set out in section 6(2)(b) of the Schedule which provides that for the period after the first 104 weeks of disability, the applicant must demonstrate he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. The test is stringent in that the applicant must show that as a result of the accident that he has a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. This is often called the “complete inability” test.

The Accident and the Applicant’s Impairments

9The applicant testified that he was injured when he was a front seat passenger in a vehicle driven by his friend and at the time of the accident he had his right arm extended outside the window. He was 17 years old at that time. His friend was driving the vehicle in a park when the car hit a boulder causing the vehicle to land on its side and on the applicant’s extended arm. The applicant’s right elbow was fractured in the accident. The applicant testified he and his friends initially claimed that he had injured his arm in a fall as they were worried they would get into trouble for the car accident. The applicant went to the hospital for treatment. He admitted that his injury was from a car accident and not a fall.² The applicant claims he also injured his back and neck in the accident which the respondent denies.

10The applicant sustained a severe injury to his right elbow. The injury was described by Dr. Hodgins, orthopaedic surgeon as a “right elbow open degloving injury with an open fracture of the medial epicondyle”. The applicant was admitted to the hospital where he underwent surgery performed by Dr. Hodgins to repair the fracture. He was hospitalized for several days after surgery. He had biweekly visits with Dr. Hodgins after the surgery. Three months post surgery the notes indicate the fracture healed well. The applicant was told by Dr. Hodgins that he could start physiotherapy and by the end of September 2016 it was noted he had full range of motion with no limitations.³ On October 2, 2017, Dr. Hodgins noted in his clinical notes that the radiograph showed the fracture had healed. He advised the applicant he was very close to maximum recovery and no further follow up appointments were necessary. ⁴ The applicant testified that he was told by Dr. Hodgins that his arm would get worse with use. The applicant did not outline the activities that would worsen his arm with use.

11The applicant testified he continues to experience pain in his right arm as well as pain in his low back and neck from the accident. He testified he has limitations using his right arm and fears re-injuring his arm. The applicant claims further that as a result of the accident he has headaches and psychological impairments including depression, anxiety, post traumatic stress, sleep disturbances and memory issues which prevent him from working. He testified that he used cannabis before the accident and after the accident continued using cannabis for pain, headaches and sleep issues.

Psychological Impairment

12The applicant was psychologically assessed in December 2016 by Dr. Steiner, psychologist who performed the usual psychological tests. The report indicates that the applicant had stopped seeing most of his friends including the driver of the vehicle in the accident. The applicant spent most days at home. He lives with his parents. Dr. Steiner diagnosed applicant with adjustment disorder with mixed anxiety and depressive mood and a specific phobia (driving). The applicant complained of pain, depression, and anxiety and appeared sad and worried.⁵

13The applicant was also assessed by the insurer’s section 44 IE assessor, Dr. Lee, psychologist, on August 7, 2017. Dr. Lee reported the applicant told him at the time of the assessment that he did not need more psychological treatment and that counselling he received from Lois Lane at the physiotherapy clinic had helped him. The applicant also confirmed he never told his family doctor about stress as he “did not have this type of relationship with his family doctor.” He did express concern to Dr. Lee about what he would do with his life and avoiding becoming useless. The applicant confirmed that his sister was in a bad accident in 2018 and he was able to help her with her personal care. He confirmed he can walk, climb stairs, socialize with his cousins, and attend house parties.

Family Doctor Notes

14The applicant relies on the clinical notes and records of his visits to various doctors at a walk-in clinic. I find the clinical notes and records do not assist the applicant in supporting his claim for an IRB and they indicate he sustained some injuries from non-accident-related incidents. For example,

a. On May 30, 2017 the doctor noted knee pain from running on a thread mill.

b. On July 5, 2017, the clinical notes indicate the applicant had injured his right-side lower leg at a camp and complained of knee pain. ⁶

c. On November 30, 2017, Dr. Thamothoran notes ⁷ that the applicant’s low back pain is due to a slip and fall where he sustained soft tissue injuries from that fall. He was told to take Tylenol for pain.

d. There is a gap in the medical records between November 2017 and November 3, 2019 which suggest the applicant did not visit the clinic for any accident-related pain.

e. On March 2, 2020, the applicant complains of elbow pain and seeks a referral to a psychiatrist.

f. From November 2020, the notes refer to visits to Dr. Karen Chahal, physician who notes:

i. In November 2020, the X-ray showed the old, healed fracture of the right elbow. The applicant had stated to her that in warm weather he had no pain in the right elbow. ⁸

ii. On March 31, 2021, the notes indicate the applicant had gone on a one-hour hike and that he now has low back and leg pain.

iii. On April 30, 2021, and on August 10 and 24, 2021, the visits are for dizziness and not for accident-related issues. There is no reference to the elbow pain.

iv. On October 21, 2021, he receives a referral to investigate chest pain and episodes of dizziness.⁹ He is also referred to a cannabis clinic to switch from using THC to CBD oil.

v. On November 4, 2021 the notes indicate the applicant has cut down on his use of THC as it has affected his mental health.

vi. The reporting letter from the Canadian Cannabis Clinic by Dr. Bhatti ¹⁰ states the applicant has no PTSD or depression, no anxiety and no paranoia.

vii. On March 31, 2022 the applicant requests a referral to physiotherapy which he does not attend.

Motivation to Return to Work

15The respondent states the applicant has not tried to find any work. Five years and seven months have passed since the accident. The applicant presented no evidence of any efforts to return to work. The applicant testified he is unable to return to work in any capacity.

16A vocational assessment was completed by Mr. Zervas. In his report dated October 1, 2018¹¹ Mr. Zervas outlined a number of positions that would be available to the applicant. Mr. Zervas concluded from a vocational skills and knowledge perspective, that the applicant did not suffer a complete inability as a result of the accident to engage in any employment or self employment for which he is reasonably suited by education, training or experience. He stated the applicant possesses the level of competitive employment aptitude, training and work experience to pursue employment in any one of the (word missing) identified as suitable in his report. This included the positions of automotive parts salesclerk, customer service representative, a dispatcher and appointment scheduler. The applicant when he testified could not recall discussing the suggested positions noted by Mr. Zervas such as customer service representative in an automotive shop.

Examination under Oath

17The applicant testified at an examination under oath on January 16, 2020 that he pulls himself back from working because of stress, lack of motivation and fear of reinjuring his elbow. He testified he does not feel he could perform well. He testified that he could lift a 2-litre bottle of pop but not 20 pounds. He rated his pain in his right arm at a 4.5 out of 10.¹² He stated the neck pain did not bother him. He rated his low back pain a 4 out of 10. He did confirm he had headaches prior to the accident but they were never serious enough for him to see his family doctor. Despite driver anxiety, he did obtain his Class “G” drivers license after the accident. The applicant did not want to return to work until he feels ready to work and he wanted to first finish his high school.¹³ The applicant testified at the hearing that in 2021 he completed three school credits at a private school to obtain his high school diploma. He testified that cannabis takes away his pain. He reiterated that he was afraid to go back to work and re-injure his arm although the doctors said he had reached maximum medical recovery and he had full range of motion.¹⁴

18The applicant relies on the testimony of Ms. Paniccia’s, occupational therapist and her report ¹⁵ dated November 17, 2021. She testified at the hearing that the applicant could not return to any full-time employment due to his limitations. She testified she was hired to assess the applicant’s complete inability to work. In her report she noted that he rated his pain¹⁶ of the right hand at 3-4 out of 10 and the low back at 2-3 out of 10. Her findings of the applicant include the following:

a. he had cognitive difficulties

b. he had fear-based avoidance of incurring further harm to his arm

c. he had lost friends since the accident and interacted less with others

d. he had impaired concentration

e. he had no adaptive strategies in place due to avoidance

f. he was dependent on marijuana for sleeping

g. he didn't seem interested in going to work

19Overall, Ms. Paniccia found the applicant was struggling with pain, fatigue and low stress tolerance. Positions requiring heavy lifting, sitting or standing for long periods of time would be a concern. She concluded he did meet the post 104-week IRB test on the basis that had no physical endurance because of his cognitive disabilities that applies to all lines of work. His persistent pain and fatigue have resulted in a limited functional energy reserves and an occupational repertoire that is concerning for a young adult. She noted his developmental and vocational trajectory was halted by the accident and he did not demonstrate occupational tolerance or roles that would be expected of a young adult. His current routine was simplistic as he spent the majority of his day trying to read and watch TV in his room. He had a self-limiting behaviour pattern to avoid activity due to fear further harm or symptom exacerbation.

20Ms. Paniccia concluded based on the medical documentation, self-reports, and objective findings that from a functional standpoint the applicant has a complete inability to engage in any employment for which he is reasonably suited by education training or experience. At the hearing she clarified this did not mean he could not work for a day or so. She also noted in her report that his physical cognitive and emotional barriers made him unable to initiate and secure work in his pre-accident field. He lacks the necessary skills and abilities to do sedentary or more cognitively demanding work. Ms. Paniccia found his subjective reports of being unemployed and having no clear plan for the future also caused him a great deal of emotional distress and worry.

21The applicant also relies on the November 29, 2021 report of Dr. Shrenik Panekh, psychiatrist.¹⁷ Dr. Panekh diagnosed the applicant with two disorders:

an Adjustment Disorder with Mixed Anxiety and Depressed Mood; and,
a Cannabis Use Disorder.

22Dr. Parekh concluded after a review of numerous medical expert reports including a number of reports examining the issue of a catastrophic impairment¹⁸ and his assessment of the applicant’s ability to cope with work like demands such as capacity to sustain attention/concentration, work pace activity, persistence and productivity he concluded that due to his psychiatric impairments, that the applicant would struggle in these areas. As a result, Dr. Parekh opined that a reasonable employer would not hire him knowing of his condition.

23He also assessed whether the applicant could attend work on a consistent and reliable basis and concluded that this was unlikely from a psychiatric perspective. For these reasons, the applicant he found is competitively disadvantaged in the workplace and he is not competitively employable from a psychiatric perspective.

24The applicant reported he was depressed and anxious. Dr. Parekh found he had poor emotional regulation which in his opinion would likely result in workplace conflict or withdrawal and a risk of periods of medical leave. Dr. Parekh concluded the applicant met the complete inability test to engage in any suitable employment. This was due to his low stress tolerance, emotional dysregulation, poor ability to adapt to work like stress, cognitive difficulties, inability to multitask and lack of stamina.¹⁹

25In cross examination Dr. Parekh admitted the applicant is not completely disabled. He testified the applicant could take on part time work and could work one day a week but in his opinion the applicant could not work a full time job.

The Respondent’s Medical Evidence

26The respondent conducted a multi-disciplinary assessment in 2017 and 2018 which includes the following:

a. A Functional Abilities Evaluation and Physical Demands Analysis Report by Dr. Hartog, Kinesiologist.²⁰

b. A neurological examination, Dr. Adit Margaliot, neurologist.²¹

c. An orthopaedic examination, Dr. Dessouki, orthopaedic surgeon.²²

d. An Independent Psychological Assessment, Dr. Lee, psychologist.

27Dr. Hartog, in his report of October 1, 2018 observed the applicant being able to:

a. stand 36 minutes with no observed difficulty;

b. sit for 42 minutes with no observed difficulty;

c. walk at a frequent level;

d. bend at an occasional level;

e. reach overhead on the left side at frequent levels;

f. reach overhead on the right side at an occasional level;

g. handle objects with both the left and right hands as a frequent level.

Dr. Hartog noted he had examined the applicant in 2017 and in his examination from 2018 noted he had improved significantly. Dr. Hartog did not opine on the complete inability test and deferred this opinion to other medical experts.

28Dr. Margaliot concluded the applicant did not meet the complete inability test, from a neurological perspective. He first saw the applicant on April 27, 2017. At that time Dr. Margaliot concluded that the applicant had ulnar neuropathy with motor weakness and sensory deficits. On May 10, 2018, however, he noted these were absent indicating full nerve recovery. As such, in 2018 Dr. Margaliot deemed the applicant no longer had a significant neurological impairment as a direct result of the accident. He concluded the applicant did not have a complete inability to engage in any employment or self employment for which he is reasonably suited by education, training or experience. From a neurological perspective, the applicant had made a full recovery.

29Dr. Dessouki, orthopaedic surgeon opined in his report of October 1, 2018 that the applicant from an orthopaedic perspective did not meet the complete inability test.

Psychological Assessment

30When Dr. Lee assessed the applicant in July 2017, he concluded the applicant did not suffer a psychological impairment that causes him to suffer a substantial inability to perform his pre-accident employment.²³

31Dr. Lee examined the applicant again in 2018 and in his report of September 20, 2018 diagnosed him with an Adjustment Disorder.²⁴ Dr. Lee noted the applicant reported pain in his right arm at 4.5 out of 10 to 6.5 out of 10 and his low back at 5.5 out of 10 and 4.4 out of 10 at rest. He indicated he is driving and his sleep had improved. Dr. Lee concluded the adjustment disorder with mixed anxiety with depressed mood appears to have stabilized and plateaued in terms of improvement. The nature, extent and severity of this condition does not cause him to suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

32Dr. Lee at the hearing testified that the applicant’s principal issue is his feeling of boredom and lack of a sense of purpose or pragmatic plan to pursue a vocational future. Dr. Lee felt pursuing a vocational future would address the applicant’s issues of boredom. Dr. Lee testified that the adjustment disorder was in transition and had reached a plateau. The applicant’s primary problem was that he had no concrete plans or goals, he seemed bored with his life and had no realistic future plans. He needed vocational coaching and rehabilitation. From a psychological impairment perspective, the applicant does not suffer a complete inability as a result of the accident to engage in any employment or self-employment for which he is reasonably suited by education training experience.

33Alexandra Birioukova, occupational therapist also testified for the respondent. She stated she was retained to assess the applicant’s impairments and complete an in-home and a situational assessment.²⁵ Her role was to look at functional capability from an in-home perspective. Her assessment was completed on November 23, 2020. She concluded the applicant was able to do some household activities, such as washing dishes and sweeping, laundry, and he helped with his sister due to her injuries from a car accident. Ms. Birioukova observed him being able to complete a full squat, being able to transfer off and on his bed, use his left hand for reaching, lifting and carrying objects and using his right hand to lift lighter objects. He was able to use his right hand and hold a pencil and write. He demonstrated avoidance behaviour for engaging in activities that he perceives to be strenuous for his right arm.

ANALYSIS AND DECISION

34Based on the totality of the evidence, I find that the applicant from October 16, 2018 onward does not meet the post-104-week IRB test. The statutory test for eligibility for an IRB post-104 week is set out in section 6(2)(b) of the Schedule provides that for the period after the first 104 weeks of disability, the applicant must demonstrate he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

35I agree with the respondent that there is insufficient medical evidence to establish that the applicant from October 2018 to date and ongoing has a complete inability to engage in any employment or self employment for which he is reasonably suited by education, training or experience.

36A number of factors are to be examined to make a determination of whether an applicant suffers a “complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience”. This requires a reflection of the evidence including: the nature of the applicant's condition and extent of their disability, their efforts to position themselves to return to the workforce, the vocational assistance made available by the respondent, and the options for alternative work that have been put forward.

37Based on the family doctor records and the doctors from the walk-in clinic, the applicant’s claim that he sustained injury to his back, knee and leg from the accident is not substantiated. The notes indicate an injury to the leg, knee and back are from incidents that are not related to the accident. There is no medical evidence that the applicant injured his neck and back in the accident and the family doctor records do not indicate such. The family doctor records also have no reference to any depression or anxiety other than a referral to a psychiatrist in March 2020.

38The applicant relies heavily of the 2021 reports and testimony of his occupational therapist, Ms. Paniccia and Dr. Parekh, his psychiatrist. I do not find Dr. Parekh’s report persuasive for several reasons. First, he refers to the applicant’s ability to cope with work like demands such as capacity to sustain attention/concentration, work pace activity, persistence and productivity and concludes that due to his psychiatric impairment, the applicant would struggle in these areas. As a result, Dr. Parekh opines that a reasonable employer would not hire him “knowing of his condition”. It is unclear what this means, and I question this conclusion as an employer would not be able to question a prospective employee about his or her medical condition. Therefore, I question how a prospective employer would know about “his condition”.

39Second, Dr. Parekh opines, the applicant could not attend work on a consistent and reliable basis from psychiatric perspective and he concludes the applicant is competitively disadvantaged in the workplace and he is not competitively employable from a psychiatric perspective. Dr. Parekh conclusion that he could not attend work on a consistent and reliable basis is conjecture and speculation. He also concludes based on the applicant’s reports of depression and anxiety that this poor emotional regulation in his opinion would likely result in workplace conflict or withdrawal and a risk of periods of medical leave. Once again this is speculation and conjecture. As such, I question Dr. Parekh’s conclusion that the applicant is not competitively employable. The vocational assessment and labour market study by Mr. Zervas indicates the opposite and alternative positions were identified that would be available to the applicant and that he could perform.

40I also question the applicant’s report of depression and anxiety to Dr. Parekh and find these appear to be selective. There is no notation of any depression or anxiety due to the accident in the family doctor clinical notes. The report from the cannabis clinic indicated no depression or anxiety.

41I find the testimony by Dr. Parekh and the occupational therapist at the hearing also indicate the applicant in their opinion does not meet the post 104-week test. Both testified however the applicant could not return to full time work but more importantly they both testified he could work for a day or part-time. Being able to work for a full day or part-time indicates the applicant does not meet the complete inability test.

42I also prefer the report of Dr. Lee who in his opinion found no psychological impairment resulting in a complete inability to work. Dr. Lee agreed there is an adjustment disorder but it was in a period of transition and had plateaued. He found the source of the applicant’s problem is his boredom and lack of any vocational plan or future. Dr. Lee felt the applicant would benefit from a plan and vocational counselling. This is consistent with the evidence of the applicant at his EUO. Ms. Paniccia, the occupational therapist also found the applicant’s subjective reports of being unemployed and having no clear plan for the future also caused him a great deal of emotional distress and worry. If there is any anxiety, I find, it is due to the applicant not having a clear plan for the future. The applicant admitted at his EUO that he lacks the motivation to work.

43The applicant also admitted repeatedly at the EUO that his concern for a return to work is based on the fear of re-injuring his arm. This fear is not reasonable nor based on any medical report including from his surgeon who noted in 2017 that his fracture was fully healed and he had full range of motion with no limitations. Despite the accident having occurred over 5.5 years ago, the applicant still maintains his fear of re-injuring his arm.

44I also question the nature and extent of the applicant’s physical limitations. His ratings of pain as reported to Ms. Paniccia and Dr. Hartog indicate low pain thresholds. The X-rays and other clinical notes from Dr. Hodgins indicate that the elbow fracture had fully healed. Dr. Lee noted the applicant reported pain in his right arm at 4.5 out of 10. Ms. Paniccia in her report noted that he rated his pain of the right hand at 3-4 out of 10 and the low back at 2-3 out of 10. Moreover, the report of Dr. Hartog lists activities the applicant could perform in 2018 including walking and standing with no observed difficulties, reaching and using his left and right hand. The FAE by Dr. Hartog indicated the applicant could lift light objects with his right arm and hand and use a pencil to write. Ms. Birioukova also noted in her assessment in November 2020 that she observed the applicant being able to complete a full squat, being able to transfer off and on his bed, use his left hand for reaching, lifting and carrying objects and using his right hand to lift lighter objects. He was able to use his right hand and hold a pencil and write.

45Ms. Paniccia found the applicant lacks the necessary skills and abilities to do sedentary or more cognitively demanding work. I find this statement is not consistent with the applicant’s low rating of his pain and the report of Dr. Hartog and the findings by the vocational assessor.

46Overall, I find that the evidence indicates the applicant’s inability to work is due to lack of motivation, which he admitted at his EUO. Both occupational therapists, state the applicant demonstrated avoidance behaviour for engaging in activities that he perceives to be strenuous for his right arm. The radiographs in 2017 and medical reports from Dr. Karen Chahal indicate the elbow fracture had fully healed. The applicant was advised in 2017 by Dr. Hodgins that he had a full range of motion with no limitations. It is therefore questionable why his ongoing fear of re-injuring his right arm would persist to such a point where the applicant avoids engaging in activities he perceives to be strenuous for his right arm. This includes working in the employment positions identified by Mr. Zervas as suitable for the applicant or any other employment. When asked about Mr. Zervas’s report during his testimony, the applicant could not recall any discussion nor contemplation by him about the employment alternatives suggested by Mr. Zervas.

47Lastly, the applicant submits the respondent’s reports that are three years old from 2017 and 2018 ought not to be preferred over the more recent 2021 reports from the applicant. I have outlined the limitations of Dr. Parekh’s report above. I find the applicant has not explained why his condition which appears to have improved in 2018 has deteriorated in 2021 to a point where he is incapable of any work based on the complete inability test.

48I find based on the totality of the evidence, that the applicant, as of October 16, 2018 and onward does not suffer a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

Interest

49As the post 104-week IRB claim is dismissed, so is the claim for interest.

CONCLUSION AND ORDER

For the reasons outlined above, I find that:

50The applicant is not entitled to receive the post 104-week income replacement benefit from October 16, 2018 onward. Therefore, this claim is dismissed as is the claim for interest.

Released: May 12, 2022

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