Citation: Khan v. Allstate Insurance Company of Canada, 2022 ONLAT 20-000806/AABS

Licence Appeal Tribunal File Number: 20-000806/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:

Timur Khan

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Timur Khan, Applicant

Ashu Ismail, Counsel

Joseph Campisi and Eric Winkworth, Counsel

For the Respondent:

Munir Datoo, Claims Representative

Peter Yoo, Counsel

Genevieve Madill, Articling Student

Court Reporters:

Michelle Gordon and Shane Brenton, Professional Court Reporters

Heard by Videoconference:

August 9 to 16, 2021, and February 14 to 22, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on February 21, 2017 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 and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant sustained soft tissue injuries in the accident. He claimed entitlement to medical benefits and attendant care benefits. However, he has exhausted his policy limits for those benefits. He claimed that the accident exacerbated his extensive pre-accident medical conditions, causing him to sustain a catastrophic impairment. If he sustained a catastrophic impairment, the applicant is entitled to enhanced policy limits that will allow him to claim the medical, rehabilitation, and attendant care benefits in issue. The respondent denied that the applicant sustained a catastrophic impairment as a result of the accident. It claimed that the applicant’s present health problems were not caused by the accident, but by some other health conditions.

3I find that the applicant has failed to prove that his present impairments were caused by the accident and that he has a catastrophic impairment as a result of his accident injuries. As his policy limits for the benefits claimed are exhausted, he is not entitled to the medical and attendant care benefits claimed.

PROCEDURAL ISSUES

4On August 4, 2021, the respondent filed a motion to be heard at the hearing to exclude a number of reports and to exclude the testimony of Dr. van Reekum. Further procedural issues arose during the hearing. The issues procedural issues I addressed are as follows:

a. Whether Dr. van Reekum’s testimony ought to be excluded on the basis he is not qualified to give opinion evidence;

b. Whether Dr. van Reekum’s report ought to be excluded on the basis it was not served in time;

c. Whether the following reports should be excluded on the basis they were not included in the applicant’s index of documents he intends to rely on served on July 9, 2021:

i. Okell Future Cost of Care Report dated December 9, 2019;

ii. Okell Addendum to Future Cost of Care Analysis August 10, 2020; and

iii. Synoptic Medical File Review of Dr. Brown, dated January 8, 2021.

d. Whether Dr. St. Cyr should testify at the end of the hearing;

e. Whether the respondent was required to make its occupational therapists (“OTs”) available for cross-examination;

f. Whether the applicant’s summons for the adjuster ought to be quashed; and

g. Whether the applicant’s OT ought to be excluded from testifying;

5The applicant sought production of a surveillance report that the respondent had disclosed in response to a Tribunal order dated July 29, 2021. I did not need to deal with this because the respondent eventually agreed to produce it. After production of the report, the applicant sought to add the issue of an award under Reg. 664 (“special award”) to the issues in dispute. The applicant provided oral particulars of the claim for the award and relied on the motion order in 17-006302 v Aviva General Insurance, 2018 CanLII 61159 (ON LAT) for support that the issue of a special award can be added at any time in the proceeding. The respondent did not object and only asked that the issue be added after the applicant provided written particulars. I was satisfied by the particulars provided orally by the applicant that the applicant has satisfied the low threshold for adding the issue. The applicant immediately served and filed a copy of those particulars.

A. Dr. van Reekum

6The respondent withdrew its request that Dr. van Reekum be excluded from testifying at the hearing.

7The parties were required to serve their document indexes on each other by July 9, 2021. On July 23, 2021, the applicant provided the respondent with a report date November 2020 prepared by Dr. van Reekum, psychiatrist. The applicant advised the respondent that that he was just provided with the report and that Dr. van Reekum had just discovered that he erroneously failed to send it back in November 2020. The respondent already had a report by Dr. van Reekum dated November 20, 2019 and the applicant notified the respondent within the required time of his intention to call Dr. van Reekum as a witness.

8The Case Conference Order states that the parties were to serve their document briefs on each other and file them with the Tribunal no later than July 26, 2021, and that no additional documents or reports may be filed in the appeal beyond this date without the permission of the Tribunal. I take this to mean that parties could file additional documents and reports not contained within their July 9, 2021 indexes as long as the documents were served before July 26, 2021. Especially since the order is silent on the purpose of exchanging indexes. If the parties were to be precluded from relying on documents not listed in the index, the Order would have stated that.

9LAT Rule 9.4¹ provides the Tribunal with the discretion to exclude or allow evidence in that was not served and filed in accordance with a timeline set out in an order or the LAT Rules. I found that Dr. van Reekum’s report is relevant. The applicant advised it had no objection to Dr. St. Cyr commenting on Dr. van Reekum’s addendum report outside of the four corners of Dr. St. Cyr’s report as long as his comments were within his scope of expertise. Accordingly, I found that there was no procedural unfairness to the respondent as it had ample time to prepare a cross-examination of Dr. van Reekum on his report and there was no objection to its expert testifying on the Dr. van Reekum’s addendum. Further, I determined that the appeal should be heard on the merits. Excluding the report would impair the Tribunal’s ability to ensure a fair and proportional determination of the merits of the case, which LAT Rule 3.1 requires.

B. Exclusion of the Okell Future Care Cost Reports

10The two Okell future care costs reports were also not listed in the applicant’s index served by July 9, 2021 but were contained in the applicant’s document brief, which was served by July 23, 2021. The applicant submitted that the respondent never provided notice that he intended to challenge the reports. I find the fact that the respondent sought to have the reports excluded in the first place is more than ample notice that the reports were being challenged. However, my comments about whether Dr. van Reekum’s report was filed late apply as well to the Okell reports.

11I have no authority or jurisdiction to order the payment of future benefits. However, I found that Ms. Okell’s reports may be relevant in a broad sense as conceded by the respondent.

12The respondent conceded that any prejudice it may have sustained by the late service of the reports could be addressed by its OT, Laura Yeum, being given some time to review the reports and comment on them outside of the four corners of her report. I agreed. Therefore, I allowed the reports.

13After the hearing started and Shahla Kara, OT, testified, the respondent submitted that the Okell future care cost reports should be excluded or Ms. Okell’s notes discrediting Ms. Kara’s testimony should be filed because Ms. Okell reported that the Ms. Kara had commented on future attendant care. Ms. Kara testified that she was not asked about future attendant care.

14I dismissed the respondent’s request because any concerns it may have with the reports in light of Ms. Kara’s testimony goes to their weight.

C. Exclusion of Dr. Brown’s Report

15Dr. Brown’s report was listed on the applicant’s index that was served by July 9, 2021. Dr. Brown’s report is described by the respondent as a file review report. The applicant submitted that Dr. Brown’s report is relevant for the type of assessments he recommended, which is different from the type of assessments recommended by the respondent. The parties chose different types of assessors to comment on the catastrophic impairment issue. Accordingly, Dr. Brown’s report may be relevant to the weight to be given to the reports and with respect to the claim of a special award. Given that it was listed in the applicant’s index, I dismissed the respondent’s request to exclude it. However, the respondent asked that his expert, Dr. Oshidari, be allowed to comment on it at the end of the hearing. I found that was fair.

D. Timing of Dr. St. Cyr’s Testimony

16The applicant advised the respondent that he intended to call Dr. St. Cyr as a witness by the deadline set out in the case conference Order. Dr. St. Cyr is a psychologist who assessed the applicant at the respondent’s request. The respondent advised the applicant that it also intended to call Dr. St. Cyr as its witness. The respondent submitted that he should testify at the end of the hearing when the respondent presented its case.

17The applicant submitted that he was calling Dr. St. Cyr to testify on his behalf and that he needed his medical witnesses to testify before he testified in order to make sense of and address the catastrophic impairment issue.

18I determined that Dr. St. Cyr was not required to attend at the hearing as a witness on behalf of the applicant because the applicant did not properly serve Dr. St Cyr with a summons. I found there was no prejudice to the applicant because he would have an opportunity to cross-examine Dr. St. Cyr when he was presented as a witness by the respondent.

E. Timing of Dr. Oshidari’s Testimony

19The applicant obtained a summons from the Tribunal for Dr. Oshidari in February 2021, but no copy of his summons request was sent to the respondent. The applicant advised the respondent late on June 22, 2021, that he intended to call Dr. Oshidari as a witness. He was required to serve and file his witness list no later than June 9, 2021. The respondent notified the applicant within the timelines set out in the case conference order that it intended to call Dr. Oshidari as a witness. The respondent submitted that Dr. Oshidari should testify at the end of the hearing when the respondent presented its case.

20No request for an order extending the time for service of the witness list was made by the applicant. Further, the respondent advised that Dr. Oshidari claimed that the applicant never served him with a summons. I found that there was no prejudice to the applicant if Dr. Oshidari testified when the respondent presented its case because the applicant would have an opportunity to cross-examine Dr. Oshidari when he was produced by the respondent. Based on the lack of prejudice and the absence of proof of proper service of a summons, I found that Dr. Oshidari need not attend the hearing at the request of the applicant.

F. Availability of the Respondent’s OTs for Cross-Examination

21Two months before the hearing the parties served each other with their lists of witnesses. The respondent advised it was calling Dr. Oshidari, Dr. St Cyr and two occupational therapists. On August 3, 2021, the respondent advised the applicant that it was not calling the OTs. The applicant advised at the hearing that he required both occupational therapists to be present for cross-examination on their reports. However, the respondent admitted that there is a right of a party to cross-examine on reports.² It submitted that once the respondent advised it was not calling the OTs, it was incumbent upon the applicant to summons them. The respondent also submitted that it was telling that the applicant never summonsed them yet advised that they were calling a number of the of the respondent’s witnesses.

22The respondent submitted that there was no notice under LAT Rule 10 by the applicant that it intended to challenge the OT’s reports and, therefore, it need not call them to testify. The applicant submitted that there was not enough time, once it received the notice, to summons the OTs or notify the respondent that he intended to challenge their reports. I agree. Further, the respondent conceded that there is a right to cross-examination on an expert’s report. Therefore, I found that it was reasonable for the applicant to rely on the respondent’s witness list and expect that the OTs would be available for cross-examination.

23The respondent was asked if an adjournment was required in order to make the OTs available for cross-examination. It advised it was able to contact the OTs and, therefore, did not require an adjournment of the hearing to make them available for cross-examination.

G. Whether to Quash the Applicant’s Summons to the Adjuster

24The applicant notified the respondent that he intended to call the respondent’s adjuster to testify, and he served a summons on the adjuster. The respondent submitted there was no claim for a special award and that the examination-in-chief of the adjuster would result in no relevant evidence. Before issuing my determination on the issue, the applicant asked that the issue of a special award be added as an issue in dispute, which the respondent did not object to. The respondent advised an adjournment was not necessary for the respondent to prepare for the new issue.

25The applicant is claiming a special award. The adjuster would have information relevant to the special award and the reasons why the insurer failed to act or why it took actions with respect to the benefits claimed. That information may have been located in the adjusters’ log notes, but neither party intended to file those as evidence. Since the adjuster’s testimony was relevant to the issue of the special award and the applicant served his notice of intent to call the adjuster within the time allotted, the respondent’s motion to quash the summons to the adjuster was dismissed.

H. Exclusion of the Applicant’s OT

26The respondent asked that an OT, Shahla Kara, who the applicant was calling to testify, be excluded. The reasons submitted by the respondent were that she would not have any relevant evidence because she only authored one report, a progress report. The respondent’s request was dismissed for the following reasons.

27Ms. Kara authored a report, indicating she had seen the applicant. Accordingly, her evidence may be relevant. There was no dispute that the respondent was notified within the ordered timelines of the applicant’s intention to call her.

ISSUES

28The issues before me are as follows:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?

2. Is the applicant entitled to an attendant care benefit in the amount of $6,000.00 per month for the time period from September 20, 2019 to date and if so, how much was incurred?

3. Is the applicant entitled to a housekeeping and home maintenance benefit in the amount of $100.00 per week for the time period from February 21, 2017 to date?

4. Is the applicant entitled to a medical benefit in the amount of $1,677.24 for physiotherapy services recommended in a treatment plan submitted on September 13, 2019 and denied by the respondent on November 15, 2019?

5. Is the applicant entitled to a medical benefit in the amount of $3,940.33 for psychological services recommended in a treatment plan submitted on November 22, 2019 and denied by the respondent on December 6, 2019?

6. Is the applicant entitled to a medical benefit in the amount of $1,560.86 for physiotherapy services recommended in a treatment plan submitted on December 16, 2019 and denied by the respondent on January 17, 2020?

7. Is the applicant entitled to an examination expense in the amount of $2,200.00 for a psychological assessment recommended in a treatment plan submitted on November 25, 2019 and denied by the respondent on December 17, 2019?

8. Is the applicant entitled to a payment in the amount of $174.57 for the cost of massage therapy sessions submitted by way of an OCF-6 expense claim form on November 5, 2019 and denied by the respondent on November 25, 2019?

9. Is the applicant entitled to $1,793.00 for physiotherapy services from Promed Rehab Centre recommended in a treatment plan dated January 25, 2021, denied on February 28, 2021

10. Is the applicant entitled to interest on overdue payment of benefits?

11. Is the respondent liable to pay an award under s.10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

ANALYSIS

A. Catastrophic Impairment

29The applicant has the onus of proving on a balance of probabilities that an impairment he sustained in the accident is a catastrophic impairment. To do so, he must prove that an impairment that he sustained in the accident resulted in a mental or behavioural disorder under s.3.1(8) of the Schedule. The impairment must be assessed in accordance with chapter 14 of the AMA Guides.³ To qualify as a catastrophic impairment, the applicant must suffer a class 4 or marked impairment in three or more areas of function that precludes useful functioning or a class 5 extreme impairment in one or more areas of function that precludes useful functioning. The areas of function are: 1) activities of daily living; 2) social functioning; 3) concentration, persistence and pace; and 4) deterioration or decompensation in work or work-like settings. The levels of impairment are as follows:

Area or aspect of functioning

Class 1: No impairment

Class 2: Mild impairment

Class 3: Moderate impairment

Class 4: Marked impairment

Class 5: Extreme impairment

Activities of daily living

Social functioning

Concentration, pace and persistence

Adaption in the workplace

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all, useful functioning

Impairment levels significantly impede useful functioning

Impairment levels preclude useful functioning

30The applicant underwent a catastrophic impairment assessment requested under s.25 and s.45 of the Schedule at Omega Medical Assessments. The neuropsychologist at Omega Medical, Dr. Laura Davidson, could not render a diagnosis because the validity scales on psychometric testing rendered the results invalid. Omega Medical did not find that the applicant sustained a catastrophic impairment. The insurer’s neuropsychologist who conducted an examination under s.44 and s.45 of the Schedule (“IE”), Dr. St. Cyr, also determined that the applicant’s test results were invalid. However, unlike Dr. Davidson, Dr. St. Cyr provided ratings under the s.3.1(1)8 of the Schedule. Dr. Davidson recommended the applicant be seen by a neuropsychiatrist and, accordingly, Dr. van Reekum, a psychiatrist with a focus on neurology, assessed the applicant. The following chart discloses the findings of each assessor:

Dr. St. Cyr

Dr. van Reekum

Activities of daily living

Class 2-3

Class 4

Social functioning

Class 2

Class 4

Concentration, pace and persistence

No objective evidence of Class 4 or 5

Class 3

Adaption in the workplace

No objective evidence of Class 4 or 5

Class 4

31On March 9, 2017, the applicant had what appeared to be a fall and a seizure and was admitted to hospital for 20 days. He submitted that the incident on March 9, 2017 was a result of psychological conditions and/or physical injuries sustained from the accident and, therefore, any medical issues arising since then or any pre-existing medical conditions that were exacerbated by the March 9, 2017 incident were caused by the accident. The respondent denied that the March 9, 2017 seizure and fall has any connection to the accident and submitted that it was an intervening event that arose as a result of the applicant’s pre-accident medical conditions, or some other condition not related to the accident.

32The applicant submitted that his subsequent deterioration and falls since March 9, 2017 are due to his accident injuries. There is no dispute that, since the March 9, 2017 incident, the applicant’s health has deteriorated. Therefore, before determining the applicant’s level of impairment in the four spheres of activity, I must first determine whether the March 9, 2017 incident was caused by the accident. To do so, I must determine what the applicant’s accident injuries were and whether they caused the applicant to fall, or whether the fall on March 9, 20217 was an intervening event.

1. Accident injuries

a) Leg Numbness

33The applicant claimed that he fell on March 9, 2017 because he had left sided leg numbness and his leg did not support him when he tried to get up from bed. He submitted that his leg numbness was caused by the accident. He has the onus of proving on a balance of probabilities that, but for the accident, he would not have sustained the injuries he did. For the following reasons, I find that the applicant sustained soft tissue injuries in the accident and has failed to prove on a balance of probabilities that it caused his leg numbness.

34The applicant testified that right after his accident, he had severe pain in his neck, especially the left side, and severe pain and numbness radiating down his legs and headaches. I find that his testimony was unreliable at times because he was unable to recall a number of his pre-accident complaints or treatments. Where the medical records and the applicant’s testimony are different, I prefer the medical records. There were made contemporaneous to the events and are more reliable than the applicant’s memory for events that occurred four or five years ago.

35The applicant testified that he attended at a walk in clinic on the day of the accident. Based on a clinical note dated February 21, 2017 by Dr. Murtoza Khoja, physician, together with the applicant’s OHIP summary, I find the only physician the applicant saw on February 21, 2017 was Dr. Khoja.⁴ Dr. Khoja recorded that the applicant was in an accident the day before and felt no pain at the accident site. When Dr. Khoja saw the applicant on February 21, 2017, he had mild stiffness around his neck, upper back and shoulders. Dr. Khoja reported that the applicant had no head injury, his gait was normal, he had normal power of his upper and lower limbs, full range of motion of his neck and back, but he had some paracervical and scalene tenderness. Dr. Khoja diagnosed the applicant with mild whiplash and recommended he consider physiotherapy if there was no improvement in seven days. There was no indication the applicant had leg numbness.

36Based on Dr. Khoja’s note, the applicant’s testimony and the application for accident benefits, the applicant was involved in two accidents, one on February 20, 2017, from which he sustained no injuries and the second, subject accident on February 21, 2017, from which he sustained a mild whiplash.

37The applicant attended Dr. Rikhye’s office on February 22, 2017, the day after the accident, complaining of persistent back pain with no pain radiating into his legs. He was able to walk with some pain and his ankle and knee reflexes were normal. He was diagnosed with lumber strain. I find that his complaints on February 22, 2017 were no different than his complaints on December 13, 2016. No mention of the accident was made on February 22, 2017.⁵ The accident was not mentioned in Dr. Rikhye’s notes until March 3, 2017. However, the applicant provided Dr. Rikhye with a typed letter dated February 23, 2017 advising that on February 23, 2017, his complaints as a result of the accident were of pain in his neck, back and numbness in both feet. Over the weekend his hands began to swell and became severely numb. I find that despite being dated February 23, 2017, the document was prepared after that date because it references an occurrence on February 27, 2017.

38According to the OHIP summary, the applicant was receiving nerve block injections from Dr. James Brown, general practitioner, prior to the accident and after the accident. Dr. Brown was charging OHIP pre-accident for providing the applicant with nerve blocks for signs and symptoms not diagnosed, nervous system, convulsions and ataxia. None of Dr. Brown’s clinical notes and records were before me. They would have been helpful as the OHIP summary shows the applicant attended with Dr. Brown eight times between December 12, 2016 and March 6, 2017. I expect Dr. Brown would have recorded any changes to the applicant’s pre-accident complaints as a result of the accident and if there was any subsequent resolution of his complaints from Dr. Brown’s treatment.⁶

39The applicant reported on his application for accident benefits dated March 1, 2017 that, as a result of the accident, his hands and legs were numb.⁷ According to Dr. Rikhye’s note of March 3, 2017, the applicant complained of pain in his neck, whole back, Iegs and arms and his pain was worse on his left side. There was no mention of back or leg pain or numbness when he attended with Dr. Rikhye on March 8, 2017.⁸ Nor did he disclose the accident to Dr. David Bole, the applicant’s endocrinologist who was treating his hypogonadism and diabetes, on March 6, 2017.⁹

40In fact, the applicant was diagnosed with neuropathy prior to the accident and had complaints of pre-accident numbness in his legs.¹⁰ The only indication that there was any difference post-accident to those complaints was from the testimony of Benjamin Mandapat, the applicant’s pre-accident and post-accident massage therapist.

41Mr. Mandapat testified that the applicant was working and very active prior to the accident. He testified that after the accident, the applicant’s mobility was totally different. This was not recorded in his records. Mr. Mandapat testified that he knew the applicant was very active because in 2011, the applicant was a happy person, was friendly, and was able to do the exercises given by Mr. Mandapat well. I am unable to find that the applicant’s demeanor six years prior to the accident has any bearing on how he was doing in the year and the months leading up to the accident.

42I give little weight to Mr. Mandapat’s testimony about the applicant’s activities, mobility and demeanor as I would have expected to see the drastic change he testified to recorded in his records.¹¹ However, there was no such record. Mr. Mandapat’s records show that after the accident, the applicant was treated for leg and hip complaints in addition to his pre-accident neck, back shoulder and arm complaints. However, by March 7, 2017, the applicant was no longer being treated for leg or hip complaints.¹² Mr. Mandapat had reported on February 27, 2017 that the applicant told him he was limping after the accident. This information is contrary to what was recorded by Dr. Khoja. Mr. Mandapat recorded that the applicant had plantar fasciitis to both feet.¹³ He also recorded that the applicant had numbness in both legs and twitching, more so on the left, and that the applicant had radiculopathy of L1 to L2 and L3 to L5. However, he did not record that the applicant was limping or had any gait difficulties. The treatment confirmation form of Mr. Mandapat dated February 27, 2017 does not show any leg or foot paresthesia or pain complaints,¹⁴ but does diagnose lumbar radiculopathy. Mr. Mandapat testified that the lumbar radiculopathy meant pain radiating from the lower lumbar area down the back. He stated on the form that the applicant’s pre-accident nerve neuritis and herniated disc and cervical DDD were aggravated after the accident. However, neither Mr. Mandapat’s March 1 nor March 8, 2017 note records numbness or twitching in the applicant’s leg.¹⁵ This suggests that the numbness issues were no longer a complaint prior to the March 9, 2017 fall or that they were not related to the accident injuries.

43The applicant submits that because Mr. Mandapat reported that the accident aggravated the applicant’s radiculopathy and he recorded that the applicant complained of foot numbness on February 27, 2017, that the accident is the cause of the applicant’s foot numbness on March 9, 2017. I am unable to agree because the applicant’s pre-accident history of foot numbness and neuropathy.

44Dr. Alireza Kachooie, physiatrist, addressed the applicant’s left leg weakness and balance issues in his report dated November 21, 2017.¹⁶ Dr. Kachooie confirmed that an EMG of the left leg was abnormal with findings consistent with mixed motor and sensory polyneuropathy most likely secondary to diabetes. I give more weight to Dr. Kachooie’s opinion on the cause of the applicant’s leg and foot numbness over Mr. Mandapat’s as Dr. Kachooie is more qualified than a massage therapist to speak to causation.

45I find, based on Dr. Kachooie’s opinion and the difference in the applicant’s presentation from February 21 and 22, 2017, on February 27, 2017, and from March 1 to March 8, 2017, that any numbness the applicant may have had in his feet and legs was not caused by an exacerbation of a pre-existing lumbar radiculopathy, but was from his pre-existing sensory polyneuropathy.

b) Traumatic Brain Injury

46Dr. van Reekum’s opinion was that based on the evidence available to him, it was unlikely that the applicant suffered a traumatic brain injury (“TBI”) during the accident. The applicant submitted that I ought to prefer Dr. van Reekum’s opinion over the respondent’s experts. I accept Dr. van Reekum’s opinion, insofar as, the applicant did not sustain a TBI from the accident but did sustain a TBI when he fell on March 9, 2017. Dr. van Reekum’s reasons for this opinion are supported by the medical records and most of the neurologists who assessed the applicant. The only other physicians who believed the applicant sustained a TBI in the motor vehicle accident were Dr. Neilank Kumar Jha, Dr. Benjamin Ngai, Dr. Joachim Berndt, and Dr. Stephen Brown, anesthetist.

47Dr. Neilank Kumar Jha is a neurosurgeon who had the applicant undergo a SPECT scan. He did not testify and Dr. van Reekum confirmed that SPECT scans are still not accepted by neurologists as a reliable diagnostic tool. The March 9, 2017 incident was described to Dr. Jha as an episode of syncope, not leg numbness or weakness following a motor vehicle accident of high velocity from which the applicant suffered from headaches and leg numbness. Dr. Jha’s opinion was that the applicant sustained a head injury in the MVA. I prefer the opinions of the majority of the physicians that the applicant did not suffer a TBI in the accident for the reasons given by Dr. Robert Yufe, neurologist, and Dr. van Reekum – there was no loss of consciousness and no pre or post-MVA amnesia. I also find that Dr. Jha’s opinion is essentially a stand alone opinion from all the neurologists, neuropsychiatrists or neurosurgeons.¹⁷ He believed the impact from the accident was severe. However, the applicant’s vehicle only sustained $1,000 worth of damage¹⁸ and not the $2,000 to $3,000 he told various assessors. Further, the applicant failed to tell Dr. Jha of his pre-accident chronic pain injection treatment.¹⁹ Nor did Dr. Jha have a copy of the applicant’s CT scan of his head taken on April 18, 2014 that showed mild subcortical atrophy with associated ventricular dilatation along with mild periventricular microangiopathic change and several small lacunes in the basal ganglia bilaterally.²⁰

48Dr. Benjamin Ngai, internal medicine, reported on November 1, 2018 that the applicant’s past medical history included an adrenal insufficiency, presumably secondary to pituitary dysfunction following a motor vehicle accident head injury in 2017, and seizure disorder secondary to TBI. However, Dr. Yufe’s opinion, which was echoed by Dr. van Reekum, was that the applicant did not sustain a TBI in the accident. Dr. Ngai performed an umbilical hernia repair on the applicant. There is no indication in his report that Dr. Ngai saw the applicant between the accident and the March 9, 2017 incident, or that he was aware of the neurologists’ opinions that the applicant did not suffer a TBI. I prefer the opinions of the neurologists and neuropsychiatrists over an internal medicine specialist as the neurologists are more qualified to diagnose a TBI.

49Dr. Berndt, physician, also diagnosed the applicant with a TBI from the accident. His clinical notes and records only contained the 2018 SPECT scan and page two of a report from Dr. Alex Patel, the applicant’s internal specialist since at least 2014.²¹ Dr. Berndt did not have any other medical records. He did not start seeing the applicant until 2019. Accordingly, I place no weight on his diagnosis.

50Dr. Stephen Brown, anesthesiologist, did not assess the applicant, but provided a paper review report in which he diagnosed the applicant with a TBI because of the SPECT scan. The SPECT scan was taken after the March 9, 2017 incident and therefore, likely records that incident and not any TBI from the accident. Therefore, I cannot give any weight to Dr. S. Brown’s opinion.

c) Psychological Injury

51The applicant submitted that he sustained a psychological injury in the accident that caused him to fall on March 9, 2017. He relied on the report and testimony of Dr. Andrew Shaul, psychologist. Dr. Shaul diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, Specific Phobia travelling in a vehicle, and a Somatic Symptom Disorder with predominant pain as a result of the accident. I give no weight to Dr. Shaul’s opinion for the following reasons.

52Dr. Shaul co-authored a report with a psychometrist based on his review of the psychometrist’s notes. Dr. Shaul testified that the accident caused the applicant to undergo a psychological reaction to the pain he experienced as a result of his accident. I give his evidence little weight because Dr. Shaul never actually met or spoke with the applicant or reviewed any of his other medical records before arriving at his diagnoses. If he had reviewed the records, he would have seen that there was no record of any emotional, mood or psychological complaints from the date of loss prior to March 9, 2017. Further, Dr. Shaul based his diagnosis on information provided by the applicant as to his functional abilities following the accident. However, the applicant was functional enough that he was able to start a new job after the accident. Dr. Shaul also based his opinion on information that accident prevented him from enjoying his previous activities and interacting with his friends and family. However, the evidence is that the applicant could not have been active pre-accident because of his health issues.

53Neither Dr. St. Cyr nor Dr. Davidson provided a psychological diagnosis for the applicant due to accident injuries. They both reported that only rule out diagnosis²² could be provided and were in agreement that one of the rule out diagnosis was a conversion disorder. Dr. Davidson recommend that the applicant be referred to an expert in conversion disorders. Dr. van Reekum ruled out a conversion disorder and diagnosed the applicant with a possible Somatic Symptom disorder as a result of the accident. Dr. van Reekum was also of the opinion that the applicant may have developed a Somatic Symptom disorder in 2014.²³

54Dr. van Reekum believed that the applicant did not have any psychological symptoms or complaints prior to the accident. I find that this was an unreasonable belief. Dr. van Reekum reported that Dr. Alex Patel, the applicant’s pre-accident treating internal specialist, reported in 2014 that a Dr. Kevin Lumb believed the applicant’s pre-accident respiratory complaints were secondary to panic disorder.²⁴ Further, Dr. van Reekum’s comment contradicts his opinion that the applicant possibly developed a Somatic Symptom Disorder prior to the accident.²⁵

55The applicant relied on the reports and testimony of Dr. van Reekum. His opinion was that the invalid results found by Dr. Davidson and Dr. St. Cyr on neuropsychological testing should be given little weight because, in his view, not enough research had been done to establish the likelihood that the invalid psychometric test results show the applicant’s responses were invalid. However, the AMA Guides specifically acknowledges that standardized psychological tests are useful in establishing the existence of a mental disorder.²⁶ Accordingly I give little weight to Dr. van Reekum’s critique.

56The applicant suggested that the accident caused a conversion disorder, which is what caused him to fall and strike his head on March 9, 2017. I find that there is little to no support for the applicant’s submission. A conversion disorder is a condition where a person develops physical symptoms, body movement or sensations that cannot be explained by a neurological, other medical or other mental health disorder. The only mention of a conversion disorder being caused by the accident was as a diagnosis to be ruled out. Dr. van Reekum was purportedly retained by the applicant to do just that. His opinion was that the applicant did not have a conversion disorder, but that it was more likely he had a possible Somatic Symptom Disorder. His opinion was the possible Somatic Symptom Disorder was casually related to the accident. However, it was incumbent upon him to explain how a possible Somatic Symptom Disorder caused by the accident was different from the applicant’s possible pre-accident Somatic Symptom Disorder.

57The possibility that the applicant developed a somatic symptom disorder does not meet the applicant’s onus to prove on a balance of probabilities that he sustained a psychological impairment as a result of the accident. Dr. van Reekum’s opinion was that the applicant experienced a number of psychological sequelae as a result of the accident. However, for the reasons that follow, I am unable to find that the accident caused any psychological impairment.

2. Cause of the Fall and the Seizure

58I find that the applicant most likely blacked out and struck his head or fell and struck his head on March 9, 2017. This is born out by the Brampton Hospital clinical records which show that he sustained bruising to his face and left knee.²⁷ However, for the following reasons, I am unable to find that the cause of the March 9, 2017 incident, whether from a blackout or a fall, was related to the accident for the following reasons.

d) Numb Leg

59The applicant testified that on March 9, 2017, he started getting up from bed and put both of his feet on the floor but could not feel his left leg at all. He started to stand and then fell. The last thing he remembered was falling and his left leg feeling as if it was dead. He woke up three hours later on the floor. He believed that he struck his head because he determined in the ambulance on the way to the hospital that he had a bump on the back of his head, just about 1.5 inches behind his right ear, midway between the top and bottom of the ear. He also testified that he told the doctors at the hospital that his left leg had no feeling. However, no-one in the hospital properly investigated his leg issue.

60The applicant’s wife, Shaheda Khan, testified. Her report as recorded by various assessors and medical personnel is different from her testimony.²⁸ Where they differ, I place more weight on the medical records as the applicant’s wife could not remember a great deal of information, such as whether she ever told any medical personnel that her husband stated his leg went numb and he fell, striking his head. None of the hospital records record a version of events that state the applicant fell because his leg went numb.²⁹ They all indicate that the applicant simply blacked out.

61Both the applicant and his wife deny that the version recorded in the hospital records is what happened. However, neither of them provided a satisfactory explanation of why the various health practitioners would have recorded the incident incorrectly or recorded why the applicant’s wife reported to them that the incident started with the applicant complaining of feeling unwell followed by abnormal jerking movements, slurred speech and then brief episodes of decreased levels of consciousness. The information recorded in the hospital records was made contemporaneously and can only have been based on information provided by either the applicant or his wife. I am not convinced that the applicant’s and his wife’s memories were better at the hearing than they were back in March 2017. For example, Mrs. Khan testified that she was unaware that the applicant was seeing a chronic pain specialist prior to the accident. This is contrary to the advice she gave Dr. Kali Barrett, another internal specialist who saw the applicant at the hospital during his March 2017 admission, that the applicant had been to a pain specialist several times.³⁰

62The is no mention in the hospital records or Dr. Rikhye’s records that the applicant fell on March 9, 2017 due to a weak leg or a numb leg. It is possible that the applicant’s and his wife’s failure to mention leg numbness was an oversight. If so, it does not mean that he fell because of his accident injuries. Since I have accepted Dr. Kachooie’s opinion, I find that if a numb left leg caused the applicant to fall on March 9, 2017, it was because of his mixed motor and sensory polyneuropathy secondary to diabetes, and not because of any accident injury.

e) Black Out and Balance

63I find that the March 9th, 2017 incident was more likely caused by a blackout instead of left leg numbness. However, this also does not help the applicant because he has a history of blackouts, vertigo and syncope pre-accident and has not provided a rational explanation of how an accident injury caused him to black out.

64Dr. van Reekum determined that the applicant sustained a TBI in his fall on March 9, 2017. His opinion was that the TBI that the applicant sustained on March 9, 2017 was caused by the accident. His explanation was that the applicant complained of balance problems after the accident and, if his balance was impaired, this may have contributed to his risk of falls.

65Dr. van Reekum’s opinion was that the most likely contributor initially to the applicant’s fall on March 9, 2017 was the whiplash that he was diagnosed with, causing post-concussive syndrome. When asked how, Dr. van Reekum testified that when hit from behind, the applicant’s brain would move forward, putting force on the spinal cord, the mid brain and the brain stem. It is the mid brain and the brain stem where dizziness, balance and post-concussive symptoms live. His evidence was that the forces generated during an accident of this approximate description would likely have put the applicant at risk for a head injury. Dr. van Reekum believed the damage to the applicant’s car was about $3,000.00, while repairs to the other vehicle cost about $2,500.00. His evidence was that brain injury could occur with an accident involving speeds of 20 to 30 km range and he has seen a severe TBI from a person falling.

66I give little weight to Dr. van Reekum’s opinion because there was no record of the applicant complaining of dizziness, vertigo or syncope following the accident until almost three weeks later on March 9, 20201.³¹ Dr. van Reekum could only explain it by finding that the applicant sustained a TBI in the accident, which is contrary to his reported opinion that the applicant did not sustain a TBI. Dr. van Reekum did not distinguish whether his example of a TBI from falling involved a direct impact to the person’s head or an indirect impact. Dr. van Reekum’s opinion about the forces generated during the accident is beyond his expertise as it is within the expertise of a biomechanical engineer. Dr. van Reekum’s curriculum vitae does not state that he has any expertise in biomechanical engineering. Further, the applicant’s vehicle only sustained about $1,000.00 worth of damage or less than half the damage that Dr. van Reekum believed it sustained. Therefore, I find that Dr. van Reekum’s explanation of how the applicant’s whiplash caused a brain injury is mere speculation and is contrary to his opinion that the applicant did not sustain a TBI in the accident.

67Dr. van Reekum’s opinion was that the March 9, 2017 fall was caused by the applicant’s accident injuries because there was a clinically appropriate temporal relationship between the accident and the subsequent onset of the applicant’s complaints. Dr. van Reekum’s opinion was that the injuries, stresses and losses associated with the accident are probably clinically significant contributors to his present complaints.

68Dr. van Reekum testified that his opinion was based, in part, on the lack of any pre-accident medical records recording balance issues or falls. However, the applicant’s medical records contain numerous pre-accident references to vertigo and syncope.³² When questioned about the applicant’s pre-accident complaints of vertigo in 2016 to Dr. Muhammad Shrayyef, the applicant’s pre-accident treating endocrinologist , Dr. van Reekum testified that vertigo was not the same as falling or having balance issues. He testified that vertigo is a symptom, a sensation, and balance is the diagnosis. I find that Dr. van Reekum’s explanation was intended to minimize the applicant’s pre-accident diagnosis of pre-syncope and his complaints of vertigo, which is a sensation of dizziness and can cause loss of balance.

69The applicant submitted that one cannot cherry pick medical records. However, one cannot also cherry pick the symptom from the impairment as a way of minimizing pre-accident records. Further, Dr. Shrayyef’s report of vertigo was not the only pre-accident record suggesting balance or falling issues. In fact, Dr. van Reekum was aware that in 2014 the applicant had what sounded like vasovagal episodes because Dr. van Reekum reported on a medical report where the applicant advised he almost blacked out three times.³³ Dr. van Reekum’s reasoning for his opinion that there were no pre-accident balance issues or falls ignores the pre-accident medical records of blackouts, syncope and vertigo.

70Dr. van Reekum’s opinion was that the applicant had cardiovascular and cerebrovascular risk factors. He reported that even if the accident had not occurred, the applicant’s cerebrovascular changes, such as the lacunar infarcts in his basal ganglia and associated mild subcortical atrophy, would have persisted and gradually worsened. His opinion was that it did not appear that the cerebrovascular changes were producing any symptoms or impairments prior to the accident. I find that given the applicant’s pre-accident vasovagal syncope and vertigo complaints to his cardiologist, Dr. van Reekum’s assessment required some explanation of what caused his pre-accident syncope and balance complaints if they were not from the changes to his brain or his cardiovascular issues. Instead, he minimized those complaints, which to me was an indication that he was biased and acting as an advocate for the applicant.

71Dr. Rakesh Rikhye was the applicant’s family doctor from 2014 up to at least June 2017. Other than his June 5th 2017 clinical note, the only mention by Dr. Rikhye in his records of a relationship between the applicant’s present complaints and the accident are the OCF-3 disability certificates prepared by Dr. Rikhye dated April 25, 2017 and June 5, 2017, in which he stated the applicant’s syncope, seizures, neck strain, low back strain and headaches were caused by the accident.³⁴ Dr. Rikhye did not mention anything about leg numbness or weakness. He stated that the applicant did not have any disease, condition or injury affecting his ability to work prior to the accident. This is in contrast to the fact that the applicant was on long term disability benefits within one and half months of the accident.

72Dr. Rikhye provided no explanation of what injury led to his diagnosis of seizure and syncope. These are essential pieces of information to provide context on how syncope and seizures arose due to the accident. Especially since Dr. Rikhye prepared a report dated June 5, 2017 stating that the applicant developed syncope and a seizure disorder with symptoms first appearing on March 9, 2017. An explanation was also essential given that the applicant has a pre-accident history of blackouts and syncope. As a result, I am unable to give much weight to Dr. Rikhye’s disability certificate without some explanation from Dr. Rikhye as to what injury led to the syncope and seizures and what role his pre-accident history played in the diagnosis.

73The applicant has been assessed by numerous treating neurologists. Other than Dr. Jha, none of the other neurologists or psychiatrists who have assessed the applicant had opined that his fall on March 9, 2017 was caused by the accident. Dr. Nazir Malik is the applicant’s treating psychiatrist. Dr. Malik provided no opinion that the accident is the cause of the applicant’s problems. He issued a report on January 17, 2019 that made no comment about the MVA.³⁵

74The applicant was referred to Dr. Andre Douen, neurologist, who did not make any diagnosis in relation to the accident.³⁶ In fact, he was doubtful that the applicant’s symptoms that began on March 10, 2017 could have been associated with the accident.³⁷

75The applicant was also seen by Dr. Eduard Bercovici, neurologist, who also did not make any neurological diagnosis in relation to the accident, despite the applicant describing focal neurological symptoms and seizures since the accident. Dr. Bercovici recommended the applicant be referred to a psychiatrist as he thought there was a non-organic element to the applicant’s presentation.³⁸

76Dr. Gerald Tullio, neurologist, reported that the applicant has degenerative disc disease (“DDD”) with moderate stenosis and mild chord compression at C6-7, that was not new. Dr. Tullio diagnosed the applicant with a seizure as a result of viral encephalitis and that he suffered a mild encephalopathy as a result. The only comment Dr. Tullio made about the accident was that there was no indication the applicant’s left side complaints were caused by the accident and he wondered if the functional component of the applicant’s complaints was brought on by his pain syndrome and accident.³⁹ Dr. Tullio’s speculation does not meet the applicant’s onus of proof on a balance of probabilities. Dr. Tullio reported that the applicant had an EEG in 2011 for episodes of confusion. The 2011 EEG results were also normal. Dr. Tullio stated that it was doubtful that the applicant’s presentation in March 2017 was related to any of the treatment he was receiving for his chronic pain following a motor vehicle accident.

77Dr. Michael Rathbone, neurologist, saw the applicant in relation to his complaints of numbness and weakness on his left side. Dr. Rathbone reported on January 8, 2018 that the applicant’s symptoms may be related to psychological issues, such as stress. Dr. Rathbone reported that the applicant experienced left pain and numbness after the accident, but the weakness had onset later. He did not make any causal connection between the accident and the applicant’s complaints.⁴⁰

78Dr. Lim, neurologist, saw the applicant on April 27, 2017.⁴¹ The applicant’s chief complaints at that time were left temporal headache, episodes of unconsciousness, mini seizures, numb left side of his face and difficulty weight bearing, numb lower extremities with the left greater than the right with tingling since 1990 from the feet to the knee and neck pain. It is not clear from Dr. Lim’s report if the numbness in the applicant’s legs occurred after an earlier accident which occurred in 1991 or after the February 21, 2017 accident given that the applicant was seen for paresthesia in 2012 by Dr Deva Baryshnik, neurologist. Dr. Lim noted that the applicant gave poor inconsistent effort, and concluded his presentation was suggestive of non-organic illness, including a consistently inconsistent effort. Dr. Lim questioned whether all the applicant’s complaints were psychogenic. He made no determination that the motor vehicle accident was the cause of the applicant’s complaints and noted that the complaints essentially started on March 9, 2017.

f) Temporal Relation

79The applicant submitted that because he was working prior to the accident, he was functional despite all of his pre-accident health conditions. The applicant submitted that his pre-accident issues had resolved as, otherwise, he would have been unable to apply for and obtain employment. Dr. van Reekum also found support for his opinion in his understanding that, despite his multiple medical problems, the applicant functioned well in his usual and expected roles, including those of a worker. Therefore, since the accident occurred about three weeks prior to the March 9, 2017 incident, the incident must have been caused by the applicant’s accident injuries as there is no other explanation for the March 9, 2017 fall. However, I find that the evidence does not support the applicant’s submission or Dr. van Reekum’s opinion.

80The applicant testified that he was off work as a production manager with Cooper Standard for 13 weeks up to October 7, 2016 for abdominal pain, which was ultimately diagnosed as a hernia in 2018. This testimony contradicts the applicant’s testimony that all his pre-accident issues had resolved by the time the accident happened. When questioned about medical records recording complaints of back pain or injections for back pain from the December 2016 up to the accident, the applicant testified that it was not back pain, but abdominal pain. However, none of his physicians told him that his nerve block injections were for abdominal pain.

81The applicant testified that, except form being off work from July to October 2016, he continued working up until the accident. However, the records show he applied for long term disability benefits, which were approved no later than January 2017.⁴² The applicant admitted on cross-examination that he returned to work at Cooper Standard some time after October 7, 2016 or November 7, 2016 for no more than a week. He admitted that as of December 12, 2016, he was not working⁴³ and that he received long-term disability benefits up to January 2017. However, the applicant then obtained employment with a different company, Caledonia Plastics, as a production manager starting January 16, 2017. He testified that he was feeling a little better by the end of January 2017. According to the records, the applicant handed in his resignation at Cooper Standard on February 10, 2017.⁴⁴

82Dr. van Reekum’s opinion is based, in part, on his belief that the applicant did not have any pain complaints including headaches after 2014. However, the records show that prior to the accident, the applicant had left artery stenosis, peripheral neuropathy, headaches, and vertigo.⁴⁵ The applicant testified that he had back complaints that affected his job in the four years pre-accident. He was able to sit at work but did not do any housework at home because of his back problems. He testified that he had some neck complaints in 2014 and had some emotional issues after he was diagnosed with H1N1 in 2010. He denied having have any cognitive issues prior to the accident. He testified that before the accident he played cricket, volleyball, and bowled, went to movies and dined out and had intimate relations with his wife. He testified that he can no longer engage in those activities because of the accident. However, on cross-examination he admitted that he had not engaged in sports since the summer of 2016. This is more in keeping with his testimony that he did not do any housework or home maintenance because of his pre-existing medical issues. His wife confirmed that neither of them socialized with friends or family during the winter, and that the last time they had gone for dinner was in October 2016.

83According to the medical records, the applicant’s medical history was much more extensive than he testified to. He had irritable bowel syndrome (“IBS”)⁴⁶. He did not recall that his neck complaints were an issue right up to the date of the accident or that he was receiving injections to his neck and back for chronic pain.⁴⁷ His past medical history was significant for C7 and C8 stenosis since 2010 and hospitalization for assessment of his C6 and C7 polyneuropathy.⁴⁸ He had multiple level DDD of the c-spine with some cord compression at C6 and C7.⁴⁹ He had a previous motor vehicle accident and 17 successive operations. He had some erectile dysfunction since 2014, pain in his left testicle, headaches, and vertigo,⁵⁰ sleep issues due to pain,⁵¹ and chest pain that resolved by January 13, 2017.⁵² The applicant believed that he had put on about 40 lbs after the accident. Of note is that he weighed 272 lbs at the time of the accident and bariatric surgery was recommended prior to the accident.⁵³ His blood pressure as of February 6, 2017 was high.⁵⁴ The applicant’s abdominal, back and chest pain complaints in 2016 are well documented and were the reason he was off work from July 2016 to January 2017.⁵⁵ Nor does Dr. van Reekum’s reasoning account for the applicant seeking a referral to a pain specialist for chronic pain in his neck, arms and legs in November 2016⁵⁶ or the fact that he was receiving massage therapy regularly up to the date of the accident.⁵⁷

84Dr. Rikhye’s records show that the applicant had complaints of low back pain for which he received epidural steroid injections at the Rothbart Pain Clinic as of March 2014 and was prescribed Naproxen and Tylenol #3 with Codeine. The applicant was started on Elavil (Amitriptyline 10mg 3 tabs) on July 11, 2016, Clonazepam (.5mg twice/day), Gabapentin (100mg twice /day), and Toviaz (for overactive bladder, leaking or incontinence) prescriptions were renewed on August 12, 2016. The applicant was off work from July 11, 2016 for abdominal complaints and back pain.⁵⁸ He had difficulty then standing or walking for any amount of time. By October 7, 2016, he was complaining of anxiety and an inability to sleep. He was taken off Clonazepam and started on Temazepam (30 mg at bedtime). He was to return to work on October 17, 2016 on reduced hours and was receiving therapy for his abdominal complaints which helped. The applicant was being treated for IBS, but it is not clear whether the IBS was the same as his abdominal pain. The applicant was asking for referral to a pain specialist on November 26, 2016⁵⁹ and received trigger point injections up to and after the accident.⁶⁰

85The applicant’s current family doctor, Dr. Maithry Uddaraju, testified. She did not start treating the applicant until after the accident and was unaware of the extent of his pre-accident history. She was unaware that the applicant had difficulty standing and walking in July 2016, was diagnosed with bilateral carpal tunnel syndrome for which he underwent surgery, or that he was referred to an anaesthetist for chronic pain in his neck, arms and legs in November 2016⁶¹. Dr. Uddaraju reviewed the report and recommendations of Dr. Rozen and testified that she does not normally make those referrals unless other medical management does not work. Patients who are referred this way usually have a high degree of pain. She was unaware that the applicant was taking Cyclobenzaprine and was reporting complaints of headache and vertigo pre-accident. Nor was she aware that the applicant had stopped working in December 2016 because of his medical conditions.

86The applicant’s medical history includes diabetes and hypertension.⁶² Dr. Uddaraju testified that high blood pressure, or hypertension, can make diabetic symptoms worse. It can possibly exacerbate diabetic neuropathy. She testified that she believed the applicant blacked out and fell because of an adrenal insufficiency.

87The applicant submitted that the applicant was able to work pre-accident despite his health issues. Therefore, his accident injuries must have caused him to fall on March 9, 2017. However, the applicant’s accident injuries did not prevent his from working. He returned to work, albeit for a new employer, on March 7, 2017. Further, the evidence shows that the applicant’s pre-accident ability to work was spotty due to his pre-accident health issues. Because of this, I am unable to agree with the applicant’s submission or Dr. van Reekum’s opinion that, because the applicant was able to work pre-accident, the accident caused the March 9, 2017 incident.

88Given the applicant’s extensive pre-accident medical history and the fact that he was not as active as Dr. van Reekum believed and, given the applicant’s ability to return to work despite his pain complaints from the accident, I am unable to find that he sustained any injury from the accident that caused him to fall on March 9, 2017. I find it more likely than not that his diabetic neuropathy or whatever caused him to have blackouts and vertigo pre-accident are responsible for his fall on March 9, 2017. Dr. van Reekum failed to provide any explanation of how the applicant’s blacking out or fainting was caused by a psychological or physical impairment sustained from the accident. That causal connection was imperative in light of the applicant’s pre-accident medical history. For these reasons, I find that the applicant has failed to prove on a balance of probabilities that the incident on March 9, 2017 was caused by the accident. I find that the applicant has failed to prove that the accident exacerbated any pre-existing conditions resulting in the March 9, 2017 incident. The applicant has failed to prove, on a balance of probabilities, that but for the accident, the applicant would not have his present impairments.

3. Mental or Behavioural Impairment from the Accident

89As indicated earlier, there was no psychological diagnoses as a result of the accident made by any qualified health practitioner prior to March 9, 2017. Nor was there any evidence that the applicant sustained a psychological impairment such as complaints of mood or emotional problems prior to March 9, 2017 as a result of the accident. Dr. van Reekum’s opinion of a possible Somatic Symptom disorder does not meet the onus of proof. Dr. Shaul’s opinion has no weight because he never met the applicant nor addressed the applicant’s extensive pre-accident medical history. Given my determination that the applicant failed to prove that his accident injuries caused him to fall on March 9, 2017, I find that the March 9, 2017 fall was an intervening event. Therefore, I am unable to find that any of the applicant’s present psychological or cognitive complaints are related to the accident but are attributable to the head injury and stresses sustained in the March 9, 2017 fall and the exacerbation to his pre-existing cerebrovascular condition.

90Dr. Van Reekum criticized Dr. St. Cyr for not relying on any data supporting the conclusion that the applicant sustained multiple mental health conditions due to the accident at a clinically significant level, as provided by a number of physicians and the OTs. It is not clear what Dr. van Reekum meant by this critique. If he was referring to the medical records that show the applicant has severe and debilitating impairments since March 9, 2017, I do not find that Dr. St. Cyr disputed that. It appears that Dr. van Reekum’s critique pre-supposes that Dr. St. Cyr accepted that the accident caused the applicant’s fall on March 9, 2017, which he did not. As I have determined that the accident injuries did not cause the March 9, 2017 fall, I give little weigh tot Dr. van Reekum’s critique.

91For the reasons given, I find that the applicant has failed to prove on a balance of probabilities that he sustained an impairment in the accident that resulted in a class 4 marked or class 5 extreme impairment in any of the spheres of function due to a mental or behavioral disorder. The applicant failed to prove on a balance of probabilities that he has a behavioural or mental disorder that is causally related to the accident. As a result, he has failed to prove he sustained a catastrophic impairment. The applicant’s claim for catastrophic impairment determination is, therefore, dismissed.

B. Cost of Examination and Medical and Attendant Care Benefits

92The applicant has exhausted his policy limits for attendant care benefits, medical benefits, rehabilitation benefits and cost of examinations. As I have determined that the applicant failed to prove he sustained a catastrophic impairment as a result of the accident, his claim for these benefits is dismissed.

C. Housekeeping Benefits

93Under the Schedule the applicant is not entitled to any housekeeping benefits unless he sustained a catastrophic impairment. As I have determined that the applicant failed to prove he sustained a catastrophic impairment as a result of the accident, his claim for housekeeping benefits is dismissed.

D. Interest

94Interest is payable under the Schedule on overdue payments of benefits. I have found that nothing is owed to the applicant. Accordingly, his claim for interest is dismissed.

E. Special Award

95Under s.10 of Reg. 664, the respondent may be required to pay an award of up to 50% of the benefits and interest owed if I found that the respondent unreasonably delayed the payment of benefits to the applicant. As I have determined that the applicant is not entitled to any of the benefits in issue, his claim for a special award is dismissed At any rate, the respondent did not engage in conduct that would have merited an award.

F. Costs

96In his closing submissions, the applicant claimed he was seeking his costs on the basis that the respondent failed to advise him that benefits were denied because the respondent believed the applicant’s health issues were pre-existing. The respondent did not indicate in his response the reasons for why it denied any of the claims made. However, Dr. Yufe had conducted an IE assessment in 2017 and reported that the applicant’s claim for physiotherapy treatment was not reasonable or necessary because the applicant’s impairment was caused by a seizure that occurred after the motor vehicle accident. Further, Dr. Oshidari had commented in his report, a copy of which was provided to the applicant, that the applicant has a long standing pre-existing medical history.

97There is a high threshold for awarding costs, and I was provided with no authority that an insurer is unable to utilise any and all defences available to it. I find that, although it would have been preferable for the respondent to set out in its response the clear position it was taking, one may infer the defence by the respondent’s opening submission that the March 9, 2017 incident was the cause of the applicant’s present complaints, especially since the applicant did not ask for any clarification of the respondent’s response. Accordingly, I am unable to find that the respondent’s actions or, in this case, inaction, resulted in any prejudice to the applicant, was in breach of an order or affected the Tribunal’s ability to carry out a fair, efficient and effective process.⁶³ For these reasons, the applicant’s claim for costs is dismissed.

CONCLUSION AND ORDER

98The applicant did not sustain a catastrophic impairment as a result of the accident.

99The applicant’s claims for accident benefits, interest and a special award are dismissed.

100The applicant’s claim for costs is dismissed.

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) [“LAT Rules”]
2. 2Girao v. Cunningham, 2020 ONCA 260
3. 3American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 ( the “AMA Guides”)
4. 4Ex.2 p.443, clinical note of Dr. Khoja dated February 21, 2017 and Ex.2 p.108 OHIP summary
5. 5Ex.1 pp.1965 and 1935 Dr. Rikhye’s clinical nots and records, note dated February 22, 2017 and December 13, 2016
6. 6Ex.2 OHIP summary pp.100 to 109.
7. 7Ex.3 p.31
8. 8Ex.2 pp. 195 to 197, Dr. Rikhye’s clinical notes and records from February 22, 2017 to March 9, 2017
9. 9Ex.2 p.361, report of Dr. Bole dated March 9, 2017
10. 10Ex.1 p.1675, report of Dr. Sam Handeleman dated April 22, 2014; p.1590 report of Dr. Jeremy Zung, neurologist, dated April 27, 2017 re tingling since 1990 in feet to knee and seen for paresthesia in 2012 by Dr Deva Baryshnik neurology; p.1792 report of Dr. Takaki Sameshima, endocrinologist, dated October 17, 201; p.1939 report of Dr. Muhammad Shrayyef, endocrinologist, dated December 15, 2016; p.1962 report of Dr. Steven Orlov, endocrinologist, dated February 18, 2017
11. 11Part II of General, O Reg 544/94 under the Massage Therapy Act, 1991
12. 12Ex.1 p.4136
13. 13Ex.1 p.4191
14. 14Ex.1 p.4185 OCF-23 Confirmation of Treatment form and see also p.4173, OCF-18 treatment plan of B. Mandapat dated February 27, 2017
15. 15Mr. Mandapat testified that the March 1 note on p.4193 of Ex.1 was actually a continuation of his February 27, 2017 note.
16. 16Ex. 1 p. 3612
17. 17See for example the reports of Dr. Hastings, neurophysiatrist, dated July 10, 2019, Ex.1 p. 3676. Dr. Van Reekum’s report dated November 19 at Ex.1 p.3501, Dr. Yufe’s September 22, 2017 report at Ex.1 p.3347.
18. 18Ex.2, tab 1 p.17 repair estimate
19. 19Ex.1 p.3442 to 3446, report of Dr. Jha dated January 7, 2019
20. 20Ex.1 tab 24, p.3474, report of Dr. van Reekum dated November 20, 2020 and tab 1 p.15, OHIP summary stating the CT scans were taken at Humber River Hospital on April 18, 2014. The page listing the name of the referring physician and the radiologist was redacted. The Humber River Hospital records were not included as an exhibit. However, I have no reason to doubt Dr. van Reekum reviewed the records and the CT scan especially since it was recorded on the OHIP summary.
21. 21Ex.1 tab.11 pp.2914 to 2932
22. 22The term "rule out" is used by mental health professionals who are trying to make an accurate diagnosis. The symptoms of many mental health conditions are similar or overlap so before a clear diagnosis can be made, clinicians must rule out a variety of other conditions.
23. 23Ex.1 p.3547. Dr. van Reekum’s November 20, 2019 report
24. 24Ex.1 p.3545, Dr. van Reekum’s November 20, 2019 report recording Dr. Patel’s report. However, the second page of Dr. Patel’s report dated March 24, 2014 at p.2913of Ex.1 was not included in Ex.1
25. 25Ex.1 p.3547, Dr. van Reekum’s November 20, 2019 report
26. 26AMA Guides, chapter 14 p. 293
27. 27Ex.1 p.211 pain and mild weakness noting bruising to his face and left knee from the fall,
28. 28Ex.1 p.2367, report of Dr. E. Powell dated March 13, 2017
29. 29Ex.1 p.1528 report of Dr. Douen dated April 12, 2017, Ex.1 p.93 report of Dr. Afiya Bernard dated March 28, 2017, p.96 ambulance call report dated March 9, 2017, pp.157 and 186, Brampton Civic Hospital records1 pp.3399 to 3400 Dr. Elizabeth Powel, internal medicine, report of March 13, 2017
30. 30Ex.2, p.213, Dr. Rikhye’s clinical notes. Report of Dr. Kali Barrett dated March 10, 2017
31. 31Ex.1 p.4263, clinical note from Mr. Mandapat dated February 7, 2017 notes there was n dizziness.
32. 32Ex.1 p.3816, report of Dr. Muhammad Shrayyef, endocrinologist, dated January 11, 2017 where the applicant complained of headache and benign positional vertigo; See also E.1 p.1673, report of Dr. Richard Magder of Humber River Hospital dated April 24, 2014 re pre-syncope; p.3193 report of Dr. Frank Chan of Humber River Hospital dated April 17,2014; p.3158 report of Dr. Arif Naqvi, cardiologist, dated May 5, 2014 with reports of headache and episodes that sound vasovagal;
33. 33Ex.1 tab 24 p.3522 report of Dr. van Reekum dated November 20, 2020; p.3524 where Dr. van Reekum recorded a note from Dr. F. Chan dated April 17, 2014 noting the applicant complained of 2 or 3 episodes of syncope. Ex.1, tab 1, p.15 of the OHIP summary confirms Dr. Chan assessed the applicant on April 17, 2014. Vasovagal syncope is fainting
34. 34Ex.3 tab 4, p.39 and p.2085
35. 35Ex.1 pp.3457 to 3461
36. 36Ex.1, pp.
37. 37Ex. 2 p.264
38. 38Ex.1 pp. 3387 to 3393 and 3413 to 3415
39. 39Ex.1, p.3394
40. 40Ex.1 p.3407 to 3410
41. 41Ex. 2 p.369
42. 42Ex.3 p.226 Cooper Standard employment file and p.225, letter from Manulife to the applicant dated May 16, 2017
43. 43Ex.1 p.1931, report of Dr. Dima Rozen dated December 12, 2016
44. 44Ex.3 p.187, email from Timur Khan to Cooper Standard dated February 10, 2017
45. 45Ex.1 p.1900 report of Dr. Muhamod Z Shrayyef dated November 10, 2016
46. 46Ex.1 p.1800, report of Dr. Rikhye dated October 19, 2015
47. 47Ex. 2 p343, report of Dr. Dima Rozen dated December 12, 2016, and p.352, report of Dr. Shrayyef dated January 11, 2017
48. 48Ex. 2 p.244, Dr. Razi Sayeed, psychiatrist, report of March 23, 2017
49. 49Ex.1 pp.3401 to
50. 50Ex. 2 p.327, report of Dr. Farouk Abdul Ghany dated September 7, 2016 and p.333, report of Dr. Muhammad Shrayyef, endocrinologist, dated November 10, 2016
51. 51Ex.2 p.342, report of Dr. Anju Anand, respirologist, dated December 12, 2016, and p.349, report of Dr. Lee Daba dated December 28, 2016
52. 52Ex. 2 p.345, report of Dr. Alex Patel, internal medicine, dated December 15, 2016, and p.354 dated January 13, 2017
53. 53Ex. 2 p.353, report of Dr. Shrayyef dated January 11, 2017, and p.357, report of Dr. Steven Orlov, endocrinologist, dated February 18, 2017
54. 54Ex. 2 p.356, report of Dr. Davinder Wadehra, nephrologist, dated February 6, 2017
55. 55Ex.3 pp.183 and 182, Cooper Standard employment file
56. 56Ex.1 p.1919 Dr. Rikhye clinical notes of November 26, 2016, p.1920 referral faxed November 29, 2016
57. 57Ex.1 tab 44 Promed Rehabilitation clinical notes and records from January 21, 2017
58. 58Ex.2 pp.320 to 322, Attending Physician’s Statement to Manulife of Dr. Rikhye dated July 28, 2016
59. 59Ex.1 tab 8, clinical notes of Dr. Rikhye
60. 60Ex.2 109 OHIP summary
61. 61Ex. 1 pp.1919 to 1920
62. 62Ex.1 p.1907, report of Dr. T. Sameshima, gastroenterologist, dated November 10, 2016
63. 63LAT Rule 19