Citation: Khan v. Aviva Insurance Company of Canada, 2023 ONLAT 21-003298/AABS

Licence Appeal Tribunal File Number: 21-003298/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:

Ravinderraj Khan

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Chloe Lester

APPEARANCES:

For the Applicant:

Tal Eshel, Counsel

For the Respondent:

Kevin Griffiths, Counsel

Court Reporter:

Maureen Biscak

HEARD: by Videoconference:

June 6, 7, 8, 13, 14, 16, and 17, 2022

REASONS FOR DECISION

BACKGROUND

1The applicant, Ravinderraj Khan, was a hardworking family man. Despite some injuries from a previous motor vehicle accident, he could still work upwards of 16 hours a day in a very physical, labour-intensive job.

2Mr. Khan was involved in an automobile accident on February 21, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). As a result of the accident, Mr. Khan suffered from an exacerbation of his physical impairments and a new onset of psychological impairments. Mr. Khan received treatment for both impairments. Mr. Khan continued to work but not to the same degree as before the accident. Mr. Khan alleges he had to hire labourers to help him with the more physical aspects of the jobs.

3Roughly two years after the accident, Mr. Khan allegedly ceased working due to his car-accident impairments and slowly his mental health deteriorated. Mr. Khan eventually applied to be designated catastrophically impaired. The respondent, Aviva Insurance Company of Canada, denied Mr. Khan treatment for his impairments and the designation of being catastrophically impaired. Mr. Khan submitted an application to dispute the benefits to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

4The main issue in this hearing is causation. Mr. Khan not only had pre-existing injuries but post-accident experienced a subsequent car accident, a workplace accident, new onset of medical conditions, and stressful life events. Mr. Khan claims that the post-accident impairments are a result of the index accident and therefore any required treatment should be the responsibility of Aviva. Aviva argues that Mr. Khan’s current level of psychological impairment is not a result of the index accident but other factors that deteriorated his mental health.

ISSUES

5The issues in dispute for this hearing are:

a. Has Mr. Khan sustained a catastrophic impairment as defined by the Schedule?

b. Is Mr. Khan entitled to two treatment plans for massage and occupational therapy services?

c. Is Mr. Khan entitled to one treatment plan for a psychological assessment and three treatment plans for psychological treatment?

d. Is Mr. Khan entitled to an in-home assessment and $6,000 per month in attendant care benefits?

e. Is Mr. Khan entitled to two treatment plans for inpatient and outpatient addiction counselling?

f. Is Aviva liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to Mr. Khan?

g. Is Mr. Khan entitled to interest on any overdue payment of benefits?

RESULT

6I find Mr. Khan is not catastrophically impaired, and not entitled to attendant care benefits or any treatment plans. Since no benefits are owed, Mr. Khan is not entitled to interest or an award. Mr. Khan’s application is dismissed.

CATASTROPHIC DESIGNATION AND THE LAW ON CAUSATION

7The onus is on Mr. Khan to establish that, on the balance of probabilities and because of the accident, his psychological and behavioural impairment levels significantly impede useful functioning in one area of function. In this case, Mr. Khan argues that he has a psychological or behavioural disorder that meets the catastrophic definition in accordance with s. 3(2)(f);¹ that he has a marked impairment in adaptation.

8In accordance with Pastore v. Aviva Canada² and the Guides³ Mr. Khan argues that there is a three-stage process for evaluating a catastrophic designation due to a mental or behavioural disorder.

a. Stage 1: Diagnosis of mental disorder

b. Stage 2: Assessment of the severity of the limitations

c. Stage 3: Assigning the severity of the limitations into categories and determining their levels of impairments

9The major dispute between the parties is not necessarily the diagnosis, both parties agree Mr. Khan suffers from serious mental disorders, but it is whether the car accident caused the current level of psychological impairments.

10In proving causation, both parties agree that the “but for” test must be met to prove the current impairments are a result of the car accident. As set out in the leading case Sabadash v. State Farm⁴, Mr. Khan must prove that “but for” the car accident he would not be experiencing these impairments. Mr. Khan must prove that the car accident was a necessary cause of his current impairments.

11However, he is not required to show that the accident was the sole cause of his injury. In certain situations where multiple independent causes may bring about a single harm, the “but for” test may be unworkable and, accordingly, Mr. Khan must establish that the accident materially contributed toward the impairments.⁵

12Mr. Khan argues that as a result of the accident he suffers from major depressive disorder (single episode) with psychotic features and anxious distress, somatic pain disorder with predominant pain, other specified trauma-related disorder, and alcohol use disorder.⁶ Mr. Khan argues that he had no pre-existing mental health issues, he was diagnosed shortly after the accident with a psychological diagnosis and the accident was a significant aspect of it. Mr. Khan relies on the following medical records to support his psychiatric diagnosis.

Date	Doctor	Diagnosis
July 2016	Dr. Rockman - psychologist	-adjustment disorder with mixed anxiety -depressed mood chronic -somatic symptoms disorder with predominant pain
August 2019	Dr. Sirota – psychiatrist	-major depressive disorder severe -manic-like symptoms -anxiety disorder -PTSD
Nov. 2019	Dr. Rosenblatt - psychiatrist	-major depressive disorder single episode with psychotic features and anxious distress -somatic symptom disorder -alcohol use disorder -other specific trauma-related disorder
June 2020	Dr. Aleem - psychiatrist	-major depressive disorder single episode rule out psychotic features -PTSD with dissociative behaviour -alcohol use disorder -psychotic disorder -Rule out somatic symptom disorder
Jan 2021	Dr. Dhaliwal -psychiatrist	-Complex PTSD, moderately severe with anxiety, depression and hallucination

13Aviva argues that even if the accident never occurred Mr. Khan would still be experiencing the impairments he currently has because the evidence demonstrates that his psychological impairments were caused by his seizures and his Hills-Sachs lesion diagnosis (both unrelated to the accident), and other significant life events that occurred after the accident. Aviva argues that Mr. Khan is an unreliable historian so therefore his self-reports cannot be taken at face value. It also relies on the report of Dr. Eisen, who opines Mr. Khan’s psychological impairments are unrelated to the accident since Mr. Khan could work at a demanding job for about 2 years after the accident. Dr. Eisen also opines that any flashbacks or nightmares resulting from the accident are not reconciled with his level of comfort driving after the accident. He also opines that Mr. Khan’s psychosis is an unlikely result of an accident and is a result of the family history of schizophrenia.

14In order to assess causation, it is important to analyze to what degree any accident-related impairment impacted the applicant’s ability to function. In this case, it is also important to do a comparison between the level of function after the accident and before Mr. Khan experienced significant life stressors and medical issues to determine how much of an impact the accident has on his current level of psychiatric impairments.

What is Mr. Khan’s history of physical impairments?

15The records indicate that Mr. Khan had pre-existing physical impairments from a previous car accident that caused neck pain, numbness/tingling down his arms and difficulties sleeping because of the pain. He was diagnosed with chronic C8 radiculopathy.

16The day after the index car accident, Mr. Khan complained to his family doctor about neck pain radiating to both shoulders, headaches, difficulty sleeping, and lower back pains.⁷ Because of his injuries, Mr. Khan ceased working and as a result, was experiencing financial stress.⁸ He also indicated to the family doctor that he was having difficulties playing with his daughter, general body pain and that he was not able to lift.⁹ The family doctor and physical therapy records indicate an exacerbation of his pre-accident impairments.

17Mr. Khan ceased working for about 2 months and he alleges that when he returned to work it was only on a supervisory basis because of his physical injuries.

18Mr. Khan was in another car accident in May 2015, about three months after the index accident. He experienced similar injuries as the two previous car accidents.¹⁰

19From September 2015 until December 2016, Mr. Khan developed seizure-like episodes unrelated to the car accident.¹¹ Mr. Khan testified that these seizures were of concern to him because they occurred without warning and impacted his ability to work. Mr. Khan continued to report pain in similar areas of concern from the car accidents.

20In November 2017 Mr. Khan re-injured himself while working and complained of pain in his shoulders, neck and back.¹² These are the exact same areas injured in previous car accidents. He also dislocated his shoulder while moving a family member,¹³ followed by another shoulder dislocation while working.¹⁴ It was at this time that Mr. Khan was diagnosed at the hospital with a Hills-Sachs deformity. This deformity caused frequent dislocations of his shoulder, that even grabbing a glass of water could result in a dislocated shoulder.¹⁵ He was also diagnosed with anemia. He had low iron and hemoglobin and it was recommended by medical professionals to have a blood transfusion and iron supplements.¹⁶

What is Mr. Khan’s history of psychological impairments?

21The evidence demonstrates and is uncontested that Mr. Khan had no pre-accident history of psychological impairments.

22In the spring/summer of 2016, Aviva assessed Mr. Khan and determined that he had a psychological impairment resulting from the accident and approved treatment. In the psychological counselling records, Mr. Khan reported that not only physical pain was an issue but also financial stress. His inability to pay his mortgage, his wife’s loss of her job in January of 2016¹⁷, and his decreased ability to work all impacted him financially. He was fearful that he was going to lose his home.¹⁸ By the end of December 2016, Mr. Khan experienced at least 4 seizures and his driver’s license was revoked for medical reasons.

23By the spring of 2017, Mr. Khan reported in his counselling sessions he was concerned with his inability to physically work in the same capacity as before the accident, his inability to complete projects, and his ability to make enough money to provide for his family.¹⁹

24During the June 2017 counselling sessions, Mr. Khan reported that he is feeling better, that physiotherapy is working, and his pain depends on what he is doing that day for work.²⁰ He reported that he constantly worries about his business, and the business difficulties are causing issues at home and financial strain. A main and very prominent concern for Mr. Khan during the month of June was his wife’s recent diagnosis of a very serious medical issue.²¹ A significant amount of distress was noted because Mr. Khan had to take on additional responsibilities at home, and he found it difficult to balance them. His wife also had an upcoming surgery.²²

25A progress report in August 2017 from the treating counsellor indicated that the treatment sessions had been improving Mr. Khan’s psychological symptoms and he was only experiencing mild anxiety symptoms. Further counselling sessions were recommended. ²³

26From the spring/summer of 2017 to the fall of 2017 there is an extreme shift in Mr. Khan’s mental and physical health. Any gained improvements in his physical and mental car accident impairments were lost with the continuous seizures, re-injury to his neck and back at work, and new onset of physical impairments, the Hills-Sachs deformity and anemia issues. All of these new issues combined had a huge impact on his ability to work, his stress increased because of financial issues and his wife’s new medical issues. All of Mr. Khan’s stress negatively impacted his marriage. It is during this time that Mr. Khan’s increase in alcohol consumption is noted by treating practitioners.²⁴

27By the end of 2017 and into 2018 Mr. Khan’s life really fell apart, there are reports he was charged with assaulting his spouse, he then separated from her, married a new woman who could not immigrate to Canada, continued to have seizures and frequently dislocated shoulders. It was due to his inability to drive, seizures and dislocated shoulders that he lost his business. He was charged with driving while impaired and driving without a license. He had to sell his home and was homeless for a period of time. ²⁵

28It is not until the end of 2018 that Mr. Khan began to experience hallucinations.²⁶

Did the index accident cause any of Mr. Khan’s physical or psychological impairments?

29I find the seizure episodes and frequently dislocated shoulders are not a result of the car accident. Mr. Khan’s treating practitioners could not find a root cause of his seizures, whether they were neurological, syncope or alcohol withdrawal. In addition, Mr. Khan’s and Aviva’s catastrophic assessors did not opine the seizures were a result of the car accident. Mr. Khan’s family doctor also opined that the seizures/syncope episodes were not because of the car accident.²⁷ As for his Hills-Sachs deformity, I find the dislocations are not a result of the car accident. Although there are some shoulder pain complaints after the car accident, the initial shoulder dislocation did not occur until more than two years after the car accident while moving a heavy object. Also, Mr. Khan’s catastrophic reports did not find the shoulder dislocations a result of the car accident.

30I find the car accident in question at this hearing initially caused an exacerbation of Mr. Khan’s pre-accident physical impairments. It is at this point that Mr. Khan had difficulty lifting, playing with his child, and ceased working for 2 months. The car accident in May 2015 seemed to have little to no impact on the physical impairments because Mr. Khan continued to work, and I cannot find any other functional limitations as a result of it. After the spring of 2017, I find that the accident had little to no impact on his physical impairments. Mr. Khan reports that he is physically feeling better, the physiotherapy was working and the pain he feels from the car accident depends on the day.²⁸ I find that any subsequent reports of pain are a result of other incidents and injuries. Mr. Khan re-injures himself at work and complains of pain in his shoulder, neck and back. He reports that he is afraid the pain will not go away.²⁹ It is at this time that he first dislocates his shoulder which results in a Hills-Sachs deformity. This caused frequent dislocations of his shoulder where simple tasks could no longer be performed. This caused a significant impact on Mr. Khan’s ability to work and take care of his basic activities of daily living.

31With regards to his psychological impairments, to prove the “but for” test we know that the car accident must be a necessary cause of the impairments. It need not be the only cause, but it can be a contributing factor. The applicant must prove that the psychological impairments or triggers caused by the car accident continue to persist and are at least one of the forefront factors causing the psychological distress.

32I find that Mr. Khan does not meet the “but for” test and is not catastrophically impaired.

33About a year and a half after the car accident, Mr. Khan was diagnosed with psychiatric disorders resulting from the car accident. He reported that he lost sleep worrying about financial strains. He reported that he began incurring increased labour costs because he had to delegate more tasks to other workers and some contracts were lost because he could not keep up with the demands. He also complained of low energy and increased mood issues. By August 2017, with psychological counselling, Mr. Khan had improved his psychological impairments albeit not back to his pre-accident state.³⁰

34It was in the fall of 2017 when Mr. Khan’s psychological state started to rapidly deteriorate. Mr. Khan’s wife was about to have surgery due to a recently diagnosed medical issue. This increased the household demands for Mr. Khan. His constant worrying affected his ability to sleep.³¹ It was also at this time that he continued to have seizures, re-injured himself at work, it had been a year since losing his driver’s license, and began having frequent dislocations of his shoulder and they all had an impact on his ability to work. The financial strains increased and had a great impact on his functional abilities to take care of his activities of daily living, and his family’s needs. This caused angry bursts toward his wife, increased alcohol consumption and increased anxiety.³² The noted stressors did not stem from the car accident.

35Mr. Khan testified that the root causes of his current psychological distress stem from his seizures and their effects on his life. He stated he was getting better and then he started collapsing because he was not sleeping or eating properly. Mr. Khan testified that he lost a contract because he could not keep up with the demands, and that he also lost contracts because of the seizures. The company he was working for was nervous about his ability to perform and the potential liability of Mr. Khan being on the job sites alone. The increased stress and anxiety caused an increase in alcohol consumption. Mr. Khan testified that the medications he was on, either for his psychological disorders or his seizures, were having adverse side effects of increased anxiety and hallucinations. He testified that between 2018-2019 he attempted to commit suicide three times.

36Since the seizures and shoulder dislocations are unrelated to the car accident, any life difficulties resulting from them and that are triggering Mr. Khan’s psychological distress cannot be attributed to the car accident either.

37I give little weight to Dr. Rosenblatt’s report in May 2019 that opined that the psychological diagnoses are materially related to the index accident.³³ Dr. Rosenblatt opined that the car accident materially contributed to Mr. Khan’s psychological diagnosis. The report highlights the root causes of Mr. Khan’s psychiatric symptomology are his financial difficulties, struggles to complete chores, and being with his family. From the history of the medical records, the root cause of the financial distress were factors unrelated to the accident, namely the seizures, his revoked driver’s license, and dislocated shoulder. He struggled to complete chores and activities of daily living because of his dislocated shoulder, pain and sadness. Mr. Khan’s catastrophic reports acknowledge a reduced range of motion in the shoulders, and that he has difficulty feeding himself because of it. Also, any complaints of pain are muddied by the fact that he re-injured himself at work at the end of 2017 which I found at that point the car accident injuries were no longer a concern.³⁴

38I find that Dr. Aleem’s psychiatric report in June 2020 gives a more fulsome analysis that some of the psychiatric concerns began immediately after and as a result of the accident. That said, I give little weight to Dr. Aleem’s testimony and report because her conclusions about his psychiatric health are based heavily on his seizures. She testified that she found Mr. Khan’s psychological symptoms result from the accident based on his self-reports and that he was functioning before the accident. Yet, I found that any clear decline in his mood and ability to cope, including suicidal ideation was because of life stressors and medical issues unrelated to the car accident. Many of the root causes were because of his seizures, the revocation of his driver’s license, and shoulder dislocations; all of those combined caused an inability to work. After he stopped working in 2017, Mr. Khan’s financial strains increased and so did his alcohol abuse; these, compounded with Mr. Khan’s criminal and legal difficulties, contributed toward his marriage difficulties and eventually a separation from his wife.³⁵ The fact that Mr. Khan had no psychological impairments prior to the accident but then exhibits some after the car accident does not mean that the car accident automatically is a cause of the current diagnosis. Mr. Khan must prove that the psychological symptoms were a necessary cause of the diagnosis. He reported to Dr. Aleem that the most significant barrier in his life is his seizures,³⁶ which I have found are unrelated to the car accident.

39Also, I give little weight to Dr. Aleem’s report because her conclusions are based on Mr. Khan’s self-reports, and I find that Mr. Khan is a poor historian. Mr. Khan reports to Dr. Aleem a history of mental health difficulties. In that section of the report, he either minimized or failed to mention to Dr. Aleem other significant life events that impacted Mr. Khan’s mental health, like his diagnosis of Hills-Sachs deformity, his injury at work, and his wife’s medical diagnosis.

40The additional life stressors unrelated to the car accident that impacted Mr. Khan’s mental health are contained in the records of Dr. Rockman, his treating psychologist. The records indicate that he had some psychological impairments as a result of the accident but after the first set of counselling sessions, there was an improvement in his impairments.³⁷ It is in the fall of 2017 that when his seizures and frequent dislocated shoulder issues increased, his inability to work decreased and his psychological impairments amplified.

41I also place little weight on Mr. Khan’s allegations that his complaints were caused by the February 2015 car accident, because I find that Mr. Khan is not a reliable historian. He consistently reports to the assessor information that is unsupported by other evidence or contradicts what he tells other assessors. He reports to Dr. Rockman during the psychological assessment that he was diagnosed by his family doctor with dislocated vertebrae of the neck, but nowhere in the family doctor’s records is that noted.³⁸ Mr. Khan reports that his seizures result from the accident, whereas his own catastrophic assessments do not support that conclusion, nor do any other treating practitioners.³⁹ Mr. Khan reported to Dr. Dhaliwal that he started hearing voices after the subject car accident⁴⁰, but the first report of hallucinations was in April 2018 when he admits to ER doctor that he had been experiencing them only in the last few months.⁴¹ Mr. Khan testified that the first time his shoulder dislocated was in the car accident yet the records indicate the first time the shoulder dislocated was while he was helping a family member move almost two years later.⁴² Three different assessors report that Mr. Khan is a poor historian.⁴³ Mr. Khan stated that when he returned to work after the car accident, it was in a supervisory role, yet to Dr. Aleem he reported that many times he would be working alone.⁴⁴ The very nature of his job means that when he worked alone, he could not have been working in just a supervisory role.

42Although Mr. Khan gave the impression in many assessments that the difficulties in his life stem from the accident, it is because he truly believes the seizure episodes⁴⁵ and his dislocated shoulder are due to the accident. Therefore, he gave the impression to many of the assessors that he stopped working or that the troubles in his life were due to the accident when, as I found, they were not.

43Mr. Khan’s diagnosis of PTSD is the only psychological disorder that could be a result of the car accident. For the reasons listed, namely Mr. Khan being a poor historian and the discrepancies in his reports to the various doctors and assessors, I prefer the report of Dr. Eisen. Dr. Eisen finds it highly unlikely that Mr. Khan is suffering from PTSD considering his level of functionality after the car accident, namely that he drove and worked for almost 2 years after the accident.

44I find that Mr. Khan does not meet the “but for” test and is not catastrophically impaired. Had the index accident not occurred, Mr. Khan would have still experienced the significant life stressors that affected his financial situation and impacted his ability to work. He still would have had seizures, had his driver’s license revoked, and had a medical condition that caused frequent dislocated shoulder, all contributing to his financial problems. He still would have re-injured himself at work in 2017. His wife would have lost her job, developed a medical condition resulting in surgery, and he would have had an increase in household responsibilities. These additional life stressors unrelated to the car accident, as referenced above, caused a significant impact on Mr. Khan’s mental health. The evidence demonstrates that the major triggers contributing to Mr. Khan’s distress were the seizures and dislocated shoulder which impacted Mr. Khan’s ability to work and take care of his family responsibilities or himself. Even though the accident was the first incident that triggered the initial psychological diagnosis, with treatment the symptoms improved. It is clear from the evidence that Mr. Khan’s other life stressors and medical conditions were the cause of the current psychiatric impairments.

ATTENDANT CARE BENEFITS

45Mr. Khan argues that he is entitled to attendant care benefits in the amount of $10,604.12 per month, subject to the Schedule’s monetary limitation, from May 1, 2019, onward. He argues that his inability to complete his activities of daily living is a result of the impairments sustained in the car accident. Based on my findings above, I find that by 2019, Mr. Khan was no longer suffering from any car accident-related impairments. His inability to complete his activities of daily living was due to impairments from subsequent injuries, stressful life events, and health issues unrelated to the car accident. Therefore, Mr. Khan is not entitled to an attendant care benefit.

46Mr. Khan argues that two treatment plans in dispute were denied past the allotted timeframe in the Schedule. In accordance with s. 38(8), Aviva must respond to a submitted treatment plan within 10 business days after the day of receipt.

47Mr. Khan argues that the treatment plan in the amount of $13,166.60 was submitted on December 13, 2019 and was denied outside of the 10 business days. Aviva argues that it was properly denied with a request for a s. 44 assessment on January 29, 2020.⁴⁶

48I find that the treatment plan for $13,166.60 was denied outside of the 10 business days. Aviva ought to have responded to the treatment plan by December 31, 2019.

49In accordance with s. 38(11) of the Schedule, if an insurer fails to give a proper s.38(8) notice within 10 business days after the day the insurer receives the treatment plan, any incurred treatment from that treatment plan from the 11th business day until the insured receives a proper denial is considered payable.⁴⁷

50Mr. Khan is entitled to payment for any incurred treatment from January 2, 2020, until the denial on January 29, 2020. Since the applicant failed to submit evidence that any of the treatment was incurred in accordance with the treatment plan within those dates, I decline to order any payment under s. 38(11).

51Mr. Khan argues that Aviva also failed to deny a treatment plan for $5,928.14 within the required 10 business days. Mr. Khan argues that the treatment plan was submitted to Aviva on May 7, 2020 and was denied on May 19, 2020.

52In a review of the evidence, the treatment plan was actually denied on May 20, 2020.⁴⁸ In any event, Aviva had 10 business days to respond to the request for treatment and that date fell on May 22, 2020. I find that Aviva responded within the 10 business days as per its obligations in the Schedule. I find no violation of s. 38(8).

THE TREATMENT PLANS

53Mr. Khan in his original application claimed entitlement to a total of 9 treatment plans. The treatment plans were for occupational therapy services, psychological treatment, a psychological assessment, an in-home assessment, addiction treatment, and for massage therapy. Mr. Khan argues that all the medical evidence submitted on his behalf supports the findings that his medical injuries and symptoms clearly warrant the entitlement to the denied treatment plans. No other submissions were argued.

54It is well-established that the applicant has the burden of proving on a balance of probabilities that the claimed treatment plans are reasonable and necessary. To demonstrate that, the applicant should identify the goals of each treatment plan, how the goals are being met to a reasonable degree and whether the time and cost of achieving those goals are proportional to the recommended treatment. As for an assessment, the applicant must show that it is reasonable and necessary to investigate a condition. Mr. Khan also must prove that the treatment being recommended is for impairments sustained in the car accident.

55I find that Mr. Khan has not met his burden of proving the disputed treatment plans are reasonable and necessary. Mr. Khan did not provide any submissions regarding why each individual treatment plan is reasonable and necessary. Simply stating that the impairments and medical evidence support a need for the treatment is simply not enough. It is incumbent on Mr. Khan to demonstrate the requested treatment is reasonable and necessary considering Mr. Khan’s accident impairments and the medical evidence. It is not the adjudicator’s role to formulate those submissions for Mr. Khan. In addition, since causation is at issue in this hearing, it was necessary for Mr. Khan to explain how these treatment plans relate to the impairments sustained in the car accident. Since I have no submissions to explain why the treatment is reasonable and necessary, I find that Mr. Khan has not met his burden.

RESULTS

56I find Mr. Khan is not catastrophically impaired, and not entitled to attendant care benefits or any treatment plans. Since no benefits are owed, Mr. Khan is not entitled to interest or an award.

Footnotes

1. 1Section 2(1.1)2. of the current Schedule requires me to apply the provisions of a previous version of the Schedule, given the date of Mr. Khan’s index accident.
2. 22012 ONCA 642 at para. 6
3. 3American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition (the “Guides”)
4. 4Sabadash v. State Farm et al., 2019 ONSC 1121
5. 5Sabadash v. State Farm, et al., 2019 ONSC 1121, Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, Monks v. ING Insurance Company of Canada, 2008 ONCA 269, and Walker Estate v York Finch General Hospital, 2001 SCC 23, [2001] 1 SCR 647.
6. 6Applicant’s Brief page 718
7. 7Applicant’s Brief page 752
8. 8Applicant’s Brief page 753
9. 9Applicant’s Brief page 753
10. 10Applicant’s Brief page 753
11. 11Applicant’s Brief page 595-663 OMEGA CAT Report
12. 12Applicant’s Brief page 1646
13. 13Applicant’s Brief page 921-929, 1266
14. 14Applicant’s Brief page 1209
15. 15The testimony of Mr. Khan
16. 16The testimony of Mr. Khan
17. 17Applicant’s Brief page 1523
18. 18Applicant’s Brief page 1608
19. 19Applicant’s Brief page 1609 and 1611
20. 20Applicant’s Brief page 1612
21. 21Applicant’s Brief page 1612
22. 22Applicant’s Brief page 1613-1615
23. 23Applicant’s Brief page 1621
24. 24Applicant’s Brief page 1645, 1648, 1650
25. 25Applicant’s Brief page 1652, 1625, 1209, 1229, 1169, 1166, 901, 902, 1407, 1191-1200, 1169, 1178, 1181, 1133
26. 26Applicant’s Brief page 1169, 1178, 1181
27. 27Applicant’s Brief page 819
28. 28Applicant’s Brief page 1612
29. 29Applicant’s Brief page 1646
30. 30Applicant’s Brief page 1583 s. 25 assessment of Dr. Rockman
31. 31Applicant Brief page 1642
32. 32Applicant’s Brief page 1642, 1645, 1229, 1209, 1647, 1648, 1649, 1650, 1652, 1625
33. 33Applicant’s Brief page 640
34. 34Applicant’s Brief page 1646
35. 35Applicant’s Brief page 565
36. 36Applicant’s Brief page 566
37. 37Applicant’s Brief page 1621 – progress report of Dr. Rockman
38. 38Respondent’s Brief page 320
39. 39Respondent’s Brief Page 469
40. 40Applicant’s Brief page 1106
41. 41Applicant’s Brief page 1169, 1178, 1181
42. 42Applicant’s Brief page 921-929, 1266
43. 43Respondent’s Brief page 466, 575, 589 and applicant’s brief page 568
44. 44Applicant’s Brief page 565
45. 45Respondent’s Brief page 539
46. 46Respondent’s Brief page 177
47. 47Aviva v. Catic, 2022 ONSC 6000 at para. 15-18 (Div. Ct.)
48. 48Respondent’s Brief page 193