Citation: Khokhar v. Aviva Insurance Company, 2025 ONLAT 24-010189/AABS

Licence Appeal Tribunal File Number: 24-010189/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:

Nasira Khokhar

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Syed M. Raza, Counsel

For the Respondent:

Mark Vella, Counsel

Hussein Pirani, Counsel

HEARD: by Videoconference:

June 2-5, 2025

OVERVIEW

1Nasira Khokhar, the applicant, was involved in an automobile accident on January 12, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $71.03 per week from March 14, 2023, to date and ongoing?

ii. Is the applicant entitled to $299.22 ($2,892.98 less $2,593.76 approved) for psychological services, proposed by Gozlan Psychology Professional Corp in a treatment plan/OCF-18 dated May 13, 2023?

iii. Is the applicant entitled to $1,300.00 for physiotherapy services, proposed by Wanless Corp in a treatment plan/OCF-18 dated June 27, 2024?

iv. Is the applicant entitled to $503.90 ($2,200.00 less $1,696.10 approved) for a psychological assessment, proposed by Gozlan Psychology Professional Corp in a treatment plan/OCF-18 dated November 21, 2022?

v. Is the applicant entitled to $2,200.00 for an orthopaedic assessment, proposed by Dr. Michael West in a treatment plan/OCF-18 dated May 31, 2023?

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

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

3The applicant withdrew issues 6 and 8 as listed in the case conference report and order (“CCRO”) of November 15, 2024, at the beginning of the hearing. Issue 5 from the CCRO was approved by the respondent in the weeks leading up to the hearing, upon receipt of new medical evidence from the applicant’s submissions and is no longer in dispute.

RESULT

4The applicant has not met her onus to demonstrate that she is entitled to a pre- or post-104 IRB.

5The applicant has not met her onus to demonstrate that the remaining unapproved portion of the psychological services treatment plan is reasonable and necessary.

6The applicant has not met her onus to demonstrate that she is entitled to the physiotherapy services.

7The applicant has not met her onus to demonstrate that she is entitled to the remaining portion of the psychological assessment.

8The applicant has not demonstrated that she is entitled to the orthopaedic assessment proposed by Dr. Michael West.

9No award is due.

10As no payments are overdue, no interest is owed.

PROCEDURAL ISSUES

11On consent, the applications in Tribunal file # 24-010189/AABS and 24-009797/ABBS were heard together. However, separate decisions are being issued for each application.

12The applicant’s witness Dr. Igor Wilderman, general practitioner and pain specialist, testified as a treating practitioner and not as an expert. Tribunal Rule 10.2, also referred to at [24] of the CCRO, outlines that if a party intends to rely upon the evidence of an expert witness, they shall provide the other party with an Acknowledgement of Expert Duty (“AED”), a copy of their curriculum vitae (“CV”), a copy of the report and any instructions provided to the expert, 45 days prior to the hearing. Dr. Wilderman has both treated and assessed the applicant. The respondent had assumed Dr. Wilderman would be testifying as a treating psychologist as they have not received any AED, CV or been provided with a summary of evidence for the witness. I determined that Dr. Wilderman may testify as a treating practitioner, but he may not testify to the conclusions reached in his report.

13The applicant’s witness Dr. Oren Gozlan, psychologist testified as a treating psychologist and not as an expert. Likewise with Dr. Wilderman, I note that Dr. Gozlan has treated and assessed the applicant. Clinical notes and records of Dr. Gozlan have been entered into evidence, and the records do not reference an independent assessment and report. The respondent had assumed Dr. Gozlan would be testifying as a treating psychologist as they have not received any AED, CV or been provided with a summary of evidence for the witness. The Tribunal identified that while an AED form was not completed by Dr. Gozlan 45 days prior to the hearing, an alternate form that does not express the same duty was submitted by the applicant on the day the witness was called to testify. I determined that Dr. Gozlan may testify as a treating psychologist, but he may not testify to the conclusions reached in his report.

ANALYSIS

The applicant has not met her onus to demonstrate entitlement to pre-104-week Income replacement benefits

14For the reasons that follow, the applicant has not met her onus to demonstrate she is entitled to pre-104-week IRB because she has not shown that she was employed or self-employed prior to the subject accident.

15To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

16The applicant submits psychological and physical issues related to the subject accident have rendered her substantially unable to undertake the essential tasks of her pre-accident employment as a baby-sitter.

17The respondent submits that the applicant was not working at the time of the accident, has engaged in willful misrepresentation, does not suffer a substantial inability to perform the essential tasks of her previous employment and is not entitled to any of the benefits claimed.

18It is difficult to determine when the applicant last worked based on her testimony. The applicant testified that she worked 5 days per week, from 9:00 AM to 5:00 PM and sometimes Saturdays as needed but never worked on Sundays. In contrast the applicant also testified that she last worked prior to the subject accident on Sunday January 9, 2022, did not work Monday January 10th or Tuesday January 11th, 2022, but was on her way to start work at 1:30 PM the day of the accident. The applicant also testified that her last day worked was 2 days before the pandemic in 2020.

19The applicant’s accident benefits documentation does not clear up the employment status of the applicant.

i. The OCF-1 (Application for Accident Benefits) was signed by the applicant January 20, 2022, and in part 5 states that the applicant was unemployed and receiving employment insurance benefits.

ii. The OCF-2 (Employer Confirmation Form) was signed and submitted by the applicant on April 21, 2022, and indicated that the employer was Wiam Filali Baba. The form indicates that the applicant is employed full-time and earned an average weekly income of $612.50 and was not absent from work for any time in the previous 52 weeks and indicates that her last day worked was January 12, 2022. The dates of employment listed are “August 10, 2018, to employed”.

iii. An OCF-3 (Disability Certificate) was signed and submitted April 22, 2022, and states that the applicant worked at least 26 of the previous 52 weeks and was not receiving employment insurance at the time. The form indicates that the applicant has a complete inability to carry on normal life and that this is expected to last for 9-12 weeks.

iv. A second OCF-2 was signed and submitted July 25, 2022, in which the applicant indicates that she was self-employed at the time of the accident and would like her earnings in the previous fiscal year to be used in calculation of income replacement benefits. The dates of employment are listed as October 1, 2019, to present and the last day worked was January 12, 2022.

20It was proposed that the applicant may not completely understand the differences between employment and self-employment; the applicant’s counsel utilized redirect to ascertain this. From her testimony, I find that the applicant clearly understood the difference between the two types of employment, this was tested multiple times with varying explanations and the applicant clearly understood the differences.

21I find that the applicant, on a balance of probabilities, was not employed or self-employed at the time of the subject accident. The applicant’s submitted tax records indicate:

i. 2019 net business income of $16,780.

ii. 2020 net business income of $4,901

iii. 2021 net business income of $4,050

The applicant also submitted a “job letter”, which had been submitted to the respondent in support of the IRB claim, that identifies Wiam Filali Baba as an employer for the applicant. The letter indicates that the applicant is paid $635 per week. The letter is not on letterhead and is undated. Attached to the letter are 2 receipts from the applicant for annual payments from Wiam Filali Baba to the applicant; the receipts indicate annual pay of $24,460 in 2019 and $8,170 in 2018. I have not been pointed to any receipts for 2020 or 2021.

22There are discrepancies between the applicant’s testimony and submitted evidence. The applicant testified that discrepancies between her income claims and reports to the CRA relate to cash payments which she stated are not reported as income. The applicant has also applied for Canada Pension Plan – Disability. The application states that the applicant has stopped working completely due to a medical condition and indicates that her first day worked as a babysitter was August 1, 2018, and her last day of work was March 13, 2020. The applicant also reported to Dr. Sekyi-Otu, orthopaedic surgeon, that she last worked December 2020.

23As noted above, I find that the applicant was not employed or self-employed in the months prior to the subject accident. As the applicant was not employed, I find on a balance of probabilities that she is not eligible for the pre-104 income replacement benefit.

The applicant has not met her onus to demonstrate entitlement to post-104-week income replacement benefits

24For the reasons that follow, the applicant has not met her onus to demonstrate that she entitled to post-104-week income replacement benefits.

25To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.

26The applicant has not demonstrated that she was employed or self-employed prior to the subject accident. The applicant was not entitled to pre-104-week IRB on this basis and therefore is also not entitled to a post-104-week IRB.

The remaining unapproved portion of the psychological services treatment plan is not reasonable and necessary

27For the reasons that follow, I find that the applicant has not met her onus to demonstrate that the remaining unapproved portion of the psychological service treatment plan proposed by Dr. Gozlan is reasonable and necessary.

28To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

29The applicant submits that this is treatment needed to return to her pre-accident function.

30The respondent submits that the applicant is not attending treatment that is approved and that the unapproved portion of the plan is not reasonable or necessary.

31The OCF-18 of May 19, 2023, submitted by Dr. Oren Gozlan states at part 12 that the applicant requires 16 1-hour sessions of therapy and an assessment of 2-hours and a documentation support activity of $200.00. The total cost of the plan is $2892.98. The insurer approved $2,593.76 and in an explanation of benefits letter outlined that the treatment plan included both documentation support activity and an assessment; the 2-hour assessment was identified as not reasonable and necessary.

32Neither the applicant nor Dr. Gozlan testified directly regarding the reasonableness or necessity of the unapproved 2-hour assessment. I am not persuaded that the unapproved portion of the treatment plan is reasonable and necessary, nor that the applicant would utilize any further treatment. The applicant testified very briefly regarding psychological treatment stating that there are benefits to seeing Dr. Gozlan; however, in contrast, the applicant did not identify any functional limitations as a result of psychological injuries, in addition the applicant did not identify any treatment goals or how those goals would be reasonable met. Of note, an e-mail from Dr. Gozlan to applicant’s counsel of August 24, 2023, notes that the applicant has cancelled several times and has only attended 1 (July 20, 2023) of 16 approved sessions.

33For the reasons above, I find on a balance of probabilities, that the unapproved portion of the psychological services treatment plan is not reasonable and necessary.

The physiotherapy services treatment plan is not reasonable and necessary

34The applicant has not met her onus to demonstrate that she is entitled to the physiotherapy services.

35The applicant submits that she suffers back pain, pain along the right side of her body and in her limbs.

36The respondent submits that the applicant’s injuries have resolved and that there is no objective evidence of impairment.

37The treatment plan for $1,300.00 submitted by Riza Mansuri, physiotherapist dated June 27, 2024, was denied August 19, 2024. Under part 6, injury information, sprains and strains of the cervical, thoracic and lumbar spine, hip and shoulder joint along with sleep disorders, headache, stress and fatigue are listed. The goals of the plan are to increase range of motion, pain reduction and to return to the activities of normal living. The plan proposes ten 1-hour sessions of therapy with Melissa Boodhram, chiropractor, and a 1-hour assessment by Riza Mansuri, physiotherapist.

38I am not persuaded by the applicant’s testimony. The applicant testified that she attended physiotherapy twice per week receiving vibration massage, and leg exercise, and stopped when she moved to Brampton. The applicant did not testify regarding the goals of treatment, nor how those goals would be reasonably met by the proposed treatment.

39CNRs and Treatment records indicate, on a balance of probabilities, that physiotherapy treatment had worked. The clinical notes and records of the Al-Shafa Medical Centre do not outline any objective findings of impairment in the visit prior to this plan, April 22, 2024, nor the visit after this plan, December 23, 2024. According to the evidence, the applicant last visited physiotherapy at Physiomed on June 9, 2022. Physiomed treatment records on this last visit indicate that the applicant is able to sleep on her hip and reported she has been feeling very good.

40I am not persuaded that the treatment plan is related to the subject accident. On March 11, 2023, the applicant reported to family physician Dr. Raheem that she had fallen on outdoor stairs while cleaning snow and was experiencing right shoulder pain but denied other joint pain, there is no reference to the subject accident in relation to, or in proximity of, this entry in the CNRs. On December 13, 2024, the applicant attended Mackenzie Health – Cortellucci Vaughan Hospital campus where she reported right hand pain, the applicant indicated that she had moved houses December 1, 2024, and had been doing “a lot” of heavy lifting of boxes; the subject accident is not identified to the medical personnel. In my view, based on this evidence, the applicant was no longer experiencing pain from the subject accident.

41For the reasons above, I find that the applicant has not met her onus to prove, on a balance of probabilities, that she is entitled to the physiotherapy treatment plan.

The applicant is not entitled to the unapproved portion of the psychological assessment

42The applicant has not met her onus to demonstrate that she is entitled to the remaining portion of the psychological assessment proposed by Gozlan Psychology.

43The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

44The applicant submits she suffers from chronic pain, insomnia, anxiety and headaches and requires the full assessment from Dr. Gozlan.

45The respondent submits that they have partially approved the assessment plan, utilizing the paper review of Dr. Ratti to inform their decision.

46Dr. Oren Gozlan, psychologist proposed a psychological assessment, in a treatment plan dated November 21, 2022, and submitted January 12, 2023. The plan was denied pending an insurers examination to be conducted by Dr. Rakesh Ratti.

47The applicant did not testify regarding the goals of the plan or how they would be reasonably met. Dr. Gozlan did not testify regarding the unapproved portion of the assessment and did not address the length of time allocated to the assessment and report writing. As treatment had been approved but was not being utilized it is unclear why an assessment was being requested or how it would inform treatment.

48The respondent pointed me to the report by Dr. Ratti. Dr. Ratti conducted a paper review and issued a report January 26, 2023. Dr. Ratti opined that the applicant has anxiety and a depressed mood but that no functional limitation was observable or identified. Dr. Ratti found that the assessment is partially reasonable and necessary and pointed to the amount of time for report writing as excessive, stating that 10 hours for the assessment and report writing is reasonable. The respondent utilized the opinion of Dr. Ratti and partially approved the treatment plan.

49I am not persuaded by the evidence or testimony of the applicant nor Dr. Gozlan, that the unapproved portion of the treatment plan is reasonable or necessary.

The applicant is not entitled to the orthopaedic assessment

50The applicant has not met her onus to demonstrate that she is entitled to the orthopaedic assessment proposed by Dr. Michael West.

51The applicant submits that pain in her back and on her right side necessitates an orthopaedic assessment.

52The respondent submits that the applicant’s injuries from the subject accident have resolved, and that the treatment plan is not reasonable or necessary.

53The OCF-18 submitted by Dr. West on May 31, 2023, requests an orthopaedic assessment for $2,200.00.

54The applicant did not testify regarding the orthopaedic assessment and did not point me to any evidence in support of her claim.

55In contrast the respondent pointed me to the assessment report of Dr. Esmat Dessouki, orthopaedic surgeon. Dr. Dessouki assessed the applicant September 13, 2023, and issued a report September 27, 2023, and opined that the applicant had reached maximum medical improvement from injuries sustained in the motor vehicle accident. And that there is no objective evidence of any residual musculoskeletal impairment. I also refer to the opinion of Dr. Sekyi-Otu who assessed the applicant on October 15, 2024, opined that the applicant showed no objective signs of musculoskeletal injury, that no impairment was observable, and the applicant had reached maximum medical recovery.

56For the reasons above I find on a balance of probabilities that the applicant has not met her onus to demonstrate that she is entitled to the orthopaedic assessment proposed by Dr. Michael West.

Interest

57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest does not apply.

Award

58The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. No basis for an award was identified in the applicant’s submissions. Therefore, I find she has not met her onus in this regard.

ORDER

59The applicant is not entitled to a pre- or post-104 IRB.

60The applicant has not met her onus to demonstrate that the remaining unapproved portion of the psychological services treatment plan is reasonable and necessary.

61The applicant has not met her onus to demonstrate that she is entitled to the physiotherapy services.

62The applicant has not met her onus to demonstrate that she is entitled to the remaining portion of the psychological assessment.

63The applicant has not demonstrated that she is entitled to the orthopaedic assessment proposed by Dr. Michael West.

64No award is due.

65As no payments are overdue, no interest is owed.