Citation: Ramji v. Security National Insurance Company, 2025 ONLAT 24-003457/AABS

Licence Appeal Tribunal File Number: 24-003457/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:

Parhez Ramji

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tami Cogan

APPEARANCES:

For the Applicant:

Keshma Sankar, Counsel

For the Respondent:

James Kolumbus, Counsel

HEARD:

In Writing

OVERVIEW

1Parhez Ramji, the applicant, was involved in an automobile accident on July 3, 2018, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was involved in a second accident on April 30, 2019.

ISSUES

3The issues to be decided are:

i. Is the applicant entitled to an income replacement benefit (IRB) in the amount of $400.00 per week from December 13, 2022, to present?

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

RESULT

4Having reviewed the parties submissions and evidence to which I was directed, I find the following.

i. The applicant is not entitled to IRB from December 13, 2022 to present.

ii. There is no interest owing.

ANALYSIS

Income Replacement Benefit (IRB)

5The applicant has not established entitlement to IRB from December 13, 2022, to present.

6The parties agree the applicant received IRB until December 13, 2022. The applicant is seeking post-104-week IRB. The benefit was stopped based on the results of the Insurer’s Examinations.

7To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that as a result of the accident, he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

8The applicant submits that at the time of his 2018 accident he was employed as a dispatcher for a limousine company. His employment experience is primarily in limousine services industry as a dispatcher. He has a high school education. He was unable to return to work after the 2018 accident, in which he sustained injuries to his knee, chest, shoulder, and fractures of his rib and left tibia, among other strains, sprains, and contusions. His inability to work was compounded by the injuries from the 2019 accident, which include post-concussion symptoms.

9Further, the applicant submits that the essential tasks as a dispatcher required his ability to multitask, have attention to detail, work independently, communicate effectively to resolve customer complaints, use critical thinking to problem solve and organize, or as a result of concussion symptoms be exposed to light without wearing dark glasses, as well as sit at a computer, and be on his feet. The applicant submits the Insurer’s Examination reports are not compelling evidence because they do not take into account the essential tasks of the applicant’s pre-accident employment, nor understand the effect his accident-related injuries have on his work tasks, or his inability to work in the limousine industry.

10The respondent submits that the reasons and conditions preventing the applicant from returning to work for which he is reasonably suited by education, training or experience, are not as a result of the 2018 accident.

11It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test in this case, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. Further, that the accident need not be the only cause of the impairment but a necessary cause. The Court further instructs the decision maker to conduct a robust analysis given the unique circumstances of the case at hand.

12The applicant submits that the respondent’s expert reports are not compelling because they do not consider the applicant’s pre-accident employment. I disagree because the legal test I must consider in the context of his post-104 week IRB claim is not whether the applicant can perform the essential tasks of his pre-accident employment, nor whether he is able to work in the limousine industry, but rather whether he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience, as a result of the 2018 accident. Put another way, I must consider his transferable skills and his ability to perform them in a different employment setting. The applicant has applied for IRB as a result of his 2018, not his 2019 accident, therefore the cause of his impairments must be the 2018 accident.

Causation

13After the 2018 accident the applicant underwent a brain MRI, in which led to a finding of demyelinating disease. The Neurology consultation report of Dr. Mohamed Abunaji, Neurologist, dated November 14, 2021, indicates the applicant’s symptoms began in mid-2017. I find that although the condition was detected post-accident, it was not caused by the accident. Further, there records indicate the applicant is stable with no new lesions or symptoms. Therefore, the evidence does not support that this pre-existing condition was worsened by the accident.

14The applicant’s submissions have focused primarily on the applicant’s concussion related symptoms as the cause of his inability to engage in employment. The applicant relies on the report of Dr. Yael Perez, neurologist, dated May 24, 2019. I find this report strongly supports that the applicant suffered a concussion during the 2019 accident. Further, the applicant directed me to clinical notes and records of Dr. Gregory Gan Gaisano, Internal Medicine Physician, dated July 5, 2024, that support the applicant suffered a concussion during the 2019 accident. The applicant also relies on the report of Farhankhan Pathan, Physiotherapist at Iscope Concussion Clinics, dated December 29, 2020, in which the following opinion is presented:

Main limitation of returning to employment is due to headaches, decreased concentration that leads him being difficult with completing all his fast-paced work. He is not able to do multi-tasking which he used to do at work.

15The applicant directed me to the clinical notes and records of Dr. Gaisano on July 28, 2021, regarding the applicant’s elbow pain. The records indicate that as a result of a fall in his home, the applicant had X-rays conducted in the emergency department which were negative for a fracture and the doctor concluded the elbow pain was soft tissue related to either bursitis or muscle strain. Treatment recommendations were for heat or cold therapy and a trial of low-dose-over-the counter anti-inflammatory medication. Dr. Gaisano’s clinical notes and records of July 5, 2024, support that the applicant struggled with ongoing dizziness as a result of concussion. Subsequently, the applicant fell in his home and sustained rib fractures and an injury to his right wrist.

16I note that the applicant has not directed me to records that support the applicant suffered a concussion as a result of the 2018 accident. On the preponderance of evidence, I find the concussion, and concussion symptoms are a result of the 2019 accident and not the 2018 accident. I find the evidence supports that the 2018 accident is neither the cause nor a necessary cause of the concussion. It follows that the injuries sustained by the applicant as a result of falling due to his concussion related symptoms are not causally linked to the 2018 accident.

17I do not accept the applicant’s submission that the 2019 accident happened because he was leaving his doctor’s office after treatment from the 2018 accident. I have not been directed to records that speak to his assertion, and the medical records indicate a multitude of medical conditions for which the applicant was being medically treated, any of which may have placed the applicant at his doctor’s office on that day. Further, simply being in a location does not make it a cause of an accident.

18By the applicant’s own submissions, the concussion is the primary reason the applicant he has not returned to work. I have not been directed to evidence that supports the injuries from the 2018 accident have caused a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

19The applicant directed me to the clinical notes and records of Dr. Vaselious Manolopoulos dated March 28, 2022. The record indicates that the applicant was seen regarding his left knee pain following the 2018 accident, but that “at that time he really was not interested in either treatment he was lost to follow-up.” On this day of attendance, the applicant’s main concern was regarding his shoulder and elbow pain resulting from the 2019 accident, and he deferred management of his knee because the shoulder and elbow were more urgent. The record does indicate that surgery for his knee was not recommended. I find these records do not support the applicant’s knee is a cause of his inability to work.

20The applicant directed me to evidence that the applicant is using a cane or walker for ambulation. I am not persuaded that the applicant’s limitations for ambulation are related to the 2018 accident because the evidence supports the use of the walking aid began after the applicant was diagnosed with a fractured bone in his foot, unrelated to the accident.

21It is the applicant’s burden to proved entitlement to Statutory Accident Benefits, and I find that the evidence I have been directed to does not support that the injuries suffered in the 2018 accident result in a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

22On a balance of probabilities, I find the applicant has not established an entitlement to post-104-week IRB from December 13, 2022 to present.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

24Since no benefits are overdue, no interest is owing.

ORDER

25For the reasons stated above, I order the following:

i. The applicant is not entitled to IRB from December 13, 2022 to present.

ii. No interest is owing.