Khatri v. Economical Insurance, 2025 CanLII 18209

Citation: Khatri v. Economical Insurance, 2025 ONLAT 22-013167/AABS

Licence Appeal Tribunal File Number: 22-013167/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:

Rekha Khatri

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Linda M Spurrell, Paralegal

For the Respondent: Ainsley Shannon, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rekha Khatri, the applicant, was involved in an automobile accident on September 14, 2020, 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, Economical Insurance, 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. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit?

ii. Is the applicant entitled to $4,620.90 for physiotherapy services, proposed by Paul Virk of 9221018 Canada Inc. in a treatment plan/OCF-18 (“plan”) dated September 25, 2020?

iii. Is the applicant entitled to $4,176.50 for chiropractic services, proposed by Abhishek Gupta of 9221018 Canada Inc. in a plan dated February 2, 2021?

iv. Is the applicant entitled to $2,468.00 for psychological assessment, proposed by Medex Assessments in a plan dated December 3, 2020?

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

RESULT

3I find the applicant’s injuries are predominantly minor and therefore, the applicant remains within the MIG. The applicant is also not entitled to the disputed plans or interest.

ANALYSIS

Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?

4I find that the applicant has not met her burden of proving, on a balance of probabilities, that her injuries warrant removal from the MIG.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one of more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6An insured may by removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that she should be removed from the MIG in this matter because she suffered a concussion as a result of the accident, she had a pre-existing left shoulder injury, and that she suffers from chronic pain as a result of the accident.

8The respondent submits that the applicant’s injuries fall within the MIG.

Does the applicant have a concussion that would remove her from the MIG?

9I find the applicant has not suffered a concussion as a result of the accident and therefore not removed from the MIG on this basis.

10The applicant submits the clinical notes and records (CNRs) of her family doctor, Dr. Mandeep Wadhwa and the chronic pain assessment report from Dr. Lawrence S. Chizen, In the CNRs Dr. Wadhwa notes on September 14, 2020 “MVA:whiplash ? concussion” however, no referral was made to a concussion clinic for follow up. Dr. Wadhwa notes on September 17, 2020 “concussion” and “rec concussion guidelines”. Again on September 24, 2020 Dr. Wadhwa notes “? concussion” and “call health max in brampton – for ? concussion rx”. On September 26, 2020 and again on October 8, 2020 Dr. Wadhwa notes “concussion”. On October 8, 2020, Dr. Wadhwa referred the applicant to a physiatrist. The physiatrist, Dr. Lawrence Chizen, in his report dated October 26, 2022, makes no reference to a concussion and concludes the applicant needs “work hardening” and believes her prognosis would be good with returning to normal strength. I find Dr. Chizen’s chronic pain assessment report states the applicant has “no head injury” and does not establish the applicant suffered a concussion because there is no reference to a concussion or any post-concussion symptomology.

11The applicant also relies on the reports from Dr. Lilian Lee Yan Vivas (referred to as “Dr. Lee”), physiatrist, dated January 7, 2021. Dr. Lee refers to the accident however, there is no mention or concerns of a concussion in Dr. Lee’s notes. Dr. Lee’s report of and January 25, 2021 notes a follow up with the applicant regarding an MRI and the results showed her condition “is unlikely due to an intracranial source”.

12The applicant relies on the Disability Certificate (OCF-3) dated September 25, 2020 completed by Abhishek Gupta, physiotherapist. Mr. Gupta noted “specialist consultation, radiographic investigation, psychological evaluation” however, no further consultation was made for a concussion clinic. I note Mr. Gupta listed “Concussion” as an injury.

13The respondent submits Dr. Wadhwa’s CNRs, Dr. Chizen’s examination dated October 26, 2022, and MRI results. Dr. Wadhwa’s CNRs appear to question the possibility of a concussion rather than providing a diagnosis, and the follow ups with Dr. Lee on January 7, 2021 and Dr. Chizen on October 26, 2022 provided no diagnosis of concussion with most of the attention focussed on the applicant’s neck pains. The applicant’s new family doctor, Dr. Farouk Ebrahim, also noted no such finding of a concussion or any injuries stemming from the accident.

14The applicant relied on Dr. Wadhwa’s CNRs and Dr. Lee’s reports but there was no diagnosis of concussion. Dr. Wadhwa notes “concussion” six times and marks a “?” with three of those notes. I also note Dr. Wadhwa referred the applicant after six weeks of the applicant’s self reporting. Mr. Gupta listed a concussion as an injury in the OCF-3, however this diagnosis is outside of his practice scope. Despite Dr. Wadhwa’s notes referring to a concussion, at times with a question mark and at times without, the reports from Dr. Lee and Dr. Chizen do not provide a supportive diagnosis of a concussion.

15I find the applicant has not met the onus of establishing the applicant suffered a concussion and should be removed from the MIG for treatment.

Does the applicant have a pre-existing injury that would remove her from the MIG?

16I find the applicant has a pre-existing condition to her left shoulder. However, the applicant has not proven on a balance of probabilities that this pre-existing condition prevents the applicant from achieving maximal recovery within the MIG limits.

17The applicant relies on Dr. Wadhwa’s CNRs dated September 1, 2020 in which Dr. Wadhwa notes “left shoulder pain since few week” and “shoulder pain? tendonitis”. On September 19, 2020 the applicant’s left shoulder ultrasound showed supraspinatus tendonitis and on September 22, 2020 Dr. Wadhwa recommended she continue with physiotherapy. The next time the applicant advised Dr. Wadhwa of her left shoulder pain was May 19, 2022 and he referred to Dr. Chizen at a chronic pain clinic. Dr. Chizen makes no conclusions about the applicant’s pre-existing condition. The applicant does not provide compelling evidence the pre-existing condition would prevent maximal recovery.

18There was no compelling evidence before me demonstrating the applicant had a pre-existing condition which would prevent her maximal recovery within the $3,500 MIG limit. The applicant’s independent medical evaluation dated November 23, 2020 prepared by Dr. Frank Loritz noted no evidence of a pre-existing condition that would prevent her from achieving recovery under the MIG.

Does the applicant have chronic pain that would remove her from the MIG?

19The applicant has not proven on a balance of probabilities that she has chronic pain with a functional impairment such that she should be removed from the MIG on this basis.

20The applicant relies on the CNRs of Dr. Wadhwa and the referral to the Vaughan Pain Clinic dated May 19, 2022 with a chief complaint of “b/l shoulder pain. Left > rt. Since September 2020”. Dr. Wadhwa’s CNRs do not include reference to a functional impairment and the applicant has not provided compelling evidence of chronic pain.

21The applicant also relies on Dr. Chizen’s chronic pain report dated October 26, 2022, in which Dr. Chizen suggested a work hardening program for shoulder impingement. Dr. Chizen states “she was a therapy assistant but for some reason she cannot return to this type of work, which is not physically demanding.” Dr. Chizen makes no reference to chronic pain and states “she needs work hardening” which includes returning to her normal job.

22The respondent maintains that the applicant’s injuries fall within the Schedule’s definition of minor injury. The respondent relies on Dr. Chizen’s assessment which states, “she is performing light duties work” and he “believe(s) her prognosis would be good with returning to normal strength.” I am further persuaded by the respondent’s observation that the applicant has not complained of chronic pain since her visit with Dr. Chizen in October 2022.

23While the family doctor notes the applicant’s shoulder pain in September 2020 and again in May 2022 and October 2022, the applicant has not provided compelling evidence or opinion that this condition would prevent the applicant from achieving maximal recovery. The chronic pain referral of October 2022 provides states, “She believes the motor vehicle case is going to be settled in the very near future, and this is often a confounding factor regarding a return to … function regarding minor motor vehicle collision.” Dr. Chizen provides no evidence or statement of chronic pain after the date of the accident two years ago. Further, I find no complaint or concern raised by the applicant with her family doctor after the appointment with Dr. Wadhwa and Dr. Chizen.

24For the reasons stated above, I find the applicant does not have chronic pain and on the balance of probabilities, the applicant has not met the onus of establishing her entitlement to coverage beyond the MIG limit.

Does the applicant have a psychological condition that would remove her from the MIG?

25I find the applicant did not prove on a balance of probabilities that she sustained a psychological condition as a result of the accident such that she should be removed from the MIG on this basis.

26The applicant states she suffered pain and anxiety as a result of the accident. The applicant relies on the prescription of psychotropics from Dr. Lee on January 7, 2021 as evidence of her condition. I also note this prescription was filled once. The applicant provided no further records to corroborate whether additional psychotropics were prescribed or filled.

27The respondent submits the s. 44 psychology report prepared by Dr. Talebizadeh dated March 3, 2021. Dr. Talebizadeh reviewed the OCF-3, Treatment Confirmation Form (OCF-23), and OCF-18. Dr. Talebizadeh notes the applicant’s concerns “do not meet criteria for diagnosis” and “the concerns fall within the subclinical range”. Dr. Talebizadeh notes the applicant suffers no psychological disorders as a result of the accident. Economical relied on this report and denied the applicant’s treatment plan for a psychological assessment dated December 3, 2020. The respondent also notes the psychotropics were filled one time and not recurring.

28Dr. Lee’s diagnosis on January 7, 2021, some 16 months after the accident, was “myofascial paint of the left paraspinal neck musculature” as well as anxiety. I have reviewed Dr. Wadhwa’s CNRs and he prescribed Cymbalta on March 12, 2021, however, the applicant has not submitted evidence of the prescription being filled.

29I find the applicant did not submit supportive and sufficiently compelling evidence to remove the applicant from the MIG based on a psychological condition.

Are the treatment plans reasonable and necessary?

30As I have found that the applicant is not removed from the MIG, the disputed treatment plans are not payable. It is not necessary to consider whether they are reasonable and necessary as a result of the accident. The applicant is entitled to treatment up to the MIG limits.

Interest

31If MIG limits have not been exhausted the applicant is entitled to interest on treatment up to the MIG limit.

ORDER

32The applicant is not removed from the MIG.

33The applicant is entitled to treatment up to the MIG limits plus interest.

34The application is dismissed.