Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006825/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:
Noorullah Khatir
Applicant
and
Desjardins Insurance
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Noorullah Khatir, Applicant
For the Respondent:
Benjamin Lee, Counsel
HEARD: by Videoconference:
December 16-17, 2024
OVERVIEW
1Noorullah Khatir, the applicant, was involved in an automobile accident on March 16, 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, Desjardins Insurance, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
Is the applicant barred from proceeding to a hearing on Catastrophic Impairment
because he failed to attend an insurer’s examination (IE)?
2The applicant is barred from proceeding to a hearing on the issue of catastrophic impairment pursuant to s. 55(1)2 of the Schedule for failing to attend an IE.
3Section 55(1)2 of the Schedule states:
Restriction on proceedings
(1) Subject to subsection (2), an insured person shall not apply to the Licence Appeal Tribunal under subsection 280 (2) of the Act if any of the following circumstances exist:
The insurer has provided the insured person with notice in accordance with this Regulation that it requires an examination under section 44, but the insured person has not complied with that section.
(2) The Licence Appeal Tribunal may permit an insured person to apply despite paragraph 2 or 3 of subsection (1). O. Reg. 44/16, s. 6.
4As such, if an insured person is given notice of an IE in accordance with the Schedule under s. 44, then they must attend the IE if they wish to apply to the Tribunal to resolve a dispute over benefits. If the insured does not appear for an IE, the Tribunal may still permit the insured person to apply under s. 55(2).
5Section 44(5) of the Schedule requires the notice of an IE to contain the following four items:
the medical and any other reasons for the examination;
whether the attendance of the insured person is required at the examination;
the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions;
if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
6On August 25, 2022, the respondent issued a Notice of Medical Examination which advised the applicant that an IE was scheduled to take place on October 3, 2022. The notice provides medical reasons for the examination:
This medical examination is being arranged to address whether your impairment meets the criteria of a catastrophic impairment. The OCF-19 and attached note from Dr. Ubhi dated July 29, 2022 does not contain sufficient information to support that you sustained a mental or behavioural disorder in the accident which resulted in a marked impairment in 3 or more of the areas of function that precludes useful functioning (activities of daily living; social functioning concentration; and adaptation) in accordance with the American Medical Association's guides to the evaluation of permanent impairment.
7According to the applicant, the Application for Determination of Catastrophic Impairment (OCF-19), the disability certificates (OCF-3), an MRI, documents from a pain management clinic, and the respondent’s IEs are sufficient enough to establish that he is catastrophically impaired. He submits that the insurer cannot require him to attend an unnecessary IE. He further submits that he has an insurance contract with the respondent and that the doctrine of “utmost good faith” compels the insurer to accept that he is catastrophically impaired.
8The respondent submits that the notice provides medical reasons that justify the applicant’s attendance at an IE.
9I note that the applicant applied for a catastrophic impairment determination under Criterion 8. A catastrophic impairment under Criterion 8 results when an insured person sustains three of more class 4 impairments (marked impairments) or one or more class 5 impairments (extreme impairments) in an accident pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “Guides”) due to a mental or behavioural disorder. The four areas of function in Criterion 8 are activities of daily living (“ADL”), social functioning, concentration, persistence and pace (“CPP”), and adaptation.
10Page 301 of the Guides sets out the five levels of impairment, ranging from a Class 1 No Impairment to a Class 5 Extreme Impairment, as noted in the chart below:
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
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
Social Functioning
Concentration, Persistence and Pace
Adaption
11The OCF-19 was completed by Dr. Harpal Ubhi. The specialty of this physician is unknown. There is a checked box in the OCF-19 indicating that the applicant has “a class 4 impairment (marked impairment) in three or more areas of function that precludes useful functioning due to mental or behavioural disorder.” There is also an attached letter which states:
Patient has a marked impairment of 3 aspects of his life; physical behavioural, mental, since the MVA in March 2020. He is suffering from chronic neck, shoulder, and back pain. This is affecting his ADL’s. This will be a lifelong impairment.
12Dr. Ubhi provides a marked impairment rating for “physical behavioural, mental” which are not areas of function. He mentions the activities of daily living (ADL), which is an area of function, but provides no impairment rating for the ADL.
13The scheme in the Guides requires impairment ratings to be made in the prescribed areas of function to determine whether a person is catastrophically impaired. This was not done in the OCF-19, nor in the letter attached to the OCF-19. Likewise, there are no impairment ratings in the other documents mentioned by the applicant. As such, it was reasonable for the insurer to ask the applicant to attend an IE to obtain the impairment ratings needed to determine if he is catastrophically impaired.
14The applicant submits that the doctrine of “utmost good faith” requires the respondent to accept that he is catastrophically impaired based on the medical documents mentioned in his submissions. I disagree. As already noted above, the scheme for making catastrophic impairment determinations under Criterion 8 requires impairment ratings. In my view, the doctrine of “utmost good faith” does not override the need for impairment ratings because a catastrophic impairment determination cannot be made without such ratings. Consequently, I find that the notice dated August 25, 2022 provided a valid reason for the applicant to attend an IE, namely, to obtain impairment ratings. I also find that the doctrine of “utmost good faith” cannot cancel the necessity of those impairment ratings.
15The respondent’s notice names Dr. Sadiq Hasan, psychiatrist, as the person conducting the IE. The date and time of the IE is given as November 8, 2022 at 3:00pm. The notice also states that he must attend at 120 Traders Blvd. East, Suite 108 in Mississauga, Ontario and that the insurer will arrange for the applicant’s transportation to the IE. Consequently, I find that the notice meets all of the requirements of s. 44. I further find that the applicant was given notice of an IE under s. 44, did not attend the IE, and therefore cannot apply to the Tribunal to resolve the issue of whether he is catastrophically impaired.
16Section 55(2) of the Schedule gives the Tribunal discretion to permit the applicant to apply despite not appearing at an IE. For reasons already stated above, the applicant’s submissions on the IE being unnecessary and the doctrine of “utmost good faith” are not persuasive. Therefore, I find that he has not provided me with the justification needed to exercise my discretion under 55(2).
ISSUES
17The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit from April 13, 2020 and ongoing?
ii. Is the applicant entitled to $4,500.00 for chiropractic services, proposed by Triangle Physiotherapy in a treatment plan/OCF-18 (“plan”) dated February 25, 2022?
iii. Is the applicant entitled to $1962.00 for various expenses, submitted on an expense claim form (OCF-6)?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
18The applicant is not entitled to a non-earner benefit.
19The applicant is not entitled to chiropractic services.
20The applicant is not entitled to various expenses submitted on an expense claim form.
21The respondent is not liable to pay an award.
22The applicant is not entitled to interest.
Proceedural Issues
Late Disclosure
23The applicant asked to have a disclosure package containing an Employer’s Confirmation Form OCF-2, dated April 24, 2018 and a Record of Employment, dated May 17, 2018, entered as an exhibit. The respondent was not previously aware of this document until it was submitted to the Tribunal on December 9, 2024. Even so, the respondent did not object to these documents being admitted.
24I entered these documents into evidence because the applicant is an unrepresented lay litigant and it is important to ensure that he can present his case. I also note that the documents are relevant because they speak to his pre-accident functioning and the respondent did not indicate that it is prejudiced by this disclosure.
Adding the caregiver benefit as an issue
25The applicant asked to have the issue of his entitlement to the caregiver benefit added to this proceeding. An amended Application by an Injured Person for Auto Insurance Dispute Resolution (application), dated November 19, 2024, was in his document brief. He submits that the amended application includes a claim for $18,525.00 for a caregiver benefit and that this issue should be assessed in this proceeding.
26The respondent submits that it never received an application for the caregiver benefit, nor did it refuse this benefit. In its view, this issue cannot be added to this proceeding.
27There is no denial of the caregiver benefit because the applicant never applied for this benefit. As such, I find that the Tribunal lacks the jurisdiction under s. 280 of the Insurance Act, R.S.O. 1990 (the Act) to consider this issue because the lack of a denial means there is no dispute between the parties.
28The applicant further submitted that if there was any confusion in regard to his efforts to obtain the caregiver benefit, then it was up to the insurer to provide him with the correct forms. According to the applicant, he should not be denied the opportunity to argue his case because of the respondent has not lived up to its responsibility.
29I agree that s. 32 of the Schedule requires the respondent to provide the correct forms to the applicant if he indicates that he wishes to apply for the caregiver benefit. However, noting this issue in an amended application in his brief shortly before the hearing is confusing. In my view, there was no clear indication of his intention to seek the caregiver benefit until he raised this matter at the hearing. In any event, the point being made by the applicant does not provide me with the justification needed to add the caregiver benefit to this proceeding.
ANALYSIS
Non-Earner Benefit (NEB)
30The applicant is not entitled to an NEB.
31Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
32The applicant submits that the accident has aggravated his pre-existing physical and psychological conditions to the point where he has become disabled and requires the assistance of others to clean his house and do his shopping. According to him, he is entitled to an NEB from April 13, 2020 and continuing on an ongoing basis.
33Respondent submits that it initially paid an NEB until June 15, 2021. It argues that the applicant’s ability to function shows that he is not entitled to any further NEB.
34Applicant testified that post-accident he is able to groom himself, wear clothing, clean, cook, drive, and go shopping. However, he cannot lift anything more that 3 kilograms and this limits the scope of the ADL that he can complete. For more physically demanding tasks, he relies on others such as his son and a friend.
35This testimony is similar to the information the applicant provided to Dr. Sadiq Hasan, psychiatrist, at an insurer examination that took place on April 21, 2022 to assess his entitlement to the NEB. The applicant advised Dr. Hasan that his functional abilities decreased post-accident, but he is able to dress, bathe, wash, and style his hair without assistance. The applicant also reported that he does not require any assistance with mobility, and that he experiences difficulty with cooking, cleaning and laundry but his wife assists him with such tasks. He also reported being more socially isolated after the accident. Dr. Hasan noted the applicant’s pre-accident history of anxiety and depression. He opined that the accident exacerbated his pre-existing symptoms and caused a Somatic Symptom Disorder, predominantly pain, persistent, moderate, and an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also concluded that, from a psychiatric perspective, the applicant does not suffer a complete inability to carry on a normal life because psychiatric impairments are not severe enough to prevent him from engaging in his pre-accident ADL.
36The applicant also attended an insurer examination with Dr. David Berbrayer, physiatrist, on June 27, 2022 to address the NEB. He notes that the applicant was involved in multiple accidents before 2020 and that these accidents caused the applicant to suffer pre-existing neck pain that radiates down to both shoulders into the upper extremities with secondary low back pain. He found that the accident re-exacerbated these previous injuries and attributes the following impairments to the accident:
i. Re-exacerbation of pre-existing headaches from previous motor vehicle accidents.
ii. Re-exacerbation of previous cervical stenosis with ongoing neck pain with referred pain into the upper extremities, primarily sensory radiculopathy bilaterally.
iii. Re-exacerbation of mechanical low back pain without neurologic deficit and degenerative changes in the lumbar spine.
37Dr. Berbrayer notes that the applicant lives in his son’s home in Oakville, Ontario. The applicant helped with household tasks prior to the accident including laundry, vacuuming, and garbage removal which he did with his wife. The applicant’s wife completed outdoor activities such as snow removal, cutting grass and gardening. Since the subject accident, Dr. Berbrayer notes that the applicant has not done the heavier and more repetitive aspects of housekeeping and home maintenance. Dr. Berbrayer also opined that the applicant does not suffer a complete inability to carry on a normal life.
38The evidence given by the applicant at his hearing and at the two insurer examinations is consistent in regard to showing that he became less functional after the accident. His accident related limitations prevent him from completing heavier, more strenuous tasks. In particular, he cannot lift anything heavier than 3 kilograms. However, the remainder of his ADL are unchanged. He can bathe, groom, and dress himself. He can cook, clean, and go shopping as long as he does not have to complete more physically demanding tasks. He has also resumed driving. In my view, his accident related impairments do not prevent him from carrying on many aspects of a normal life. For this reason, I find that he does not suffer a complete inability to carry on a normal life as a result of the accident and, therefore, is not entitled to an NEB
Chiropractic Services
39The applicant is not entitled to a treatment plan (OCF-18) for chiropractic services.
40To 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.
41The denial of this treatment plan is based on the findings made in the IE completed by Dr. Berbrayer. The applicant submits that the findings in this IE are contradictory because Dr. Berbrayer found that the applicant’s pre-existing injuries were exacerbated by the accident, yet despite this injury Dr. Berbrayer concluded that this treatment plan should be denied. According to the applicant, the IE confirms that he has an accident related injury that continues to cause him pain and that the pain relief he experiences when receiving chiropractic services is enough to justify his entitlement to this treatment plan.
42The respondent notes that the applicant was injured in five other motor vehicle accidents between 2008 and 2018. The respondent further notes that the applicant repeatedly injured shoulders, neck, and lower back in these accidents. The respondent acknowledges that the subject accident re-exacerbated these pre-existing injuries, but submits that the IE of Dr. Berbrayer confirms there is no therapeutic value to any further chiropractic treatment. The respondent also points out that the clinical notes and records of the Center for Pain Management (CPM) confirms that the applicant’s pain levels decreased after the subject accident and submits that this does supports the premise that the treatment plan is needed for pain relief.
43The IE of Dr. Berbrayer diagnosed the applicant with a re-exacerbation of pre-existing injuries caused by the subject accident. He opines that the applicant cannot ever return to normal activities because he was suffering from chronic pain prior to the accident. He also opines that the applicant does not require further treatment because the applicant has already achieved maximum medical improvement.
44Dr. Berbrayer’s concluded that the applicant was injured in the accident and that the accident related injuries cannot improve any further with additional treatment. In my view, there is nothing contradictory about this opinion. I can understand why it may be difficult for the applicant to hear this opinion and want to challenge it. However, the applicant’s rejection of Dr. Berbrayer’s opinion does not constitute a sufficient basis for me to be doubtful of this medical evidence.
45The applicant also testified that his pain increased after the accident and that chiropractic treatment offers pain relief. As noted by the respondent, the clinical notes and records of the CPM do not show a sustained increase of reported pain after the accident. The applicant was periodically examined by the CPM. At these examinations the applicant assigned a number to represent the level of pain he felt. Here are eight examples of the numbers he reported between February 11, 2020 to June 29, 2021:
Date
Worst Pain
Best Pain
Average Pain
Pain Score Now
Feb 11, 2020
8
5
7
6
Feb 18, 2020
7
6
7
6
Feb 25, 2020
6
5
6
5
Mar 31, 2020
8
6
7
7
Apr 7, 2020
7
6
7
7
Oct 27, 2020
5
5
5
5
Nov 17, 2020
6
4
5
5
Jun 29, 2021
7
5
6
7
46The level of pain reported by the applicant on March 31, 2020, about two weeks after the accident, does show an increase in pain. However, by October 27, 2020 the applicant is reporting less pain than what he was experiencing before the accident. The most recent pain ratings in evidence, from June 29, 2021, are almost identical to the pain levels he reported before the accident. As such, there was an increase in reported pain just after the accident but this was temporary. Post-accident, the applicant’s reported pain levels either decreased or remained the same.
47According to the applicant, he was nervous and made mistakes when he reported his pain levels after the accident. He testified that his actual pain was higher. I do not accept this explanation. Over the course of 16 months he reported pain levels on 17 different occasions and routinely reported lower pain levels from six months to over a year after the accident. In my view, this pattern of pain reporting is consistent with someone who was experiencing less pain. Additionally, many of the clinical notes, such as the clinical note from June 23, 2021, contain feedback from the applicant where he advises of “an ongoing, consistent and generally sustained reduction in pain and discomfort to the areas being targeted by the interventional treatments” and that he has experienced “functional improvements.” Consequently, I give weight to the clinical notes from CPM and find that the accident did not cause a sustained increase in pain beyond six months after the accident.
48As noted by Dr. Berbrayer, the applicant was in multiple accidents, before the subject accident, which caused chronic pain. His chronic pain was treated, before the subject accident, at the CPM. The records from the CPM do not show a sustained increase in pain beyond the initial six month period after the subject accident. Given these circumstances, I find that the pain he is currently experiencing is more likely to be a continuation of his pre-accident chronic pain. For this reason, I find that the treatment plan for chiropractic treatment is not reasonable and necessary as there is no clear indication that it would be treating an accident related injury.
Expense claim (OCF-6)
49The applicant is not entitled to the disputed amounts of the OFC-6.
50Under section 15(1) of the Schedule, an insurer is liable to pay for all reasonable and necessary expenses incurred by the insured person as a result of the accident.
51At the hearing, the applicant clarified that the amount on the OCF-6 is $3,046.45 but the respondent paid some of the expenses. He submits that the remaining amount in dispute is $1962.00.
52Respondent notes that some of the unpaid items are not covered under the Schedule. The respondent also notes that the remaining items should have been submitted on an OCF-18 or that there is no medical or other evidence supporting entitlement to the item being claimed. The respondent submits that the applicant is not entitled to these expenses.
53The only OCF-6 in evidence is dated June 26, 2021. It lists 14 items totaling $3,046.45. It is unclear whether this OCF-6 or another OCF-6 is the subject of the respondent’s letter dated June 20, 2021 which denies entitlement to six items totaling $2,477.57.
54The applicant testified that the insurer paid for the massage chair and some other items, but did not specifically identify these items. The applicant also stated that some items had already been paid for through another insurance claim not related to the Schedule and that he was no longer claiming these items, but did not identify the specific items.
55Given the lack of clarity on which items have been paid and which items on the amended OCF-6 he is withdrawing, I will only assess the six items listed in the denial letter as this is clear evidence of the items for which payment remains outstanding.
56The respondent denied denture repair for $200.00 on the ground that this expense did not appear to be accident related. I note that the receipt for this item is dated January 29, 2021, which is 10 months after the accident. The applicant made no submissions on how this expense is related to the accident. As such, there is no basis for me to find that he is entitled to this expense.
57The respondent denied $214.74 for various prescriptions of Zopiclone tablets on the ground that this expense does not seem to be accident related. The applicant submitted that these prescriptions are accident related but did not point to any medical evidence linking the prescription to the accident. As such, I find that there is an insufficient basis for me to conclude that these prescriptions were meant to treat an accident related injury, and therefore, find that the applicant is not entitled to these prescriptions.
58The respondent denied two massage expenses in the amounts of $298.86 and $940.00 on the ground that these expenses were incurred before an OCF-18 was submitted to the insurer. The applicant made no submissions on this point.
59I agree with the respondent. Section 38(2) of the Schedule states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit that was incurred before the insured person submits a treatment plan (OCF-18). There is no dispute that the applicant did not submit an OCF-18 for either massage treatment. As such, I find that the applicant is not entitled to payment for the massage treatments listed on the amended OCF-6 because the Schedule does not require the insurer to pay these expenses.
60According to the respondent, the applicant claimed $523.97 for items missing from the car. The respondent did not pay this expense on the ground that these types of expenses are not covered by the Schedule. The applicant seemed to agree with this point when he spoke of being compensated for items through a different type of insurance claim, but did not specifically address these items in his submissions.
61I agree with the respondent. There is no provision in the Schedule for an insurer to replace missing property. Consequently, there is no basis to find that the applicant is entitled to payment for these items.
62The respondent denied a $300.00 claim for prescription eyewear on the ground that it did not appear that this item was a replacement for eyeglasses damaged in the accident. The applicant did not address this point in his submissions.
63There are no submissions or evidence showing how this expense is related to the accident. As such, there is no basis for me to find that he is entitled to this expense.
Interest
64Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to any interest as no benefits are owing.
Award
65The 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.
66According to the applicant, the respondent improperly denied benefits and obstructed his application for a catastrophic impairment determination. As a result, he has spent the past five years without benefits for treatment. He also points out that it was open for the respondent to settle this case so the applicant could have funds for treatment, but the respondent’s did not do this. The applicant submits that the respondent is liable to pay an award.
67The respondent submits that the applicant was treated appropriately and that his grievances are the result of a lack of understanding on how the Schedule works.
68I have reviewed each of the issues in dispute and found no examples where the insurer unreasonably withheld or delayed the payment of benefits. Consequently, I find that the respondent is not liable to pay an award.
ORDER
69The applicant barred from proceeding to a hearing on catastrophic impairment because he failed to attend an insurer’s examination.
70The applicant is not entitled to a non-earner benefit.
71The applicant is not entitled to chiropractic services.
72The applicant is not entitled to various expenses submitted on an expense claim form.
73The respondent is not liable to pay an award.
74The applicant is not entitled to interest.
Released: January 15, 2025
Harry Adamidis
Adjudicator