Naibkhil v. Certas Home and Auto Insurance Company, 2025 CanLII 69506

Licence Appeal Tribunal

Citation: Naibkhil v. Certas Home and Auto Insurance Company, 2025 CanLII 69506 Licence Appeal Tribunal File Number: 23-005324/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:

Khatera Naibkhil Applicant

and

Certas Home and Auto Insurance Company Respondent

DECISION

ADJUDICATOR: Dagmara Szczudlo

APPEARANCES:

Submissions by: Aarij Jawaid, Counsel For the Applicant

For the Respondent: Angeline Pillay, Counsel

HEARD: By way of written submissions

OVERVIEW

1Khatera Naibkhil, the applicant, was involved in an automobile accident on April 21, 2019, 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, Certas Home and Auto 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 (“IRB”) in the amount of $284.21 per week from May 11, 2021 to date and ongoing?

ii. Is the applicant entitled to $1,443.72 for physiotherapy services, proposed by 2121857 Ontario Inc. in a treatment plan/OCF-18 (“plan”) dated May 1, 2021?

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

RESULT

3The applicant is not entitled to post-104 IRB beyond the stoppage date.

4The applicant is not entitled to the disputed OCF-18, as it proposes goods and services that are not reasonable and necessary.

5Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ANALYSIS

Background

6The applicant was involved in an automobile accident on April 21, 2019. She was a restrained, rear-seat passenger in a vehicle which was hit at low speed (approximately 20 km/hr) by another vehicle while stopped. The airbags did not deploy as a result of the impact. The applicant sought medical attention at Brampton Civic Hospital on the day of the accident and reported left shoulder pain to the emergency triage nurse.

The applicant is not entitled to post-104 IRB

7I find that the applicant is not entitled to a post-104 IRB in the amount of $284.21 per week from May 11, 2021.

8The applicant is seeking IRB for the post-104 period starting from May 11, 2021, therefore the more stringent legal test applies. To receive payment for post-104 IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that she suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.

9The analysis for entitlement to IRBs in the post-104 week period requires the Tribunal to first determine what employment or self-employment the insured person is “reasonably suited” to perform. This assessment involves an appraisal of an applicant’s work history, education, and training.

10The applicant argued that she is entitled to post-104 IRB because the combination of physical, chronic pain, and psychological disabilities results in her complete inability to engage in any employment or self-employment for which she is reasonably suited. She relies on the reports of Dr. Zeeshan Waseem, physiatrist, dated February 26, 2024 and Dr. Shahzad Shahmalak, psychiatrist, dated August 16 2023. She submitted that she completed high school and attended a hairstyling course in Pakistan. After arriving in Canada, she attended adult school to obtain her Canadian high school diploma and worked as a cashier for Pizza Nova and as a hairstylist for Indo Canada Salon Shop. In her role as cashier she provided customer service, took orders, accepted payments and prepared toppings for pizza. In her role as a hairstylist, she cut and styled hair, applied makeup and colour and provided hair style consultations. The evidentiary record reveals that at the time of the accident, she was 30 years old and on maternity leave after the birth of her first child in October 2018. Her second child was born in November 2020, after the accident.

11I find that the applicant’s education and work history show that she is reasonably suited to work she performed previously which is customer service in the retail industry, including working as a hairstylist. This work requires standing, walking, and use of her arms.

12The respondent argues that the applicant’s current complaints were not caused by the accident and she is not entitled to post-104 IRB. The respondent relies on the following s. 44 reports:

i. Physiatry evaluation by Dr. Sukhi Bhangu dated May 2, 2021;

ii. Psychological evaluation by Cheryl Miller, registered psychological associate dated May 2, 2021; and

iii. Vocational evaluation and transferrable skills analysis report by Kelly-Ann Smith, a certified vocational evaluations specialist, dated May 2, 2021.

13As per the vocational evaluation and transferrable skills analysis report by Kelly-Ann Smith, given the applicant’s education and work experience, she may be suitable to work as a data entry clerk, retail salesperson, customer service representative, retail salesperson, or an electronics assembler.

14For the reasons that follow, I find that the evidence does not support a finding that the applicant suffers from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.

Physical impairments do not result in complete inability to engage in any employment for which she is reasonably suited

15I am not persuaded that the applicant’s physical impairments from the accident render her with a complete inability to engage in any employment for which she is reasonably suited.

16On April 26, 2019, 5 days after the accident, the applicant consulted Dr. Ameet Singh, her family physician. Clinical notes and records (“CNRs”) from this visit did not mention any references to a motor vehicle accident, and the chief complaint was gastroenteritis. The first reference to the subject accident in CNRs from Dr. Singh is from July 23, 2019, which document complaints of low back pain which radiates to knees.

17Dr. Singh recommended physiotherapy and medication as needed and ordered an x-ray of the back lumbar spine. CNRs from Dr. Singh do not contain the results of an x-ray near this date and it is unclear if it was completed. An x-ray report from Ontario Diagnostic Centers dated March 29, 2021 states that results from a cervical spine x-ray are normal, with disc spacing well maintained and no fracture or destructive lesions. A left shoulder x-ray performed on this date also revealed a normal examination with no pathology or soft tissue calcification noted. I find that there are no diagnostic studies (MRI, CT scan, Bone Scan, Ultrasound, and X-ray) to indicate any significant accident-related pathology that might be contributing to the applicant’s symptoms.

18The applicant directs me to Dr. Waseem’s report in support of her entitlement to an IRB due to pain, reduced functional tolerances and mental health concerns. I note that Dr. Waseem is a physiatrist, and his expertise is physical medicine and rehabilitation, not chronic pain or mental health. His comments regarding the applicant’s chronic pain and mental health are outside the scope of his expertise and therefore I give no weight to Dr. Waseem’s opinion in these areas. Instead, I analyze Dr. Waseem’s conclusions related to impairments of the applicant’s physical function as a result of the accident.

19Dr. Waseem concludes that the applicant sustained a permanent and serious impairment of an important physical function as a result of the subject accident and states that ‘she has myriad negative prognostic indicators’, and ‘impairments of the neck, back, and left shoulder lead to weakness, reduced mobility and functional tolerances’. I am not persuaded by this conclusion because a review of physical functional testing that was conduced by Dr. Waseem reveals that normal ranges of motion were observed in the majority of functional testing completed. The exceptions were special tests for tendinitis and subacromial impingement of the left shoulder, as well as lumbar spine forward flexion, however, it is unclear how these exceptions factor into Dr. Waseem’s final conclusion. The report also does not state what is the normal range of shoulder abduction and shoulder forward flexion based on the applicant’s gender and age to understand how these values factor into his conclusion that the applicant sustained a permanent and serious impairment of a physical function.

20I also note an inconsistency between Dr. Waseem’s findings that the applicant sustained a 25% reduction in lumbar spine flexion as a result of the accident and the contemporaneous findings reported by Dr. Colin Nguyen, the applicant’s treating physician at Releva Chronic Pain Center. The applicant was referred to Dr. Nguyen by her family physician due to ongoing pain complaints and her range of motion was assessed on November 20, 2019, seven months after the accident. Dr. Nguyen reported that the applicant had full range of motion in her cervical and lumbar spine, as well as her shoulder during her physical examination at Releva Chronic Pain Center on this date. While I accept that lumbar spine range of motion may change over time, I am not persuaded that the reduction reported by Dr. Waseem almost 5 years after the accident was caused by the accident when contemporaneous examinations did not reveal such functional impairment.

21Dr. Waseem’s report also concluded that “On the balance of probabilities, the presenting physical complaints are attributable to the subject accident. There is no reported or documented history of similar complaints pre-dating the subject accident”. I do not accept this conclusion, as there are multiple reports of lower back and left-shoulder pain in the applicant’s CNRs which pre-date the subject accident. For example, a review of the applicant’s CNRs from Dr. Sabina Parimoo, her former family physician shows a history of pain complaints, including back pain reported on March 23, 2017, abdominal pain which radiates to the left shoulder reported on October 19, 2017 and back pain reported on January 11, 2018. Dr. Waseem’s report states that CNRs from Dr. Parimoo were reviewed and only the March 23, 2017 CNR is noted as “highlights of select documentation that were pertinent to the matter”. It is unclear why these CNRs were not deemed to be pertinent for Dr. Waseem in reaching his conclusion that there is no documented history of similar complaints pre-dating the accident.

22In considering Dr. Waseem’s report, I find that he makes several conclusions outlined above but does not address the specific physical limitations identified during his assessment and how they may impact the applicant’s ability to engage in any employment. I give more weight to the opinion of Dr. Bhangu, physiatrist who states in his report that from a purely musculoskeletal perspective, the applicant could work in a job that does not require repetitive lifting or bending. I find that Dr. Bhangu based his opinions from a solely musculoskeletal perspective and also identified range of motion limitations during his testing, however, contrary to Dr. Waseem, he considered these limitations in providing an opinion that the applicant could work in a job that does not require repetitive lifting or bending.

23Since the applicant’s prior employment required standing, walking, and use of her arms, and did not require repetitive lifting or bending, I find that her physical impairments do not result in a complete inability to engage in any employment for which she is reasonably suited.

The applicant’s psychological impairments do not result in complete inability to engage in any employment

24I am also not persuaded that the applicant suffers from psychological impairments that leave her with a complete inability to engage in any employment for which she is reasonably suited as a result of the accident.

25The applicant relies on the report of Dr. Shahmalak, psychiatrist, dated August 16, 2023, who diagnosed her with somatic symptom disorder with predominant pain persistent, specific phobia situational (vehicular driver and passenger), and major depressive disorder (moderate). He also listed a number of psychosocial stressors that contribute to the applicant’s diagnoses, including limited meaningful daytime structure, financial strain, social isolation, and taking care of two young children.

26Dr. Shahmalak concluded that the applicant suffers from a complete inability to engage in any suitable employment due to her low stress tolerance, emotional dysregulation, poor ability to adapt to work like stress, cognitive difficulties, inability to multitask and her lack of stamina. Although this is Dr. Shahmalak’s conclusion, his opinion is inconsistent with the rest of the evidence, including contemporaneous medical records from physicians in an ongoing treating relationship with the applicant which do not show complaints, concerns, or psychological injuries arising from the subject accident beyond what was shared during the assessment with Dr. Shahmalak.

27CNRs from the applicant’s former family doctor, Dr. Sabina A. Parimoo, show that the applicant reported feeling depressed for three weeks during a visit on October 25, 2021, two and a half years after the accident. There are also references to stress/anxiety/depression in CNRs from Dr. Mohamed Paywandi, another family doctor seen by the applicant, however, these relate to family concerns such as her mother’s health, and there is no mention of the subject accident as a cause of stress/anxiety/depression in the CNRs provided by the applicant.

28I am not persuaded by Dr. Shahmalak’s opinion that the applicant’s psychiatric complaints primarily arise as a result of accident-related factors and note that he also listed non-accident-related stressors that may be perpetuating the current psychiatric symptoms and related impairments in his report.

29In my view, the medical evidence demonstrates that there are several psychological complaints in the CNRs from the applicant’s treating physicians, and psychiatric diagnoses from Dr. Shahmalak, however, I find that the applicant did not meet the onus to prove that these complaints are related to the accident nor that they rise to the threshold required to meet the post-104 test.

Pain complaints do not result in complete inability to engage in any employment

30I am alive to the fact that the applicant reported pain to s. 25 and s. 44 assessors and her treatment providers, however, the evidence before me does not support the finding that her pain is the result of the accident nor that it impairs the applicant’s function to the degree that she is completely unable to engage in any employment for which she is reasonably suited.

31The applicant relies on the opinion of Dr. Waseem who concluded that accident-related injuries resulted in chronic myofascial pain of the cervical spine, chronic left shoulder pain due to impingement syndrome and chronic back pain due to thoracolumbar joint dysfunction. She also submitted CNRs from Releva Chronic Pain Center in support of her argument that she experiences pain.

32The respondent argues that the pre-accident CNRs document prior issues with back pain.

33The applicant was referred to the Releva Chronic Pain Center by her family physician and examined by Dr. Collin Nguyen on November 20, 2019. His medical impression suggested myofascial pain syndrome (neck, shoulders), mechanical back pain with myofascial features, and neuropathic pain (back, legs) and he proposed blood work to rule out rheumatologic causes. Dr. Nguyen observed full range of motion, tone, and power during his physical examination and noted that tender point examination did not meet the American College of Rheumatology diagnostic criteria for fibromyalgia. The evidentiary record does not include records from the Releva Chronic Pain Center after July 12, 2021 and it is unclear if the applicant continues to seek treatment at this clinic and whether rheumatologic causes have been ruled out. The last available record from Releva Chronic Pain Center dated July 12, 2021 states that the applicant does not take prescription pain relievers and relies on over-the-counter medication to control her pain on an on-going basis.

34As outlined previously, the applicant has been reporting back and left shoulder pain to her treating physicians since 2017 (pre-accident). Although I am sympathetic to the applicant’s experience, I am not persuaded that her pain is caused by the accident, because she was wearing a seatbelt and sustained soft-tissue injuries during the low-speed collision in 2019. Despite reporting pain, the applicant remains independent in her activities of daily living, expanded her family, and is raising two young children with her husband. I find that pain reported by the applicant does not preclude reasonably suitable work.

35The applicant has not met her onus, on a balance of probabilities, in demonstrating how her pain complaints prevent her from engaging in any employment or self-employment for which she is reasonably suited by education, training, or experience as a result of this accident. Therefore, she is not entitled to an IRB.

The applicant is not entitled to $1,443.72 for physiotherapy services

36The applicant is not entitled to the plan for $1,443.72 for physiotherapy services as this plan is not reasonable and necessary for the following reasons.

37To 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.

38The OCF-18 lists the following treatment goals:

i. Pain reduction; and

ii. Return to modified work activities.

39The applicant submits that while she has had limited success in finding relief for her physical injuries, she wishes to continue trying different forms of physiotherapy, massage and chiropractic intervention as recommended by Dr. Waseem who noted that the applicant would benefit from intermittent access to physiotherapy and massage therapy to help cope with her pain.

40The respondent submits that the plan was denied due to a lack of compelling medical evidence that the applicant requires further physical therapy, due to the accident. It relies on a s. 44 physiatry report by Dr. Bhangu, dated May 2, 2021 which states that the applicant sustained soft tissue injuries in the accident and recommended continuation of home stretching and strengthening programme. I note that Dr. Bhangu was asked to provide an option pertaining to the applicant’s entitlement to post-104 IRB, not whether this specific treatment plan was reasonable and necessary. The respondent also submits that CNRs from the applicant’s doctor, Dr. Mohamed Hassan Paywandi dated July 3, 2023 to May 16, 2024 do not document accident-related complaints or other physical concerns.

41I do not accept the time interval referenced by the respondent’s submissions (July 3, 2023 to May 16, 2024) because it does not coincide with the time interval during which this treatment plan was submitted. Instead, a review of CNRs from the applicant’s family physician Dr. Ameet Singh, from February 26, 2021 to September 24, 2021, provides corroborating evidence that the applicant continued to report pain in her left shoulder, lower back and neck during the appropriate time interval.

42CNRs from Progressive Rehab Clinic from May 6, 2019 to October 27, 2022 show that the applicant received massage and physiotherapy at the clinic to alleviate pain in her neck, shoulder, and low back. Most of the entries from the clinic document the subjective reports as ‘same’ which I interpret to mean that the applicant’s complaints remained the same despite facility-based treatment during this time interval. While there are a few variations in progress reports near the time that this treatment plan was submitted, including ‘better’ in a progress re-evaluation report dated March 27, 2021 and a report of increased pain in the thoracic and shoulder regions reported on May 31, 2021 to Dr. Charanbir Singh, chiropractor at the clinic, I find that the applicant’s symptoms did not improve and the stated goals of the treatment were not being met. As a result, I conclude that further physical treatment recommended in this treatment plan is not reasonable and necessary.

43For the above reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that the plan for physiotherapy services is reasonable and necessary as similar treatments provided in the past have not been effective in providing improvement from her symptoms.

Interest

44Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

45For the reasons above, I find that:

i. The applicant is not entitled to post-104 IRB.

ii. The applicant is not entitled to the disputed OCF-18, as it proposes goods and services that are not reasonable and necessary.

iii. Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.