Citation: Khaja v. Intact Insurance, 2025 ONLAT 23-011769/AABS

Licence Appeal Tribunal File Number: 23-011769/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:

Fasi Khaja

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Justin Mariani, Paralegal

For the Respondent:

Elisa Cogan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Fasi Uddin Shahb Khaja, the applicant, was involved in an automobile accident on September 18, 2021, 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, Intact 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. 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 limit?

ii. Is the applicant entitled to the assessments proposed by Premier Medical Health Centre Inc. as follows:

a. $2,200.00 for a psychological assessment proposed in a treatment plan dated July 28, 2022; and

b. $2,200.00 for a chronic pain assessment proposed in a treatment plan dated September 15, 2022?

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

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?

RESULT

3The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the treatment plans in dispute, interest or an award.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

4I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

7In this matter, the applicant submits that he should be removed from the MIG based on his pre-existing medical condition, which he argues was exacerbated by the accident and would preclude his maximal recovery. He further submits that he should be removed from the MIG because he suffers from chronic pain and because of his psychological condition.

a) The applicant is not removed from the MIG on the basis of a pre-existing medical condition

8I find on a balance of probabilities, that the applicant does not suffer from a pre-existing medical condition that would warrant removal from the MIG.

9The applicant submits that he should be removed from the MIG based on his pre-existing shoulder condition that was exacerbated by the accident. He submits that he has not achieved maximal improvement and that his pre-existing condition would affect recovery within the MIG. The applicant relies upon the clinical notes and record (“CNRs”) of Dr. Kamela Latiff Kathar, family physician, dated March 1, 2022, that states he has “shoulder pain symptoms since 2020”. He further relies upon the Chronic Pain Assessment report of Dr. Tajedin Y. Getahun, orthopedic surgeon, dated December 22, 2022, which notes “Mr. Khaja indicates that his pre-accident shoulder symptoms increased in severity by 30%. He describes intermittent stiffness and intermittent weakness particularly with reaching overhead. Mr. Khaja’s injuries have not resolved within the expected time course and have entered a chronic phase”.

10I find that the applicant has provided insufficient documented evidence by a health practitioner of a pre-existing medical condition. Other than providing the March 1, 2022 CNR of Dr. Kathar that states he has shoulder pain symptoms since 2020, the applicant has not pointed the Tribunal to any other medical evidence to support his pre-existing condition. I further find that even if I were to accept that the applicant has provided sufficient documentation to support a pre-existing condition, the applicant has not met his onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent him from achieving maximal medical recovery if he is subject to the MIG limits. I find that the applicant has not met the two-part test under s. 18.2 of the Schedule.

11For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he suffers from a pre-existing medical condition that would prevent maximal medical recovery if he is subject to the MIG and therefore he is not removed from the MIG on this basis.

b) The applicant is not removed from the MIG on the basis of chronic pain

12I find that the applicant has not proven on a balance of probabilities that he suffers from a chronic pain condition as a result of the accident that would warrant removal him from the MIG.

13Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. While it is not part of the Schedule, the Tribunal has generally accepted the criteria for a chronic pain condition outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. To demonstrate a chronic pain condition, the person must demonstrate that they likely meet three of the following six criteria:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse or family.

iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.

vi. Development of psychosocial sequelae after the initial accident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.

14The applicant submits that he should be removed from the MIG because he suffers from chronic pain as a result of the accident. He submits that post-accident he has remained significantly symptomatic with respect to his left shoulder, necessitating further therapy.

15To support his position, the applicant relies upon the CNRs of Dr. Kathar, family physician, a Consultation Report from Dr. Edward Lansang, orthopedic surgeon, dated May 24, 2022, and a Chronic Pain Assessment report by Dr. Getahun, dated December 22, 2022. He submits that the evidence is clear that his pre-existing left shoulder impairment has and continues to prevent recovery within the confines of the MIG.

16The respondent submits that the applicant does not suffer from a chronic pain condition. It submits that the applicant does not meet the criteria for a chronic pain condition as outlined by the AMA Guides. The respondent submits that based on the applicant’s medical evidence as well as the Insurer Examination (“IE”) reports of Dr. Jason Bacchiochi, psychologist, and Dr. Michael Ko, physiatrist, the applicant meets none of the six factors. Specifically, it submits that the applicant does not take prescription medications or over the counter medications post-accident; he is not dependent on health care providers, spouse or family as he reported being independent in all activities of daily living and has not reported any dependence on his spouse or family; he continues to attend the gym in the evenings and lift weights; he returned to work full-time; he continues to go out and socialize with friends; and Dr. Bacchiochi did not identify any psychological symptoms or DSM-5 diagnosis.

17I find that the applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident. The applicant has not demonstrated that he is functionally impaired by pain. My reasoning is based on the following findings.

18First, while the applicant has directed me to certain CNRs of Dr. Kathar which note complaints of left shoulder pain and recommend further therapy, there is no discussion within these notes of any functional impairment. I find that these records do not demonstrate that the applicant’s physical injuries rise to the level of chronic pain, or that he is experiencing functional impairments as a result of the accident.

19Second, upon review of the report of Dr. Lansang, dated May 24, 2022, the applicant reported no functional impairments. The report indicates that the applicant reported left shoulder pain for the last few months. It was noted that there was no history of trauma. The applicant reported that the pain is worse with heavy lifting, but it is mild. Dr. Lansang notes that there are “no associations of the pain or any true radicular pain. No constitutional signs and symptoms”.

20Third, the report of Dr. Getahun, dated December 22, 2022, also does not indicate any reported functional impairments. The report notes that the applicant returned to work within a day or two of his accident, working full time and his regular hours and duties. His only complaint was intermittent back pain and left shoulder pain with the required sitting at work. He also reported to Dr. Getahun that he had returned to socializing with friends and family, returned to his pre-accident driving, and returned to his pre-accident level of household chores. He advised that he currently uses Advil for his intermittent headaches. He reported no anxiety, depression, or sleep disturbance but has intermittent headaches. Dr. Getahun diagnosed the applicant with chronic myofascial strain of the lumbosacral spine and left shoulder strain and aggravation of pre-existing shoulder complaints. His only conclusion was that as the applicant’s injuries have not resolved within the expected time course, they have entered a chronic phase.

21I find that the level of functionality depicted in the reports of Dr. Lansang and Dr. Getahun is incompatible with a finding that the applicant is impaired by ongoing pain and he has not demonstrated that he is functionally impaired.

22Accordingly, I find that the applicant does not meet three out of six of the criteria for a chronic pain condition, as outlined in the AMA Guides. The applicant does not claim to use prescription medication or other substances except for Advil for his intermittent headaches. The applicant does not regularly visit with healthcare practitioners. Thus, I find that he is not dependent on them. None of the medical information before me suggests that the applicant has deconditioned due to disuse. The evidence indicates that the applicant returned to his pre-accident work on a full-time basis and returned to his pre-accident housekeeping tasks. He has not withdrawn from social milieu. The report of Dr. Bacchiochi concludes that the applicant did not suffer an impairment warranting a psychological diagnosis.

23For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from a chronic pain condition as a result of the accident and therefore he is not removed from the MIG on this basis.

c) The applicant is not removed from the MIG on the basis of a psychological condition

24I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition as a result of the accident that would warrant removal from the MIG.

25The applicant submits that he suffered a psychological impairment as a result of the accident. The applicant relies upon the CNR of Dr. Kathar, dated September 18, 2021, to confirm that he suffered nightmares, flashbacks and anxiety as a result of the accident. The applicant submits that while psychotherapy was offered at that time, he deferred therapy to try and cope with the symptoms on his own. He further relies upon the CNR of Dr. Kathar dated November 28, 2023, where the applicant is referred for psychotherapy.

26The applicant further submits that the conclusions of Dr. Bacchiochi in his Psychological IE report dated February 9, 2024, are contradictory to his findings. Dr. Bacchiochi concluded that there are no diagnosable psychological health related issues. However, he also found that, “given the high level of defensiveness, the clinical scale profile is likely to reflect significant distortion and minimization of difficulties in certain areas, and the profile should be reviewed with this in mind”. The applicant submits that this clearly suggests that there were likely psychological issues.

27The respondent submits that the applicant does not suffer a psychological impairment as a result of the accident. It submits that following the applicant’s appointment with Dr. Kathar on September 18, 2021, the applicant did not raise a concern about his mental health due to the accident or request any treatment until his appointment with Dr. Kathar on November 28, 2023. The respondent relies upon the Psychological IE report of Dr. Bacchiochi, dated February 9, 2024, where a structured diagnostic interview and PAI validity testing were performed. Dr. Bacchiochi concluded that there was no DSM diagnosis related to the subject accident.

28I find that the applicant has provided insufficient evidence to support that he sustained an accident-related psychological condition that would remove him from the MIG. Other than the initial CNR of Dr. Kathar where the applicant reported anxiety, and the subsequent CNR where he requests psychotherapy on November 28, 2023, over two years later, I find that the applicant has not directed me to any other medical evidence to support that he suffers a psychological condition. In addition, I find upon review of the CNR dated November 28, 2023, there are no particulars of the psychological symptoms reported by the applicant. The CNR simply states that he was offered psychotherapy in September 2021, which was declined, and he now wants psychotherapy and an assessment. I further find that there is no evidence that a referral was made to a psychotherapist or that treatment was sought by the applicant thereafter.

29I give weight to the report of Dr. Bacchiochi, dated February 9, 2024, and I do not agree with the applicant that the report is contradictory as I do not find that noting the applicant was highly defensive changes the findings in the report. I find that the applicant denied experiencing any depressive or anxiety symptoms as a result of the accident which was consistent with the results of the self-report psychometrics. The report concludes that the applicant was not presenting with any psychological symptoms that would suggest the presence of a DSM-5-TR diagnosis.

30For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from a psychological condition as a result of the accident and therefore he is not removed from the MIG on this basis.

The applicant is not entitled to the treatment plans for a psychological assessment and a chronic pain assessment

31As I have found that the applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

33The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that an award is not appropriate because there is no evidence that the respondent withheld or delayed the payment of benefits.

ORDER

34For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest;

iv. The respondent is not required to pay an award;

v. The application is dismissed.