Sharma v. Economical Insurance Company, 2025 CanLII 8025

Citation: Sharma v. Economical Insurance Company, 2025 ONLAT 23-006473/AABS

Licence Appeal Tribunal File Number: 23-006473/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:

Rishav Sharma

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Marc Golding, Paralegal

For the Respondent: Colin MacDonald, Counsel Tanya Walia, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rishav Sharma, the applicant, was involved in an automobile accident on June 14, 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, 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”)?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 13, 2021 to June 12, 2023?

iii. Is the applicant entitled to the following services proposed by Inline Rehabilitation Centre Inc. in the following treatment plans/OCF-18s:

1. $1,920.52 for psychological services submitted September 9, 2021;
2. $3,416.68 for psychological services submitted October 28, 2021; and
3. $4,217.71 for chiropractic services submitted October 4, 2021?

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

RESULT

3The applicant sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is not entitled to NEBs.

5The applicant is not entitled to $1,920.52 for psychological services submitted on September 9, 2021, $3,416.68 for psychological services submitted on October 28, 2021, or $4,217.71 for chiropractic services submitted on October 4, 2021.

6The applicant is not entitled to interest.

ANALYSIS

MIG

7Section 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 or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8An 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), that they have a documented pre-existing injury or 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.

9The applicant submits that he should be removed from the MIG based on his pre-existing back condition and accident-related psychological condition.

10For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.

Pre-existing condition

11I find, on a balance of probabilities, that the applicant does not suffer from a pre-existing condition that would warrant removal from the MIG.

12To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to section 18(2) of the Schedule. He must provide documented evidence of a pre-existing medical condition by a health practitioner, and he must also provide evidence that the pre-existing condition will prevent him from achieving maximal recovery from the minor injury if he is subject to the MIG limits.

13I accept that the applicant has provided documented evidence by a health practitioner of a pre-existing medical condition related to his back and right hand. Dr. Rashid Mansoor, family physician, diagnosed the applicant with work-related back pain and hand pain on January 29, 2021, and referred the applicant for back x-rays. He did not comment on whether the pre-existing conditions would prevent the applicant from achieving maximum medical recovery. However, according to the pre-screening psychological interview of Sabrina Simmons, under the supervision of Dr. Valery Kleiman, psychologist, dated July 22, 2021, the applicant reported that he was functioning well physically and emotionally prior to the accident.

14I find that 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. As a result, I find that the applicant has not satisfied both parts of section 18(2) of the Schedule.

Psychological condition

15I find no compelling evidence demonstrating that the applicant suffers from a psychological injury as a result of the accident that would warrant his removal from the MIG.

16The applicant submits that his chiropractor, Dr. Kevin Bar, first documented accident-related nervousness, sleeplessness, and anxiety in a disability certificate dated June 24, 2021. The applicant relies on a pre-screening psychological interview conducted by Ms. Simmons and Dr. Kleiman on July 22, 2021. Ms. Simmons noted that the applicant reported difficulty with sleeping, concentration, irritability, decreased mood, nightmares, and anxiety while driving and as a passenger.

17The applicant also relies on a psychological assessment conducted virtually by Ms. Simmons and Dr. Kleiman on September 14, 2021 which found that the applicant was suffering from adjustment disorder with mixed anxiety and depressed mood, as well as specific phobia (driving/passenger). The applicant submits that the report shows that he experiences vehicle-related nightmares a few times per week, that he is more irritable, that he is anxious driving and being a passenger, and that his relationships have deteriorated since the accident. For example, Ms. Simmons and Dr. Kleiman noted that the applicant would prefer to talk on the phone with friends rather than go out, and he does not feel comfortable driving. He does, however, speak with his parents daily. The report also indicates that the applicant has difficulty concentrating and is less attentive in his classes.

18The applicant argues that despite the medical evidence of a psychological condition, the respondent did nothing to support the applicant’s psychological impairments or conduct any s. 44 assessments.

19The respondent submits that the applicant has not sought treatment, been prescribed medication, or reported his psychological symptoms to any other treating medical practitioner other than Ms. Simmons and Dr. Kleiman since the accident. The respondent also submits that the applicant’s psychological pre-screening and psychological assessment questionnaires and resulting opinions were based entirely on the applicant’s self-report without any corroborating medical evidence.

20I am not persuaded by the psychological pre-screen and assessment reports of Ms. Simmons and Dr. Kleiman because they rely entirely on the applicant’s self-report. I find that their opinion has not been corroborated by any other assessor or treating practitioner. Apart from the pre-screen and report, there is no indication that the applicant reported psychological symptoms to any other health practitioner or that he has sought treatment for same since the accident.

21The applicant reported to Ms. Simmons and Dr. Kleiman that he takes no other medication besides Advil as needed. He takes no prescription medication for pain or for his psychological symptoms. Though the applicant reported that he contacted his doctor in India following the accident, no clinical notes and records from that doctor have been submitted for consideration.

22I find that the applicant has not demonstrated on a balance of probabilities that he suffers from psychological injuries because of the accident that would warrant his removal from the MIG. I find that his predominantly minor injuries are correctly captured within the MIG.

NEB

23I find that the applicant is not entitled to NEBs from July 13, 2021 to June 12, 2023. He has not established that he suffers a complete inability to carry on a normal life as a result of the accident.

24Section 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.”

25It is well established that the test for NEBs is set out in the decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), wherein the Court of Appeal held that the analysis focuses on a comparison of the applicant’s pre- and post-accident activities over a reasonable period of time.

26The applicant relies on the disability certificate completed by Dr. Bar, chiropractor, on June 24, 2021 which indicated that the applicant suffered a complete inability to carry on a normal life because his day to day activities were limited. Dr. Bar indicated that those limitations included a substantial inability to perform the housekeeping and home maintenance the applicant performed before the accident.

27The respondent submits that the applicant’s accident-related injuries did not prevent him from returning to his pre-accident employment as a UPS package handler, or to his college studies three days after the accident. According to the respondent, this is confirmed in the applicant’s application for accident benefits.

28The respondent also argues that the applicant did not visit any hospital following the accident, and there has been no evidence of a consultation with a doctor in India for any accident-related injuries.

29While I accept that the applicant sustained injuries and impairments as a result of the accident, I find that he has not demonstrated on a balance of probabilities that those injuries and impairments resulted in a complete inability to carry on a normal life. Apart from Dr. Bar’s disability certificate, there is no corroborating medical evidence that would support a complete inability to carry on a normal life. In addition, the applicant has not pointed me to any detailed comparison of his pre- and post-accident activities.

30For these reasons, I find on a balance of probabilities that the applicant is not entitled to NEBs.

31I find that the applicant is not entitled to $1,920.52 for psychological services submitted on September 9, 2021, $3,416.68 for psychological services submitted on October 28, 2021, or $4,217.71 for chiropractic services submitted on October 4, 2021.

32The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury, which has been exhausted. These treatment plans propose goods and services that fall outside of the MIG.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

ORDER

34The applicant sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.

35The applicant is not entitled to NEBs.

36As the applicant is subject to the MIG, the applicant is not entitled to the treatment plans in dispute.

37The applicant is not entitled to interest.