Citation: Ashkani v. TD General Insurance Company, 2025 ONLAT 24-009199/AABS

Licence Appeal Tribunal File Number: 24-009199/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:

Shiva Ashkani

Applicant

And

TD General Insurance Company

Respondent

DECISION

ADJUDICATORS:

Sam Moini Rebecca Hines

APPEARANCES:

For the Applicant:

Ken Singh, Counsel

For the Respondent:

Karen Klaiman, Counsel

Jagdeep Khela, Counsel

Court Reporters:

Guido Riccioni, Nikita Ivachtchenko and Reyanna Bridge (Network Court Reporting)

HEARD: by videoconference:

May 12 to May 16, 2025

OVERVIEW

1Shiva Ashkani, the applicant, was involved in an automobile accident on May 9, 2022, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. Specifically, it denied that the applicant’s accident-related impairments met the definition of catastrophic (“CAT”) impairment along with various other benefits.

ISSUES

2The issues in dispute are:

1. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
2. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from June 9, 2022 to May 9, 2024?
3. Is the applicant entitled to attendant care benefits in the amount of
4. $2,368.25 per month from June 4, 2024 to date and ongoing?
5. Is the applicant entitled to $3,715.00 for physiotherapy services, proposed by Physiatrust in a treatment plan/OCF-18 (“plan”) dated February 28, 2024?
6. Is the applicant entitled to $20,610.00 for a catastrophic assessment, proposed by All Health Medical Clinic in a plan dated June 16, 2024?
7. Is the applicant entitled to $4,515.48 for post form 1 expenses, proposed by Quality Medical Healthcare Network in a plan dated June 4, 2024?
8. Is the applicant entitled to $752.52 for PSW services for March, 2024, proposed by Quality Medical Healthcare Network in a plan
9. dated April 4, 2024?
10. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
11. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After considering both parties’ submissions, and all the evidence we find as follows:

1. The applicant did not sustain a CAT impairment as defined by the Schedule.
2. The applicant is not entitled to a NEB in the amount of $185.00 per week from June 9, 2022 to May 9, 2024.
3. The applicant is not entitled to any of the remaining issues in dispute, interest, or an award.

BACKGROUND

4On May 9, 2022, the applicant was involved in an accident where she was the driver of a motor vehicle that rear ended another vehicle on HWY 400 going about 60 to 80 kilometers per hour.

5An OCF-3 dated June 17, 2022 stated the applicant sustained the following injuries as a result of the accident:

(i) Whiplash associated disorder with complaint of neck pain and musculoskeletal signs; (ii) Sprain and strain of cervical spine; (iii) Sprain and strain of thoracic spine; (iv) Sprain and strain of lumbar spine (pre-existing sciatic nerve compression); (v) Sprain and strain of sacroiliac joint; (vi) Sprain and strain of shoulder joint; (vii) Headaches; (viii) Nervousness; and (ix) Other sleep disorders.

The applicant did not sustain a CAT impairment pursuant to s. 3.1 (Criterion 8) of the Schedule.

6The applicant submits that she sustained a CAT impairment under Criterion 8 of the Schedule. To qualify as CAT under Criterion 8, an individual must sustain a Class 4 (“marked impairment”) as a result of the accident in three out of the four spheres of functioning or a class 5 impairment (extreme impairment) in one or more areas of function, outlined in Chapter 14 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“Guides”), due to a mental or behavioural disorder.

7The Guides set out that mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The below chart sets out the four spheres of functioning and the levels of impairment.

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
Adaptation (Deterioration in a work-like setting)

8In support of her position that she meets CAT status under Criterion 8 the applicant relies on the s. 25 CAT assessment reports of Dr. Shahmalak, psychiatrist, dated August 22, 2022 and Julian Amchislavsky, occupational therapist (“OT Amchislavsky”), dated August 15, 2024. Dr. Shahmalak opined that the applicant has marked impairments in Activities of Daily Living, Social Functioning and Adaptation. Dr. Shahmalak diagnosed the applicant with Major Depressive Disorder, Somatic Symptom Disorder, Post-Traumatic Stress Disorder, Specific Phobia, Situational Type(driver/passenger) and opined that the accident was the cause of these impairments. The applicant testified on her own behalf as did Dr. Shahmalak and OT Amchislavsky.

9The respondent relies on the s.44 CAT insurer examinations (“IEs”) Dr. Jwely, psychiatrist, and OT Ranya Ghatas (“OT Ghatas”), both dated January 6, 2024, and Dr. Yahmad, neurologist. Dr. Jwely determined that the applicant had a mild impairment in Activities of Daily Living and Concentration, Persistence and Pace and a moderate impairment in Social Functioning and Adaptation. Dr. Jwely opined that the accident did not result in any new psychological diagnoses. On behalf of the respondent, we heard the testimony of Dr. Jwely, OT Ghatas, Dr. Ko, physiatrist and Angela Bertolo, OT.

10This matter is complicated by the fact that the applicant has a significant pre-accident medical history. The respondent argues that the accident was not the cause of the applicant’s psychological impairments which form the basis of her application for CAT status. It submits that she has a lengthy history of psychological illness and has been diagnosed with bi-polar disorder, personality disorder and attention-deficit/hyperactivity disorder (“ADHD”) which all had a significant impact on her pre- and post-accident function. For example, she has been a recipient of Ontario Disability Support Program (“ODSP”) since 2014, she has been incarcerated twice following criminal convictions and was released in 2021 after a two-year sentence. She also has a history of substance abuse as the pre-accident records establish a cocaine addiction.

11The respondent also maintains that the applicant had significant physical health issues as she has type 2 diabetes, asthma and suffered from chronic pain following a prior motor vehicle accident in 2017. In fact, three weeks prior to the subject accident, the applicant had spinal decompression surgery following a diagnosis of cauda equina. The respondent asserts that the applicant’s self-reports about her accident-related impairments and pre- and post-accident function are unreliable because they are inconsistent with the medical record. For these reasons it submits that Dr. Shahmalak’s CAT impairment ratings are unreliable because they are at odds with the medical records reviewed by the doctor.

12The applicant acknowledged that her pre-accident medical history was significant, however, pre-accident her bi-polar disorder had been treated with medication and her mood was stable. She argues that because of her extensive pre-accident psychological impairments she was a vulnerable person, and that the accident exacerbated her condition and resulted in new psychological diagnoses such as Major Depressive Disorder and Somatic Symptom Disorder. These new diagnoses sent her on a downward spiral regarding her daily functioning. Further, she submits that the pre-accident hospital records support that following the surgery in April 2022, her back pain was gone, and she had returned to work as a labourer and was working full time on modified duties in the week prior to the accident.

13It is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident she would not have suffered the impairments which form the basis for her application for CAT status. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability and that the accident need not be the only cause of the impairment but must be a necessary cause.

The accident was not a necessary cause of the psychological impairments put forth by the applicant in support of her CAT application.

14We do not find that the accident was a necessary cause of the psychological impairments the applicant put forth as the basis for her CAT application. We find the evidence about her pre- and post-accident health and function inconsistent and not supported by the medical evidence.

15The applicant provided the following testimony about her pre-accident function:

i. She was working part-time as a general labourer and worked 10 to 15 hours per week which was a physical occupation; ii. Her psychological condition was stable and she was receiving monthly injections of Abilify; iii. She was independent with all aspects of self-care and housekeeping and homes maintenance tasks; and iv. She enjoyed socializing with friends, going clubbing, fishing and camping.

16The applicant testified that following the accident she could not return to work because of ongoing chronic pain which developed into her psychological impairment. Further, she cannot carry out most of her self-care independently, has lost interest in sex, and she relies on her partner to do all the household chores and cooking. Additionally, she is socially withdrawn from friends, rarely leaves the house and no longer partakes in any of the above-noted recreational activities.

17We find that the applicant presented as someone with severe physical and psychological disabilities and functional limitations during both parties CAT OT assessments. However, we find that her presentation and function during these assessments and her self-reports about her function were inconsistent with the totality of the medical documents reviewed by the CAT assessors. For example, the following is noted in the pre-accident psychiatric consultation reports of Dr. Collerton, (a psychiatrist assigned by the probation and parole board) and the clinical notes and records (“CNRs”) of Nurse Kipp regarding the applicant’s pre-accident psychological condition and function:

(i) A CNR of Dr. Collerton dated January 7, 2022, notes “She returned from a trip from Iran was there from Nov 3 to Dec 14, 2021. Mothers and brothers are there. She had a lot of conflict with various people. Had surgery on feet while there (bunions). Still doing cocaine. She is still working with a cleaning service - 5 hours per week - less because of foot surgery and mood. Mood: stable and appropriate. Sleep is getting better. No suicidal ideation but feels hopeless about things”. (ii) A CNR of Dr. Collerton dated March 25, 2022, notes “Increase in cannabis and cocaine. Reports a lot of stress and depression these days. “I feel my life is at a dead end.” She feels apathetic about her hygiene. She got a job but only ended up working for one week - parts manufacturing. Let go lack of production. Wants to quit drugs to get her trucking licence.”. (iii) A CNR of Dr. Collerton dated April 13, 2022, states “She has no hope for the future and thinks about death all of the time. Anger and resentment. Upcoming surgery. Now working a few days a week at a shampoo factory. Sleeps 12 to 14 hours per day. Doesn’t do much reading. Struggles to take care of her residence. Lacks energy and motivation. She does not cook for herself; sometimes her boyfriend cooks for her. She complained of memory problems for basic things - turning off the stove - leaving keys in the door.”. (iv) A CNR of Nurse Kipp dated December 31, 2021 states “…reports she has difficulty in social interactions due to anxiety - worse when meeting new people; trouble paying bills - forget - bad credit due to late payment; misses apts, forgets to pay tickets, boyfriend gets groceries for her, decision making/judgement: impersonated nurse - offered treatment to people, thinks she can read minds, misses taking her medications, don't sleep at usual times, drug use (THCA) has CAMH worker - helps with navigating systems/internet, showers and changes clothing every 5 days.” (v) A CNR of Nurse Kipp on February 16, 2022 notes: “mood has been low, SI at times- no plan; spoke to ex-husband - thoughts that she has nothing- life is empty; supports: victim's services, CAMH worker, probation officer; seeing psych in II/larch (Dr. Colleton)- can only see him during probation this will end June 2022 -will need new psych to manage BPD mood is improving since dose of ability on feb 14th, brain becomes clearer, feels less irritable”.

18We find that the pre-accident medical records support that the applicant had serious psychological issues prior to the accident which interfered with her ability to carry out her daily activities. However, of significance, the post-accident medical records establish that the applicant’s psychological condition and function improved following the accident. The following are some examples.

(i) A CNR of Dr. Collerton dated August 12, 2022, notes “Studying for truck licence. “My passion is driving”. She feels that she will be safe to drive. Affect stable - no comments about ongoing pain from accident. “She seems to be coping with various aspects of her life. Compliant with medication and finding it helpful.” (ii) A CNR of Dr. Collerton dated October 26, 2022, states “Using Abilify - finding it helpful. She feels calmer and focused. She is attending addiction sessions. Has not used cocaine for two months - has reduced cannabis. Boyfriend married someone in Albania. She is on her own at home. Her daily routine has improved. She feels her brain is working better and is better able to take care of tasks. She is cleaning and earning money. Her self-care has improved. She is working on truck licence. Pleasant and polite - mood is solid. She tries to make daily life more interesting”. (iii) A CNR of Dr. Collerton dated March 10, 2023, notes “Completed medical exam - cleared to apply for AZ driver’s licence. No drug use for 3 weeks. Enrolled in schooling for licence - 105 hours - 8-to-9-week course. She is taking all medications. Mood is ok. She is not significantly depressed - has some anxiety. She is currently doing well and is looking forward to school and application for AZ licence. She looks better and more stable than in past interviews.” (iv) A CNR of Nurse Kipp dated October 24, 2022, notes “needs Abilify injection renewed for life; parole psych started her on oral Abilify in combination with injection; reports mood is improving; cutting down THCA; no cocaine use.” (v) A CNR of Nurse Kipp dated March 24, 2024 states “ct is applying for truck driving licence; another provider completed form on her behalf; needs form completed to document mental health; ct reports no THCA for three months; no cocaine; motivated to avoid using substances; attended addictions classes several times; feeling well since addition of Abilify; compliant with treatment; ace mild anxiety; walking away if irritated - not feeling agitated; mood well controlled ; no mania/hospitalization > 6 years”

19In light of the medical record, we find the applicant’s testimony about her pre- and post-accident psychological health and function to be unsupported by the medical evidence. During cross-examination, the applicant stated that it was her partner that owned the cleaning company and that she would attend the property with him because she could not be left on her own. We reject this explanation because the applicant’s post-accident employment as a cleaner is mentioned more than once in the medical records. Further, the applicant’s own disability certificate from August 2024 refutes her position because it states that she owned a cleaning company. Although we acknowledge that the applicant was a vulnerable person because of her pre-accident psychological conditions, we do not find her testimony about her pre- and post-accident health and function to be supported by the evidence. The above-noted inconsistencies in the pre and post-accident medical record do not align with the applicant’s presentation during the CAT OT assessments. Nor does the medical record support Dr. Shahmalak’s analysis of causation or the marked impairment ratings assigned by the doctor. The following are some examples:

(i) Dr. Shahmalak’s report acknowledges the applicant’s past psychiatric issues and medical difficulties but indicates that at the time of the accident she was recovering physically and was functioning well in all aspects of her life. However as noted above, the CNRs of both Dr. Collerton and Nurse Kipp demonstrate that the applicant was not functioning well prior to the accident. (ii) Dr. Shahmalak’s report also states that since the subject accident, her previous symptoms have worsened, and she has begun to experience persistent and heightened preoccupation with physical symptoms, which has led to worsening depressive and anxiety symptoms. We find that the doctor made this conclusion based on the applicant’s self-reports. Again, Dr Collerton and Nurse Kipps CNRs support that the applicant was improving post-accident such as her decreased drug use, attempting to attain her AZ trucking licence, and her psychiatric symptoms were consistently described as improving. (iii) Dr. Shahmalak’s gave the applicant a marked impairment in Adaptation. The CNRs of both Dr. Collerton and Nurse Kipp clearly state that the applicant had enrolled in schooling which included a 105-hour course to obtain her AZ licence for trucking. The applicant according to both health care practitioners has taken many steps to enroll in this course such as decreasing her use of cocaine and marijuana. She also stated to her health care practitioners that she was avoiding irritable situations and her was mood improving. We find the evidence establishes that the applicant was making efforts to gain her trucking licence to gain potential employment and that this is evidence of a clear improvement compared to her pre-accident function. For these reasons, we reject Dr. Shahmalak’s determination of a marked impairment in Adaptation.

20Much was made by the applicant that the IE of Dr. Moshiri dated January 9, 2024, diagnosed her with an Adjustment Disorder with Mixed Anxiety and Depressed Mood; Insomnia Disorder, persistent, with other sleep disorders and Somatic Symptom Disorder as a result of the accident. However, even if we accept Dr. Moshiri’s diagnosis of Somatic Symptom Disorder as a result of the accident, we do not find that it has had any significant impact on her post-accident function.

21In contrast, Dr. Jwely opined that the accident did not result in any new psychological diagnosis. We accept this opinion because we find that it was more consistent with the medical record before us. We find Dr. Jwely considered the extent of the applicant’s pre-existing psychological condition in rendering his diagnosis and impairment ratings.

22For the above-noted reasons, we find that the accident was not a necessary cause of the applicant’s psychological impairments which formed the basis for her application for CAT status. Alternatively, we find that the applicant did not sustain a CAT impairment as a result of the accident because we do not accept Dr. Shahmalak’s marked impairment rating in the sphere of Adaptation.

23Since we have determined that the applicant did not sustain a CAT impairment as a result of the accident, she is not entitled to the ACB, the amounts claimed for PSW services or the medical benefits in dispute because the non-CAT policy limits have been exhausted.

The applicant is not entitled to a NEB for the time period claimed.

24Section 12(1) provides that an insurer shall pay a 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 Mutual Insurance Company, 2009 ONCA 391 (CanLll) (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities. The court also stated that greater weight may be assigned to those activities which the applicant identifies as being more important to them in their pre-accident life.

25The applicant testified that prior to the accident she was working part-time as a general labourer and worked 10 to 15 hours per week which was a physical occupation; she was fully independent with self-care and housekeeping tasks. She also enjoyed socializing with friends, going clubbing, fishing and camping. Post-accident she is not able to do any of these things because of chronic pain and her psychological impairment.

26We find the applicant has not met her onus in establishing that she suffers a complete inability to carry on a normal life as a result of her accident-related impairments for the following reasons.

27First, as highlighted above we have determined that the applicant’s testimony about her accident-related impairments and pre- and post-accident function inconsistent with the medical evidence before us. The medical evidence supports that pre-accident the applicant had several limitations in carrying out her daily activities because of her medical conditions. In fact, we find that a comparison of the applicant’s pre- and post-accident function as described in Dr. Collerton and Nurse Kipp’s CNRs establish that her function improved in many aspects following the accident versus declined. In our view, this does not align with the complete inability test for entitlement to a NEB outlined in Heath.

28Second, we find the applicant’s testimony about her inability to return to work post-accident was contradicted by the references in the records to her working as a cleaner post-accident. In addition, she also attended a program to obtain her trucking licence. Additionally, her testimony about her independence with self-care and housekeeping tasks conflicted with the pre-accident CNRs of Dr. Collerton and Nurse Kipp which noted significant limitations. We also find her testimony about her pre-accident activities vague because no details were provided about how often she visited with friends, went clubbing, fishing or camping. Nor did the applicant identify which activities were more important to her as per the test in Heath. We place little weight on the applicant’s testimony about her pre and post accident activities because it was inconsistent with the medical record. We find it unnecessary to repeat those findings here as we have already provided a comprehensive overview of the applicant’s pre- and post-accident function above.

29In conclusion, we find that based on the totality of the testimony of the witnesses and the medical record before us that the applicant has not met her onus in proving that she suffers a complete inability to carry on a normal life as a result of her accident-related impairments. For these reasons, we find that the applicant has not met the threshold for entitlement to a NEB for the time period claimed.

The applicant is not entitled to $13,560.00 ($20,610.00 less $7,050.00 approved) for CAT assessments proposed by All Health Medical Clinic.

30Section 25(1) 5 of the Schedule provides that an insurer shall pay for reasonable fees for the determination of whether the insured person has sustained a CAT impairment, including any assessment or examination necessary for that purpose. The onus is on the applicant to prove that the OCF-18 is reasonable and necessary.

31The OCF-18 for catastrophic assessments can be broken down as follows:

(i) Occupational therapy In-home assessment - $2,000 (ii) Occupational therapy situational assessment - $2,000 (iii) CAT psychiatry assessment - $4,000 (iv) CAT psychiatric testing -$2,000 (v) CAT orthopedic assessment - $4,000 (vi) CAT executive summary - $2,000 (vii) OCF-18 claim form - $200.00 (viii) OCF-18 CAT determination - $400.00 (ix) File Review $2000 (x) Transportation $450

32The respondent sent the applicant an explanation of benefits which approved $6,600.00 for items i), ii), iv), vii and viii plus any applicable tax and transportation. The respondent denied the balance of the assessments because they were excessive, and it took the position that there was no evidence of ongoing musculoskeletal impairment which would require the orthopaedic assessment.

33We find the applicant has not established on a balance of probabilities that the balance of the $13,560.00 for the denied portion of the OCF-18 for CAT assessments is reasonable and necessary for the following reason.

34The applicant did not address this OCF-18 at all or make any arguments in support of her position that the denied portion of the OCF-18 for CAT assessments are reasonable and necessary. It is not the trier of fact’s role to make the applicant’s case for her. As highlighted above, it is the applicant’s onus to prove that the denied portion of the OCF-18 is reasonable and necessary. In the absence of any submissions or evidence in support of same, we conclude that the applicant did not meet her onus in proving her entitlement to the denied portion of the OCF-18.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because we have not determined that any benefits are overdue.

Award

36The 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. In light of our decision in this matter, the applicant is not entitled to an award as we have determined that there are no benefits are overdue or unreasonably withheld or delayed.

ORDER

37For all the above-noted reasons, we order as follows:

1. The applicant did not sustain a CAT impairment as defined by the Schedule.
2. The applicant is not entitled to a NEB in the amount of $185.00 per week from June 9, 2022 to May 9, 2024.
3. The applicant is not entitled to any of the remaining issues in dispute, interest, or an award.
4. This application is dismissed.