Citation: Alexandrov v. Aviva General Insurance, 2022 ONLAT 20-001302/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:

Evgueni Alexandrov

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Sevda Guliyeva, Paralegal

For the Respondent:

Jessica M. Bacopulos, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Evgueni Alexandrov, was involved in an automobile accident on March 15, 2017, and sought benefits from the respondent, Aviva General Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the "Schedule").

2The respondent approved some of the applicant's benefit claims but denied others. The applicant then applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.

ISSUES

3The issues to be decided in the hearing are:

a. Is the applicant entitled to an income replacement benefit in the amount of $163.52 per week for the period from February 10, 2019 to date and ongoing?

b. Is the applicant entitled to receive medical benefits as follows:

i. $2,000.00 for chronic pain assessment recommended by Scarborough Medical Centre in a treatment plan dated June 2, 2018;

ii. $2,892.93 for psychological services recommended by Scarborough Medical Centre in a treatment plan dated April 28, 2018;

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

RESULT

4The applicant has failed to demonstrate ongoing entitlement to an income replacement benefit. He is entitled to the cost of a chronic pain assessment plus interest calculated in accordance with s. 51 of the Schedule. He has not shown that the unapproved portion of the treatment plan for psychological services is reasonable and necessary as a result of the accident.

EVIDENTIARY MATTERS

5The applicant relies on the post-accident clinical notes and records of his family physician, Dr. O. Livshin, to advance his claims. However, as the respondent highlights in its submissions, Dr. Livshin's handwritten clinical notes are illegible and have not been transcribed. The applicant submits that the clinical notes are legible. He submits that he was able to interpret them and that dismissing the notes would be prejudicial to his claim.

6While I recognize that an inability to rely on Dr. Livshin's clinical notes may disadvantage the applicant in this proceeding, I have carefully reviewed these documents and I am unable to interpret Dr. Livshin's handwriting. I am only able to read the dates associated with the entries. It is not the role of the Tribunal to decipher handwritten medical records. It would be improper for me to attempt to speculate about the contents of the notes. The applicant bears the onus of presenting evidence supportive of his claim. Asserting that the notes are legible does not make them so.

7As such, I am unable to rely on the handwritten clinical notes and records from Dr. Livshin. I will, however, consider the typed reports enclosed or scanned into Dr. Livshin's clinical file as tendered by the applicant.

ANALYSIS

Summary of accident-related diagnoses

8The applicant was not medically assessed on the date of the accident. Three days after the accident, he went to hospital with complaints of nausea, vomiting and headaches. He received a CT scan that revealed no evidence on intracranial post-traumatic changes.

9A disability certificate (OCF-3) dated May 12, 2017 lists accident-related diagnoses including possible concussion, various soft tissue sprain and strain injuries, headaches, mood and anxiety disorders, acute pain, and insomnia.

10The applicant was later diagnosed with accident-related psychological impairments (adjustment disorder and driving related anxiety). The applicant has received some treatment for those conditions that has been funded by the respondent.

Income replacement benefit

11The applicant bears the onus of proving, on a balance of probabilities, that he is entitled to the benefits he seeks in this application. To be eligible for an income replacement benefit, the applicant must demonstrate that because of and within 104 weeks of the accident he suffered a substantial inability to complete the essential tasks of their employment.²

12The respondent paid the applicant an income replacement benefit from March 23, 2017 to February 8, 2019 when in terminated the benefit based on the opinions of its assessors that the applicant did not meet eligibility requirements. The applicant submits that his income replacement benefit was improperly terminated and that he is entitled to the benefit on an ongoing basis. The respondent submits that the applicant has established neither the amount nor the duration of benefits he claims.

13The applicant relies on the evidence of Dr. A. Marino, a psychologist retained by the respondent to conduct a psychological assessment on January 17, 2018. Dr. Marino opined that the applicant's driving-related anxiety was the reason the applicant had not returned to work delivering flyers by car. Dr. Marino opined that the applicant did suffer a substantial inability to perform the essential tasks of his employment as a result of the accident.

14However, on December 19, 2018, Dr. Marino reassessed the applicant. In a multidisciplinary assessment report dated January 16, 2019, Dr. Marino observed:

"Although I feel Mr. Alexandrov could benefit from some ongoing psychological support, as he does continue to present with some adjustment related difficulties and driving related nervousness, I do feel that his driving has improved to the extent that he is able to return back to his pre-accident employment, which he stated was approximately 10 hours per week delivering flyers."

15Based on the January 16, 2019 multidisciplinary report, the respondent terminated the applicant's income replacement benefit. The respondent issued an explanation of benefits on January 24, 2019 outlining the reasons for its denial. The applicant has not presented other evidence or made additional submissions as to how he meets the test for entitlement beyond February 8, 2019. Instead, he submits that the change in Dr. Marino's assessment is inconsistent with his psychometric testing scores during the reassessment which indicate increased severity of some of his symptoms. I see no inconsistency in Dr. Marino's assessment. Dr. Marino clearly articulates the basis for updating his opinion on the applicant's ability to perform the essential tasks of his employment. By the applicant's own reports, his driving activity had increased since his last assessment. Although the applicant continued to present with some driving related nervousness, in Dr. Marino's opinion these concerns were sufficiently diminished to allow the applicant to resume part-time work. The applicant asks me to rely on Dr. Marino's January 2018 assessment but to reject his opinion as set out in the December 2018 report. I see no contradiction between the two reports and no reason to discount Dr. Marino's updated opinion.

16The applicant has failed to discharge his onus in establishing entitlement to an income replacement benefit during the period claimed in this application. He has not tendered evidence capable of establishing a substantial inability to perform the essential tasks of his employment, let alone a complete inability to engage in any employment to which he is suited, which is required to receive this benefit past 104 weeks of disability under s. 6(2)(b) of the Schedule. His claim for an income replacement benefit is accordingly denied. I need not address the respondent's submission that the applicant failed to submit to treatment that would have assisted his return to work under. s. 57 of the Schedule. No income replacement benefit is owing, and no interest is payable.

Chronic pain assessment

17The applicant submits that he is entitled to the cost of a chronic pain assessment. He submits that his pain complaints are recorded in the clinical notes and records of Scarborough Medical Centre from July 2017 to December 2018. He submits that these records document a chronic condition that warrants further investigation. The applicant also relies on diagnostic testing results documented in Dr. Livshin's clinical file to establish his need for a chronic pain assessment. He refers to three diagnostic reports relevant to the issues in dispute: a November 22, 2017 electrodiagnostic study, a December 22, 2017 MRI of the cervical spine, and a January 23, 2019 MRI of the lumbar spine. He submits that the objective findings of these tests are consistent with his reported pain profile.

18Dr. T. Getahun's rationale for proposing the disputed chronic pain assessment is not, on its own, persuasive. This is because the treatment and assessment plan (OCF-18) he prepared, dated June 2, 2018, relies exclusively on clinical findings made by another assessor from approximately one year prior to the OCF-18 submission date. Dr. Getahun adopts Dr. A. Sekhar's July 12, 2017 observations about the applicant's functional limitations, including pain with bending, chores taking longer to complete, and limitations with walking for long periods and daily exercise, as evidence that the applicant's impairment significantly limits his basic daily activities. Dr. Getahun also references a diagnosis of a significant degree of degenerative disc disease from May 2014, though it is unclear from the clinical notes and records before me whether this assessment was made by Dr. Livshin or another treatment provider.

19Despite the shortcomings of the rationale set out in the OCF-18, I find that the need for a chronic pain assessment is supported elsewhere in the record. Although the focus of the therapy the applicant received at Scarborough Medical Centre was on mood and anxiety symptoms, the records document frequent reports of neck, shoulder, and back pain. Of the three diagnostic reports referred to in the applicant's submissions, only one appears in Dr. Livshin's clinical file: the January 23, 2019 MRI of the lumbar spine. That report notes a clinical history of "left meralgia paresthetica post MVA" and a finding of multilevel advanced spondylosis resulting in severe left neural foraminal stenosis. The results of the other two diagnostic tests may be noted by hand by Dr. Livshin, but because those notes are illegible, I am unable to determine if this is so. Although the lumbar spine MRI was conducted several months after the chronic pain assessment was proposed, I find it relevant in that it documents a history of left meralgia paresthetica attributed to the accident. I accept the applicant's submission that this evidence is consistent with his reports of pain well after the accident.

20The respondent submits that there is no medical evidence to support the necessity of a chronic pain assessment. It relies on the applicant's denial of pain anywhere in his body during an assessment by Dr. Ming-Wai Tu in July of 2018.

21I reject the respondent's submission that there is no medical evidence supportive of a chronic pain assessment. Certainly, there is conflicting evidence about the extent to which the applicant faced physical impairments due to pain. Although the applicant was not able to work for a significant period after the accident delivering flyers part-time by car, Dr. Marino opined that this was due to driving related anxiety and not physical dysfunction. Six months after the accident, on August 8, 2017, the applicant was assessed by Dr. P. Tepperman, Occupational Health Physician. Dr. Tepperman found no evidence of neurological or musculoskeletal impairment. In a July 27, 2018 report, the respondent's assessor, Dr. S. Ming-Wai Tu, opined that the applicant had likely suffered from generalized soft tissue injuries as a result of the accident. She determined that the applicant suffered no ongoing neurological or musculoskeletal impairment as a result of the accident.

22I have no reason to doubt the physical findings of Dr. Tepperman and Dr. Ming-Wai Tu. However, given the objective evidence of the applicant's history of meralgia paresthetica following the accident coupled with his consistent pain reporting to treatment providers at Scarborough Medical Centre, I find on a balance of probabilities that a chronic pain assessment is reasonable and necessary as a result of the accident. The applicant did report to Dr. Ming-Wai Tu increased difficulty in performing household chores, which is consistent with his reports to Dr. Sekhar in 2017. He also reported intermittent numbness in his left thigh, which is consistent with the history of meralgia paresthetica noted in the MRI report. The record before me establishes a reasonable possibility the applicant was suffering from chronic pain as a result of the accident and further investigation into the possible biological mechanism of the applicant's pain is warranted.

Psychological assessment and services

23The dispute over the April 28, 2018 treatment and assessment plan (OCF-18) is not over the full cost of the proposed services, but the remaining amount after the respondent's partial approval. The total amount claimed in the OCF-18 was $2,892.93. The respondent approved $1,696.10 on May 14, 2018. The amount remaining in dispute is $1,196.83.

24The respondent refused to fund line items 5 and 6 ("brokerage, service" and "preparation, service") on the ground that they exceed the maximum $200.00 fee allowable for OCF-18 preparation. The respondent also denied funding for line items 3 and 4 ("assessment, mental health and additions" and "test, mental health and additions"). The respondent agreed to fund psychotherapy services at the maximum allowable rates for psychologists and psychotherapists set out in the Professional Services Guideline. To that end, the respondent requested confirmation of the college registrations of the practitioner who provided psychotherapy services and how much therapy was provided. It noted that the approved amounts would not be payable until this information was received.

25The applicant's submissions do not address the issues raised by the respondent in its reasons for denying the items claimed in the OCF-18. He does not establish that the fees listed as "brokerage" and "preparation" should be considered separately from the $200.00 allowable for OCF-18 preparation. He does not explain why an additional psychological assessment services were required at the time this OCF-18 was submitted. The evidence before me establishes that the psychotherapy services the applicant received between September 29, 2017 and April 28, 2018 were delivered by Ainur Alipkaliyeva, a registered psychotherapist.

26It is not in dispute that the applicant suffered psychological impairments as a result of the accident that warranted treatment. The issue before me is a narrow one, and it is one that the applicant has failed to address. He has provided no basis in argument or evidence to suggest that the respondent's partial denial of the disputed treatment plan was legally incorrect. I find on a balance of probabilities no entitlement to the disputed items. No psychological treatment or assessment services are owing, and no interest is payable.

CONCLUSION AND ORDER

27The applicant has failed to demonstrate ongoing entitlement to an income replacement benefit. He has not shown that the unapproved portion of the treatment plan for psychological services is reasonable and necessary as a result of the accident. Neither of these benefits are payable.

28The respondent is liable to pay $2,000.00 for the cost of a chronic pain assessment plus interest calculated in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Schedule, s. 5(1).