Licence Appeal Tribunal File Number: 21-004825/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:
Oleg Alkhazov
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Sofia Ahmad
APPEARANCES:
For the Applicant: Kateryna Vlada, Counsel
For the Respondent: Jonathan Charland, Counsel
HEARD: By way of written submissions
OVERVIEW
1Oleg Alkhazov, the applicant, was involved in an automobile accident on April 18, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent filed a motion raising a preliminary issue. The issue was dismissed by Adjudicator Samia Makhamra on September 15, 2022.
PRELIMINARY ISSUE
3The preliminary issue was: Is the applicant barred from proceeding with his claim for non-earner benefits as he failed to submit an OCF-10 form electing benefits?
4Adjudicator Samia Makhamra found the applicant was barred from proceeding with his claim for a non-earner benefit for failing to submit an OCF-10. She then ordered a written hearing for the remaining issues in dispute.
ISSUES
5The issues in dispute are:
i. Is the applicant entitled to a medical benefit of $3,930.32 for physiotherapy services?
ii. Is the applicant entitled to a medical benefit of $3,256.64 for physiotherapy services?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6Based on the totality of the evidence before me, I find:
i. The applicant is not entitled to a medical benefit of $3,930.32 for physiotherapy services as they are not deemed reasonable or necessary.
ii. The applicant is not entitled to a medical benefit of $3,256.64 for physiotherapy services as they are not deemed reasonable or necessary.
iii. As there are no outstanding benefits, the applicant is not entitled to interest.
7The application is dismissed.
ANALYSIS
8The applicant was involved in a minor rear-end accident on April 18, 2019. The property damage totalled $892.14.
9The applicant did not seek medical attention or attend a hospital immediately after the accident.
10On April 20, 2018, two days after the accident the applicant sought medical attention. Dr. Steven Matlis assessed the applicant for neck pain, mild neck whiplash, left shoulder and right hip sprains at a walk-in clinic.
11The applicant followed up with regular visits to his family physician, Dr. Alla Osadchy. His complaints were subjective with no objective basis.
12The diagnostic imaging was all normal with x-rays of the cervical spine, pelvis/hips and shoulder x-rays dated May 29, 2019, left shoulder ultrasound on June 5, 2019 and right hip ultrasound on June 6, 2019.
13Dr. Osadchy referred the applicant to Dr. Fernando Gonzalez Martinez, physiatrist, for right thigh and left shoulder pain symptoms. In his report of July 25, 2019, Dr. Gonzalez Martinez indicated that the applicant was demonstrating submaximal effort. When he distracted the applicant, the physiatrist was able to observe normal range of motion of the left shoulder. Dr. Gonzalez Martinez did not suggest further treatment.
14The applicant was referred to a pain specialist, Dr. Inese Robertus. Dr. Robertus did not recommend facility-based treatment, she only recommended at-home exercises.
15The note from Dr. Robertus to Dr. Osadchy indicates that the applicant found facility-based treatment to provide only temporary improvement. The applicant reported minimal changes with physiotherapy.
Is the applicant entitled to a medical benefit of $3,930.32 for physiotherapy services?
16The applicant has the onus to prove that on a balance of probabilities that the goods and services proposed are reasonable and necessary.
17The applicant submitted an OCF-18 dated July 22, 2020 on August 11, 2020. This OCF-18 was completed by Dr. Babak Panahloo, chiropractor, at Doctor Med Rehabilitation Centre and was for chiropractic, massage, and acupuncture treatment in the amount of $3,930.32.
18The applicant’s evidence included that he had pre-collision history of neck pain, left arm pain, back pain, hemorrhoids, prostatitis, anxiety and depression.
19Since the collision, but prior to July 22, 2020, the applicant’s evidence also included that he had:
a. Claimed that the collision had caused distinguishable neck pain, left arm pain and back pain;
b. Made multiple visits to his family physician, Dr. Osadchy, regarding persistent and worsening pain symptomology since the collision;
c. Seen a physiatrist, Dr. Gonzalez Martinez, who diagnosed myofascial pain syndrome in the shoulder and strain of the adductor muscles of the right hip;
d. Been examined by an orthopaedic surgeon, Dr. Farid Guirguis, on October 8, 2019, who noted weakness of the knee flexor and a hamstring spasm, but with no tear. Shortly afterwards he underwent a cervical MRI, which revealed an osteochondral bar or degenerative overgrowth of tissue.
20With regards to the cervical MRI of the applicant, the notes of Dr. Osadchy state on October 29, 2019, that the MRI had no clear correlation to the applicant’s symptoms.
21Dr. Osadchy referred the applicant to Dr. Gonzalez Martinez for right thigh and left shoulder pain symptoms. In his report of July 25, 2019, Dr. Gonzalez Martinez indicated that the applicant was demonstrating submaximal effort. When he distracted the applicant, the physiatrist was able to observe normal range of motion of the left shoulder. Dr. Gonzalez Martinez did not suggest further treatment.
22Dr. Gilbert Yee, orthopaedic surgeon, conducted an insurer’s examination (IE) of the applicant on September 9, 2020 and completed an IE report dated September 18, 2020.
23Dr. Yee physically examined the applicant. He found some tenderness to palpation in the regions of complaint, functional ranges of motion and no objective clinical determinations to indicate an active radiculopathy or myelopathy. Dr. Yee noted that the applicant has some residual symptoms related to soft tissue injuries mainly affecting the cervical and thoracic spine, left shoulder, right hip and thigh.
24Dr. Yee concluded that the treatment plan is not reasonable or necessary. The applicant had reached maximum medical recovery from an orthopaedic perspective.
25I find that the applicant is not entitled to this OCF-18 because he has not satisfied me on a balance of probabilities that it is reasonable or necessary.
Is the applicant entitled to a medical benefit of $3,256.64 for physiotherapy services?
26The applicant submitted an OCF-18 dated February 12, 2021 on February 16, 2021. This OCF-18 was completed by Dr. Kevin Barr, chiropractor at Doctor Med Rehabilitation Centre and was for chiropractic, massage and acupuncture treatment in the amount of $3,256.64.
27Between the first OCF-18 and this one, the applicant’s evidence included:
a. The family doctor, Dr. Osadchy assessing chronic neck and shoulder pain;
b. That on January 27, 2021, the applicant was referred to Dr. Robertus of the Vaughan Pain Clinic, who found the applicant had decreased range of motion of the cervical spine and upper trapezius.
28Dr. Yee opined in his earlier report of September 18, 2020, that maximum medical recovery had been reached and further treatment was not reasonable and necessary.
29A note by Dr. Robertus to Dr. Osadchy, dated January 27, 2021, recommended the applicant continue at-home exercises. No facility-based treatment was recommended as well that the applicant found facility-based treatment to only be providing temporary relief.
30I find that the applicant is not entitled to this OCF-18 because he has not satisfied me that it is reasonable or necessary.
Summary
31The applicant has failed to provide contemporaneous and relevant evidence to support his claim for medical benefits.
32The applicant was involved in a minor accident. Objective evidence suggests that the applicant sustained minor soft tissue injuries as a result of the subject accident.
33I am persuaded by the evidence that the applicant has reached maximal medical recovery and none of the disputed treatment plans are reasonable and necessary.
Interest
34As there are no outstanding benefits, the applicant is not entitled to interest.
ORDER
35I find that:
i. The applicant is not entitled to a medical benefit of $3,930.32 for physiotherapy as it is not reasonable and necessary.
ii. The applicant is not entitled to a medical benefit of $3.256.64 as it is not reasonable and necessary.
iii. As there are no outstanding benefits, the applicant is not entitled to interest.
iv. The application is dismissed.
Released: November 22, 2023
Sofia Ahmad
Adjudicator