Citation: Ropat v. Aviva General Insurance Company, 2023 ONLAT 21-001000/AABS

Licence Appeal Tribunal File Number: 21-001000/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:

Aliaksandr Ropat

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

ALIAKSANDR ROPAT

For the Respondent:

Hooman Zadegan, Counsel

HEARD:

By written submissions

OVERVIEW

1Aliaksandr Ropat, the applicant, was involved in an automobile accident on October 22, 2018 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, Aviva General 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. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from October 22, 2019 to date and ongoing?

ii. Is the applicant entitled to a medical benefit in the amount of $235.34 for chiropractic services, proposed by ALCAT Assessments in a treatment plan/OCF-18 (“plan”) submitted on February 6, 2019 and denied on February 25, 2019?

iii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment proposed by ALCAT Assessments in a plan submitted on April 2, 2019 and denied on April 3, 2019?

iv. Is the applicant entitled a medical benefit in the amount of $2,200.00 for cognitive assessment, proposed by ALCAT Assessments in a plan submitted on July 18, 2020 and denied on July 18, 2020?

v. Is the applicant entitled a medical benefit in the amount of $2,200.00 for a psychiatric assessment, proposed by ALCAT Assessments in a plan submitted on October 8, 2019 and denied on December 22, 2020?

vi. Is the applicant entitled to a medical benefit in the amount of $2,358.56 for physiotherapy services, proposed by Eglington West Physiotherapy & Rehab in a plan submitted on December 2, 2019 and denied on December 22, 2020?

vii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for neurological assessment, proposed by ALCAT Assessments in a plan submitted on January 14, 2020 and denied on December 22, 2020?

viii. Is the applicant entitled to a medical benefit in the amount of $5,220.00 for botox injections, chronic pain counselling and pharma rich palette treatments, proposed by ALCAT Assessments in a plan submitted on April 13, 2020 and denied on December 22, 2020?

ix. Is the applicant entitled to a medical benefit in the amount of $2,412.85 for physiotherapy services, proposed by Eglington West Physiotherapy & Rehab in a plan submitted on October 14, 2020 and denied on December 22, 2020?

x. Is the applicant entitled to a medical benefit in the amount of $1,907.43 for physiotherapy services, proposed by Eglington West Physiotherapy & Rehab in a plan submitted on April 10, 2021 and denied on May 5, 2021?

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

xii. Is the respondent liable to pay an award under s.10 of Regulation 664?

xiii. Is the respondent entitled to costs?

RESULT

3The applicant is entitled to the psychological assessment listed as issue 3 above. The remainder of this application is dismissed.

4The respondent is not entitled to costs.

ANALYSIS

Non-earner benefit (NEB)

5The applicant is not entitled to an NEB.

6Section 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

7The applicant’s disability certificate, dated November 16, 2018, was completed by Dr. Vince De Luca, chiropractor. The applicant notes that this document indicates he suffers a complete inability to carry on a normal life. The applicant also cites the accident related injuries which are listed on this form. The applicant submits that this evidence establishes his entitlement to an NEB from October 22, 2019 and ongoing.

8The respondent cites three insurer’s examinations (IE) which collectively document the applicant’s ability to complete various activities of daily living (ADLs). The respondent submits that this evidence is more persuasive and the applicant has not met his onus to establish entitlement to an NEB.

9I note that the applicant previously worked in construction but has been in the Ontario Disability Support Program (ODSP) since 2010 due to back pain. In the three IEs cited by the respond, the applicant reports that prior to the accident he was independent with ADLs and housekeeping tasks.

10The applicant was examined for an IE by Dr. Ijaz Chaudry, family medicine specialist, on July 22, 2019. The applicant reported to Dr. Chaudry that he is currently independent in completing self-care tasks and housekeeping.

11In the IE dated August 12, 2019 by Lyndy Goldlust, occupational therapist, the applicant confirms that he performs housekeeping tasks and most personal care with occasional assistance. He declined to demonstrate any housekeeping tasks as he did not want to aggravate his pain. He did demonstrate various self care tasks such as showering, shaving, and cutting toenails.

12In the IE dated August 12, 2019 by Dr. Shahriar Moshiri, psychologist, the applicant states that he experiences pain doing the dishes. The applicant advises that psychologically he can complete the ADLs and that his impairments are limited to his physical ability to complete tasks. The applicant describes doing his “hygienic routines,” watching television, surfing the internet, Skyping, visiting friends, going for walks, and daily shopping.

13The three IEs show that the applicant’s does not suffer a complete inability to carry on a normal life. He is able to complete self care and household tasks. He is also able to enjoy his leisure time and visit friends. He reports pain, but this appears to be limited to completing housekeeping tasks.

14The three IEs document the applicant’s functioning in the late summer of 2019, but do not provide an understanding of his functioning prior to this time. On the disability certificate, Dr. De Luca checked the box indicating that the applicant suffers a complete inability to carry on a normal life. He provides the following explanation for doing so:

“CARRYING, LIFTING AND REACHING WITH UPPER BACK AND SHOULDER ARE PROBLEMATIC, SUCH AS IN CARRYING GROCERIES; LYING DOWN TO SLEEP IS PAINFUL, AND DOES NOT GET RESTFUL SLEEP.”

15The items listed by Dr. De Luca provide an indication of the applicant’s limitations. However, this list of impediments is quite brief. It gives limited insight into the applicant’s ability to function. In my view, this information is too sparse to justify a finding that he suffered a complete inability to carry on a normal life soon after the accident.

16For these reasons, I find that the applicant has not proven, on a balance of probabilities, that he has an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. As such, he is not entitled to an NEB.

17To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Issues 2, 6, 8, 9, and 10

18The applicant is not entitled to these treatment plans.

19These treatment plans are for chiropractic services, physiotherapy, and botox injections. The applicant does not address each individual plan in his submissions. Instead, he make submissions that apply to all five of these plans.

20The applicant submits that these treatment plans for have legitimate rehabilitative goals of pain relief, increasing strength and range of motion and a return to the activities of daily living. Moreover, the plans list numerous symptoms and injuries. The legitimate goals of the plans and the listing of symptoms make the treatment plans reasonable and necessary to ensure the applicant recovers from accident-related injuries.

21The applicant also cites the clinical notes of Dr. Yelenbaugen, his family doctor, dated November 18 and December 11, 2020. He reported right shoulder and low back pain. The applicant submits that these medical records further confirm that he requires these treatment plans because he continues to deal with ongoing accident related symptoms.

22The respondent notes that the applicant is diabetic and a heavy smoker. He has been on ODSP since at 2010. His multiple, longstanding impairments have caused him to be treated by a multi-disciplinary medical team years before the accident. His longstanding pain complaints of low back pain radiating into the right leg with numbness, right shoulder pain, and neck pain pre-date the accident. Most recently, complications from diabetes have resulted in the amputation of the applicant’s right leg.

23According to the respondent, the applicant’s actual accident related injuries are sprain and strain injuries that have reached maxim medical improvement according to the IE dated December 22, 2020 of Dr. Shafik Dharamshi, physician. The respondent submits that these treatment plans are not reasonable and necessary.

24The applicant has asked me to review each treatment plan to take note of the rehabilitative goals and the lists of symptoms. This cannot be done as these treatment plans are not included in the brief of either party.

25The applicant also asked me to consider the clinical notes of Dr. Yelenbaugen. The notes from November 18, 2020 document right shoulder pain and chronic low back pain with stiffness. According to Dr. Yelenbaugen, the rest of the musculoskeletal examination is “normal.” The December 11, 2020 notes indicate that an x-ray of the applicant’s right shoulder was “completely normal.” Right shoulder pain is also noted again.

26The applicant’s low back pain is a chronic condition that pre-dates the accident. In the Cognitive Evaluation Report, dated July 10, 2020, by Bushra Bayan, occupational therapist, the applicant advises that he worked in construction but has been on ODSP since 2010 due to lower back pain. It is certainly possible that the accident aggravated this pre-existing condition. However, such a determination cannot be made based on the brief information found in the clinical notes of Dr. Yelenbaugen.

27The right shoulder pain in the clinical notes is also referenced in the IE of Dr. Dharamshi, who concludes that the applicant has attained maximum medical improvement and that physical rehabilitation is not reasonable and necessary.

28The clinical note of November 28, 2020 shows that the applicant was referred to a pain clinic. The referral states that this was done to treat the pre-existing low back pain and the applicant’s degenerative disease in his lumbar spine. As such, this referral is not an indication of an ongoing need to treat accident related injuries.

29The evidence cited by the applicant is not substantial enough to make a finding that these treatment plans are reasonable and necessary. Consequently, I find that the applicant is not entitled to these five treatment plans.

Assessments

30The applicant is entitled to the psychological assessment listed as issue 3 above. He is not entitled to the remaining assessments.

31For an assessment, the applicant must show that it is reasonable and necessary to investigate a condition.

Issue 3: Psychological assessment and

Issue 5: Psychiatric assessment

32The applicant notes that he was diagnosed with various psychological issues pre-accident and that he continues to experience psychological issues post-accident. He references a number of reports and other medical evidence which indicate that his mental health issues have increased since the accident. The applicant submits that these two plans are needed to assess and treat his mental health issues.

33The respondent does not specifically address these assessments. Its position seems to be that all the treatment plans in this application are not reasonable and necessary because they only treat pre-existing conditions.

34Dr. Betty Kershner, psychologist, examined the applicant and issued a Psychological Assessment Report dated October 7, 2019. She is aware of the applicant’s pre-accident history of depression and anxiety. She also opines that that the accident caused an adjustment disorder with mixed anxiety and symptoms of depression, and a sleep disorder.

35The IE of Dr. Shahriar Moshiri, psychologist, dated July 15, 2019, opines that the accident caused an adjustment disorder with mixed anxiety and depressed mood. As a result of this diagnosis, Dr. Moshiri recommended the approval of a treatment plan submitted by Dr. Kershner.

36The respondent’s own assessor agrees that the applicant has accident related psychological injuries. In my view, this is sufficient to find that the psychological assessment is reasonable and necessary as the purpose of the assessment is to better understand the applicant’s accident-related psychological injuries and formulate treatment.

37The applicant submits that the psychiatric assessment is also reasonable and necessary. This plan seeks to have the applicant assessed by a psychiatrist to determine if there is a need for pharmacological intervention. The applicant has not explained why two assessments are needed to address his mental health disorders. On the face of it, this would result in a duplication of services. Moreover, the applicant has not explained why pharmacological intervention would be explored before his treatment needs have been considered by the psychological assessment. For these reasons, I find that the psychiatric assessment is not reasonable and necessary.

Issue 4: Cognitive assessment

38The applicant submits that the treatment plan for a cognitive assessment is based on Dr. Sirota’s recommendation for a cognitive assessment. The applicant reported issues with memory loss and concentration difficulties. The proposed assessment is meant to explore the issues with his memory and concentration and look for potential solutions.

39Ms. Bayan completed a cognitive assessment of the applicant which is dated July 10, 2020. The applicant cites the findings of this assessment as further evidence that this cognitive assessment is reasonable and necessary.

40I note that Ms. Bayan tested and assessed the applicant’s cognitive abilities. She found that he has cognitive limitations and made recommendations for treatment. As such, the goals of the proposed assessment were already met before the applicant submitted the treatment plan to the respondent.

41The applicant has not explained why a second cognitive assessment is reasonable and necessary. Consequently, I find that the applicant is not entitled to this assessment because it constitutes a duplication of services which have already been provided to him.

Issue 7: Neurological assessment

42The applicant notes that the treatment plan for the neurological assessment lists numerous injuries. He also notes that he reported numbness and tingling in his right hand and lower extremities, headaches that radiated to the frontal area and into the eyes, pain and numbness down the right leg and sharp pain in the right hip to “other doctors.”

43The applicant cites medical evidence in his submissions but makes no analysis or argument regarding his entitlement to this assessment.

44The treatment plan was completed by Dr. Dima Rozen, physician. He states that the accident caused the applicant to sustain neurological pain in lumbar spine and leg associated with numbness in his lower limbs, possible herniated disc, increased headaches as well as psychological difficulties. However, he provides no explanation on how these complaints can be attributed to the accident.

45The applicant has a complex pre-accident medical history. It includes chronic back pain, headaches, and complications with diabetes that resulted in the amputation of his right leg. In light of this history, his reports of pain and numbness are not sufficient enough to attribute his neurological complains to the accident. Consequently, I find that the applicant has not established, on a balance of probabilities, that this assessment is reasonable and necessary.

Interest

46The applicant is entitled to interest pursuant to s. 51 of the Schedule for the psychological assessment.

Award

47The applicant submits that the respondent is liable to pay an award under s.10 of Regulation 664 for unreasonably withholding payments because he proved “beyond a reasonable doubt” that he is in need of the treatments and assessments that were proposed.

48The respondent objects to the applicant raising the issue of an award for the first time in his submissions.

49I agree with the respondent. It is procedurally unfair to raise this issue so late into the hearing. Doing so denies the respondent the opportunity to gather evidence and properly prepare to address this issue.

50As such, I find that the issue of an award is not properly before the Tribunal. For this reason, I am not adjudicating this issue.

Costs

51The respondent seeks costs on two grounds. Firstly, because the applicant brought up the issue of an award without notice in his submissions. Secondly, for not disclosing the amputation of his right leg. In the respondent’s view, the applicant’s greatest impairment was deliberately hidden from the Tribunal to ensure that his claim for benefits would not be derailed.

52The applicant makes no submissions on costs.

53Under Rule 19 of the Licence Appeal Tribunal’s (LAT) Rules, the respondent may request costs if he believes that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith.

54I find that the applicant acted unreasonably by bringing up the issue of an award without notice in his submissions. However, this conduct had no impact on the respondent as the issue was not adjudicated. The seriousness of this conduct is not significant enough to justify awarding costs.

55In regard to not disclosing the amputation of his right leg, I agree that this information has relevance in this proceeding. However, this is not a prominent factor in the analysis of the applicant’s claim for benefits.

56I also note that the respondent has no evidence of bad faith for me to consider other than the applicant’s silence on the amputation. For these reasons, I find that there is an insufficient basis to conclude that the applicant acted in bad faith.

57As such, I find that the respondent is not entitled to costs.

ORDER

58This application is entitled to a psychological assessment and interest.

59The remainder of this application is dismissed.

60The respondent’s request for costs is dismissed.