Citation: Lagman v. Belairdirect, 2023 ONLAT 20-009375/AABS

Licence Appeal Tribunal File Number: 20-009375/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:

Aaron Lagman

Applicant

and

Belairdirect

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Ilia Estrah, Counsel

For the Respondent: Daniel Hynes, Counsel

HEARD: By way of written submissions

OVERVIEW

1Aaron Lagman, the applicant, was involved in an automobile accident on July 2, 2017, 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, Intact 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. 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 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to $1,260.00 for chiropractic/physical rehabilitation services, proposed by Healthmedica Erin Mills in a treatment plan dated December 6, 2017?

iii. Is the applicant entitled to $2,260.00 for psychological services, proposed by Princeton Hills Medical Assessments Inc. in a treatment plan dated September 28, 2019?

iv. Is the applicant entitled to $2,260.00 for a General Practitioner assessment, proposed by Princeton Hills Medical Assessments Inc. in a treatment plan dated September 23, 2019?

v. Is the applicant entitled to $3,020.00 for chiropractic/physical rehabilitation services, proposed by Healthmedica Erin Mills in a treatment plan dated May 24, 2021?

vi. Is the applicant entitled to $2,640.00 for chiropractic/physical rehabilitation services, proposed by Healthmedica Erin Mills in a treatment plan dated June 29, 2021?

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

RESULT

3The applicant has demonstrated on a balance of probabilities that his psychological symptoms and impairments justify treatment beyond the monetary limits of the MIG.

4The applicant is not entitled to payment for the treatment plans in dispute as he has not proven on a balance of probabilities that they are reasonable and necessary.

5As no treatment plans are overdue, interest is not payable.

ANALYSIS

Application of the Minor Injury Guideline

6Section 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.”

7An 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.

8The applicant submits that his injuries fall outside of the MIG because he has psychological impairments, a joint effusion and spurring to his right knee, and chronic pain. The respondent disagrees.

9The applicant relies on the report of Dr. Belyakova, psychologist, who diagnosed him with Other Specified Trauma-and-Stressor-Related Disorder: Adjustment-like disorder with prolonged duration of more than six months. Dr. Belyakova noted that the applicant was depressed and anxious, frustrated, and irritable, and he is prone to verbal outbursts. He has vehicular anxiety and is more cautious and scared when driving and as a passenger. Although he drives for work, he does not drive for pleasure or long distances. He endorsed moderate symptoms of depression and anxiety, and elevated symptoms of post-traumatic stress disorder.

10The respondent relies on the s. 44 report of Dr. McDowall, psychologist. Although she also found that the applicant had elevated scores for anxiety and depression symptoms, Dr. McDowall concluded that those symptoms were due to work stress. The respondent argues that Dr. McDowall’s report should be given more weight than Dr. Belyakova’s as Dr. Belyakova did not address the applicant’s work-related stress.

11I do find it concerning that Dr. Belyakova does not address the applicant’s situation at work, as it does appear to be the cause of some of his psychological symptoms. However, I also find it concerning that Dr. McDowall brushes off the fact that the applicant experiences symptoms while in a vehicle, and that part of the reason why his happiness is reduced since the accident is that he wished he was healthy. Dr. McDowall writes that the applicant reported no significant driving-related anxiety symptoms, which is demonstrated by the fact that he drives to work daily. However, she also states that the applicant is more cautious when driving, is more defensive, and has developed “road rage” when he notices unsafe drivers on the road. Given his self-report to both assessors regarding his feelings while in a vehicle, I do not find it likely that all of the applicant’s psychological symptoms are work-related. For that reason, I prefer the opinion of Dr. Belyakova over Dr. McDowall.

12I find that the applicant has proven on a balance of probabilities that he is suffering from psychological symptoms such that he should be treated outside the monetary limits of the MIG. I need not address whether the applicant’s physical injuries also remove him from the MIG.

13I find that the applicant has not proven on a balance of probabilities that the treatment plans in dispute are reasonable and necessary.

14To 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.

15The applicant has not made any submissions with respect to the individual treatment plans in dispute. Instead, he argues that as he did not sustain a minor injury in the accident, he is entitled to the treatment plans. The respondent submits that the applicant has not discharged his burden regarding the reasonableness and necessity of the denied treatment plans.

16There are only three OCF-18s before me, which were submitted in the respondent’s material. These OCF-18s are for chiropractic/physical therapy services (issues (ii), (v), and (vi) above). No one submitted the OCF-18s for the general practitioner report, or the psychological services (issues (iii) and (iv) above). Without these documents, it is very difficult to determine whether they are reasonable and necessary. I have no way of confirming the goals, cost, or duration of the treatment without them. This is especially true as the applicant did not make any submissions as to whether or why these treatment plans are reasonable and necessary. Even after the respondent pointed out that the applicant made no submissions in support of his physical treatment needs, the applicant declined to provide any reply submissions.

Chiropractic/physical therapy services

17With respect to his physical injuries, the applicant has only provided one note from his family physician in 2017, a letter from his chiropractor in 2017, an x-ray report from 2017, and clinical notes and records from HealthMedica from January 2018 to December 2019. The note from the applicant’s family physician, Dr. Javier, included a diagnosis of a contusion to his right knee, however he did not make any referrals or recommendations for physical therapy. The x-ray indicates osteoarthritic changes, but no physician has linked that to the accident or recommended specific treatment for it. The chiropractor’s letter was a request to Dr. Javier for a diagnostic ultrasound of the right knee. There is no indication that this ultrasound ever occurred. The applicant was subsequently sent for an MRI of his right knee, and the results were normal.

18The respondent submits that I should give less weight to the records from HealthMedica, as they were provided after the deadline set by Adjudicator Mazerolle in the Motion Order of November 25, 2021. However, the respondent has not provided any evidence as to when the documents were received, and the respondent had the opportunity to address the documents in its submissions. I decline to assign less weight to the records from HealthMedica for that particular reason.

19Even still, the records from HealthMedica are only one piece of the puzzle. While those records do indicate that the applicant had right knee and low back pain, it is not clear how much the treatment was helping. The records from HealthMedica also note that the applicant had meniscal dysfunction and patella-femoral syndrome, however no physician has ever diagnosed those conditions, and in fact the MRI indicated that there were no meniscal issues. No physician has ever recommended chiropractic or physiotherapy treatments either. Aside from these records, there is very little evidence of the applicant’s physical health or treatment needs.

20The respondent relies on the s. 44 report of Dr. Walters, family medicine physician, from March 14, 2018. He diagnosed the applicant with a WAD-II strain, lumbosacral strain, and right knee abrasion. He stated that no further formal rehabilitation was required and recommended that the applicant continue with self-directed exercise. The applicant has not provided any evidence or submissions to rebut Dr. Walters’ opinion. Dr. Walters is the only physician who has commented on whether the applicant should receive further physical therapy, and I have no reason to question his findings.

21I find that the applicant has failed to provide compelling medical evidence or submissions to explain why the proposed chiropractic and physical therapy treatment is reasonable and necessary.

General Practitioner Assessment

22As no OCF-18 has been provided, and no submissions have been made in support of this treatment plan, I have no way of knowing what the goals of this this assessment are, or whether the goals justify the cost. I find that the applicant has not proven on a balance of probabilities that this treatment plan is reasonable and necessary.

Psychological Services

23Again, no OCF-18 has been provided. The applicant did not make any submissions in support of this treatment plan either. He does briefly state that one of the denied treatment plans is for psychological treatment. Dr. Belyakova recommends 8 sessions of cognitive behavioural therapy in her report, however I have no way of knowing if this is what is contained within the disputed OCF-18, who will be completing the treatment, how much the treatment costs, or what the goals of the treatment are. It appears that $2,260 for 8 sessions of psychotherapy is excessive on its own, so there must be more to the treatment plan that the applicant has not even attempted to explain. The applicant has not proven on a balance of probabilities that this treatment plan is reasonable and necessary.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have not found any benefits to be overdue, no interest is payable.

ORDER

25The applicant has demonstrated on a balance of probabilities that his psychological symptoms and impairments justify treatment beyond the MIG.

26The applicant is not entitled to payment for the treatment plans in dispute, or interest.