Gennadi Gelfand v. Security National Insurance Company, 2023 CanLII 50622

Licence Appeal Tribunal File Number: 20-015493/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:

Gennadi Gelfand Applicant

and

Security National Insurance Company Respondent

DECISION

ADJUDICATOR: Matthew Frontini

APPEARANCES:

For the Applicant: Michael Taylor, Counsel

For the Respondent: Niki Giovanoglou, Counsel

HEARD: By way of written submissions

OVERVIEW

1Gennadi Gelfand, the applicant, was involved in an automobile accident on May 12, 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, Security National 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 medical benefits and cost of examination expenses recommended by Lifepoint Medical in the following treatment plans/OCF-18s:

(a) $1,845,72 for a psychological assessment submitted March 29, 2019;

(b) $3,196.32 for physical treatment submitted September 9, 2019; and

(c) $4,164.59 for psychological treatment submitted October 4, 2019?

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

RESULT

3The applicant has failed to demonstrate that removal from the MIG is warranted. The MIG funding limit of $3,500 applies and as the respondent has paid $3,436.85, $63.15 remains to be paid in respect of the disputed medical benefits.

4As the applicant is not entitled to any of the disputed medical benefits, no interest is payable.

ANALYSIS

THE MINOR INJURY GUIDELINE

5The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

6A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear.

7The applicant bears the burden of establishing that his injuries are not minor, and that the MIG and the related funding limit should not apply.

8In this case, the applicant claims to suffer from psychological injuries and chronic pain as a result of the accident. The applicant submits these injuries are not minor as defined by the Schedule. The applicant also claims to have a pre-existing medical condition, being right knee pain, that precludes maximal recovery within the MIG funding limit. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.

Psychological Impairment and the MIG

9The applicant claims to have suffered psychological injuries as a result of the accident that warrant removal from the MIG because psychological impairments are not captured by the s. 3 definition. On review of the evidence, I find that the applicant has not met his burden of demonstrating he has suffered a psychological injury.

10The applicant relies on the psychological rehabilitation screening report and psychological assessment report of Dr. Gabidulina, dated October 29, 2018 and September 27, 2019, respectively.

11The clinical interview portion of Dr. Gabidulina’s assessment is vague. Dr. Gabidulina indicated that the applicant reports pain “all over his body” which is not consistent with his accident-related injuries for the treatment he is seeking. The assessment also notes that the applicant takes painkillers “when needed”. There is no indication of what frequency he takes the painkillers or what specific medication is taken, and there is nothing in evidence to indicate that the applicant has been prescribed painkillers. Finally, the assessment does not identify any difference in the applicant’s pre- and post-accident activities and function with respect to employment and household chores.

12Dr. Gabidulina’s assessment also reports “severe posttraumatic symptomology” based on the Davidson Trauma scale and yet does not provide a diagnosis of Post Traumatic Stress Disorder. The assessment also utilized the SCL-90-R, which is described as “particularly useful to address post-traumatic symptomatology”. The results of the SCL-90-R were in the normal range and the assessment does not address the discrepancy between the results of the Davidson Trauma scale and the SCL-90-R.

13Despite the assessment of Dr. Gabidulina, I note that there is no reference to psychological issues in the clinical notes and records of applicant’s family physician. Dr. Gabidulina’s assessment also does not indicate that any of the applicant’s other medical documentation had been reviewed in preparing the assessment. Dr. Gabidulina’s assessment also did not make reference to any validity testing with respect to the psychometric testing employed.

14The respondent relies on the psychological assessment of Dr. Marino, dated June 14, 2019. Unlike Dr. Gabidulina’s assessment, Dr. Marino’s assessment entailed a review of the applicant’s medical documentation and referred to validity testing in connection with the various psychometric tests performed. Dr. Marino concluded based on the testing that the applicant did not present with any significant psychological impairment or diagnosis. This conclusion is consistent with the lack of medical documentation of psychological complaints in the clinical notes and records of the applicant’s family doctor.

15In his reply submissions, the applicant also suggests that the psychological assessment performed by Dr. Marino should be discounted because the respondent did not provide raw test scores. These arguments must be rejected. First, this is improper reply. As is well settled, proper reply is intended to address arguments made by the responding party which could not have been anticipated when the applicant made its initial submissions. The applicant was aware of the respondent’s intent to rely on Dr. Marino’s report and made the tactical decision to not raise the issue of the raw data in his initial submissions.

16Second, the applicant had an opportunity to request raw data at the case conference when the parties’ productions were being addressed. The applicant chose not to and, furthermore, did not bring a motion for the raw data in advance of the hearing.

17Finally, the assessment report of Dr. Gabidulina does not provide raw test data either, despite the applicant’s assertions to the contrary. For example, the applicant cites the reported score of the Beck Depression Inventory – II test. This is not the raw data, which would be the actual results of the 4-point scale used for the individual questions assessing 21 symptoms. Rather than provide the raw data, Dr. Gabidulina’s assessment provides the final blended score.

18Overall, I prefer the evidence of Dr. Marino over Dr. Gabidulina and find the applicant has not met his burden of demonstrating that he has suffered a psychological injury which warrants treatment beyond the funding limit provided by the MIG.

Chronic Pain Disorder and the MIG

19The applicant claims that he is experiencing chronic pain because of the accident. I find that the applicant has not met his burden in providing that he suffers from chronic pain that warrants removal from the MIG.

20There is no formal diagnosis or even investigation into whether the applicant suffers from chronic pain.

21The applicant also completed a “Medical Statement” to participate in scuba diving training in which he indicated “no” with respect to the following questions regarding his medical history:

i. Inability to perform moderate exercise (example: walk 1.6 km/one mile within 12 mins.); and

ii. Back, arm or leg problems following surgery, injury or fracture.

22The applicant’s answers to these medical questions in the context of participating in a physically challenging recreational activity of his choosing five months after the accident do not support his claims of chronic pain.

23The applicant also underwent a virtual orthopedic assessment performed by Dr. Getahun on August 20, 2021. With respect to pain, Dr. Getahun noted that the applicant did not report any pain or weakness with respect to his right arm, which was injured during the accident, that the applicant has fully returned to his pre-accident level of daily activities and that he is not taking any medication to manage pain. Dr. Getahun’s conclusions that the applicant’s injuries do not fall within the MIG were not based on any reports of chronic pain, but rather psychological injuries based on the assessment of Dr. Gabidulina and pre-existing right knee pathology.

24The respondent relies on the orthopedic assessment and addendums provided by Dr. Jacqueline Auguste, dated May 22, 2019, July 15, 2019 and November 2022. These assessments similarly do not identify any objective evidence supporting the applicant’s claims of chronic pain that would warrant removal from the MIG.

25The applicant has failed to point to any objective evidence supporting his claim of chronic pain that would warrant removal from the MIG, such as, for example, the characteristics of chronic pain set out in the AMA Guides.

26The applicant has failed to meet his onus to show that he has a chronic pain condition that warrants removal from the MIG.

Pre-Existing Medical Condition and the MIG

27The applicant also claims to have a pre-existing medical condition, identified right knee pain, that precludes maximal recovery within the MIG funding limit, pursuant to s. 18(2) of the Schedule. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.

28It is undisputed between the parties that the applicant had pre-existing injuries to his right knee and that the applicant underwent elective surgery to his knee subsequent to the accident in December of 2018. There is nothing in the record to indicate whether the applicant experienced any knee pain following the surgery.

29The applicant baldly asserts that the pre-existing right knee pain has affected his ability to recover within MIG funding limit for the treatment of his accident-related injuries.

30The applicant’s best evidence regarding his pre-existing knee injury affecting his recovery is the conclusion of Dr. Getahun following his virtual assessment on August 20, 2021. Dr. Getahun concludes that the applicant’s “pre-existing right knee pathology …was aggravated.” How this conclusion was reached is unclear as the report notes that the applicant was uncertain whether his knee pain worsened after the car accident and the applicant was quite certain that his knee pain improved following his post-accident surgery. Moreover, Dr. Getahun’s assessment provides no rationale for how the pre-existing knee injury precludes the applicant from achieving medical recovery of his accident-related injuries, which is the requirement for removal from the MIG under s. 18(2).

31The applicant’s injuries and treatment relate to injuries to his right arm and discomfort in his neck and upper back region. However, the applicant has failed to identify any medical evidence that his pre-existing knee injury, which was surgically treated more than two years ago, has had any impact on the treatment of his accident-related injuries to his arm, back and neck. Moreover, the applicant’s submissions do not even attempt to explain the connection between the pre-existing knee injury and the applicant’s treatment for his accident-related injuries.

32The applicant has failed to demonstrate that his pre-existing medical condition, right knee pain, precludes maximal recovery within the MIG funding limit.

The Treatment Plans at Issue

33Based on the evidence before me, the applicant has not established that he suffered anything other than minor injuries. He is subject to the MIG funding limit of $3,500.00.

34As the MIG funding limit has been nearly exhausted, it is not necessary to determine whether the remaining treatment plans are reasonable and necessary.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I reviewed the evidence in its entirety and found the applicant’s injuries fall within the MIG. As a result, the applicant is not entitled to the disputed benefit or interest thereon.

ORDER

36I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, a determination of whether the treatment plans are reasonable and necessary is not required; and

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

37The application is dismissed.