Bololoi v. Travelers Insurance, 2023 CanLII 62906

Citation: Bololoi v. Travelers Insurance, 2023 ONLAT 21-015125/AABS

Licence Appeal Tribunal File Number: 21-015125/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:

Stefan Bololoi

Applicant

and

Travelers Insurance

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Kateryna Vlada, Paralegal

For the Respondent: Ranisha A. Fernando, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Stefan Bololoi (the "applicant") was involved in a motor vehicle accident on July 27, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Travelers Insurance (the "respondent") determined that the applicant should be treated within the Minor Injury Guideline ("MIG") and its $3,500.00 limit on treatment and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The respondent notes in submissions that $845.07 is remaining under the MIG limit. The applicant makes no mention of the MIG amount remaining in his submissions. However, all of the treatment plans in dispute are for injuries that are not minor in nature and propose treatment outside of the MIG. As a result, the applicant must be found to warrant treatment outside of the MIG to be entitled to any of the treatment plans in dispute here.

ISSUES IN DISPUTE

3The following issues are in dispute:

1. 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 of the MIG?

2. Is the applicant entitled to $2,000.00 for psychological treatment in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted November 13, 2018?

3. Is the applicant entitled to $1,340.20 for a functional impairment evaluation in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted December 21, 2018?

4. Is the applicant entitled to $3,335.98 for psychological treatment in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted April 13, 2019?

5. Is the applicant entitled to $627.92 for chiropractic treatment in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted May 1, 2019?

6. Is the applicant entitled to $2,000.00 for a chronic pain assessment in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted May 13, 2019?

7. Is the applicant entitled to $1,465.10 for chiropractic treatment in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted May 24, 2019?

8. Is the applicant entitled to $1,981.70 for a driving reintegration assessment in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted June 12, 2019?

9. Is the applicant entitled to $1,800.00 for shockwave therapy in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted December 30, 2019?

10. Is the applicant entitled to $1,237.98 for chiropractic treatment in a treatment plan/OCF-18 recommended by Toronto Healthcare Inc. submitted December 30, 2019?

11. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

4I find that:

i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. As the applicant remains within the MIG, and as the treatment plans in dispute propose treatment outside of the MIG, he is not entitled to the treatment plans in dispute, nor interest.

ANALYSIS

The Minor Injury Guideline ("MIG")

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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." An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

6The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant argues that he suffers from permanent and serious physical and psychological impairments that warrant removal from the MIG. Specifically, he claims to suffer from chronic pain and an adjustment disorder with mixed anxiety and depressed mood, conditions that are not defined as minor injuries in the Schedule. He relies on the following evidence:

• the provincial motor vehicle accident report from July 27, 2018;
• clinical notes and records ("CNRs") from the Scarborough Hospital emergency department dated July 28, 2018;
• two Disability Certificates/OCF-3s, both completed by Dr. Dominic Minnella, chiropractor, of the Toronto Healthcare Clinic Inc., dated August 3, 2018 and December 19, 2018;
• CNRs from the applicant's family physician, Dr. B. Ahmed, of the Taibu Community Health Centre;
• an s. 25 psychological assessment report completed by Helen Ilios, registered psychotherapist, under the supervision of Dr. Andrew Shaul, psychologist, dated January 22, 2019; and
• the treatment plans/OCF-18s in dispute.

7The respondent counters that the applicant has not provided sufficient evidence to demonstrate that he suffered either physical or psychological impairments as a result of the accident that would necessitate his removal from the MIG. Travelers relies primarily on the following evidence:

• two s. 44 insurer's examination ("IE") physiatry assessment reports completed by Dr. Steven Kent Baker, physiatrist, dated March 28, 2019 and November 6, 2020;
• two s. 44 IE psychological assessment reports completed by Dr. Arnold Rubenstein, psychologist, dated December 18, 2018 and April 11, 2018; and
• a social media report detailing the applicant's online activity, completed by W3 Intelligence Research Group Inc. dated August 13, 2022.

Has the applicant sustained injuries or a psychological impairment warranting removal from the MIG?

8I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule, or from a psychological impairment that would warrant treatment outside of the MIG. Correspondingly, he remains within the MIG.

9The applicant's claims to suffering chronic pain as a result of the accident are not substantiated by the evidence. He sought little medical attention for his injuries following the accident. The applicant attended the Scarborough Hospital emergency room on the day after the accident, where he was diagnosed with "post MVC stress" and prescribed five tablets of Ativan to deal with anxiety over seeing children crying at the scene. Hospital records note that the applicant complained about neck swelling and pain, although no diagnostic testing was ordered, no referrals were made to physicians, and no prescriptions were provided for additional medication. The applicant's treatment immediately post-accident does not indicate that he suffered a significant physical injury.

10The applicant had just two post-accident appointments with his family physician, Dr. Bedri Usmael Ahmed, in two years. The first came more than 18 months after the accident, on January 16, 2020, and the second almost a full two years after the accident, on June 1, 2020. Moreover, the accident is not cited in Dr. Ahmed's records from either visit. CNRs from the January 16, 2020 appointment record the applicant complaining of "back pain" that had been increasing in the past two years, but the accident is not mentioned. Further, x-rays ordered as a result of this appointment due to "chronic back pain" resulted in a report dated January 28, 2020 that revealed mild degenerative disc disease unrelated to the accident. There is no indication that the accident played any role in exacerbating this condition or that it impeded the applicant's recovery within the MIG. In all, I find nothing here to support a claim of chronic pain as a result of the accident.

11All that the applicant submits to support his claim of chronic pain is an extensive treatment record from the Toronto Healthcare Clinic Inc. and the OCF-3 dated December 19, 2018, which I find to have limited evidentiary value. I accept that the applicant has received a significant amount of physical therapy, but this does not substantiate claims to chronic pain as a result of the accident. The December 19, 2018 OCF-3 lists nothing but soft-tissue lumbar/cervical/thoracic spine and shoulder/elbow strain and sprain injuries, all of which can be found within the MIG definition of minor injuries. The word "chronic" has been attached to all of the injuries described in this OCF-3, but this word alone does not make for a diagnosis of chronic pain. At any rate, these treatment records and the OCF-3 have no objective medical support, so I assign them minimal weight.

12I assign significant weight to the physiatry IE reports of Dr. Baker, as they are the most comprehensive evidence before me that addresses the applicant's claims of chronic pain. In both assessments, Dr. Baker found that the applicant had suffered physical injuries that were predominantly minor in nature as defined by the Schedule, and that the applicant had reached maximal medical recovery within the MIG. These conclusions seem in accordance with the other medical evidence, so I see no reason to doubt them.

13I am similarly unpersuaded by the applicant's claim to suffer from a psychological impairment, largely because I have reservations about the accuracy of the psychological assessment report completed by Ms. Ilios and Dr. Shaul. While Ms. Ilios and Dr. Shaul diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood and a vehicular phobia, these conclusions seem to have been founded almost entirely on the self-reporting of the applicant, which I find insufficient in the absence of supportive, objective medical evidence.

14I prefer the IE psychological report of Dr. Rubenstein. He tested for veracity, unlike Ms. Ilios, and determined that the applicant was unreliable in his self-reporting due to symptom amplification. This is more in line with the objective medical evidence, or the lack of same, as well as the evidence provided in the W3 Intelligence social media report submitted by the respondent. The applicant's claims to experiencing chronic pain with an accompanying functional impairment and psychological impairment are contradicted by this report, which consists of some 134 videos broadcast live to the applicant's Facebook account and another 183 videos posted to his TikTok account, all over a period of time from September 2018 to July 2022. Although I will not detail all of the activities shown in these videos, I will summarize them by noting that the applicant is depicted energetically and enthusiastically engaging in life during a time when he claims to have been impaired by chronic pain, feelings of depression and anxiety, and a vehicular phobia. He is shown dancing; engaging in strenuous physical activity; vacationing abroad; and enjoying both driving and riding in vehicles. All of this activity undermines the applicant's accounts of chronic pain and tells a very different story of his lifestyle and mood by comparison with what he reported to the psychological assessors.

15Accordingly, I find that the applicant has not met his burden and demonstrated that he suffers from either physical injuries or a psychological impairment that would warrant his removal from the MIG.

The Treatment Plans

16As the applicant has been found to remain within the MIG, and as all of the treatment plans in dispute propose treatment outside of the MIG, it follows that he is not entitled to these plans, or interest.

ORDER

17The application is dismissed and I find that:

i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. As the applicant remains within the MIG, and as all of the treatment plans in dispute propose treatment outside of the MIG, he is not entitled to these plans, or interest.