Citation: Sementsov v. Belair, 2023 ONLAT 21-013070/AABS

Licence Appeal Tribunal File Number: 21-013070/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:

Deniel Sementsov

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Anthea Chan, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Deniel Sementsov, the applicant, was involved in an automobile accident on December 10, 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, Belair Insurance Company, Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

New treatment plan for consideration

2The parties’ consent to adding a new treatment plan for the Tribunal’s consideration, as outlined in paragraph [6] ii.

Page limit of the applicant’s submissions

3The respondent submits that the Tribunal should not consider the applicant’s submissions beyond page 10. The September 12, 2022, Case Conference Report and Order (“CCRO”) required submissions and evidence to be 10 pages in length for both parties, exclusive of evidence and case law. I note that the applicant’s submissions are 12 pages. The applicant did not make submissions in reply to respond to the preliminary issue.

4I agree with the respondent that the applicant has exceeded the page limit set out in the CCRO by two pages, however the applicant has not provided any submissions as to the prejudice suffered as a result of this breach. In addition, I note that the CCRO contains the standard clause that submissions that exceed the page limits may not be considered. As a result of the permissive word “may”, I am not bound by the page limits as set forth in the CCRO.

5When weighing procedural fairness and potential prejudice, I find that the scales tip in favour of the applicant. The applicant would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded, as striking the last two pages would prevent the applicant from addressing the issue of an award?. As such, I will consider all of the applicant’s written submissions in rendering this decision.

ISSUES

6The following issues are to be decided:

i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $1,476.92 for physiotherapy services proposed by Health Pro Wellness in a treatment plan (“OCF-18”) dated January 17, 2022?

iii. Is the applicant entitled to $2,115.38 for physiotherapy services proposed by Health Pro Wellness in an OCF-18 dated January 4, 2021?

iv. Is the applicant entitled to $2,200.00 for a psychological examination proposed by Health Pro Wellness in an OCF-18 dated August 16, 2021?

v. Is the applicant entitled to $1,928.20 for physiotherapy services proposed by Health Pro Wellness in an OCF-18 dated September 2, 2021?

vi. Is the respondent liable to pay an award under s.10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

7The application is dismissed, and I find that:

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

ii. The OCF-18s in dispute are not payable; and

iii. The applicant is not entitled to interest or an award.

ANALYSIS

APPLICABILTY OF THE MINOR INJURY GUIDELINE (“MIG”)

8MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

10An applicant may receive payment for treatment beyond the $3,500.00 limit under s. 18(2) if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

11It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant has reached the maximum payable under the MIG.

Does the applicant suffer physical injuries that warrant removal from the MIG?

12I find that the applicant has not provided me with persuasive evidence to demonstrate that his physical injuries justify removal from the MIG.

13The clinical notes and records (“CNRs”) of Dr. Arshad Muhammad, family physician, between the date of the accident and October 17, 2022 make no reference to the accident or related injuries sustained. The applicant submits that he does not have a family physician, however I note that the applicant visited family physician Dr. Muhammad regularly between 2018 and 2022. Mr. Rob Tarulli, chiropractor, completed a Disability Certificate (“OCF-3”) dated March 4, 2020, listing the applicant’s accident-related injuries as sprain and strains. Dr. Charanjit Sandu, internal medicine physician, completed a s. 44 Physician Assessment Report, dated July 20, 2022, diagnosed the applicant with sprain and strains, and provided that these injuries would fall within the scope of the MIG.

14The applicant has not produced any other medical evidence to demonstrate that his physical injuries warrant removal from the MIG. For these reasons, I find that the applicant has not met his onus in providing on a balance of probabilities that his physical injuries do not fit within the minor injury definition and therefore subject to the MIG.

Does the applicant have pre-existing injuries that warrant removal from the MIG?

15I find that the applicant has not provided me with persuasive evidence to demonstrate that his pre-existing injuries justify removal from the MIG.

16The applicant references that he suffers from a pre-existing learning disability attention deficit disorder (“ADD”) that was aggravated and exacerbated by the accident. The applicant relies on the OCF-3 completed by Mr. Tarulli, that indicates the accident negatively interfered with his daily life and his ability to return to school. The CNRs of Dr. Muhammad opined that the applicant’s ADD symptoms were worsening but makes no reference to the accident. The respondent relies on the July 20, 2022, report completed by Dr. Sandu that opined that the applicant does not have any pre-existing conditions that would warrant treatment beyond the MIG.

17I am persuaded by the medical opinion of Dr. Sandu over the statements of Mr. Tarulli and find that the applicant did not direct me to a medical opinion or compelling evidence stating that his recovery from the minor physical impairments sustained in the accident is prevented by this pre-existing condition if he is kept in the MIG.

18For these reasons, I find that the applicant did not persuade me that it would prevent maximal medical recovery if he was subject to the MIG.

Does the applicant suffer psychological injuries that warrant removal from the MIG?

19I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.

20An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

21In order to be removed from the MIG due to psychological impairments, the applicant must show that they have an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

22The applicant submits that he continued to suffer from ongoing stress and anxiety caused by the accident. The applicant relies on the psychological pre-screening, conducted by Dr. Fahimeh Aghamohseni, psychologist, dated January 7, 2021. The applicant self reported feelings of anxiety, nervousness and frustration at the accident. Dr. Aghamohseni concluded that the applicant presents himself as an individual in need of psychological assistance outside of the MIG.

23The respondent submits that Dr. Aghamohseni’s pre-screening did not provide a diagnosis of the applicant. The respondent relies on the s. 44 psychological assessment report of Dr. Neil Weinberg, dated April 12, 2022. Dr. Weinberg opined that the applicant does not suffer from a psychological impairment as a result of the accident.

24In reviewing the evidence, I find Dr. Aghamohseni’s pre-screening to be of little evidentiary value, as it does not describe psychological concern and relies on self-reporting. I am persuaded by findings of Dr. Weinberg, which is consistent with the lack of psychological impairment references or diagnosis in Dr. Muhammad’s CNRs between 2019-2022. I find that the applicant underwent a psychological pre-screening, various appointments with a family physician, and a psychological assessment, all of which did not identify psychological impairments caused by the accident.

Does the applicant have chronic pain that warrants removal from the MIG?

25I find that the applicant has not provided me with persuasive evidence to demonstrate that he has chronic pain that warrants removal from the MIG.

26For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide evidence that his accident-related injuries and/or pain have had a detrimental impact on his functionality.

27The applicant relies on Mr. Tarulli’s OCF-3 which provides that the minor physical impairments sustained in the accident prevents the applicant from carrying on a normal life, including an inability to perform housekeeping tasks, and return to carpentry studies. The respondent relies on the report of Dr. Sandu that all of the injuries of the applicant are minor. The respondent submits that the applicant has not been diagnosed with myofascial pain syndrome or features of chronic pain syndrome by a medical doctor. Furthermore, the applicant has not been assessed by or referred to a physiatrist or any other pain specialist regarding chronic pain or pain symptoms.

28I am not persuaded by the opinion of Mr. Tarulli, a chiropractor, to diagnose the applicant with an inability to carry on normal life. I find that the CNRs of Dr. Mohammad reveal the applicant did not identify any chronic pain impairments caused by the accident or refer the applicant to a specialist. Furthermore, I find that the applicant has not been diagnosed with chronic pain syndrome by any medical physician. I also find that the medical evidence submitted by the applicant reveals minor physical impairments, and there is no compelling medical evidence that the applicant suffers from severe and continuous pain beyond mere sequelae.

29For the above reasons, the applicant has not met his onus to prove on a balance of probabilities that his accident-related impairments require treatment beyond the MIG.

30As the applicant remains within the MIG and its $3,500.00 limit on treatment, he is not entitled to the OCF-18s in dispute as the MIG limit has been exhausted.

INTEREST AND AWARD

31Given that no benefits are overdue, the applicant is not entitled to interest or an award.

ORDER

32The application is dismissed, and I find that:

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

ii. The OCF-18s in dispute are not payable; and

iii. The applicant is not entitled to interest or an award.