Citation: Cvetkovski v. Belair, 2024 ONLAT 21-009175/AABS

Licence Appeal Tribunal File Number: 21-009175/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:

Petar Cvetkovski

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Loreto Scarola, Paralegal

For the Respondent:

Michael Courneyea, Counsel

Written Hearing:

Heard by way of written submissions

OVERVIEW

1Mr. Petar Cvetkovski (the “applicant”) was involved in an automobile accident on August 30, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Belair Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

1The 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 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from September 27, 2020 to August 30, 2022?

iii. Is the applicant entitled to $1,980.00 for chiropractic services from Focus Physiotherapy Inc proposed by Wojciech Kilar, physiotherapist, in a treatment plan (OCF-18) dated April 7, 2021?

iv. Is the applicant entitled to $2,404.38 for a psychological counselling at Pilowsky Psychology Professional Corporation proposed in a treatment plan (OCF-18) dated April 7, 2021?

v. Is the applicant entitled to $2,460.00 for an orthopaedic assessment at proposed by Dr. Ogilvie -Harris in a treatment plan (OCF-18) dated June 3, 2021?

vi. Is the respondent liable to pay an award under s.10 of O. Reg. 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

2I find that the applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

3As the applicant remains subject to the MIG limits, he is not entitled to the treatment plans in dispute.

4The applicant has failed to prove on a balance of probabilities that he has a complete inability to carry on normal life and, as a result, he is not entitled to NEBs.

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.”

6An 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 condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

7The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.

8In this instance, the applicant submits that he should be removed from due to a pre-existing condition, chronic pain with a functional impairment, and/or a psychological condition.

9I find that applicant has not met his onus and demonstrated on a balance of probabilities that he suffers from a pre-existing condition that would preclude his recovery in MIG, suffers from chronic pain with a functional impairment or a psychological condition that warrants his removal from MIG.

Does the applicant suffer from a pre-existing condition?

10I find that the applicant has not proven on a balance of probabilities that he suffers from a documented pre-existing condition of myofascial pain and psychological condition that would preclude his recovery in MIG.

11The applicant submits that he suffers from a documented pre-existing injury that would preclude his recovery in MIG. The applicant relies on clinical notes and records (CNRs) from his family doctor, Dr. Trigazis, psychological reports of Dr. Pilowsky, a psychologist, a s. 44 report for Dr. Salerno, C.Psych and CNRs from Focus Physiotherapy.

12The respondent submits that the applicant has not provided compelling medical evidence that his pre-existing injury would preclude his maximal recovery if he were confined to the MIG. The respondent also relies on the CNRs of Dr. Trigazis, Dr. Pilowsky’s psychological report, an orthopaedic report from Dr. Ogilvie-Harris, an s.44 psychological assessment by Dr. Saunders, and an IE general practitioner assessment report by Dr. Mula.

13The CNRs of Dr. Trigazis show that after the applicant reported pain issues following his earlier motor vehicle accident in 2016. The applicant reported of pain issues, included receiving prescriptions that were aimed at pain relief and anxiety related symptoms. The applicant’s last visit to Dr. Trigazis prior to the subject motor vehicle accident was on July 28, 2019. Due to the gap between this visit and the accident, I am unable to ascertain if the applicant was still suffering from pain related or psychological related at the time of the subject accident.

14A psychological report, by Dr. Pilowsky, psychologist was completed on April 28, 2021. In this report, the Dr. Pilowsky notes, “At the time of the subject accident, Mr. Cvetkovski’s psychological qualms relative to the 2016 accident had resolved, and he was no longer taking anxiolytic.” She also reports, “Mr. Cvetkovski had fully recovered from his 2016 accident and had resumed his usual functioning.” The doctor’s reporting makes it clear that the applicant’s physical and psychological issues from the 2016 accident had resolved.

15An orthopaedic assessment was completed by Dr. Ogilvie-Harris, an orthopaedic surgeon, on July 27, 2021. Dr. Ogilvie-Harris reviewed the applicant’s pre-accident activities and noted that he was active in household chores and walked a lot, at times “an hour or more”. Later in the report, Dr. Ogilvie-Harris also noted that the applicant had well documented pre-existing conditions; namely spinal and psychological impairments. However, the doctor did not address the apparent contradiction with the applicant’s apparent good health and level of activity, and his pre-existing conditions.

16An IE psychological assessment report was completed by Dr. Saunders, psychologist, on April 30, 2021. In this assessment, the applicant reported to the doctor that he was responsible for household chores, including snow-clearing, grass cutting, laundry, and shopping. Later in the report, the doctor notes in past medical history, “he reports that at the time of the subject accident, these symptoms were resolved.” The symptoms were the applicant’s psychological issues suffered in the 2016 motor vehicle accident.

17An IE general practitioner assessment report was completed my Dr. Mula on January 22, 2021. Dr Mula notes in reference to that applicant prior medical history, “he was involved in a prior motor vehicle accident with no remaining issues at the time of the subject motor vehicle accident. He (the applicant) states he had no pre-existing pains at the time of the subject motor vehicle accident. Later in the report, the doctor notes from the applicant’s self reporting, “prior to the subject motor vehicle accident, his household responsibilities reportedly included, shopping, cooking, cleaning, laundry, vacuuming, garbage removal, gardening, raking leaves, mowing the lawn, shoveling sone, and performing home repairs.” Further in the report, the doctor notes, “he entertained at home once or twice a month, he did home exercises five to six times a week, and took frequent walks and also biked.”

18The applicant has claimed pre-existing conditions from an accident in 2016 including myofascial pain and a psychological condition. However, most medical evidence indicates that the applicant’s 2016 accident-related injuries had resolved by the time of the subject accident. Moreover, the applicant has not made submissions or provided sufficient evidence to establish that these pre-existing conditions would prevent his maximal recovery if they are confined to the MIG.

19The evidence does demonstrate that post the applicant’s 2016 motor vehicle accident that he suffered both physical and psychological issues. However, Dr. Pilowsky notes, “At the time of the subject accident, Mr. Cvetkovski’s psychological qualms relative to the 2016 accident had resolved. This is corroborated by Dr. Ogilvie-Harris in his review of the applicant’s pre-accident activities noting the applicant was active in household chores and walked a lot, at times “an hour or more”. Further corroboration is provided by Dr. Saunders, noting in past medical history section of his report, “he reports that at the time of the subject accident, these symptoms were resolved”. Finally, Dr Mula notes in reference to that applicant prior medical history, “he was involved in a prior motor vehicle accident with no remaining issues at the time of the subject motor vehicle accident

20The applicant has not satisfied his onus to prove on a balance of probabilities that he suffers from a pre-existing condition that would preclude his maximal recovery if he were left in the MIG.

Does the applicant suffer from chronic pain?

21I find that the applicant that the applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment.

22The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

23The applicant submits that he suffers from chronic pain with a functional impairment due to the motor vehicle accident. The applicant relies on the CNRs of Dr. Trigazis, and an orthopaedic assessment by Dr. Ogilvie-Harris.

24The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that he suffers from chronic pain with a functional impairment. The respondent relies on the general practitioner assessment by Dr. Mula.

25Based on Dr. Trigazis‘ CNRs, although he used the term chronic pain in relation to the applicant’s condition prior to the accident, he did not do so after the accident. Further Dr. Trigazis’ CNRs accident notes indicate that the applicant’s presentation during his post accident visits did not support an ongoing diagnosis of pain. Although Dr. Trigazis renewed the applicant’s prescriptions, the did not note any concern regarding chronic.

26Although Dr. Ogilvie-Harris evidence strongly indicates the applicant has chronic pain, and that the applicant has functional limitations, it does not explain how the applicant’s functionality is limited. Additionally, Dr. Ogilvie-Harris’ assessment was limited because it was based on only a phone interview. Further, Dr. Ogilvie-Harris’ report ultimately doesn't speak to whether the applicant should be removed from the MIG based on chronic pain, but focuses on pre-existing condition. Similarly, Dr. Ogilvie-Harris ‘OCF-18 does not include that the applicant has chronic pain in the injury and sequala section nor does it in his additional comments section.

27The general practitioner assessment report was completed by Dr. Mula on January 22, 2021. This assessment was in-person and was a combination of clinical interview and physical evaluation. In the conclusion of his assessment, the doctor diagnosed the applicant with myofascial strain of the cervical spine, bilateral shoulder and upper extremities, thoracic spine and bilateral lower extremities, as well as tension headaches. Dr. Mula also notes, that based on the medical information available to him, that the applicant should be capable of resuming his normal life activities. The doctor went on to add “based on the medical information available to me, there is no consistent, compelling evidence of motor vehicle accident-related musculoskeletal impairment.” At no point in the assessment did Dr. Mula infer or diagnosis the applicant with chronic pain.

28Dr. Mula followed up with a paper assessment report on May 3, 2021. The doctor reviewed all the available medical information up to the point of this paper assessment and concluded that his initial assessment that the applicant suffer soft tissue injuries falling in MIG was still his diagnosis.

29Reviewing the evidence, I find that the applicant has not proven on a balance of probabilities that the injuries he suffered in the accident have led to chronic pain with a functional impairment. The report by Dr. Ogilvie-Harris does diagnosis the applicant with chronic pain but does not outline functional impairments. Also, Dr. Oglivie-Harris’s report is at odds with the CNRs of Dr. Trigazis and the assessment of Dr. Mula. In particular, the CNRs of Dr. Trigazis did use the term chronic pain after the applicant’s first accident, but Dr. Trigazis did not use the term after the second accident. This, combined with the fact that Dr. Ogilvie-Harris does not use the term chronic pain in his OCF-18 or additional notes to the OCF-18 in my determination.

30The applicant has not satisfied his onus to prove on a balance of probabilities that he suffers from chronic pain with a functional impairment due to the motor vehicle accident.

Does the applicant suffer from a psychological condition?

31I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition to warrant removal from MIG.

32The Tribunal has determined a psychological condition may warrant MIG removal.

33The applicant submits that he suffers from a psychological condition because of the motor vehicle accident. The applicant relies on a psychological report from Dr. Pilowsky.

34The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that he suffers a psychological condition. The respondent relies on a psychological assessment completed by Dr. Saunders.

35The psychological report was completed by Dr. Pilowsky on April 28, 2021. The assessment was completed via Zoom and was a combination of clinical interview and psychometric testing. During the clinical interview, the applicant shared his concerns that he will not recover from this second accident, that he feels like a burden on his family, and that he is moody. He also reported vehicular anxiety. The psychometric testing included:

i. Beck depression Inventory 2nd edition – the result was a severe level of depression;

ii. Beck Anxiety Inventory – the result was a severe level of anxiety;

iii. PSTD checklist – The result was a PTSD diagnosis;

iv. Pain Catastrophizing Scale – the result was an increased risk to develop a somatoform disorder and pain chronicity;

v. Pain Patient Profile – the result was an above average range for depression, anxiety, and somatization; and

vi. Miller Forensic Assessment of Symptoms Test – the result was not indicative of malingered symptomatology.

36Based on the clinical interview and testing, Dr. Pilowsky diagnosed the applicant with posttraumatic stress disorder, major depressive disorder, and somatic symptom disorder.

37A psychological assessment report was completed by Dr. Saunders, psychologist, on April 20, 2021. The assessment was in-person and was a combination of clinical interview and psychometric testing. During the clinical interview, the applicant stated that he has stopped participating in a lot of activities after the accident due to pain and characterized his mood as not good. The psychometric testing included:

i. Personality Assessment Inventory – the result showed that that the applicant attended appropriately and responded consistent to the test. It also showed that the applicant sees his life as severely disrupted by a variety of physical problems;

ii. Depression Adult Score – The result was a mild elevation in depressive symptoms; and

iii. Multi-Dimensional Anxiety – The result showed a normal to mild anxiety for physiological panic, social phobia, worry-fears, and negative affectivity.

38Based on the clinical interview and testing by Dr. Saunders, he diagnosed the applicant with mild elevation of symptoms that do not meet clinical criteria. As such, the doctor concluded that there was no evidence of a psychological condition.

39Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that the injuries he suffered in the accident have a psychological condition.

40I was led to this conclusion by the lack of compelling medical evidence that a psychological condition was present. The report by Dr. Pilowsky does diagnose the applicant with several psychological conditions, but this report is at odds with the assessment of Dr. Saunders. While Dr. Saunders does acknowledge there is some mild elevation in symptoms, he did not find that they rose to a clinical diagnosis. I was persuaded by Dr. Saunders assessment as it presented as a more objective diagnosis of the applicant’s current state.

41The applicant has not satisfied his onus to prove on a balance of probabilities that he suffers from a psychological condition due to the motor vehicle accident.

The Non-Earner Benefit (NEB)

42I find that the applicant is not entitled to an NEB because he has not proven that he suffers from a complete inability to carry on a normal life as a result of the accident.

43Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment because 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 the NEB entitlement test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which generally requires a comparison of the applicant’s pre-accident and post-accident activities.

44The applicant takes the position that he qualifies for the NEB from September 27, 2020, to August 30, 2022. He claims that the injuries sustained in the accident resulted in his suffering a complete inability to carry on a normal life. In support of his claim, the applicant relies on an OCF-3 submitted by Dharmin Patel, physiotherapist.

45The respondent argues that the applicant is not entitled to the NEB for any period, citing primarily that the applicant has not met his burden of proving that he suffers from a complete inability to carry on a normal life. In support of their claim the respondent relies upon two Insurer’s Exams: one from Mr. Kaplun, occupational therapist, completed on December 29, 2020, and one from Dr. Mula, a physician, completed on January 22, 2021.

46In Mr. Patel’s OCF-3 dated October 1, 2020, it states that the applicant is substantial unable to perform the housekeeping and home maintenance tasks, and has a complete inability to carry on a normal life, because the applicant can not sit, stand, or walk more than 10 minutes, and has disturbed sleep. This opinion by Mr. Patel relies on tying the applicant’s current condition at the time of creating the OCF-3 on the 2016 motor vehicle accident, and not injuries sustained in the second motor vehicle accident. In addition, I am not directed to how Mr. Patel derived his diagnosis of complete inability, as there is no indication of what testing or interviewing went into the diagnosis. I give less weight to Mr. Patel’s OCF-3 opinion because it is contradicted by the applicant’s reporting to other medical professionals as to his state of health at the time of the subject matter accident.

47An IE occupational therapy assessment report was created by Mr. Kaplun, an occupational therapist on December 29, 2020. This was an in-person assessment that included both a clinical interview and physical testing. Based on the interview and the physical testing, Mr. Kaplun concluded that the applicant does not suffer a complete inability to carry on a normal life. Mr. Kaplun does note that the applicant has become more sedentary since the motor vehicle accident due to discomfort, but through the testing, the opinion in most sections was that the applicant didn’t present any physical or cognitive limitation that would prevent him from doing them. Mr. Kaplun notes that a barrier to recovery at the current stage would be activity avoidance possibly due to a lack of understanding of hurt versus harm and/or fear of pain aggravation.

48An IE general practitioner’s report was created by Dr. Mula on January 22, 2021. This was an in-person examination that was a combination of clinical interview and physical examination. In the interview the applicant noted his limitations on his current activities of daily living, noting that he gets help on some personal hygiene. As well, the applicant noted a decreased ability to lift, carry, push, pull, bend, squat, and twist, and decreased ability to stand, walk, and sit for prolonged time. Dr. Mula noted suboptimal effort in spinal and shoulder range of motion testing. Dr. Mula concluded, “based on medical information available to me, the applicant should be capable of resuming his normal life activities.” He further noted that there is not musculoskeletal impartment that would continuously prevent the applicant form substantially all activities.

49Reviewing the evidence, I find that the applicant has not proven on a balance of probabilities that suffers a complete inability to carry on normal life.

50I was led to this conclusion by less weight being given to Mr. Patel’s OCF-3 opinion because it is contradicted by the applicant’s reporting to other medical professionals as to his state of health at the time of the subject matter accident. In contrast, the occupation therapy and general practitioner assessment, clearly outlined that while the applicant does consistently report reduction in his ability to carry on a normal life, neither could find a physical or cognitive reason he couldn’t.

51The applicant has not satisfied his onus to prove on a balance of probabilities that he suffers a complete inability to carry on a normal life, and as such is not entitled to NEB.

Conclusion

52For the reasons noted above, the applicant has not proven that he suffers from chronic pain with a functional impairment to warrant removal from MIG.

The Treatment Plans

53As I have found the applicant to remain within the MIG and is subject to its limits for treatment plans, and as the treatment plans in question are beyond the MIG limits remaining, the applicant is not entitled to payment for either plan.

Special Award

28As the applicant is not entitled to payment to the three treatment plans in question no special award under s.10 of O. Reg. 664 is due.

Interest

29As the applicant is not entitled to any payments no interest is due.

ORDER

30I find that:

i. The applicant remains subject to the MIG.

ii. The applicant is not entitled to payment for the disputed treatment plans.

iii. The applicant is not entitled to Non-Earner Benefits

iv. The applicant is not entitled to a payment of an award under s.10 of O. Reg. 664.

v. As nothing is owed, no interest is due.

vi. The application is dismissed.