Citation and Parties

Citation: Iagodkine v. TD Insurance Meloche Monnex, 2024 ONLAT 22-001372/AABS

Licence Appeal Tribunal File Number: 22-001372/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:

Daniel Iagodkine

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By way of written submissions

OVERVIEW

1Daniel Iagodkine, the applicant, was involved in an automobile accident on January 202, 2020, 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 TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The 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 the treatment plans/OCF-18 ("plan") proposed by Downsview Healthcare Inc. as follows:

(a) $375.12 ($2,575.12 less $2,200.00 approved) for physiotherapy services dated January 27, 2020 and denied February 13, 2020; and

(b) $13,082.04 for chronic pain treatment program dated July 26, 2021 and denied August 13, 2021; and

(c) $2,200.00 for psychological services dated September 30, 2021 and denied October 18, 2021?

iii. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Downsview Healthcare Inc. in a treatment plan dated September 30, 2021 and denied October 18, 2021?

iv. 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?

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

RESULT

3I find that:

i. The applicant's injuries are predominately minor and therefore subject to the treatment within the $3500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable;

iii. The applicant is not entitled to an award; and

iv. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline ("MIG")

4The MIG 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."

5Section 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.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident 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.

7It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits that he suffers from a psychological impairment and chronic pain. The respondent submits that the applicant has failed to establish that his injuries are not predominantly minor and that they can be treated within the confines of the MIG.

The applicant does not suffer from a psychological impairment that warrants removal from the MIG

8I am not persuaded that the applicant should be removed from the MIG based on a psychological impairment.

9An 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.

10To be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

11The applicant submits that he has sustained psychological impairments as a result of the accident. In support of his claim, the applicant relies on the psychological report dated May 10, 2022, completed by Ms. Helen Illios, psychotherapist, and supervised by Dr. Jacqueline Brunshaw, psychologist. The applicant raised concerns of anxiety, irritability and frustration. Ms. Illios diagnosed the applicant with features of adjustment disorder with anxiety, and specific phobia, situational type (vehicular: driver, passenger, pedestrian), moderate level of severity as a result of the accident.

12The respondent submits that the applicant did not sustain a psychological impairment as a result of the accident. The respondent relies on the absence of any reference to any accident-related psychological impairment in the clinical notes and records ("CNRs") of Dr. Oleg Livshin, family physician. The respondent highlights that it was at a disadvantage to provide contrary medical evidence as the applicant did not attend nor provide a reason for non-attendance for a section 44 psychological assessment dated December 10, 2020. Lastly, the respondent submits that the psychological report by Ms. Illios did not review any medical documentation prior to diagnosing the applicant. The assessment was a combination of an interview, multiple psychological self-report questionnaires and the review of the OCF-3 and OCF-18 completed by Mr. Oleksandr Pivtoran, chiropractor dated July 13, 2021, and January 27, 2020, and the chronic pain assessment completed by Dr. Grigory Karmy, general practioner, dated May 17, 2021.

13After reviewing the submissions, I am not satisfied that the applicant presents persuasive medical evidence that he suffers from a psychological impairment that would remove him from the MIG. The psychological report relied by the applicant was completed two years after the accident, and during that time there had been no evidence of complaints of accident-related psychological injuries in the CNRs of his family physician, despite having appointments and raising other accident-related concerns. The psychological report was completed by Ms. Illios,psychotherapist. A psychotherapist is not qualified to diagnose psychological disorders. Ms. Illios was supervised by a psychologist, however the nature of the supervising relationship was not mde clear in the report, as such I cannot determine whether Dr. Brunshaw had enough involvement in the assessment to support the findings. Lastly, no medical documentation was reviewed prior to a diagnosis being rendered. While the applicant did not attend the s. 44 assessment and the respondent did not provide any medical evidence, the onus is on the applicant to demonstrate a psychological impairment sustained as a result of the accident.

14I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a psychological impairment resulting from the accident that would warrant his removal from the MIG.

The applicant does not suffer from chronic pain with functional impairment that warrants removal from the MIG

15I am not persuaded that the applicant suffers from chronic pain with functional impairment that warrants treatment beyond the MIG.

16For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant's functionality is impaired and that the chronic pain is the cause of the disability.

17The applicant relies on the chronic pain assessment, dated May 17, 2021, completed by Dr. Grigory Karmy. Dr. Karmy diagnosed the applicant with chronic pain syndrome in the neck, shoulder and back as a result of the accident with functional impairment. Dr. Karmy's assessment refenced the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) ("AMA Guides") and opined that the applicant met three out of the six criteria to establish the diagnosis of chronic pain syndrome. The applicant also relies on the OCF-3 of Mr. Pivtoran dated January 31, 2020, and July 13, 2021, which indicate that the applicant suffers from sprain and strain injuries in the neck, shoulder and back.

18The respondent submits that the applicant did not sustain chronic pain with functional impairment as a result of the accident. The respondent relies on the absence of any reference to any accident-related chronic pain complaints, testing, prescriptions, or referrals in the CNRs of any medical physician including Dr. Livshin. The respondent highlights that the applicant only visited Dr. Livshin twice for accident-related injuries on January 23, 2020, and February 20, 2020, and at both appointments the injuries were diagnosed to be soft-tissue injuries. Furthermore, the applicant was confirmed to have returned to work as a personal trainer in a letter from the applicant's counsel dated May 15, 2020.

19Both the applicant and the respondent make submissions based on the AMA Guides. The AMA Guides are not binding on the Tribunal. However, several However, several of the Tribunal's decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when three or more of the six criteria are satisfied. The respondent submits, and I agree, that the evidence does not establish a dependence or overuse of prescription drugs or healthcare providers, as evidenced by the fact that the applicant only sought medical care rom Dr. Livshin twice, the applicant does not identify any physical deconditioning which is supported by his return to work as a personal trainer and his return to playing sports, the evidence does not show withdrawal from social milieu or other social contracts. I am persuaded that the applicant does not meet three of the six AMA Guides criteria.

20The totality of the medical evidence of Dr. Livshin following the accident suggests that the applicant sustained soft tissue injuries. There is no evidence of medical referrals or prescribed medication. The OCF-3 completed by Mr. Pivtoran also opines that the applicant sustained sprain and strain injuries. Even if I were to accept Dr. Karmy's diagnosis of chronic pain syndrome, which it as odds with the remainder of the medical evidence, I am not persuaded that the applicant suffers a functional impairment. I find that there is no persuasive evidence of any impairment on the applicant's functionality. The applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality. More is required to establish to what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant's functionality is impaired and that the chronic pain is the cause of the disability. Rather, the evidence provided demonstrates that the applicant maintains an active lifestyle in sports and working as a personal trainer.

21For all the above reasons, the applicant has not met his onus in providing on a balance of probabilities that his chronic pain impacts his functionality and does not fit within the MIG.

22As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.

Award

23The applicant seeks an award under section 10 of Regulation 664. I find that no benefits have been unreasonably withheld or delayed, and therefore no award is payable.

Interest

24As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

25For the reasons outlined above, I find that:

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

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to an award;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.