Lukianchuk v. Co-operators General Insurance Company, 2024 CanLII 15901

Citation: Lukianchuk v. The Co-operators, 2024 ONLAT 22-003463/AABS

Licence Appeal Tribunal File Number: 22-003463/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:

Sviatoslav Lukianchuk

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Dina Mejalli-Willis

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sviatoslav Lukianchuk, the applicant, was involved in an automobile accident on February 12, 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, Co-operators, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES IN DISPUTE

2The issues in dispute are:

i. Are the applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit?

ii. Is the applicant entitled to $3,865.52 for psychological services proposed by Hydroactive Aquatherapy & Rehabilitation Inc. in a treatment plan submitted on May 5, 2020?

iii. Is the applicant entitled to $8,072.50 for a chronic pain treatment program proposed by Hydroactive Aquatherapy & Rehabilitation Inc. in a treatment plan submitted on August 27, 2020?

iv. Is the applicant entitled to $2,260.00 for the cost of a chronic pain assessment proposed by Hydroactive Aquatherapy & Rehabilitation Inc. in a treatment plan submitted on April 15, 2020?

v. Is the applicant entitled to $2,655.00 for the cost of a psychological assessment proposed by Hydroactive Aquatherapy & Rehabilitation Inc. in a treatment plan submitted on April 9, 2020?

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?

3The Case Conference Report and Order ("CCRO") dated February 21, 2023 required the parties to identify in their submissions any amounts remaining in the MIG. The respondent states that the applicant has been approved for treatment up to the MIG limits. The applicant does not challenge this submission. As such, I find that the MIG limits have been exhausted.

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 in the MIG and its $3,500.00 limit on treatment.

ii. The applicant is not entitled to the treatment plans listed above at paragraph 2 (ii) to (v), nor interest.

iii. The respondent is not liable to pay an award.

ANALYSIS

The Applicant remains within the MIG

5I find that the applicant has failed to demonstrate, on a balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.

6Section 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 predominately 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 sequela to such injury."

7An insured person may be removed from the MIG if it can be established that their accident-related injuries fall outside the MIG. They can also be removed from the MIG under section 18(2) of the Schedule, if there is compelling evidence that the insured person has a documented pre-existing medical condition that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subjected to the $3,500.00 limit.

8The Tribunal has, in prior cases, determined that chronic pain syndrome, chronic pain with functional impairment or a psychological condition remove an insured person from the MIG.

9The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG. In this matter, the applicant argues that he suffers from chronic pain with functional impairment and a psychological impairment as a direct result of the accident that warrant removal from the MIG.

10The respondent argues that the applicant has failed to provide compelling medical evidence to prove that his injuries fall outside of the MIG as the evidence does not support the existence of any chronic pain complaints or any psychological impairment as a result of the accident.

11I agree with the respondent. The applicant has not produced objective medical evidence to substantiate his claims to be removed from the MIG.

Chronic Pain with functional impairment

12I find that the medical records of the applicant do not objectively support that he suffers from chronic pain syndrome or has chronic pain with resulting functional impairment to warrant removal from the MIG.

13The medical records are slim at best. They confirm that the applicant only treated with a General Physician, Dr. Hamideh once since the accident and the attendance was related to back pain after getting up from a chair on April 11, 2019. There is no mention of the accident in Dr. Hamideh's clinical notes despite the applicant's claim that the accident is noted in these records and that the complaint of back pain was because of the accident. The remainder of the medical evidence makes no mention of chronic pain complaints and do not contain any referrals to specialists, diagnostic imaging or prescriptions for medication to treat any accident-related injuries.

14I also give the report of Dr. Igor Wilderman dated April 15, 2020, which the applicant relies on in support of his chronic pain diagnosis, limited weight as it is inconsistent and based only on subjective reporting by the applicant. The only medical documentation reviewed by Dr. Wilderman in preparing his report and coming to his conclusions is the OCF-3 completed by a chiropractor, the IE assessments of Dr. Boucher and two treatment plans.

15The applicant acknowledged to Dr. Wilderman that his pain, at most, is at a 3-5 out of 10 in his low back, at a 3/10 in his neck, at a 4/10 in his left shoulder and at a 5/10 for his headaches. Dr. Wilderman found the applicant to not qualify for a fibromyalgia diagnosis, to have returned to full time work, and able to complete most housekeeping tasks independently. The applicant was also administered the General Pain Disability Index questionnaire to assess the degree to which his daily activities are affected by his chronic pain. He registered a total of 13 out of 60 points, which demonstrates a mild impairment. I find these pain complaints and level of work and home activities to be inconsistent with Dr. Wilderman's finding of chronic pain syndrome and serious functional limitations.

16Rather, the evidence demonstrates that the applicant that did not seek medical attention for over three weeks post accident, is working full time in the construction industry framing homes five days a week and has pursued very little medical treatment in the four years post accident, despite the recommendation of the IE assessor, Dr Boucher and Dr. Wilderman that he be seen for his left rotator cuff pathology to rule out a rotator cuff tear. He also drives himself from Toronto to Muskoka and back weekly to attend work. The evidence does not represent a person with serious functional limitations.

17In all, there is insufficient evidence to support the applicant's claim of chronic pain with functional limitations to warrant taking him out of the MIG on that basis.

Psychological impairment

18I also find that the applicant has not provided sufficient evidence to demonstrate that his psychological impairments justify removal from the MIG.

19To be removed from the MIG as a result of a psychological impairment, the applicant must show that he has a psychological impairment that is more than just psychological symptoms or sequelae of a minor injury.

20The applicant relies on the report of Psychologist, Dr. Waxer dated April 9, 2020, however, I do not find this report to be compelling nor consistent with the applicant's claims. Dr. Waxer diagnoses the applicant with somatic symptom disorder with predominant pain: moderate, chronic adjustment disorder with mixed disturbance of emotions and conduct, and specific phobia: situational type vehicular. He also finds that he suffers from substantial psychological impairment that interferes with his return to work and pre-accident activities. However, these conclusions are not corroborated by objective medical evidence and are based entirely on the subjective self-reporting of the applicant.

21Dr. Waxer did not review any medical documentation, let alone any documentation that demonstrates that the applicant was experiencing any psychological concerns after the accident. In fact, the applicant acknowledges in his interview with Dr. Waxer that he has returned to work, has not received any warnings or cautions from his employer, that he is socializing less but that it is due to him working in Muskoka and not because of the accident, that he has no flashbacks of the accident and that he does not take any psychiatric medication. Further, the majority of the psychometric testing completed by Dr. Waxer scored within the normal, mild or average range, which is not indicative of a substantial psychological impairment that poses a barrier to return to work and pre-collision activities.

22For the above reasons, the applicant has not met his onus of proving, on a balance of probabilities that he sustained a psychological impairment as a result of the accident that warrants removal from the MIG.

OCF-18s in dispute

23Having found that the applicant sustained a minor injury as a result of the accident, and since the MIG limits have been exhausted, it follows that he is not entitled to the OCF-18s in dispute, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.

Award

24Given there are no benefits owed or payments outstanding, the applicant is not entitled to an award under s. 10 of Reg. 664.

Interest

25Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

26The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

27The applicant is not entitled to the disputed OCF-18s.

28The applicant is not entitled to an award under Regulation 664.

29The applicant is not entitled to interest pursuant to section 51 of the Schedule.