Citation: Gulassarian v. Economical Insurance Company, 2024 ONLAT 21-012782/AABS

Licence Appeal Tribunal File Number: 21-012782/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:

Robert Gulassarian

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bonnie Oakes Charron

APPEARANCES:

For the Applicant:

Mike Pryce, Paralegal

For the Respondent:

Shalini M. Thomas, Counsel

HEARD: In Writing

OVERVIEW

1Robert Gulassarian, the applicant, was involved in an automobile accident on October 19, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3500.00 Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from April 2, 2020, and ongoing? The request was submitted November 19, 2019, and denied April 2, 2020.

iii. Is the applicant entitled to the following treatment plans/OCF-18s (“the plans”) recommended by Paramount Medical Assessments:

i. $2,593.76 for medical services in a plan submitted on August 6, 2020, and denied on December 21, 2020; and

ii. $2,474.49 for a psychological assessment proposed by Fahimeh Aghamohseni in a plan submitted March 6, 2020, and denied on March 13, 2020?

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

PROCEDURAL ISSUES

Exclusion of Evidence for Late Disclosure

3I find that the applicant contravened the Case Conference Report and Order (“CCRO) dated October 3, 2022, by relying on evidence that was not previously disclosed to the respondent by the production deadline.

4In its submissions, the respondent requested that some of the documents submitted by the applicant be excluded as evidence for the hearing as they were not served on the respondent by the deadline. The CCRO had established production deadlines, accepted by both parties on consent, for any documents to be relied upon at the hearing.

5The respondent submits that the applicant served new documentary evidence with its written submissions that were not previously disclosed. It argues that the late disclosure left it little time to evaluate the new evidence and respond in time for the hearing. As a result, the respondent requests that the following documentation submitted by the applicant be excluded from consideration for the hearing:

i. Dr. Iskander Clinical Notes and Records (“CNRs”) dated September 22, 2022 to February 23, 2023 (Tab 13 – duplicated at Tab 15); and

ii. OHIP summary dated July 15, 2022 to March 24, 2023 (Tab 20).

6It relies on the CCRO and the principles of procedural fairness, pointing me to Davoodabadi v Certas Direct Insurance Company, 2021 CanLII 111157 (ON LAT) and Lim v Economical Insurance Company, 2023 CanLII 15060 (ON LAT) wherein evidence was excluded on similar grounds.

7The applicant did not make any reply submissions to address this issue. As a result, there is no justification or explanation before me for the late disclosure. Failure to comply with the provisions of the CCRO hinders the parties’ ability to make full and fair submissions and compromises the Tribunal’s ability to fairly determine the issues before it. Further, Rule 9 of the Tribunal’s rules states that such a failure will preclude the impugned party from relying on the late evidence without the consent of the Tribunal, which in turn requires some explanation from the party. For these reasons, I grant the respondent’s request to exclude the documents set out in paragraph [4].

8Accordingly, Tabs 13, 15, and 20 of the applicant’s evidence are not admitted into evidence for this hearing.

Exclusion of Evidence for Failure to Reference any Particulars

9I find that the applicant failed to identify the relevant and specific areas in the evidence that supports his claims.

10In its submissions, the respondent argues that the applicant submitted tabbed documents as evidence while only referring broadly to the contents therein. It requests that I use my discretion to not review any of the applicant’s evidence that is not specifically referenced in his submissions. In support of its request, the respondent directs me to 17-001855 v Wawanesa Insurance Company, 2017 CanLII 76912 (ON LAT) and Berger v Aviva General Insurance Company, 2022 CanLII 119997 (ON LAT), wherein the neutral role of the Tribunal is outlined.

11The applicant did not make any reply submissions. As a result, there is no justification or explanation before me to explain the lack of references to the evidence in the applicant’s submissions. The onus is on the applicant to prove his case and he has not directed me to any particulars within the 28 Tabs of evidence submitted. It cannot be left to the adjudicator to make the case for the applicant. The impartial role of the decision-maker cannot be compromised.

12Therefore, I accept the respondent’s request to limit my review of the evidence to those documents mentioned by the applicant in his written submissions. For clarity, those tabs are as follows:

• TAB 1 – OCF-1

• TAB 2 – OCF-3

• TAB 3 – Motor Vehicle Report

• TAB 10 – Paramount Medical Psychological Assessment dated August 10, 2020

• TAB 11 – Dr. Iskander CNR dated October 19, 2016 to November 1, 2019

• TAB 18 – Mackenzie Health no updated records dated March 17, 2023

13Accordingly, the applicant’s evidence at Tabs 4-9, 12-17, and 19-28 are not admitted into evidence for this hearing.

RESULT

14The applicant has not demonstrated that his accident-related injuries justify removal from the MIG. He remains subject to the $3,500.00 limit.

15The applicant is not entitled to an IRB for the period in dispute.

16The applicant is not entitled to the treatment plans.

17No interest is payable.

ANALYSIS

The Minor Injury Guideline

18I find that the applicant’s injuries from the accident meet the definition of minor under the Schedule.

19Section 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 a minor injury. 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.”

20An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that before the accident, they have a documented pre-existing injury or condition. There must also be compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

21The applicant submits that his physical and psychological impairments from the accident fall outside of the MIG. He relies on a Disability Certificate/OCF-3 from PhysioMed North York (“PhysioMed”), medical evidence from Mackenzie Richmond Hill Hospital (“Mackenzie”), the clinical notes and records (“CNRs”) of his general practitioner, Dr. Nagi Iskander, and a psychological assessment by Dr. Fahimeh Aghamohseni of Paramount Medical Assessments.

22The respondent submits that the applicant has not provided any compelling medical evidence to prove his injuries fall outside of the MIG, highlighting that the applicant did not submit any of the OCF-18s in dispute into evidence. It relies on the reports of its three s. 44 assessors: kinesiologist Danny Monck (R. Kin), family medicine specialist Dr. Alisa Naiman, and Dr. Jonathan Siegel, psychologist.

Physical Impairments

23The applicant’s argument that his injuries fall outside of the MIG is not supported by the evidence. The CNRs of Dr. Iskander, the OCF-3 from PhysioMed, and the report of s. 44 assessor Dr. Naiman all confirm minor injuries as a result of the accident.

24All the injuries identified by Dr. Iskander and PhysioMed fall within the definition of minor under the Schedule. The applicant refers me to the CNRs of Dr. Iskander and the OCF-3 from PhysioMed. He visited Dr. Iskander at an appointment shortly after the accident on October 23, 2019. The CNR from this visit referenced both the accident and the applicant’s subsequent attendance at the hospital (where he was discharged after x-rays found no fractures). Dr. Iskander recorded neck pain, bruises, tenderness, and a small, lacerated area on the tongue, and concluded that his injuries were soft tissue in nature, with possible whiplash. Similar types of injuries were recorded on the OCF-3 from PhysioMed: contusion of hip, sprain and strain of the hip, sprain and strain of other and unspecified parts of the knee and tension-type headache.

25The respondent submits that the applicant has already recovered within the MIG. It points to the results of the applicant’s insurer’s examination (“IE”) with Dr. Naiman. In her report dated March 27, 2020, Dr. Naiman found that the applicant had no abnormalities of the spine as per imaging done on October 23, 2019, had no fractures, and no impairment in his functional range of motion. She concluded that he suffered only uncomplicated myofascial injuries and had already reached maximal medical recovery.

26Thus, Dr. Iskander, PhysioMed, and Dr. Naiman’s findings all support that the applicant suffered only minor injuries as a result of the accident. Consequently, the applicant has not demonstrated that his injuries warrant treatment outside of the MIG.

Pre-existing Medical Condition

27Although the applicant submits that he had a pre-existing psychological condition that prevents his recovery outside of the MIG, the claim is not supported by the evidence. The applicant points me to the CNRs of Dr. Iskander, his evidence from Mackenzie, and the s. 25 report of Dr. Aghamohseni.

28First, my review of the CNRs of Dr. Iskander identified no reference to a pre-existing psychological condition.

29Second, the applicant referred me to his evidence from Mackenzie with regard to a diagnosis. However, the submitted documentation from Mackenzie was an unrelated letter from the hospital’s Health Information Services department. Nonetheless, I was able to identify the diagnosis because the respondent provided the CNRs for the applicant’s in-patient stay at Mackenzie. The hospital records confirm that the applicant was admitted on July 3, 2020, for bizarre and aggressive behaviour. The discharge diagnosis on July 17, 2020, was possible cannabis induced psychosis with manic presentation, cannabis abuse, with bipolar spectrum disorder ruled out. Although I acknowledge the diagnosis, I did not find any reference to the subject accident in the hospital’s CNRs that would suggest a connection between the subject accident and the applicant’s pre- and post-accident psychological condition.

30Third, the applicant relies on a psychological assessment from Paramount Medical Assessments, conducted online and supervised by Dr. Aghamohseni, psychologist. Dr. Aghamohseni administered psychological tests and the results of these tests indicated that the applicant had symptoms of severe depression and mild anxiety, moderate to severe problems, and some symptoms of Posttraumatic Stress Disorder (“PTSD”). Dr. Aghamohseni recorded an inconsistency between the applicant’s responses to the testing compared to the information garnered through the interview, and suggested the disconnect could possibly be due to “cultural perception of mental health.” Despite this issue, she concluded that the applicant’s symptoms were consistent with diagnoses of:

i. Major Depressive Disorder, Single Episode, in the severe range, with anxious distress (“MDD”);

ii. Somatic Symptom Disorder, with predominant pain, in the persistent range, at moderate levels; and

iii. Specific Phobia, situational type, vehicular.

To address her preliminary findings, Dr. Aghamohseni proposed a plan for 12 weekly and/or bi-weekly psychotherapy sessions to help the applicant return to his pre-accident levels of emotional and psychological functioning.

31While I recognize the assessment resulted in a diagnosis and proposed treatment plan, Dr. Aghamohseni’s report does not establish any link between the applicant’s pre- and post-accident mental health that would prevent his recovery within the MIG. A pre-existing psychological condition is not among her list of possible barriers to recovery. Further, I give her report less weight because it relies heavily on the applicant’s self-reports. The assessor did not ask the applicant any questions about other facets of his life that could be affecting his mental health, such as relationships or his hospitalization at Mackenzie, but instead focused exclusively on the subject accident as the cause of any psychological difficulties.

32For its part, the respondent points to the findings of s. 44 assessors Drs. Naiman and Siegel, neither of whom make any connection between the applicant’s psychological issues and the subject accident. In his report of March 27, 2020, Dr. Naiman did not identify any symptoms of depression or anxiety, and measures for Depression, Anxiety, and Somatization were in the below average range.

33Likewise, Dr. Siegel conducted a psychological assessment with the applicant on December 3, 2020, and found that the applicant did not suffer from any psychological impairment as a direct result of the accident and did not have any pre-accident history of a mood disorder. Significantly, he reported that there was no pre-accident psychological condition that would prevent him from achieving maximum psychological recovery within the MIG. He added that any post-accident adjustment difficulties experienced by the applicant were minor.

34Thus, none of Drs. Iskander, Aghamohseni, Naiman, or Seigel cited any pre-existing psychological condition that would prevent the applicant’s recovery within the MIG. As a result, the applicant has not met his burden to prove he warrants treatment outside the MIG on account of a pre-existing medical condition.

Conclusion

35The applicant has not met his burden to prove that his injuries from the accident warrant treatment outside of the MIG on account of either his physical impairments or a pre-existing medical condition. The medical evidence indicates that the applicant suffered only minor injuries as a result of the accident. Further, none of the assessing physicians cited any pre-existing psychological condition that would prevent the applicant’s recovery if limited to the MIG.

Income Replacement Benefit

36I find that the applicant has failed to prove that he is entitled to an IRB for the period in dispute.

37To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

38The applicant did not submit any evidence of the essential tasks of his pre-accident employment to show that he now suffers from an inability to complete these same tasks. The respondent submits that for this reason he has not met his burden of proof. Further, it submits that the applicant made contradictory statements about his post-accident employment and was found functionally capable of returning to work by its s. 44 assessors.

39I agree with the respondent that the applicant has not provided any particulars about the essential tasks of his pre-accident employment, or evidence of functional limitations that prevent him from completing these tasks post-accident.

40According to the s. 44 reports, it is also true that he made contradictory and inconsistent statements to the assessors. For example, Dr. Siegel documented on December 3, 2020, that the applicant had been unemployed since the accident. However, on March 13, 2020, Dr. Naiman noted that he continued to sell real estate since the accident. The respondent also pointed me to information in the public domain that indicates the applicant was a mayoral candidate in 2022 for the City of Vaughn. Without more detailed information from the applicant about his employment tasks pre- and post-accident, I am left with a lack of clarity concerning the basis for his IRB claim.

41It is evident from the results of the respondent’s multidisciplinary assessment to determine IRB eligibility, that both assessors found him functionally capable of employment. Mr. Monck conducted a functional abilities evaluation (“FAE”) on March 6, 2020. The applicant demonstrated a functional ability in all categories with a strength ability of “medium” with respect to the National Occupational Classification (“NOC”) Levels. On March 13, 2020, Dr. Naiman found that the applicant was able to return to work and did not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

42The applicant has not met his onus because he failed to fully describe his pre-accident employment tasks or explain how his injuries affected his ability to continue with those tasks post-accident. Additionally, the respondent provided evidence to show the applicant is functionally capable and able to return to work.

43As such, the applicant is not entitled to an IRB from April 2, 2020, onward.

44I find that the applicant has not met his onus to prove entitlement to the disputed treatment plans.

45To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

46Neither party provided any clarification regarding whether any funds remain in the $3,500.00 MIG limit. In addition, the applicant did not submit either of the plans into evidence for this hearing.

47The respondent submits that the applicant did not meet his basic onus to prove the plans are reasonable and necessary by failing to submit the OCF-18s as evidence. As a result, it asserts that there is no evidence before the Tribunal to connect the proposed treatment plans to accident-related injuries. Further, it argues that it denied the plans appropriately based on the reports of its s. 44 assessors and a review of the medical evidence it had on file.

48I accept the respondent’s argument that the OCF-18s are important evidence and without them it would be difficult to make a finding that the plans are reasonable and necessary.

49However, in the interest of a fair and balanced approach, I will consider the broad references to some of the evidence made by the applicant in his submissions – that is, the evidence from Dr. Iskander, Mackenzie, and the report of Dr. Aghamohseni – which were all admitted as evidence for this hearing. None of this documentation lends any support to the applicant’s submission that the plan for a psychological assessment is reasonable and necessary. There is no referral from Dr. Iskander, Mackenzie, or any other treatment provider for such an assessment. As for the medical services plan, presumably the services are the psychological treatment sessions proposed by Dr. Aghamohseni. But there is no evidence before me that would confirm it. I also have no information about the goals of the treatment, how those goals would be met, or why the overall costs of the plan are reasonable.

50Consequently, due to the missing documentation, the lack of any corroborating referrals from any treatment providers for the assessment, and the lack of detail around the goals and costs of the plans, the applicant has not demonstrated entitlement to either of the treatment plans in dispute.

Interest

51As no benefits are overdue, no interest is payable.

ORDER

52The applicant is not entitled to an IRB for the period in dispute.

53The applicant remains in the MIG and is subject to its $3,500.00 limit on treatment.

54The treatment plans are not reasonable and necessary.

55The applicant is not entitled to interest as no benefits are overdue.