Citation: Kinslikh v. Aviva Insurance Company, 2024 ONLAT 22-006435/AABS

Licence Appeal Tribunal File Number: 22-006435/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:

Alla Kinslikh

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Meredith Harper, Counsel

HEARD: By way of written submissions

1Alla Kinslikh, the applicant, was involved in an automobile accident on July 23, 2021, 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, Aviva 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 predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from August 23, 2021 and ongoing?

iii. Is the applicant entitled to $2,764.36 for physiotherapy services proposed by 101 Physio, in a treatment plan (“OCF-18”) dated July 30, 2021?;

iv. Is the applicant entitled to $1,298.79 for physical treatment and devices, proposed by 101 Physio in an OCF-18 dated November 25, 2021?

v. Is the applicant entitled to $2,460.00 for a neuropsychological assessment, proposed in an OCF-18 dated November 29, 2021?

vi. Is the applicant entitled to $2,460.00 for a functional cognitive assessment battery, proposed in an OCF-18 dated October 12, 2021?

vii. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed in an OCF-18 dated October 12, 2021?

viii. Is the applicant entitled to $2,460.00 for an orthopedic assessment, proposed in an OCF-18 dated December 20, 2021?

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

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

RESULT

3I find that:

i. The applicant’s injuries fall outside of the Minor Injury Guideline limit due to her psychological impairments;

ii. The applicant is entitled to the OCF-18 dated July 30, 2021 in the amount of $2,764.36 for physiotherapy services, with interest;

iii. The applicant is not entitled to the remaining OCF-18s in dispute;

iv. The applicant is not entitled to a non-earner benefit;

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

ANALYSIS

Minor Injury Guideline

4Section 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.”

5An 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 they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

The applicant has established psychological impairments warranting removal from the MIG

6I find that the applicant has led sufficient evidence to establish that she suffers from significant psychological impairments as a result of the accident.

7In a s. 25 psychological assessment report dated October 10, 2021, Dr. Papazoglou, psychologist, reported that the applicant presented with significant psychological impairments as a result of the accident, and noted the applicant’s reports of sadness, low mood, loss of interest in previously enjoyed activities, irritability, agitation and driving related anxiety. He diagnosed the applicant with Adjustment Disorder with mixed anxiety and depressed mood. The applicant further reported psychological symptoms to her neurologist, Dr. Gladstone on December 2, 2021. She reported overwhelming anxiety and feeling shaky.

8The applicant began to report psychological symptoms to her family physician Dr. Trinchuk. Beginning in June 2022, she reported stress, irritation and mood issues. Dr. Trinchuk referred the applicant to a psychiatrist, and from August to November 2022 the applicant saw Dr. Chekina, psychiatrist. Dr. Chekina diagnosed the applicant with PTSD and depression, provided supportive therapy and prescribed Cipralex.

9The respondent disputes that the applicant suffered significant psychological impairments as a result of the accident. It argues that the CNRs of Dr. Trinchuk show that the applicant suffered from pre-accident anxiety and had been treated by a psychiatrist Dr. Matsenko, in 2018 and 2019. The respondent further submits that the CNRs of Dr. Chekina document numerous unrelated issues which caused her psychological symptoms, and that the applicant did not exhibit symptoms until June 2022, almost a year after the accident.

10The respondent further submits that Dr. Papazoglou’s s. 25 report should be given little weight. It argues that a proper assessment was not conducted and that Dr. Papazoglou did not consider the applicant’s pre-accident medical records, noting that the applicant had inaccurately reported that she had no prior history of mental health issues pre-accident. Rather, the respondent relies on the psychological s. 44 assessment report of Dr. Koepfler, who found that from a psychological perspective there was no indication of significant impaired function.

11I agree with the respondent that in his s. 25 report, Dr. Papazoglou did not appear to review the applicant’s pre-accident medical records or be aware of her pre-accident anxiety. However, I note that her treating psychiatrist Dr. Chekina expressly referenced the applicant’s pre-accident treatment with Dr. Matsenko. Despite the applicant’s pre-accident anxiety, Dr. Chekina still linked the applicant’s psychological impairments to the subject accident.

12Although I agree with the respondent that Dr. Chekina referenced other stressors including health concerns such as the applicant’s 30 year history of myasthenia graves and emotional neglect during childhood, in my view, the accident was identified as a primary factor in her impairments. In the September 1, 2022 CNR entry, Dr. Chekina noted that one of the main themes of the session was the exploration and discussion of recent “traumatic” experiences as a result of the accident. In the November 28, 2022 entry, Dr. Chekina assessed the applicant as having difficulty dealing with post MVA sequala and again diagnosed the applicant with PTSD and depression. Dr. Chekina noted the applicant’s complaints of depressed mood, insomnia, lack of interest and energy since the subject accident. As the applicant’s treating psychiatrist, I place significant weight on Dr. Chekina’s findings.

13Further, although the respondent argues that the applicant already suffered from psychological impairments pre-accident, I note that the OHIP record shows that the applicant was last treated by Dr. Matsenko on February 4, 2019, more than two years pre-accident. The respondent does not direct me to evidence that such psychological complaints continued in in the years leading up the accident.

14As such, I find that the applicant has adduced sufficient medical evidence to establish that she suffers from significant accident-related psychological impairments, warranting removal from the MIG. As the applicant has established a basis for removal from the MIG on psychological grounds, it is not necessary for me to consider the grounds of physical impairment, chronic pain or pre-existing impairment.

15Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

16The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

17I agree with the applicant’s submissions that despite being removed from the MIG on the grounds of psychological impairment, the applicant may still be entitled to OCF-18s for physical treatment if she can establish that the proposed treatment is reasonable and necessary.

OCF-18 in the amount of $2,764.36 for physiotherapy services

18I find that the applicant has established that the OCF-18 dated July 30, 2021 for physiotherapy services is reasonable and necessary. The treatment plan was submitted on August 3, 2021 for a combination of physiotherapy services, including chiropractic, massage and acupuncture treatment.

19The respondent argues that the applicant has not established a non-minor physical impairment warranting treatment. Although the applicant cites a right knee ultrasound that showed a possible partial tear of the proximal patellae tendon, I note that partial tears fall within the definition of a “minor injury”. The applicant further points to her cervical spine x-ray which showed mild disc space narrowing and minor osteophyte formation. However, the applicant has not established that these findings are related to the subject accident, rather than osteoarthritis.

20Despite the fact that the applicant has not established a non-minor physical injury, at a minimum, the medical record establishes that at the time the OCF-18 was submitted, the applicant was still suffering from soft tissue strains and sprains and pain complaints. The respondent’s physiatry IE assessor Dr. Hosseini diagnosed the applicant with accident-related cervical, thoracic and lumbar spine sprain/strain, right shoulder complaints and right knee strain/sprain.

21Further, the CNRs of Dr. Trinchuk in August 2021 show that the family physician linked the applicant’s pain to the subject accident and noted that the applicant had started physiotherapy and reported benefits. Given that the physiotherapy services were proposed at a time when the applicant was in the acute stage of her accident-related soft tissue strains and sprains, I find that she has led sufficient evidence to establish that the proposed physical therapy is reasonable and necessary.

OCF-18 in the amount of $1,298.79 for physical treatment and devices

22The applicant submitted a subsequent OCF-18 on November 27, 2021 for physical treatment and devices. The respondent submits that it denied this treatment plan based on the findings of it’s a. 44 General Practitioner assessment.

23The applicant has not provided any specific submissions on this treatment plan. No submissions were provided to explain what “devices” were being proposed or to identify who was recommending the services and on what basis. To receive payment for a treatment and assessment plan, the applicant bears the burden of demonstrating not only that she suffers from a physical impairment, but also that the proposed treatment is reasonable and necessary. 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.

24The respondent’s IE assessor Dr. Silver found that the proposed treatment was not reasonable and necessary and that further facility-based treatment was not required. The applicant does not direct me to any evidence that her medical practitioners were recommending further treatment. I agree with the respondent that the CNRs of Dr. Trinchuk do not indicate that at this stage she was proposing devices or physical treatment. Without any specific submissions or evidence to rebut Dr. Silver’s argument that these devices and treatment are not required four months post-accident, I find that the applicant has not established that the OCF-18 is reasonable and necessary.

OCF-18 dated November 29, 2021 for a neuropsychological assessment

OCF-18 dated October 12, 2021 for a functional cognitive assessment battery

OCF-18 dated October 12, 2021 for a neurological assessment

OCF-18 dated December 20, 2021 for an orthopedic assessment

25The applicant has not established that the proposed assessments are reasonable and necessary.

26With respect to the neuropsychological, functional cognitive and neurological assessments, the applicant submits that she has suffered from headaches, changes in her memory and concentration issues post-accident. The applicant further argues that the orthopedic assessment is needed due to her knee and neck impairments and ongoing pain.

27I agree with the respondent that the applicant has not led sufficient evidence to support the need for neurological and cognitive assessments. The applicant did not report losing consciousness or experiencing cognitive or concussion symptoms post-accident. In her concussion symptom inventory conducted soon after the accident, the applicant confirmed that she did not experience difficulty remembering or concentrating. The applicant further does not direct me to any concussion diagnosis by her treating physician. I note that the respondent’s neurological IE assessor Dr. Desai found that the applicant suffered from intermittent headaches secondary to whiplash associated disorder, which fell within the MIG.

28The applicant had been under the care of a neurologist pre-accident for symptoms relating to her myasthenia gravis. Post-accident the applicant continued to be treated by her OHIP-funded neurologist. I agree with the respondent that the applicant has not provided sufficient evidence or specific submissions to establish why additional assessments are required by other neurologists.

29With respect to the orthopedic assessment, I find that the applicant has not led sufficient evidence to establish that the assessment is reasonable and necessary. The respondent’s physiatry IE assessor Dr. Hosseini determined that an orthopedic assessment was not reasonable and necessary for the applicant’s soft tissue strains and sprains. Although the applicant cites the results of her cervical x-ray to argue that she has suffered a significant impairment, I note that the applicant has not established that the cervical impairment found on the diagnostic imaging is linked to the subject accident, rather than osteoarthritis.

30Moreover, the applicant has not been diagnosed with chronic pain by any treating physician, but rather her knee and back pain complaints have been intermittent. Finally, I note that the applicant was referred to an orthopedic surgeon through Dr. Trinchuk. The applicant reported to her family physician she had seen the orthopedic specialist 3-4 times and that her knee pain was better. As such, I agree with the respondent that the applicant has not met her burden to prove that an additional orthopedic assessment is reasonable and necessary.

Non-earner benefit (“NEB”)

31I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

32To establish entitlement to NEBs, an applicant must lead sufficient evidence of an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

33The applicant has not provided any specific submissions or tendered any evidence of her pre-accident activities of daily living, or demonstrated how her ability to engage in these activities has changed as a result of the accident. In the absence of this information, it is difficult to compare the applicant’s pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued. Although the applicant relies on her OCF-3 to establish a compete inability to carry on a normal life, I note that an OCF-3 is a form used to apply for a specified benefit and is not a comprehensive assessment of accident-related impairments. Rather additional objective medical evidence is required. The applicant has not directed me to any medical opinion that she suffers a complete inability to carry on a normal life.

34All of the respondent’s IE assessors found that the applicant did not suffer from a complete inability to carry on a normal life as a result of the accident. The respondent’s occupational therapy assessor Ms. Phillips determined that the applicant was independent with her self-care, could participate in light household chores, laundry and light cooking, grocery shopped with partial assistance, was independent with managing finances, medication and medical appointments. The respondent further notes that the applicant had been on ODSP pre-accident for her myasthenia gravis condition. When reviewing the evidence presented, I find that the applicant has not provided sufficient persuasive medical evidence to refute the IE assessors’ findings.

Interest

35The applicant is entitled to interest in accordance with s. 51 of the Schedule with respect to the OCF-18 in the amount of $2,764.36 for physiotherapy services.

Award

36The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

37The applicant has not provided any specific submissions as to why an award is warranted. It is well-settled law that an award should not be ordered simply because an insurer made an incorrect decision. Although I have found that the applicant is out of the MIG and entitled to one of the treatment plans in dispute, I note that insurers are not held to a standard of perfection. I find that the applicant has not established that the respondent’s conduct rises to the threshold of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate, and as such, no award it payable.

ORDER

38For the foregoing reasons I find that:

i. The applicant’s injuries fall outside of the MIG;

ii. The applicant is entitled to the OCF-18 in the amount of $2,764.36 for physiotherapy services, with interest in accordance with s. 51;