Citation: Tokatli v. The Co-operators, 2024 ONLAT 22-003371/AABS

Licence Appeal Tribunal File Number: 22-003371/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:

Hassan Tokatli

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hassan Tokatli, the applicant, was involved in an automobile accident on February 13, 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, Co-Operators General 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:

1. 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?
2. Is the applicant entitled to $265.04 ($1,130.00 less $864.96 approved) for chiropractic services, proposed by Scarborough Medical Centre in a treatment plan/OCF-18 ("plan") dated April 30, 2020?
3. Is the applicant entitled to $2,374.40 for chiropractic services, proposed by Scarborough Medical Centre in a plan dated July 28, 2020?
4. Is the applicant entitled to $1,300.00 for assistive devices, proposed by Scarborough Medical Centre in a plan dated July 28, 2020?
5. Is the applicant entitled to $4,089.95 for psychological services, proposed by Scarborough Medical Centre in a plan dated September 18, 2020?
6. Is the applicant entitled to $1,995.00 for psychological assessment, proposed by Scarborough Medical Centre in a plan dated July 17, 2020?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not proven an injury that would warrant removal from the MIG.

4As MIG limits have been exhausted, the applicant is not entitled to any of the disputed treatment plans or interest.

Procedural Issues

5The respondent notes that the applicant has provided written submissions that merge two different applications for two different accidents together.

6The respondent requests to have certain paragraphs struck from the record as in their view, they lack relevance to this application.

7The applicant did not submit reply submissions, despite having the opportunity to do so, and as such, they did not respond to the respondent's request to strike portions of his written hearing submissions.

8I will not strike any content from the applicant's submissions. It is not necessary to do, as I can discern and disregard any submissions which I consider irrelevant.

9The applicant bears the burden of proving their case and should be given freedom to present their submissions as they see fit.

10While the respondent submits the submissions are irrelevant, they have made no arguments that they were improperly submitted.

11I will consider all submissions made before me in their entirety.

ANALYSIS

The applicant is subject to the MIG.

12The applicant has not proven he suffers from injuries that fall outside the definition of "minor injury" in the Schedule and he is therefore subject to the MIG with respect to his injuries as a result of the February 13, 2020 accident.

13An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of "minor injury" in s. 3(1) of the Schedule. The Tribunal has determined that a psychological condition may warrant removal from the MIG as it is not included in the definition of "minor injury".

14The applicant submits that they should be removed from the MIG as they sustained a psychological impairment as outlined in the clinical notes and records of his physician Dr. J. Alexander, and the psychological assessment conducted by Dr. S. Gabidulina, Registered Psychologist. I do not agree with this submission.

15The respondent submits that the applicant underwent a s. 44 physiatry assessment with Dr. A. Czok on June 29 2020 and that there were no evident impairments related to the February 13, 2020 accident diagnosed in this assessment. The respondent further submits that the clinical notes and records of Dr. Alexander do not warrant a psychological diagnosis.

16The applicant submits that he was involved in an accident prior to the subject accident on August 11, 2019.

17The applicant references a s. 25 assessment from Dr. Gabidulina that occurred on July 22, 2020. Dr. Gabidulina diagnosed the applicant with situational phobias (automobile anxiety), severe depressive episode and post traumatic stress disorder.

18The applicant also submits clinical notes and records of Dr. Alexander, the applicant's family physician, who noted on April 9, 2020 that the applicant presented with stress from the car accident. Dr. Alexander did not diagnose a psychological impairment.

19The respondent points to Dr. Czok's s. 44 physiatry report. However, Dr. Czok's report is a physiatry assessment, assessing injuries from another accident and of limited value for to the psychological impairment being disputed.

20I do agree with the respondent's submissions that the report of Dr. Gabidulina is not corroborated by the contemporaneous medical records of Dr. Alexander. Aside from stress, which was reported in a single visit two months after the accident, the applicant has not reported psychological symptoms to Dr. Alexander who did not make any psychological diagnosis or referrals.

21In this dispute, I place the most weight on Dr. Alexander's clinical notes and records. These notes show evidence of a longstanding and ongoing clinical relationship and these notes do not lead me to believe that the applicant is suffering from a psychological impairment as a result of the accident.

22Therefore, I find that the applicant has not proven an accident-related psychological impairment which would warrant removal from the MIG.

The applicant is not entitled to the disputed treatment plans

23The respondent has submitted that treatment has been approved to the MIG limits. Therefore, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

The applicant is not entitled to interest

24As there are no benefits owing, no interest is payable.

ORDER

25For the reasons above this application is dismissed.