Citation: Danilov v. Aviva Insurance Canada, 2024 ONLAT 22-006774/AABS

Licence Appeal Tribunal File Number: 22-006774/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:

Yevgen Danilov

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Claudia Kwok, Counsel

For the Respondent:

Thulasi Kandiah, Counsel

HEARD: In Writing

1Yevgen Danilov, the applicant, was involved in an automobile accident on January 30, 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 Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The respondent objects to the applicant relying on the clinical notes and records (“CNRs”) received December 7, 2022, of Dr. Alina Nucia, family physician, as they were not served on the respondent by the final production deadline of June 30, 2023, as directed in the Case Conference Report and Order dated April 13, 2023. This is inclusive of the CNRs referenced in Tab 4 of the applicant’s submissions and Tab 3 of the respondent’s submissions.¹

3The respondent submits that the CNRs were not provided to it until receipt of the applicant’s hearing submissions. The respondent further submits that permitting the CNRs would be highly prejudicial, as the applicant relies heavily on the records, and the respondent was not afforded an opportunity to consider the records.

4The applicant provided no explanation for delay in either submissions or reply.

5Rule 9.3 of the Licence Appeal Tribunal Rules (“Rules”) states that if a party fails to comply with any direction with respect to disclosure, the party may not rely on the document as evidence without permission of the Tribunal. Rule 3.1 of the Rules also requires me to facilitate a fair, open, and accessible process to allow effective participation by all parties.

6Failure to make disclosures as required by the Tribunal frustrates the Tribunal’s ability to determine issues and the parties’ ability to make full and fair submissions. While the respondent did make brief submissions on the CNRs it sought to exclude, it did so only with the preliminary qualification that it first sought it to be excluded. I am persuaded by the respondent’s submission that permitting the CNRs are prejudicial because the applicant heavily relies upon the CNRs in submissions and the respondent was not afforded the opportunity to consider the evidence by the production deadline of June 30, 2023. The CNRs were not provided to the respondent until receipt of the applicant’s hearing submissions. As a result, I am granting the relief sought by the respondent, and excluding the CNRs of Dr. Nucia dated December 7, 2022.

7I would be remiss if I did not caution the parties that anytime there is non-compliance with a previous Tribunal order, parties risk exclusion of the submissions or evidence or both.

ISSUES

8The following issues are to be decided:

i. Is the applicant entitled to receive medical benefits in the amount of $2,200.00 for a chronic pain assessment recommended by Dr. Michael Gofeld, pain specialist, in a treatment plan dated October 22, 2021?

ii. Is the applicant entitled to receive medical benefits in the amount of $1,047.24 for psychological treatment, recommended by Dr. Nina Belyakova, psychologist, in a treatment plan dated February 9, 2022?

iii. Is the applicant entitled to receive medical benefits in the amount of $2,094.37 for a driving rehabilitation plan, recommended by Dr. Erin Langis, psychologist, in a treatment plan dated March 11, 2022?

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

RESULT

9I find that the applicant is not entitled to:

i. a chronic pain assessment in the amount of $2,200.00;

ii. psychological treatment in the amount of $1,047.24;

iii. a driving rehabilitation plan in the amount of $2,094.37; and

iv. interest.

ANALYSIS

Are the treatment plans reasonable and necessary?

10Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

11The applicant bears the onus of proving entitlement to the proposed treatment by proving that the treatment plans are reasonable and necessary on a balance of probabilities.

Chronic pain assessment in the amount of $2,200.00 in a treatment plan dated October 22, 2021

12I find that the applicant is not entitled to a chronic pain assessment in the amount of $2,200.00 dated October 22, 2021.

13The applicant submits that the chronic pain assessment is reasonable and necessary, relying on the self-reporting of pain on March 2, 2021 to Dr. Nucia, family physician, which concluded whiplash injury, the Psychological Assessment Report of Dr. Kerry Lawson, clinical psychologist, dated December 8, 2021 which opined an adjustment disorder diagnosis, and the treatment plan itself which states that the applicant is exhibiting symptoms consistent with chronic pain syndrome.

14The respondent submits that the chronic pain assessment is not reasonable and necessary. The respondent argues that the medical evidence provided by the applicant demonstrates minor soft tissue injuries. Furthermore, the respondent submits that the lack of consultation with medical treatment providers clearly demonstrates a lack of chronic pain and necessity for treatment.

15The respondent also references the American Medical Association Guides (“AMA Guides”). The AMA Guides only come into play absent a chronic pain diagnosis. I find that the applicant has not provided evidence of chronic pain. The AMA Guides are not binding on the Tribunal. However, 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 you have three or more of the six criteria.

16The respondent submits that the applicant failed to meet any criteria. There is no evidence that the applicant uses prescription drugs beyond the recommended duration and or abuse of or dependence on prescription drugs or other substances. The applicant has not established that he is taking any medications due to the accident. The applicant has not established excessive dependency on health care providers or his family. The applicant has not provided evidence that he withdrew from social milieu or pre-injury function. The applicant returned to work fulltime one day after the accident. I agree with the respondent.

17The goal of the treatment plan is to reduce pain to allow the applicant to return to activities of normal living. I find that the applicant has not been diagnosed with chronic pain and the medical evidence suggests that the applicant suffers from soft tissue injuries as a result of the accident. Furthermore, I take into account the lack of referral by the applicant’s family physician. Lastly, in assessing the criteria in the AMA Guides and I find that the applicant does not meet three of the six criteria.

18Accordingly, I find that the applicant has not met his onus to demonstrate that the treatment plan is reasonable and necessary.

Psychological treatment in the balance amount of $1,047.24 in a treatment plan dated February 9, 2022

19I find that the applicant is not entitled to the remaining balance of psychological treatment in the amount of $1,047.24 in a treatment plan dated February 9, 2022.

20The treatment plan was submitted in the amount of $4,140.28. The respondent partially approved this in the amount of $3,093.04, covering the psychotherapy sessions in full, as well as the cost of a treatment manual and completion of the treatment plan.

21The applicant submits that the remaining balance of the psychological treatment assessment is reasonable and necessary, relying on the treatment plan itself completed by Dr. Nina Belyakova, psychologist, and the CNRs of Dr. Nucia where the applicant self-reports sadness, depression and anxiety. The goal of the treatment plan is to reduce pain and return to pre-accident levels of psychological function.

22The respondent submits that the applicant failed to make compelling submissions or provide evidence on why the denied services are reasonable and necessary. The respondent submits that the denied amount of $1,047.24 pertains to the testing and scoring, treatment planning, and discharge/progress report. I agree with the respondent. The applicant does not make persuasive submissions with respect to the denied portions, including testing and scoring, treatment planning, and discharge/progress report, of the treatment plan for psychological services.

23Accordingly, I find that the applicant has not met his onus to demonstrate that the denied portion of the treatment plan is reasonable and necessary.

Driving rehabilitation in the balance amount of $2,094.37 in a treatment plan dated March 11, 2022

24I find that the applicant is not entitled to the remaining balance of a treatment plan for driving rehabilitation tin the amount of $2,094.37 dated March 11, 2022.

25The treatment plan was submitted in the amount of $6,993.32. The respondent partially approved this in the amount of $4,898.95, covering the 12 psychological driving sessions at an hourly rate of $58.19 for non-regulated providers, 4 testing and scoring (not all 12) sessions, psychotherapy sessions, a progress report, completion of the treatment plan, and travel time.

26The applicant submits that the remaining balance of the driving rehabilitation plan is reasonable and necessary, relying on the reports of Dr. Lawson and Dr. Belyakova who opine the applicant has an adjustment disorder, the treatment plan itself completed by Dr. Erin Langis, psychologist, and the goals of the treatment plan, which are to return the applicant to his pre-accident levels of psychological function.

27The respondent submits that the applicant failed to make compelling submissions or provide evidence on why the denied services are reasonable and necessary. The denied portions of the treatment plan in dispute are the hourly rate of the service provider, any goods/services relating to planning/preparation/brokerage, additional fees in relations to testing and scoring.

28I agree with the respondent. The applicant’s evidence was the treatment plan itself and the psychological symptoms opined by Dr. Lawson and Dr. Belyakova, this is despite the respondent already funding the driving sessions and psychotherapy sessions. The applicant does not make persuasive submissions with respect to the denied portions, the hourly rate of the service provider, any goods/services relating to planning/preparation/brokerage, additional fees in relations to testing and scoring, of the treatment plan.

29Accordingly, I find that the applicant has not met his onus to demonstrate that the denied portion of the treatment plan is reasonable and necessary.

INTEREST

30Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.

ORDER

31The application is dismissed, and I find that the applicant is not entitled to: