Citation: Erychev v. Motor Vehicle Accident Claims Fund, 2025 ONLAT 24-001344/AABS

Licence Appeal Tribunal File Number: 24-001344/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:

Nikolai Erychev

Applicant

and

Motor Vehicle Accident Claims Fund

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Mitchell Barber, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nikolai Erychev, the applicant, was involved in an automobile accident on September 3, 2022, 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, the Motor Vehicle Accident Claims Fund, 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. Is the applicant entitled to the physical therapy services proposed by Wynford Health Clinic, as follows:

(a) $3,185.19 in a treatment plan submitted on December 30, 2022;

(b) $2,227.73 in a treatment plan submitted on March 24, 2023;

(c) $1,749.00 in a treatment plan submitted on May 12, 2023; and

(d) $1,270.27 in a treatment plan submitted on July 14, 2023?

ii. Is the applicant entitled to a supervised exercise program in the amount of $1,050.57, proposed by 2430307 Ontario Ltd., in a treatment plan submitted on April 21, 2023?

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

RESULT

3The applicant is entitled to the treatment plans for physical therapy submitted December 30, 2022, March 24, 2023, May 12, 2023 and July 14, 2023, plus interest.

4The applicant is not entitled to the treatment plan for an exercise program submitted April 21, 2023.

PROCEDURAL ISSUES

Late Submissions

5The respondent's request to dismiss the applicant's submissions due to the applicant failing to comply with the written submission deadline is denied and the applicant's written submissions will be considered by the Tribunal.

6The Case Conference Report and Order ("CCRO") dated June 26, 2024, ordered the applicant to provide his submissions by no later than 30 calendar days prior to the written hearing on March 21, 2025, which would be February 19, 2025.

7The applicant provided his submissions to the Tribunal and the respondent on February 24, 2025. The respondent submits that as a result of the applicant's failure to comply the CCRO, he cannot rely on the contents of his written submissions or in the alternative they should be given little weight.

8Although the applicant did not make any reply submissions to explain the reason why his submissions were late, I am exercising my discretion and including the applicant's submissions in the hearing record. I find that dismissing this application without determining its merits is not appropriate as there is no evidence that any of the circumstances set out in Rule 3 of the Licence Appeal Tribunal Rules, 2023, would apply. In addition, I find that the respondent did not make any submissions on the prejudice that it would suffer if I were to accept the applicant's submissions as filed. Despite the applicant's late filing and service, there is no evidence that the respondent was unable to respond to the applicant's submissions fully.

Abandonment of the Application

9I do not find that the applicant has abandoned his application.

10The respondent submits that the applicant's application has been abandoned as there is no evidence to confirm that the applicant is currently present in Ontario or has been present in Ontario since the Case Conference on June 14, 2024. The respondent submits that the applicant was not present at the Case Conference, yet Adjudicator Beauchesne proceeded with the case conference in the absence of the applicant.

11I find that Adjudicator Beauchesne dealt with the applicant's non-attendance at the Case Conference and decided to continue with the case conference in his absence. I will not interfere with the decision made by Adjudicator Beauchesne. I further find that the respondent has not provided any evidence that the applicant is not currently present in Ontario or that he has abandoned his application. Mere speculation is not sufficient. As written submissions have been submitted on behalf of the applicant, they will be considered in their entirety for the purpose of this hearing.

ANALYSIS

Entitlement to medical and rehabilitation benefits

12To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving 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.

The applicant is entitled to the treatment plans for physical therapy

13The applicant has established that the treatment plans for physical therapy are reasonable and necessary.

14The applicant claims entitlement to physical therapy services in four treatment plans proposed by Wynford Health Clinic as follows:

(a) $3,185.19 in a treatment plan submitted on December 30, 2022

(b) $2,227.73 in a treatment plan submitted on March 24, 2023

(c) $1,749.00 in a treatment plan submitted on May 12, 2023; and

(d) $1,270.27 in a treatment plan submitted on July 14, 2023?

15The applicant submits that the treatment plans were designed to assist the applicant with pain reduction, increase in strength, increase in range of motion, and return to activities of normal living. The applicant submits that the treatment plans provided the following reasons for the need for physical therapy:

December 30, 2022 Treatment Plan: The patient had numerous pre-accident medical conditions that he was prescribed medicine for and was documented before the accident. This will increase healing time. The patient sustained a whiplash associated disorder that exhibited objective, demonstrable, definable and clinically relevant neurological signs.

March 24, 2023 Treatment Plan: The patient reports sudden loss of consciousness. Treatment is supportive in nature at this time. Any discontinuation of treatment will result in exacerbation of symptoms. It is important to note that the patient demonstrates three or more criteria for chronic pain syndrome as per the AMA Guidelines 6th Edition (e.g. physical deconditioning, failure to restore pre-injury function, psycho-social sequelae development etc.)

May 12, 2023 Treatment Plan: The patient reports sudden loss of consciousness. Treatment is supportive in nature at this time. Any discontinuation of treatment will result in exacerbation of symptoms.

July 14, 2023 Treatment Plan: Pain to the following body parts interfere with daily activities, household chores, constant headaches. neck pain, lower back pain, bilateral knee pain, bilateral elbow pain, the patient reported to have difficulties with household chores.

16The applicant relies upon the clinical notes and records ("CNRs") of Dr. Galina Gotesman to support his ongoing complaints of dizziness, generalized joint pain, back pain, and nightmares. The applicant submits that the CNRs of Dr. Gotesman support that he was receiving treatment including massage, physiotherapy, and acupuncture in the rehabilitation facility with good effect.

17The respondent submits that the treatment plans in dispute are not reasonable and necessary as the applicant has not provided persuasive medical evidence supporting the need for any continued treatment. The respondent submits that at the time of the accident, the applicant was 84 years old and had suffered from significant balance issues and dizziness prior to the subject accident. The respondent argues that the applicant has not received any form of accident-related treatment since July 14, 2023, when he attended at Wynford Health Centre. It states that the last time the applicant complained to his family doctor in relation to the accident was on May 6, 2023, and the last documented treatment of any kind as listed in the Decoded OHIP Summary is September 8, 2023.

18The respondent notes that the applicant was removed from the MIG based on the Insurer's Examination ("IE") report of Dr. Howard Platnick, general practitioner, dated January 30, 2023, which opined that the applicant possibly sustained a "minor concussion" in the accident. The respondent further submits that Dr. Platnick concluded that the applicant suffered soft tissue injuries as a result of the accident which have fully resolved, and he is in his pre-accident state. Dr. Platnick stated that there is no accident-related injury or impairment that requires goods, services, therapy, treatment, assessment or medication.

19The respondent submits that the treatment plans dated December 30, 2022 and March 24, 2023, were denied based on the findings of Dr. Platnick.

20The respondent submits that the applicant was assessed by Dr. Phillip Dimakis and a report was prepared stating that "There is no clinical indication from a purely objective chiropractic perspective for any further formal treatment or rehabilitation services as proposed in the OCF-18 Treatment plans." The respondent submits that the treatment plans dated April 18, 2023 and July 14, 2023 were denied based on the findings of Dr. Dimakis.

21I find that the applicant has proved on a balance of probabilities that the treatment plans in dispute are reasonable and necessary for the following reasons.

22First, I find upon review of the CNRs of Dr. Gottesman, that the applicant made ongoing physical complaints consistently post-accident and Dr. Gottesman made a recommendation for ongoing treatment in her CNR dated May 1, 2023. I find that the applicant's complaints and the recommendations for ongoing treatment are made contemporaneously with the treatment plans in dispute.

23Second, I find that the treatment plans in dispute support that the applicant continued to have complaints of neck pain, headaches, pain in the upper and lower limbs, joint pain, low back pain, and dizziness. I find that the treatment providers provided detailed explanations as to why further treatment is recommended as well as the goals of the treatment plans. I further find that the treatment providers specifically noted that discontinuing treatment would result in an exacerbation of the applicant's symptoms. I note that the Auto Insurance Standard Invoices ("OCF-21") indicate that the applicant attended for and received the treatment recommended despite the denials. The last date of treatment is indicated as August 18, 2023. I find the fact that the applicant attended for and received the treatment in dispute further supports that it is reasonable and necessary.

24Third, I give little weight to the report of Dr. Dimakis, as a copy of this report has not been provided in the respondent's submission. In addition, the date of this report and the specialty of Dr. Dimakis has not been referenced by the respondent in its submissions. I further find that while the respondent submits that the treatment plans dated April 18, 2023 and July 14, 2023 were denied based on the findings of Dr. Dimakis, the denial letters do not refer to any report of Dr. Dimakis.

25Fourth, I also give little weight to the IE report of Dr. Platnick. I find that the applicant reported daily headaches and ongoing pain in his neck, back and shoulders. He also noted that his hearing and vision have worsened since the accident. Dr. Platnick diagnosed him with a cervical myofascial strain, lumbosacral myofascial strain, left shoulder strain/contusion, abrasion, left upper extremity and left shin and query minor concussion. He concluded that the accident did not significantly affect the applicant's hearing or balance issues. I find that Dr. Platnick's conclusion that the applicant's injuries had completely resolved is inconsistent with his diagnoses and the applicant's self-reports. In addition, his finding that the applicant's hearing and balance issues were not affected by the accident are in direct contravention to the applicant's complaints to Dr. Gottesman that these issues significantly worsened as a result of the accident.

26With respect to the respondent's submission that there is no evidence to prove that the applicant actually incurred the disputed treatment plans, I find that the applicant provided a Statement of Account from Wynford Health Clinic indicating that all of the treatment plans were incurred. This is further supported by the OCF-21s that were also submitted by the applicant which indicate the dates and amount of treatment incurred.

27For the reasons outlined above, I find that the applicant has met his onus of demonstrating on a balance of probabilities that the treatment plans for physical therapy, submitted on December 20, 2022, March 24, 2023, May 12, 2023 and July 14, 2023 are reasonable and necessary.

The applicant is not entitled to the treatment plan for an exercise program

28The applicant has not established that the treatment plan for an exercise program is reasonable and necessary.

29The applicant claims entitlement to a supervised exercise program in the amount of $1,050.57, proposed by 2430307 Ontario Ltd., in a treatment plan submitted on April 21, 2023. The applicant submits that the exercise program was designed to assist him with pain reduction and return to activities of daily living through the re-strengthening exercise program.

30I find that the applicant has provided limited submissions and evidence in support of the reasonableness and necessity of the treatment plan in dispute. I find that the applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable other than to state that the treatment is designed to reduce pain and return him to his pre-accident activities of daily living. I find that simply attaching a treatment plan is not sufficient to meet the test that the goods and services are reasonable and necessary.

31For the reasons outlined above, I find that the applicant has not met his onus of demonstrating on a balance of probabilities that the treatment plan for an exercise program is reasonable and necessary.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the treatment plans for physical therapy are reasonable and necessary, interest is payable in accordance with s. 51 of the Schedule, from the date payment became overdue to the date that payment was made.

ORDER

33For the reasons outlined above, I find:

i. The applicant is entitled to the treatment plans for physical therapy submitted December 30, 2022, March 24, 2023, May 12, 2023 and July 14, 2023, plus interest; and

ii. The applicant is not entitled to the treatment plan for an exercise program submitted April 21, 2023.