Licence Appeal Tribunal File Number: 22-001395/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:
Lilia Iagodkine
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Ms. Lilia Iagodkine (the applicant) was involved in an automobile accident on January 20, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied benefits by the respondent, TD 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:
- Is the applicant entitled to the treatment plans/OCF-18 proposed by Downsview Healthcare Inc. as follows:
(i) $375.12 ($2575.12 less $2,200.00 approved) for physiotherapy services dated January 27, 2020, and denied February 13, 2020; and
(ii) $1,830.00 for physiotherapy services dated October 8, 2021, and denied November 2, 2021; and
(iii) $2,165.46 for driving counselling treatment dated December 20, 2021, and denied January 11, 2022; and
(iv) $13,113.14 for chronic pain treatment dated November 6, 2022, and denied November 18, 2022; and
(v) $200.00 for an OCF-3 submitted July 28, 2021, and denied August 26, 2021?
Is the applicant entitled to $2,486.00 a chronic pain assessment proposed by Downsview Healthcare Inc. in a treatment plan dated January 10, 2022, and denied January 20, 2022?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not proven on balance of probabilities that the treatment plans in dispute are reasonable and necessary.
4The applicant sought an award under s. 10 of Reg. 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. As no benefits were unreasonably withheld or delayed, no award is owing.
5Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
ANALYSIS
6To 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.
a) The applicant is not entitled to the chronic pain assessment.
7I find that the applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable or necessary.
8The goal of the Chronic Pain Assessment Plan is to evaluate the extent of the patient's chronic injuries and psychological complaints and to provide a prognosis and recommendations for recovery.
9The applicant argues that the injuries sustained from the subject accident significantly aggravated her pre-existing right knee pain and aggravated her left knee pain. The applicant relies on the clinical notes and records (CNRs) of her family doctor, Dr. Livshin, and a chronic pain assessment from Dr. Karmy, physiatrist.
10I find that the CNRs of Dr. Livshin does not support a chronic pain assessment as reasonable and necessary. In review of the CNRs I can find only two reports associated with the subject accident, no ongoing reporting of pain, and medical imaging on November 9, 2022, that included an x-ray of the ribs, lumbar spine, sacrum, SI joints, and chest that returned unremarkable findings. Dr. Livshin recommends stretching to the applicant to help with her report of early morning pain.
11I find that the chronic pain assessment by Dr. Karmy, diagnosis the applicant with chronic pain. I did not place significant weight on this assessment as Dr. Karmy does not provide clear insight into how he rendered this diagnosis. The physical examination, the interview, or the reviewed medical images seem to be at odds with the doctor’s diagnosis. Dr. Karmy uses the American Medical Association’s (AMA) Guide on Chronic Pain, 6th edition in his diagnosis. There are six criteria to the guide, and to meet a diagnosis of chronic pain in its use, the applicant would meet at least three of the following six criteria:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substance.
ii. Excessive dependence on healthcare providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain
iv. Withdrawal from social milieu, including work, recreation, or other social contacts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
vi. Development of psychosocial sequelae after he initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours/
Dr. Karmy diagnosed the applicant with three of the six criteria fully, (excessive dependence, physical deconditioning, and psychological sequalae) and two of the six criteria partially (withdraw from social milieu and pre-injury function. I placed little weight on the use of the guide as Dr. Karmy’s diagnosis seems at odds with or is not supported by other medical evidence.
12The respondent submits that the applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary. The applicant relies on an independent medical examination completed by Dr. Marchuk, physiatrist, on February 25, 2023.
13I find that the independent medical examination by Dr. Marchuk does not support the chronic pain assessment as reasonable and necessary. In the report, the applicant states that she is working full time and that she is independent with no restrictions on social activities or daily living, and self-care. The doctor’s physical examination was unremarkable. Dr. Marchuk’s medical opinion was that the applicant did not meet the diagnostic criteria for chronic pain with a functional impairment.
14The respondent also submits that the applicant does not meet the AMA Guidelines as outlined by Dr. Karmy in his assessment. There is no evidence submitted that identifies any abuse or dependency on prescription medication. Similarly, there is no evidence submitted that indicated excessive dependence. The applicant reports in the various submitted s.44 examinations, that she is working full time and fully independent with her personal care. The applicant similarly reports spending time with family, and working full time that does not support either withdrawal or failure to restore pre-accident functionality.
15I find that the applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary. The opinion of Dr. Marchuk is in line with the reporting of Dr. Livshin in his CNRs that do not establish chronic pain with a functional impairment. Additionally, the applicant’s self reporting on her functionality does not support any functional impairment.
16I find that the applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary.
b) The applicant is not entitled to the chronic pain treatment.
17The applicant has not established that the chronic pain treatment plan is reasonable and necessary on a balance of probabilities.
18The goals of the treatment plans in question are pain reduction, increase in strength and increased range of motion, and return to her activities of normal living.
19The treatment plan consists of 12 psychotherapy sessions, 20 chiropractic rehabilitation, functional exercise, and Laser Therapy sessions, 15 massage therapy sessions, 10 spinal decompression therapy sessions, 6 shockwave therapy sessions for both back and neck. Also included is follow up assessments, education, and a progress report.
20The applicant submits that the chronic pain treatment is reasonable and necessary based on the chronic pain assessment by Dr. Karmy.
21I have found in my analysis the chronic pain assessment was not reasonable and necessary, therefore, the treatment for chronic pain is also not reasonable and necessary.
22The applicant has not proven on a balance of probabilities that the treatment plan for chronic pain is reasonable and necessary.
c) The applicant is not entitled to the treatment plans for physiotherapy.
23The applicant has not established that the treatment plans for physiotherapy are reasonable and necessary on a balance of probabilities.
24The goals of the treatment plans in question are pain reduction, increase in strength and increased range of motion, restore core stability, return to her activities of normal living, and return to pre-accident work activities.
20The applicant submits that the two treatment plans for physiotherapy are reasonable and necessary based on the applicant suffering from chronic pain. As outlined in the above section, the applicant has not established chronic pain with a functional impairment as a result of the motor vehicle accident. As such, the applicant has not proven on a balance of probabilities that the treatment plans for physiotherapy are reasonable and necessary.
25The applicant has not satisfied her onus to prove on a balance of probabilities that the treatment plans for physiotherapy are reasonable and necessary.
d) The applicant is not entitled to the driving counselling treatment plan.
26I find that the applicant has not proven on a balance of probabilities that the treatment plan for driving counselling is reasonable and necessary.
27The goals of the treatment plan in question are to provide driver/passenger rehabilitation counselling to help the applicant manage their emotional response to the difficulties they are experiencing, including travelling in a vehicle and to return to activities of normal living.
28The applicant submits that the driving counselling treatment plan is reasonable and necessary due to the physical and psychological impairments suffered from the motor vehicle accident.
29In review of the OCF-18, completed by Dr. Pivtoran, chiropractor, on December 14, 2021, the doctor states that he created the plan. I am not directed to the medical expertise Dr. Pivtoran has as a chiropractor to design this type of treatment plan.
30In review of the evidence, I find that the applicant has not directed me to compelling medical evidence that the driving counselling treatment plan is reasonable and necessary. Dr. Pivtoran, as a chiropractor is not qualified to create driving counselling treatment plans.
31The applicant has not satisfied her onus to prove on a balance of probabilities that the driving counselling plan is reasonable or necessary.
e) The applicant is not entitled to payment for the OCF-3.
32The applicant has not satisfied her onus to prove on a balance of probabilities that the payment for the OCF-3 is reasonable or necessary.
33The applicant submitted this as an issue in dispute but made no submissions regarding payment of the OCF-3.
34The applicant has not satisfied her onus to prove on a balance of probabilities that she is entitled to the payment for the OCF-3.
Special Award
35The applicant sought an award under s. 10 of Reg. 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. As no benefits were unreasonably withheld or delayed, no award is owing.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
ORDER
37I find that:
i. The applicant is not entitled to payment to the disputed treatment plans.
ii. The applicant is not entitled to payment for the OCF-3
iii. The applicant is not entitled to interest.
iv. The applicant is not entitled to an award.
v. The applicant is dismissed.
Released: February 18, 2025
Robert Rock
Adjudicator