Licence Appeal Tribunal File Number: 22-013318/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:
Mykola Levdokimov
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Denis Chubar, Paralegal
For the Respondent:
Elizabeth Scott, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mykola Levdokimov, the Applicant, was involved in an automobile accident on May 15, 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, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing 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 (MIG) limit?
ii. Is the Applicant entitled to psychological services proposed by Mediwise Healthcare Clinic as follows:
$4,314.20 in a treatment plan (“plan”) submitted on February 3, 2022; and
$1,920.53 in a plan submitted on December 29, 2021?
iii. Is the Applicant entitled to $3,032.39 ($3,195.84 less $163.45 approved) for chiropractic services proposed by Mediwise Healthcare Clinic in a plan submitted on December 29, 2021?
iv. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the Applicant has demonstrated that removal from the MIG is warranted based on psychological injuries as indicated in their psychological assessment by Dr. Harinder Mrahar (psychologist), dated January 31, 2022.
4I find the Applicant is entitled to the treatment plans for psychological services, and interest.
5The Applicant is not entitled to the treatment plan for chiropractic services.
PROCEDURAL ISSUES
6The Respondent submits that the Applicant has failed to comply with the exchange of documents as directed by the Tribunal in the Case Conference Report and Order dated July 25, 2024. This includes clinical notes and records (“CNRs”) from the Applicant’s family physician, treatment records from e-clinic united healing/Medwise Healthcare Clinic, records from walk-in clinics, tax returns and other requested medical records. The Respondent submits that it would be prejudicial to allow the Applicant to reply on a report from a clinic the CNRs of which the Applicant has failed to produce. The Respondent submits that Dr. Mrahar’s report should be excluded on these grounds.
7The Applicant did not file a reply and therefore did not provide a response to this request.
8I have taken this submission into consideration. The onus remains on the Applicant to furnish sufficient evidence to establish that his injuries warrant removal from the MIG.
9Further, following s.15 of the Statutory Powers Procedure Act, the legal test for admitting evidence is based on relevance and necessity. I find that the report from Dr. Mrahar, is relevant and necessary to consider the issues in dispute.
10Furthermore, the potential prejudice to the respondent is limited, because although it did not have an opportunity to review the associated CNRs, it had the opportunity to review the report itself and address it in its submissions. In my view, the potential prejudice to the Applicant, who bears the onus in this case, would be significant, as not allowing the report in as evidence would prevent them from being able to fully present his case.
11Therefore, I deny the respondent’s request to exclude Dr. Mrahar’s report.
ANALYSIS
The Applicant is removed from the MIG based on evidence of psychological injuries.
12I find that, on a balance of probabilities, the Applicant did provide sufficient evidence to prove their removal from the MIG is warranted based on evidence of psychological injuries.
13Following the Schedule, an insured 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 condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the Applicant.
14The Applicant proposes to escape the MIG based on psychological and non-minor physical injuries.
15I find that the Applicant has demonstrated sufficient evidence of psychological injuries, based on his s.25 report from Dr. Mrahar dated January 31, 2022, which does warrant his removal from the MIG.
16I do not find that the Applicant has demonstrated sufficient evidence to be removed from the MIG based on physical injuries.
a) Physical injuries
17I find that the Applicant did not furnish sufficient evidence on a balance of probabilities that their physical injuries warrant removal from the MIG.
18The Applicant attended an OCF-3 examination on June 14, 2021, 11 days post-accident. Dr. Kuldip Rakkar, a chiropractor, indicated multiple injuries including acute pain, myalgia, muscle strain, pain in joint, headache, tension-type headache, cervicalgia, injury of muscle and tendon of neck level, other unspecified injury of muscle and tendon at neck level, pain in thoracic spine, injury of muscle and tendon at the thorax level, low back pain, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, disorders of initiating and maintaining sleep, and stress.
19I am not persuaded by the medical evidence or written submissions provided by the Applicant, that there is sufficient evidence to establish that any of these physical injuries fall outside of the definition of a minor injury under section 3 of the Schedule.
20Further, I give no weight to Dr. Rakkar’s diagnoses of disorders of initiating and maintaining sleep, as it is not within the scope of a chiropractor to make these diagnoses.
21I am not satisfied that the injuries outlined in this report are sufficient to determine that the Applicant should be removed from the MIG based on physical injuries.
22Therefore, the Applicant is not removed from the MIG based on physical injuries.
b) Psychological injuries
23I find that the Applicant did meet the burden of proof required to be removed from the MIG on the basis that they suffered a psychological impairment as a result of the accident.
24On January 31, 2022, the Applicant attended a s.25 psychological assessment where Dr. Harinder Mrahar, noted that “it appears that Mr. Levdokimov has developed emotional/psychological problems which are consistent with ICD-10 Diagnosis of F 43.2 adjustment disorder.”
25Dr. Mrahar stated that the Applicant is experiencing significant psychological and emotional impairments directly related to the accident and its consequences. He stated that without treatment, the Applicant’s symptoms are likely to worsen and may hinder his recovery. He recommended that the Applicant engage in cognitive behavioral therapy focused on pain management strategies, and coping mechanisms for depression and anxiety.
26In the Applicant’s s.44 assessment with Dr. Miller dated January 25, 2022, they determined that the claimant had not sustained any psychological impairment which would take him outside the definition of minor injury. They stated there was no DSM-5 diagnosis and there were no accident-related impairments or sequelae.
27I have considered both reports, and find that the report from Dr. Mrahar, demonstrates sufficient evidence that the Applicant suffered a psychological injury which warrants reasonable and necessary treatment. Dr. Mrahar’s conclusions are more consistent with the Applicants other reports and the Applicant's ongoing psychological symptoms resulting from his diagnosis of adjustment disorder, such as anxious and depressive symptomatology, social withdrawal, isolation, and accident-related flashbacks.
28Therefore, I find that the Applicant, on a balance of probabilities, has furnished sufficient evidence to prove his removal from the MIG based on psychological injuries.
a) The Applicant is entitled to $4,314.20 for psychological services in a plan submitted on February 3, 2022
29The goals of this plan as indicated are; pain reduction, treatment of depression, anxiety, adjustment issues, driving anxiety, to address the Applicant’s emotional impairments, to develop a pain management strategy, and coping skills.
30The proposed services include 16 sessions of therapy and mental health support over the course of 8 weeks.
31I find that this plan is reasonable and necessary, for the following reasons:
i. The Applicant was removed from the MIG based on psychological injuries, specifically adjustment disorder. I find that the proposed treatment is in alignment with the Applicant’s diagnosis and is reasonable and necessary for his recovery.
ii. As I found the Applicant’s psychological symptoms resulting from the subject accident warrant treatment beyond the MIG limits based on the reasons provided above, I find the proposed psychological treatment plans are reasonable and necessary.
32Therefore, I find on a balance of probabilities that these goals and services are in line with the treatment required by the Applicant to facilitate recovery.
a) The Applicant is entitled to $1,920.53 for psychological services in a plan submitted on December 29, 2021
33The goals of this treatment plan were to reduce or completely eliminate anxiety, improve emotional and social status, improve sleep, optimize coping with pain, as well as to facilitate a psychological assessment to determine his rehabilitation needs, and to guide his treatment.
34In this report, Dr. Mrahar diagnosed the Applicant with Adjustment Disorder (with mixed anxiety and depressed mood). Dr. Mrahar wrote that the Applicant is at risk for a range of psychological issues if no intervention occurs and as such, a psychological evaluation will provide specific recommendations for required psychological treatment and will facilitate the Applicant’s recovery.
35On a balance of probabilities, I find that this treatment plan is reasonable and necessary based on the relevance to the Applicant’s injuries and attempt to recover.
b) The Applicant is not entitled to $3,032.39 ($3,195.84 less $163.45 approved) for chiropractic services proposed by Mediwise Healthcare Clinic in a plan submitted on December 29, 2021
36The Applicant saw Osoba, Bohdan, a chiropractor, on December 29, 2021. In this report, Bohdan’s goals were listed as: increase in strength, return lo activities of normal living, return to pre-accident work activities, return to modified work.
37The services being provided included chiropractic assessments, stimulation, manipulation, and exercises.
38However, as I did not find sufficient evidence that the Applicant experienced physical injuries which fall outside of the MIG. Therefore, I do not find this treatment plan reasonable or necessary on a balance of probabilities.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s.51 of the Schedule, the Applicant has demonstrated that the disputed psychological treatment plans are reasonable and necessary. Interest is payable in accordance with s.51 of the Schedule, on any outstanding benefits.
40Interest is not payable on the treatment plan for chiropractic services.
ORDER
41I find that the Applicant is removed from the MIG, is entitled to the disputed treatment plans, and is entitled to interest on any outstanding benefits.
Released: March 14, 2025
Sarah Guergis
Adjudicator```