Licence Appeal Tribunal
Citation: Aizikovich v. Allstate Canada, 2025 ONLAT 23-004592/AABS Licence Appeal Tribunal File Number: 23-004592/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:
Lev Aizikovich
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Kateryna Vlada, Counsel
For the Respondent: Colleen Mackeigan, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Lev Aizikovich, (the “applicant”) was involved in an automobile accident on December 5, 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 Allstate Canada (the “respondent”) 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. 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 the treatment proposed by Allstar Medical Clinic as follows:
(i) $2,200.00 for the cost of a psychological assessment submitted by treatment plan on April 22, 2021 and denied on May 5, 2021?
(ii) $2,228.10 for physiotherapy services submitted by treatment plan on April 22, 2021 and denied on May 20, 2021?
(iii) $2,273.30 for physiotherapy services submitted by treatment plan on September 23, 2021 and denied on September 27, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not demonstrated that removal from the MIG is warranted. The applicant’s injuries are predominantly minor and therefore subject to treatment within the MIG limit.
ii. The applicant is not entitled to the treatment plans nor interest.
iii. The application is dismissed.
ANALYSIS
The Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
5An insured person 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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
6In all cases, the burden of proof lies with the applicant.
7The applicant submits that he should be removed from the MIG on the following grounds:
i. He has paraesthesia in his left arm and hand and based on the results revealed in the x-ray of the back, dated March 11, 2023, and the MRI of the cervical spine, dated October 19, 2023.
ii. He has functionally disabling chronic pain; and
iii. He was diagnosed with psychological impairments.
8To counter, the respondent argues that the applicant has not established that his accident-related injuries fall outside of the MIG.
The applicant is not removed from the MIG on the basis of paresthesia in the left arm and hand and the results of the X-ray and MRI, dated March 11, 2023 and October 19, 2023
9I find that the applicant has not demonstrated on a balance of probabilities that his paresthesia in his left arm/hand and the results of the x-ray of the thoracic/lumbar spine and the MRI of the cervical spine, dated March 11, 2023 and October 19, 2023, are related to this accident. Also, I find that there is minimal evidence to support that the applicant has cervical radiculopathy from this accident.
10The applicant argues that following the accident, he has neck pain that radiates down to his left arm and hand, accompanied by paraesthesia. As a result, he argues that he occasionally dropped objects from his left hand, and experienced pain in the mid and lower back. He further argues that he has been diagnosed with scoliosis, mild spurring, and mild degenerative disc narrowing in the x-ray, dated March 11, 2023. Likewise, the applicant argues that the results of the MRI, dated October 19, 2023, suggest that the degenerative changes in the cervical spine are causing varying degrees of pain, radiating symptoms, and reduced neck mobility.
11To this end, he relies upon the clinical notes and records (“CNRs”) of his family physician, Dr. Vera Kamenskaia, and neurologist, Dr. Viachislav Prigozhikh, and the x-ray of the thoracic/lumbar spine, dated March 11, 2023, and the MRI of the cervical spine, dated October 19, 2023.
12The respondent argues that there is no evidence from a medical professional where the results of the MRI, dated October 19, 2023, have been linked to the subject accident. The respondent further argues that nerve conduction testing and EMG testing of the left extremity were normal and there was no evidence of cervical radiculopathy.
13I find that the applicant has not established that his reported paraesthesia in the left arm/hand are connected to this accident. I also find that the applicant has not led sufficient evidence to establish that he sustained cervical radiculopathy from the accident.
14I am alive to the fact that on May 8, 2023, the applicant reported neck pain which radiated down to his left arm/hand which was accompanied by paresthesia to Dr. Prigozhikh. I am also aware of the fact that Dr. Prigozikh conducted neurological testing which revealed reduced pinprick and light touch over the left arm/hand compared to the right limb. However, Dr. Prigozikh did not opine that the applicant had paraesthesia from this accident or the origin of this. Rather, Dr. Prigozhikh noted that the applicant presented with a history of pain in his entire spine after the accident and that EMG/nerve conduction testing needed to be done to exclude peripheral neuropathy from cervical radiculopathy (not yet specified). Dr. Prigozhikh also recommended an MRI of the cervical spine to exclude structural abnormalities. Significantly, Dr. Prigozhikh asked the applicant to follow up with him once all the testing was completed.
15On July 15, 2023, Dr. Lesley S. Corrin, neurologist conducted the nerve conduction testing and the EMG testing. After conducting the testing, Dr. Corrin concluded that both the nerve conduction and EMG testing of the left upper extremity were normal. Notably, Dr. Corrin opined that there was no evidence of cervical radiculopathy, plexopathy, or peripheral nerve entrapment involving the left upper extremity. Therefore, I find that the applicant did not sustain cervical radiculopathy as both the nerve conduction and EMG testing ruled it out.
16On October 19, 2023, an MRI of the cervical spine was conducted which revealed: mild to moderate multi level degenerative changes, most prominent at C5-C6, where there was neural abutment. It was further noted that there was no nerve root impingement or significant central canal stenosis.
17Significantly, the applicant has not tendered updated CNRs from Dr. Prigozhikh’s office. As noted above, Dr. Prigozhikh had requested that the applicant see him after the testing was completed. Without these records, I am unable to determine whether Dr. Prigozhikh was able to determine the root cause of the applicant’s paresthesia and whether there is a connection to the accident.
18Likewise, the applicant’s family physician, Dr. Kamenskaia has not linked the applicant’s paraesthesia to the subject accident. Indeed, on December 18, 2020, the applicant reported numbness in his fingers at night time, and Dr. Kamenskaia queried whether the applicant had carpal tunnel syndrome. Significantly, Dr. Kamenskaia did not opine that the applicant’s numbness in his fingers were connected to this accident. In short, I find that the applicant has not established that his paraesthesia is connected to this accident because there is no medical opinion that links the paraesthesia to the accident. Rather, Dr. Prigozhikh recommended testing to determine the cause of this issue, however, the applicant did not tender copies of the updated CNRs, therefore I do not know what Dr. Prigozhikh’s opinion was after the testing was completed.
19I also find that the applicant has not established on a balance of probabilities that the results outlined in the x-ray of March 11, 2023, and MRI of October 19, 2023, are related to the accident because he has not produced a medical opinion that establishes a connection between these results and the subject accident.
20I acknowledge that the applicant underwent an x-ray of his thoracic and lumbar spine on March 11, 2023, which revealed right convex thoracic scoliosis between T4-T5 and T10-T11; mild spurring inferior half thoracic spine; left convex scoliosis between T10-T11 and L3-L4; and mild degenerative disc narrowing L1-L2. However, the applicant has not directed me to a medical opinion that links these results to the subject accident. Crucially, the applicant has not tendered updated CNRs from Dr. Kamenskaia’s office, therefore I have no opinion from Dr. Kamenskaia of whether the x-ray results are connected to this accident. Likewise, Dr. Prigozhikh’s CNR is silent with respect to the x-ray results. To summarize, I have no medical opinion before me that links the results of the x-ray completed on March 11, 2023 to the subject accident.
21In a similar vein, the applicant has not produced a medical opinion that links the connection of the results contained in the MRI completed on October 19, 2023, to the subject accident. I acknowledge that the applicant has provided his own interpretation of these test results such as that his C6 nerve root being affected and mild disc osteophyte complex and mild facet joint degeneration can lead to moderate neck pain, and pain radiating into the shoulders, arms, and hands, along with tingling, numbness, or weakness.
22However, the applicant has not referred me to a medical opinion that supports this interpretation of the results. As noted above, I have not been provided with updated CNRs from Dr. Prigozhikh or Dr. Kamenskaia’s office, and the last entries predated the MRI. Likewise, the applicant has tendered no evidence to support his argument that the degenerative changes in the cervical spine are causing radiating symptoms, and reduced neck mobility. It is well-settled that submissions are not evidence.
23In conclusion, I find that the applicant has not established that his reported paraesthesia, and the x-ray, dated March 11, 2023 and MRI, dated October 19, 2023, are connected to this accident. I also find that there is limited evidence to support that the applicant has cervical radiculopathy.
The applicant has not established chronic pain warranting removal from the MIG
24I find that the applicant has not met his burden to prove that he has a chronic pain condition with a functional impairment, that would warrant removal from the MIG.
25The applicant argues that he sustained injuries to his head, neck, left shoulder, and back from the accident. He further argues that he has been diagnosed with chronic pain by Dr. Kamenskaya on May 3, 2022, and that his pain is functionally disabling. The applicant also argues that his pain has impeded his range of motion, and his pain is aggravated by lifting, bending, prolonged sitting, prolonged standing, and prolonged periods of walking. To support his position, he relies upon the CNRs of Dr. Kamenskaya and the s. 25 psychological assessment report of Dr. Sara Aharon, psychologist, and Ms. Larisa Levitas, psychotherapist, dated October 12, 2021.
26Meanwhile, the respondent argues that there is no discussion regarding the applicant’s level of functioning, and whether the pain has improved over time in the CNR of May 3, 2022. The respondent also relies upon the s. 44 orthopaedic surgeon report of Dr. Michael Martin, orthopaedic surgeon, dated July 6, 2021.
27A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, see: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT). A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae of a minor injury. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a minor injury. In this regard, the applicant has fallen short of meeting his onus to establish chronic pain with functional limitations.
28I accept that the applicant was diagnosed with chronic neck and lower back pain by his family physician, Dr. Kamenskaya on May 3, 2022. However, there is no discussion of the level of pain the applicant experiences, its effect on his function or whether the pain is bearable without treatment. Notably, in the CNR of May 3, 2022, the applicant reported that “pain is there, but he manages it.” In any event, there is minimal evidence before me that supports that the applicant has a functional impairment or disability as a result of his neck and lower back pain.
29In my view, Dr. Kamenskaya’s CNRs of December 18, 2020 and April 12, 2022, do not support the applicant’s position that he has a functional impairment or disability as a result of his neck and lower back pain. I am alive to the applicant’s arguments that these CNRs documented his functional limitations such as impeded global range of motion in the cervical spine and shoulder, and that prolonged postural holds and arm movements resulted in aggravation of pain. As well, I acknowledge his position that these CNRs support that physical demands which required sustain, repetitive or exertive movement, lifting, bending, prolonged sitting, prolonged standing, and prolonged periods of walking aggravated his pain.
30Contrary to the applicant’s position, there is no reference to impeded range of motion or functional limitations in the CNRs of December 18, 2020 and April 12, 2022. On December 18, 2020, the applicant reported left shoulder pain, neck pain, and numbness in his fingers, but he did not report functional limitations or any of the issues noted above. Similarly, Dr. Kamenskaya did not opine that the applicant’s functionality was impacted by this pain, and no range of motion testing was conducted.
31Likewise, on April 12, 2022, the applicant reported lower back pain, neck pain, and occasional leg tingling and cramps, but again he did not report functional limitations or that he had aggravated pain as a result of completing his activities. Dr. Kamenskaya also did not opine that the applicant had functional impairments as a result of his pain, and no range of motion testing was conducted. Therefore, the applicant’s submissions with respect to his functional limitations are not referenced in these CNRs, and it is well-settled that submissions are not evidence.
32Dr. Prigozhikh has also not opined that the applicant has a functional impairment from his neck and back pain. Rather, on May 8, 2023, the applicant reported no functional impairments, and that he was working at a warehouse. As noted above, Dr. Prigozhikh recommended further testing, however he did not opine that the applicant’s functionality was impacted by the accident.
33Finally, I place little weight on the applicant’s self-reporting to Dr. Aharon, and Ms. Levitas because it is inconsistent with the CNRs of Dr. Kamenskaya, and his reporting to Dr. Martin. In September of 2021, the applicant reported to Dr. Aharon/Ms. Levitas that he struggled with his pain in his daily routine, that he is unable to work, perform household chores, engage socially, and function as he did prior to the accident. However, two months before this assessment (July 6, 2021), the applicant reported to Dr. Martin that he was managing his own housekeeping tasks, and significantly when he was asked what he could not do, the applicant answered, “he could not immediately think of any specific pre-accident activities that he is currently unable to perform.” Likewise, seven months (April 12, 2022) after the psychological assessment, the applicant reported no functional limitations to his family physician, Dr. Kamenskaya.
34In my view, it is difficult to reconcile that the applicant has functional limitations as described in the psychological assessment where he struggled with his daily routine, yet he could not recall of any functional limitations when he met with Dr. Martin, and seven months after, there were no functional limitations noted in Dr. Kamenskaya CNR.
35In brief, where there is minimal evidence of a functional impairment as a result of the applicant’s neck and lower back pain, I find that he has not established he should be removed from the MIG on the basis of chronic pain.
The applicant is not removed from the MIG on the basis of psychological impairments
36I find that the applicant has not met his burden of proof to demonstrate that he should be removed from the MIG based on a psychological impairment.
37Psychological impairments are not included in the definition of minor injury pursuant to s. 3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.
38The applicant argues that he was diagnosed with an adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational by Dr. Aharon, and Ms. Levitas, and relies upon the s. 25 psychological assessment report, dated October 12, 2021.
39I place significant weight on the fact that the applicant has not referred me to any CNRs of Dr. Kamenskaya, where he has reported psychological symptoms. This is because Dr. Kamenskaya is the applicant’s treating practitioner, and has seen the applicant for various visits throughout 2020 to 2022, but the applicant did not report any psychological symptoms.
40I also find the s. 25 report completed by Dr. Aharon and Ms. Levitas to be of limited evidentiary value for the following three reasons.
41First, neither Dr. Aharon nor Ms. Levitas reviewed any medical documentation in preparation for their assessment. If these records had been reviewed, they would have realized that the applicant has not reported psychological symptoms to his family physician.
42Second, the applicant reported two months (July 6, 2021) prior to the psychological assessment to Dr. Martin that he had no significant cognitive difficulties or any changes to his mood. Yet, he reported to Dr. Aharon and Ms. Levitas that he struggled with comprehension during conversations; that he had difficulty concentrating; that he had difficulty planning his day and tracking his time; and that he endorsed an overall cognitive slowing which negatively affected his ability to read. The applicant also reported that he felt helpless, discouraged, anxious, and depressed. The applicant has not addressed why he did not report these psychological symptoms to Dr. Martin two months prior, and instead reported no significant cognitive difficulties or any changes in his mood.
43Third, Dr. Aharon/Ms. Levitas did not conduct validity testing and instead relied upon subjective psychological testing such as the Beck Depression Inventory, Beck Anxiety Inventory, and the Accident Fear Questionnaire. I place minimal weight on the results of this psychological testing as it is not supported by the bulk of the medical evidence before me, like the applicant reported no psychological symptoms to either Dr. Kamenskaya or Dr. Prigozhikh, and reported no significant cognitive issues or change in mood to Dr. Martin.
44Next, the applicant argues that he has post-traumatic stress disorder, however he has not referred me to evidence that supports this submission. Neither Dr. Aharon/Ms. Levitas have diagnosed the applicant with post-traumatic stress disorder but rather noted that the results of the post-traumatic stress disorder scale revealed that the applicant does not meet the criteria for a diagnosis of post-traumatic stress disorder.
45Finally, the applicant relies upon the authorities of 17-007527 v. Aviva Insurance Canada, 2018 CanLII 110948 (ON LAT) (“17-007527”), 17-005791 v. Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT) (17-005791”), and Sanghera v. Pembridge Insurance Company, 2020 CanLII 87996 (ON LAT) (“Sanghera”) to support his position that he should be removed from the MIG on the basis of his psychological symptoms and psychological impairments.
46However, I am not bound by these decisions, and I find them distinguishable from the matter before me. In both, 17-007527 and 17-005791, the applicant reported psychological symptoms to their family physicians. In the matter before me, the applicant has not reported psychological symptoms to his family physician. In Sanghera, the Vice Chair noted that the applicant had been diagnosed with somatic symptom disorder, and that there was evidence that the applicant’s psychological condition was inextricably linked to her chronic and debilitating physical pain. Therefore the Vice Chair determined that the lack of reference of psychological symptoms in the applicant’s family physician’s records did not negate from a finding that the applicant had a psychological impairment because she consistently reported pain.
47In comparison, in the matter before me, there is no diagnosis of a somatic symptom disorder, and the applicant has not directed me to evidence that supports he has a significant focus on his physical symptoms, or that he has excessive thoughts, feelings and behaviours related to his physical symptoms.
48For the reasons set out above, I find that the applicant has not established on a balance of probabilities that he has a psychological impairment that warrants removal from the MIG.
49The OCF-18s in dispute propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury. The applicant is not entitled to these benefits because he sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit.
50Interest is not payable pursuant to s. 51 of the Schedule as there are no overdue amounts owing.
ORDER
51For the reasons outlined above, I find that:
i. The applicant has not demonstrated that removal from the MIG is warranted. The applicant’s injuries are predominantly minor and therefore subject to treatment within the MIG limit.
ii. The applicant is not entitled to the treatment plans nor interest.
iii. The application is dismissed.
Released: March 26, 2025
Tanjoyt Deol Adjudicator