Licence Appeal Tribunal File Number: 23-006038/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:
Witold Kalinowski
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR: Rasha El Sissi
APPEARANCES:
For the Applicant: Marta Tomaszewski, Paralegal
For the Respondent: Angela Comella, Counsel
HEARD: By way of written submissions
OVERVIEW
1Witold Kalinowski, the applicant, was involved in an automobile accident on September 5, 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, Unica Insurance Inc., and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant is being treated outside of the Minor Injury Guideline.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,892.98 for psychological services, proposed by Gennedy Fillin in a treatment plan/OCF-18 (“treatment plan”) submitted on June 15, 2022?
ii. Is the applicant entitled to $2,299.75 for a psychological assessment, proposed by Mr. Fillin in a treatment plan submitted on June 28, 2022?
iii. Is the applicant entitled to $1,325.00 for a dental assessment, proposed by Dr. Marciniak in a treatment plan submitted on November 11, 2021?
iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Dr. Marciniak in a treatment plan submitted on January 1, 2024?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant did not withdraw or make any submissions in relation to issues ii and iv in his written submissions for this hearing. The respondent submits that it did not comment on issues ii and iv in its submissions for this hearing because no argument was raised in relation to them.
RESULT
5The applicant is entitled to $2,892.98, plus interest, for the treatment plan for psychological services. (issue i)
6The applicant is not entitled to $2,299.75 for the treatment plan for a psychological assessment. (issue ii)
7The applicant is not entitled to $1,325.00 for the treatment plan for a dental assessment. (issue iii)
8The applicant is not entitled to $2,200.00 for the treatment plan for a chronic pain assessment. (issue iv)
9No special award is granted.
ANALYSIS
Plans in dispute
10To 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 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 plan for psychological services.
11I find that the treatment plan for psychological services, i.e., submitted on June 15, 2022 ($2,892.98), is reasonable and necessary, and therefore that the applicant is entitled to the services proposed.
12The treatment plan in dispute proposes 18 additional psychotherapy sessions to be provided by Mr. Fillin, the applicant’s treating psychotherapist, and documentation by Dr. Marciniak, physician. It was recommended by Mr. Fillin to build and fortify the applicant’s defences, and for the applicant’s stabilization and prevention of further deterioration.
13The applicant submits that he benefited from psychotherapy with Mr. Fillin since the accident, but that further sessions are required. The applicant points to Mr. Fillin’s clinical notes and records (“CNR”). The respondent’s position is that the treatment plan is not reasonable and necessary because the applicant has not complained of psychological issues to his family doctors, his primary care physicians.
14There are also conflicting reports under sections 25 and 44 of the Schedule on the question of whether the applicant has a psychological impairment because of the accident. Dr. Yaroshevsky, section 25 psychiatric assessor, diagnoses the applicant with major depressive disorder, single episode, related to the accident. He also recommends continuing psychological treatment for the applicant. Dr. Clewes, section 44 physiological assessor, did not find any accident-related psychological issues and concludes, accordingly, that the treatment plan is not reasonable and necessary.
15Having reviewed the CNR of Dr. Walenczykiewicz, family doctor, and the other physicians of the applicant’s family physician’s office in evidence, I agree that they do not contain any notes of psychological complaints after the accident.
16Rather, the evidence in support of an additional 18 psychotherapy sessions arises primarily from Mr. Fillin’s CNR covering his initial assessment of the applicant and first 18 therapy sessions. The CNR indicate that the applicant is in constant pain and discomfort, has problems with sleep, prefers to be alone, and has difficulty with memory, concentration, anger, and irritability. In the treatment plan, Mr. Fillin indicates that the past therapy has been helpful, and the applicant has been somewhat more active and independent in the months since his therapy started. Mr. Fillian indicates that progress of the goals will be evaluated by clinical assessment and psychological testing.
17I give weight to the CNR and recommendation of Mr. Fillin, the applicant’s treating psychotherapist, over the absence of complaints to his family doctor and the conclusion of Dr. Clewes.
18In this case, Mr. Fillin is in the best position determine the applicant’s need for further therapy based on his experience with the applicant over the 18 previous psychotherapy sessions. As the applicant’s treating therapist, he is knowledgeable of the time required to adequately treat the applicant’s psychological impairment due to his experience, expertise and understanding of the applicant’s psychological difficulties.
19In addition, Mr. Fillin’s recommendation of additional psychological treatment is supported by Dr. Yaroshevsky’s psychiatric report.
20Therefore, I find on a balance of probabilities that the treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plan for a dental assessment.
21I find that the treatment plan for a dental assessment is not reasonable and necessary, and therefore that the applicant is not entitled to the proposed assessment. The dental goods and services and the plan’s goals are not supported by the evidence.
22The treatment plan submitted on November 11, 2021 ($1,325.00) is to determine if the applicant would be a proper candidate for a dental implant to replace a missing tooth. The goal is to restore normal dental function and avoid further complications, including bone loss and secondary tooth instability. The plan proposes various dental goods and services to be provided by Dr. Mahajan, dentist, and documentation provided by Dr. Marciniak.
23The applicant’s position is that he struck his face and fractured his tooth in the accident. He submits that his dentist extracted the tooth and thus the applicant exhausted his dental benefits. The applicant submits that he requires a replacement tooth. The applicant points to the CNR of his dentist Dr. Chojecka recommending an implant.
24The respondent submits that there is insufficient medical evidence to support the need for treatment of this nature. The respondent points to the clinical note of Dr. Chojecka on October 25, 2021, referencing pain that started three days prior. The respondent submits that the timing of the onset of pain is not consistent with the date of the accident (i.e., it starts about six weeks later) and does not reference the accident as the cause of the pain.
25The respondent also submits that there is no reference to significant dental trauma in the CNR of the applicant’s family doctors, and that the applicant denied hitting his head in the accident, as reported in those CNRs.
26I find that the applicant has failed to demonstrate that the accident caused his tooth fracture. There is no reference to the accident in Dr. Chojecka’s CNRs or to any explanation of the mechanism of the fracture that connects it to the accident. In addition, the applicant specifically denied to his family physician that he hit his head in the accident.
27On balance, I find that there is insufficient evidence to support the treatment plan and its goals. Therefore, I find on a balance of probabilities that the treatment plan is not reasonably and necessary.
The applicant is not entitled to the other treatment plans in dispute.
28I find that the applicant is not entitled to the other treatment plans in dispute (i.e., issues ii and iv). He has not met his onus to demonstrate that these treatment plans are reasonable and necessary because he failed to make submissions on entitlement.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on $2,892.98 (i.e., the cost of the treatment plan for psychological services, being issue i).
Award
30Under s. 10 of Reg. 664, 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
31The applicant sought an award under s. 10 of 25 per cent because it submits that the respondent acted in a stubborn, unyielding and unreasonable manner in respect of its denials.
32No award is justified.
33The applicant has not pointed to any specific act or course of conduct which would demonstrate that the respondent acted in a way that was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
ORDER
34For the above reasons, I find:
i. The applicant is entitled to $2,892.98, plus interest, for the treatment plan for psychological services. (issue i)
ii. The applicant is not entitled to $2,299.75 for the treatment plan for a psychological assessment. (issue ii)
iii. The applicant is not entitled to $1,325.00 for the treatment plan for a dental assessment. (issue iii)
iv. The applicant is not entitled to $2,200.00 for the treatment plan for a chronic pain assessment. (issue iv)
35No special award is granted. No special award is granted.
Released: July 23, 2025
Rasha El Sissi
Adjudicator