Giannopoulos v. Primmum Insurance Company
Licence Appeal Tribunal File Number: 23-009960/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:
Maria Giannopoulos
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Andrew Bergel, Counsel
For the Respondent: Eric Grossman, Counsel; Yann Grand-Clement, Counsel
HEARD: By way of written submissions
OVERVIEW
1Maria Giannopoulos, the applicant, was involved in an automobile accident on June 25, 2017, 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, Primmum 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:
i. Is the applicant entitled to $2,460.00 for dental services in a treatment plan/OCF-18 (“plan”) submitted August 23, 2021, proposed by 101 Assessments?
ii. Is the applicant entitled to $2,460.00 for a psychological assessment in a treatment plan submitted October 4, 2021, proposed by 101 Assessments?
iii. Is the applicant entitled to $10,015.00 for dental services in a treatment plan submitted October 27, 2021, proposed by Dr. Terger?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant is not entitled to $2,460.00 for dental services.
4I find the applicant is not entitled to $2,460.00 for a psychological assessment.
5I find the applicant is not entitled to $10,015.00 for dental services.
6I find the applicant is not entitled to interest.
PROCEDURAL ISSUES
7I find the applicant has improperly raised a new issue in her reply submissions in paragraph 21. I will not consider the issue because it could have been raised in the initial submissions and it prejudices the respondent. Thus, the Tribunal will not consider whether the denials of the treatment plans do not comply with s. 38(8) of the Schedule.
8It is well settled that the purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise new issues that should have been raised in initial submissions or to reformulate their argument. It is also well-settled that the right of reply is a limited one. As a general rule, parties are expected to make the entirety of their cases in their main submissions. New issues forming part of a reply typically are not permitted, because the respondent does not have the opportunity to respond to issues that are raised in a reply.
9The applicant directed me to Felix v. Personal Insurance Company 2023 CanLII 42536, and Levoy-Jones v. Aviva Insurance Company 2024 CanLII 43443. While the two decisions discuss compliance with s. 38(8), I find they do not support the applicant’s attempt to add new issues raised in reply submissions. As such, I find this new issue raised in the applicant’s reply is not permitted.
ANALYSIS
Is the applicant entitled to a treatment plan for $2,460.00 for dental services?
10I find on a balance of probabilities the applicant has not shown she is entitled to the treatment plan for dental services in the amount of $2,460.00.
11To receive payment for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
12The applicant submits that the treatment plan for dental services is for a “TMJ assessment”. The treatment plan was prepared by Dr. Bill Nikols, chiropractor. The goal of the plan is to “evaluate the applicant’s injuries” and return to activities of normal living. The plan was submitted August 23, 2021, and denied by the respondent on September 3, 2021. The applicant submits the dental services/TMJ assessment is reasonable and necessary, and she relies on the clinical notes and records (“CNRs”) of Dr. Eleanor Colledge, family doctor, and Dr. David Yarmand, dentist, as well as the Temporomandibular Joint (“TMJ”) Examination report prepared by Dr. Leon Treger, dentist, dated October 31, 2021.
13The applicant submits she has suffered ongoing and daily pain from the dental trauma as a result of the accident. I have reviewed Dr. Colledge’s and Dr. Yarmand’s CNRs and over the period of June 25, 2017 to August 18, 2018. During this time the applicant had four teeth extracted and one implant and a cap placed in 2019 due to the dental trauma from the accident.
14I find the family doctor’s CNRs and Dr. Yarmand’s CNRs do not support the applicant’s position that the treatment/TMJ assessment is reasonable and necessary for three reasons. First, the applicant met with her family doctor several times after August 2018, and the applicant has not referred me to any further complaints on pain, injury or impairment associated with the dental trauma from the accident. Second, after each dental procedure, Dr. Yarmand noted the “procedure went well without complications”. Third, there is a three-year gap from the implant placement to the submission of the treatment plan, and four years since the accident, however, the applicant has provided no explanation for this gap or referred me to related complaints after August 2018. In my opinion, this gap is significant and weakens the applicant’s claim that a TMJ assessment is reasonable and necessary as a result of the accident.
15I also place less weight on Dr. Treger’s report from 2024 because it is seven years after the accident date. Dr. Treger’s October 2021 does not persuade me because the family doctor’s CNRs are silent on any dental related complaints after August 2018. Prior to this date, the applicant visited and updated her family doctor on her dental injuries and related procedures as part of her overall health. It is also not clear to me how Dr. Treger determined that the accident, which occurred almost four and a half years earlier, warranted a TMJ assessment and was the cause of the dental impairment.
16I find the applicant has not met her onus of demonstrating this treatment plan is reasonable and necessary.
Is the applicant entitled to a treatment plan for $10,015.00 for dental services?
17I find, on a balance of probabilities, the applicant has not shown she is entitled to the treatment plan for dental services in the amount of $10,015.00.
18The applicant submits she has ongoing pain associated with her dental trauma from the accident. The treatment plan was prepared and submitted October 27, 2021, by Dr. Treger. The plan intends to address injuries of cervical disc disorder, TMJ disorder, and sprain and strain of jaw. The goals of the treatment are pain reduction, increase in strength and range of motion, “to be able to chew pain free and sleep properly” and return to activities of normal living. The applicant relies on the TMJ report prepared by Dr. Treger, the CNRs of the family doctor, Dr. Yarmand, and Dr. Mark Alexis, dentist.
19I have reviewed the CNRs and note the applicant visited with Dr. Yarmand on August 18 and August 27, 2018. At that time, Dr. Yarmand noted the applicant’s dental implant placement “went well without complications” and her “sites healing well”. Dr. Yarmand addressed the applicant’s injuries from the accident, including the extraction of multiple teeth and the corresponding implant and bone grafting. The next visit with Dr. Yarmand was in December 2018 in preparation for a “final cap replacement” that was completed by Dr. Alexis in July 2019.
20In the previous section of the decision, I refer to Dr. Treger’s 2021 report and my reasons for assigning less weight to the report. I find Dr. Treger’s report does not establish the applicant’s accident-related injuries caused her pain. I also note she responded well to the previous treatment that was concluded in July 2019 by Dr. Alexis and Dr. Yarmond.
21I find the applicant has not directed me to evidence demonstrating how the current treatment plan is associated to her injuries from the accident.
22I find the applicant has not met her onus of demonstrating the treatment plan is reasonable and necessary.
Is the applicant entitled to a psychological assessment for $2,460.00?
23I find, on a balance of probabilities, the applicant has not shown she is entitled to the treatment plan for a psychological assessment.
24The applicant submits a psychological assessment is reasonable and necessary, because she has pre-existing anxiety that was aggravated by the accident. The treatment plan was prepared by Lital Grinberg, psychological associate, and submitted on October 4, 2021. The plan intends to assess the applicant’s mental health with the goal of recommending possible psychological treatment and to help the applicant function effectively in her social and occupational areas of functioning. The applicant relies on the CNRs of Dr. Colledge, and the Psychiatry Consult Report dated March 12, 2018, prepared by Dr. Shery Zener, psychiatrist.
25The applicant was diagnosed with anxiety by her family doctor in November 2014. Since the date of the accident, the applicant visited her family doctor three times with complaints of anxiety related to the accident. Her most recent visit about accident-related anxiety was in January 2018. After this date, the doctor did not note the accident in connection with her anxiety. In February 2020 the doctor noted the applicant’s anxiety in connection with starting school again. In March and August 2020, the doctor noted the applicant felt her anxiety was sufficiently managed with her prescription and the doctor’s monitoring her progress. In March 2018, the applicant was referred to Dr. Zener. Dr. Zener noted the applicant had various psychological impairments, however, there is no mention of the accident in connection to those impairments.
26I find the CNRs of Dr. Colledge and the report from Dr. Zener suggest the applicant’s anxiety was pre-existing and aggravated by the accident. While I am alive to the applicant’s psychological impairment, I am not persuaded that a third psychological assessment four years after the accident is reasonable and necessary because it has already been established that the applicant has pre-existing anxiety, and the applicant continues to manage with this with her family doctor.
27I find the applicant has not met her onus of demonstrating the treatment plan is reasonable and necessary.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.
ORDER
29I find:
i. The applicant is not entitled to $2,460.00 for dental services.
ii. The applicant is not entitled to $2,460.00 for a psychological assessment.
iii. The applicant is not entitled to $10,015.00 for dental services.
iv. The applicant is not entitled to interest.
v. The application is dismissed.
Released: August 11, 2025
Aric Bhargava
Adjudicator