Licence Appeal Tribunal File Number: 23-012772/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:
Vladyslav Savytskyi
Applicant
And
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Kirtsman Ilya, Counsel
For the Respondent: Samara Maharaj, Counsel
HEARD: By way of written submissions
OVERVIEW
1Vladyslav Savytskyi, the applicant, was involved in an automobile accident on October 29, 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, Intact 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:
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 limit? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to attendant care benefits (“ACBs”) in the amount of $485.90 per month from October 29, 2021, to date and ongoing?
Is the applicant entitled to medical services proposed by Myers Physiotherapy and Sports Injury Clinic, as follows:
i. $2,471.85 for physiotherapy, in a treatment plan/OCF-18 (“plan”) submitted January 15, 2022, and denied April 5, 2022; and
ii. $2,954.50 for chiropractic services, in a plan submitted May 7, 2022, and denied May 20, 2022?
- Is the applicant entitled to medical services proposed by Functionability Rehabilitation Services LP, as follows:
i. $2,444.39 for occupational therapy services, in a plan submitted February 14, 2022, and denied April 5, 2022;
ii. $1,696.26 for an in-home assessment, in a plan submitted February 14, 2022, and denied May 6, 2022; and
iii. $1,546.63 for an ergonomic assessment, in a plan submitted March 21, 2022, and denied April 5, 2022?
Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Major Mac Physiotherapy and Wellness in a plan submitted April 21, 2022, and denied July 20, 2022?
Is the respondent liable to pay an award under s. 10 of 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
3After considering both parties’ submissions and all the evidence, I find as follows:
The applicant’s accident-related impairments fall outside of the MIG.
The applicant is not entitled to ACBs in the amount of $485.90 per month from October 29, 2021, to date and ongoing.
The applicant is not entitled to the following OCF-18s proposed by Functionability Rehabilitation Services:
a) $1,696.26 for an in-home assessment submitted February 14, 2022.
b) $2,444.39 for occupational therapy services submitted February 14, 2022.
c) $1,546.63 for an ergonomic assessment, in a plan submitted March 21, 2022.
The applicant is not entitled to $1,995.32 for the psychological assessment, proposed by Major Mac Physiotherapy and Wellness in the OCF-18 submitted April 21, 2022.
The applicant is entitled to the following OCF-18s proposed by Myers Physiotherapy and Sports Injury Clinic:
a) $2,471.85 for physiotherapy submitted January 15, 2022.
b) $2,954.50 for chiropractic services submitted May 7, 2022.
The respondent is not liable to pay an award under s. 10 of Reg. 664.
The applicant is entitled to interest on the OCF-18s for physiotherapy and chiropractic treatment that I have determined to be reasonable and necessary.
BACKGROUND
4On October 29, 2021, the applicant was a pedestrian crossing the road at a crosswalk when a car hit him on the right side, and he fell to the ground hitting his head. He was taken by ambulance to hospital where he reported elbow pain and had a two-centimeter laceration to his scalp which required staples to seal.
ANALYSIS
Do the applicant’s impairments fall within the MIG?
5The applicant’s impairments fall outside of the MIG.
6Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
7An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that a concussion, chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.
8The applicant submits that he should be removed from the MIG because he sustained a concussion and a psychological impairment as a result of the accident. The applicant relies on the ambulance call report, hospital record, clinical notes, and records (“CNRs”) of Myers Physiotherapy Clinic and the ACB assessment of Julia Agro dated January 27, 2022. He also relies on the CNRs of Dr. Azzam who diagnosed him with post-concussive headaches in June 2023.
9The respondent argues that the applicant’s accident-related impairments fall within the MIG. It relies on insurer examination (“IE”) reports of Dr. Kopyto, general practitioner, and Dr. Bacchiochi, psychologist, who determined that the applicant did not sustain any physical or psychological impairments which fall outside of the MIG. The respondent also maintains that there was almost a two-year gap in the medical record where the applicant was diagnosed with post-concussion headaches by Dr. Azzam.
Concussion
10I find that the applicant sustained a concussion as a result of the accident which removes him from the MIG for the following reasons.
11First, I find the ambulance call report and hospital record confirm that the applicant sustained a head injury as a result of the accident as he hit his head which resulted in a laceration to his scalp which required staples. Although there was no specific reference to a concussion diagnosis in these records, I note that the paramedics indicated that the applicant had trouble describing the accident because English is his second language.
12Second, a note of Cambridge Centre for Health and Wellness dated November 16, 2021 (two-weeks post-accident) notes that the applicant experienced headaches every day for the last week. The CNRs of Myers Physiotherapy also support that he reported complaints consistent with a concussion. For example, a note dated January 15, 2022, states “head injury – headaches – aggravating factors to sit to stand, noise, light and fast movement.” These CNRs reference off and on complaints about headaches up until October 17, 2022, which is the last note in the record. For these reasons, I accept Dr. Azzam’s diagnosis of post-concussive headaches in June 2023. I also find this diagnosis consistent with the mechanics of the accident because the applicant sustained a head injury which required staples.
13Third, the applicant reported experiencing post-concussion symptoms to OT Agro which was also consistent with the applicant’s scores on the Rivermead Post-Concussion Symptoms Questionnaire. I find the applicant’s self-reports about his post-accident symptoms credible because he was honest about his functional limitations and did not appear to exaggerate his impairments. He reported that he had returned to his factory job shortly following the accident and that he was independent with self-care tasks. The respondent has provided me with no reason to doubt the applicant’s self-reports about his post-concussive symptoms.
14In contrast, the reports of the IE assessors do not address whether the applicant sustained a concussion as a result of the accident. Dr. Kopyto’s IEs heavily focussed on the applicant’s physical impairments, whereas Dr. Bacchiochi’s role was to assess whether the applicant sustained any psychological impairments.
15Although I acknowledge that the applicant was not diagnosed with a concussion directly following the accident, I find the evidence supports that he sustained a head injury as a result of the accident and complained of post-concussion symptoms two weeks following the accident. He also made regular complaints to his treating clinic regarding same. For these reasons, I find the applicant has met his onus in proving on a balance of probabilities that he sustained a concussion as a result of the accident which removes him from the MIG. I will now address the applicant’s entitlement to ACBs.
Attendant Care Benefits
16The applicant is not entitled to an ACB in the amount of $485.90 per month from October 29, 2021 to date and ongoing.
17Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an OT sets out the services and amount of care an individual requires as well as the monthly amount payable.
18Under subsection 3(7)(e) of the Schedule, in order for the applicant to receive payment for ACBs, there must be evidence that the expense was incurred. An incurred expense requires that the following conditions be met:
The applicant received the service to which the expense relates;
The applicant paid the expense or promised to pay the expense or is legally obligated to pay the expense; and
The person who provided the service did so:
A. in the course of their employment, occupation, or profession in which he or she would ordinarily have been engaged, but for the accident, or
B. sustained an economic loss as a result of providing the goods or services to the insured person.
19The applicant relies on the Form 1 and ACB report of OT Agro dated January 27, 2022, who recommended that the applicant receive $485.90 in ACBs per month. The respondent relies on the IE reports of Dr. Kopyto and Form 1 and ACB assessment of Tony Jung, (“OT Jung”) dated October 5, 2022, who determined that the applicant does not require ACB assistance as a result of any accident-related functional limitations.
20Overall, I prefer the recommendations of OT Jung over OT Agro because I find OT Agro’s recommendations inconsistent with the applicant’s post-accident function. The following are some examples:
i) The applicant reported being independent with self-care, he could carry out most housekeeping and home maintenance tasks and demonstrated the ability to chop vegetables for 10 minutes. However, despite this OT Agro recommended 60 minutes of assistance with meal prep per day. I find this recommendation unsubstantiated.
ii) Following the accident, the applicant was off work for 10 days and returned to his job working 12-hour shifts at a mushroom farm, which was a labour intensive job. Yet, OT Agro recommended that the applicant required assistance with bedroom and bathroom hygiene. I find the OT’s description of the applicant’s post-accident function inconsistent with this recommendation.
iii) OT Agro also recommended that the applicant receive assistance to ensure comfort and safety in the bedroom environment. I do not find the reason provided by the OT for this type of care was justified because it was recommended because the applicant’s family does not reside in Canada, and check-ins are needed to ensure his mood does not deteriorate. As noted below, I find there was little evidence to support that the applicant had any psychological impairments that would require this type of assistance.
21I also note that OT Agro reviewed very few medical records in completing this assessment and there was little in the medical record that supported that the applicant had any functional limitations as a result of the accident.
22In contrast, OT Jung concluded that the applicant did not require ACB assistance because he reported that he was independent with self-care and his other activities of daily living. The applicant had also obtained employment as a sous chef as of the date of OT Jung’s assessment, which I find at odds with OT Agro’s recommendation that the applicant required assistance with meal preparation. I find OT Jung’s report and recommendation more in-line with the applicant’s post-accident function. Moreover, Dr. Kopyto concluded that the applicant did not require ACBs as a result of any accident-related physical impairment.
23For the above-noted reasons, I find the applicant has not met his onus in proving on a balance of probabilities that he is entitled to ACBs in the amount of $485.90 per month from October 29, 2021 to date and ongoing. Nor did the applicant submit any evidence to prove that the benefit has been incurred pursuant to s. 3(7)(e) of the Schedule.
Medical Benefits and Cost of Examination Expenses
24Section 14 and 15 of the Schedule provides that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. 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 Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain.
25Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that the assessment is reasonable and necessary. The jurisprudence supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that he has an accident-related impairment which the assessment is meant to address.
OCF-18s Proposed by Functionability
In-Home Assessment
26I find that the applicant is not entitled to the OCF-18 for the in-home assessment in the amount of $1,696.26.
27The OCF-18 dated February 14, 2022, was authored by OT Agro and recommended an in-home assessment at a cost of $1,696.26 to evaluate the applicant’s safety and physical, psychological, and cognitive function post-accident to determine whether he requires ACBs. Under additional comments the form indicated that the assessment was recommended by the applicant’s legal representative. It noted that the applicant has ongoing pain in his right elbow, forearm, hand and back, issues with sleep and headaches.
28The respondent sent the applicant correspondence dated April 5, 2022 denying the OCF-18 based on its previous determination that the MIG applied. It also relied on the IE of Dr. Kopyto who determined that the applicant did not have any ongoing physical impairment or functional limitations which would require this assessment.
29I find the applicant has not established entitlement to the OCF-18 recommending the in-home assessment because there is insufficient medical evidence supporting that the applicant had any functional limitations prior to the OCF-18 being submitted. No CNRs from the treating clinic refer to any functional limitations because of his impairments. I also note that the OT refers to the assessment being recommended by the applicant’s legal representative not a health practitioner. Further, as highlighted above I have determined that the in-home assessment completed by OT Agro did not establish that the applicant requires ACBs as a result of any related impairments or functional limitations.
30I conclude that the applicant has not met his onus in proving on a balance of probabilities that the OCF-18 recommending an in-home assessment is reasonable and necessary.
Occupational Therapy
31The applicant is not entitled to the OCF-18 for occupational therapy in the amount of $2,444.39.
32The OCF-18 dated January 18, 2022, was authored by OT Agro and recommended six sessions of occupational therapy at a cost of $748.14, provider travel time at a cost of $598.50, $598.50 for documentation to support activities, $200.00 for form preparation and $299.25 for brokerage service for a total cost of $2,444.39. Under activity limitations it stated that the applicant continues to experience significant challenges in performing his daily activities due to pain in the right elbow, forearm, and hand, back, poor sleep, fatigue, and cognitive impairments. These ongoing symptoms impact his ability to participate in homemaking, work and leisure pursuits and attached a report. The goal of the OCF-18 was pain reduction, increase in strength and range of motion and indicated that community based occupational therapy will focus on increasing his safety in the home and community and facilitate performance in personal care, homemaking, work and exploring community integration.
33The respondent sent the applicant correspondence dated April 5, 2022 denying the OCF-18 based on the same reasons noted above.
34I find the applicant has not proven that the OCF-18 for occupational therapy is reasonable and necessary. As highlighted above, I find that the applicant returned to his employment and self-care activities post-accident. Although he experienced some pain with certain tasks, he was still able to complete them. As a result, I find the goal of the OCF-18 to be redundant. As per the reasons noted above, the applicant reported being fully independent with carrying out his self-care tasks. Consequently, I find he does not have the functional limitations to which the OCF-18 was meant to address. Further, I have determined that the applicant had the functional capacity for meal preparation and hygiene tasks. In addition, I have no evidence before me to support that he was unable to safely access the community. Finally, although I have determined that he is out of the MIG as a result of a concussion no cognitive tests were completed to support that he requires occupational therapy to address any cognitive complaints. I conclude that the applicant has not met his onus in proving that this OCF-18 is reasonable and necessary.
Ergonomic Worksite Assessment
35I find the applicant is not entitled to the ergonomic worksite assessment in the amount of $1,546.63.
36This OCF-18 dated March 9, 2022, was also authored by OT Agro and recommended an ergonomic assessment (worksite assessment) in the amount of $1,546.63. The OCF-18 noted that the applicant had significant challenges in carrying out his activities of daily living for the same reasons noted above and that his symptoms have impacted his ability to participate in homemaking, work, and leisure pursuits. The goal of the worksite assessment was to provide an analysis of the applicant’s current function and job demands and provide recommendations to promote successful return to productivity.
37The respondent denied the OCF-18 on April 5, 2022, based on the same reasons noted above.
38The applicant submits that the OCF-18 is reasonable and necessary because he returned to work 10 days following the accident on full-time hours and duties because he is currently in Canada on a work visa. Further, his job at the time was highly physical as it involved heavy lifting (up to 35 kg) and prolonged standing. Further, he reported increased pain symptoms both during and after completion of his workday after completing the following tasks: twisting the water hose and opening the water taps. According to the applicant he is responsible for twisting the water hose approximately 20 times throughout one workday and reported increased arm and back pain at the end of the day. The applicant submits that considering his increased pain and symptoms during and after work this OCF-18 is reasonable and necessary.
39I find there to be insufficient medical evidence to support that the OCF-18 recommending an ergonomic worksite assessment is reasonable and necessary. For example, the treating clinic’s CNRs do not reference that the applicant had any ongoing functional limitations at work to establish that this assessment was required. Nor is there any CNRs from a treating practitioner noting that the applicant had ongoing issues at work because of any accident-related impairments. I find the applicant’s self-reports to OT Agro during the in-home assessment about experiencing pain during and after work insufficient to establish that the assessment was reasonable and necessary.
40In contrast, the IE report of Dr. Kopyto concluded that there was no evidence of any ongoing physical impairment to support that the OCF-18 is reasonable and necessary. I accept Dr. Kopyto’s opinion because the applicant did not submit any persuasive evidence to refute it.
41I conclude that the applicant has not proven on a balance of probabilities that the OCF-18 for an ergonomic assessment is reasonable and necessary.
OCF-18 proposed by Major Mac Physiotherapy
Psychological Assessment
42The applicant is not entitled to the OCF-18 in the amount of $1,995.32 for a psychological assessment.
43The OCF-18 dated April 5, 2022, was prepared by Ana Bodnar, psychologist, and proposed a psychological assessment in the amount of $1,995.32 which included fees for administering tests and form preparation. The goal of the OCF-18 was to address the applicant’s anxiety and depression to return him to his activities of daily living.
44The respondent sent the applicant correspondence denying the OCF-18, relying on the IE of Dr. Bacchiochi, who determined that there was no evidence of a diagnosable accident-related psychological impairment.
45I find there to be insufficient evidence to support that the psychological assessment is reasonable and necessary because there is little medical evidence to support that the applicant had any psychological complaints post-accident. The applicant’s submissions referred to a pre-screen report of Dr. Hassan, however, this report was not attached to the OCF-18 in his document brief. Further, the applicant relies on a psycho-social questionnaire completed by OT Pople dated December 1, 2022, and the psychometric test results of OT Agro from the January 2022 ACB assessment, which he submits establish he was suffering from symptoms of depression and anxiety. I prefer the IE report of Dr. Bacchiochi because as a psychologist the doctor is more qualified to render a psychological diagnosis. Further, the doctor completed a comprehensive assessment which included document review, a clinical interview and administering psychometric tests. Finally, I find the applicant did not submit persuasive evidence to challenge Dr. Bacchiochi’s opinion.
46I conclude that the applicant has not met his onus in proving that the OCF-18 for a psychological assessment is reasonable and necessary.
OCF-18s Proposed by Myers Physiotherapy
Physiotherapy
47The applicant is entitled to the OCF-18 in the amount of $2,471.85 for physiotherapy.
48The OCF-18 dated January 15, 2022, was authored by Patel Nihaben, physiotherapist, and recommended 20 sessions of physiotherapy for a cost of $1,995.00, plus $200 for form preparation, plus $200.00 for a brace and $45.00 for hot and cold gel packs and biofreeze cream for a total cost of $2,471.85. The goals of the OCF-18 included: pain reduction and increase range of motion to return the applicant to activities of normal living and pre-accident work activities. Under activity limitations the OCF-18 states that the applicant is not able to concentrate, focus on tasks, constant headache, and pressure in his head. Because of the severe pain in his neck, right shoulder and forearm he needs assistance in ADLs, self-care, and household activities.
49The respondent sent the applicant an EOB dated April 5, 2022, denying the OCF-18 on the basis that his injuries fell within the MIG. It relied on the IE of Dr. Kopyto who determined that the applicant sustained soft tissue strain and sprain impairments which could be treated in the MIG.
50I find the applicant is entitled to the OCF-18 in the amount of $2,471.85 for physiotherapy because the CNRs of Myers Physiotherapy between January and April 2022 support that the ongoing treatment received by the applicant had resulted in pain reduction in his right elbow and shoulder and improvements to his range of motion. The applicant also reported a gradual improvement in his overall condition as a result of the treatment provided to Dr. Kopyto. Consequently, I find the goal of the OCF-18 met its stated objectives. The case law is well established that the temporary relief of pain is sufficient to establish that ongoing treatment is reasonable and necessary. Further, I do not find the cost of the OCF-18 excessive.
51I conclude that the applicant has met his onus in proving on a balance of probabilities that the OCF-18 for physiotherapy is reasonable and necessary.
Chiropractic Treatment (Physical Therapy)
52I find the applicant is entitled to the OCF-18 in the amount of $2,954.50 for physiotherapy and chiropractic treatment.
53The OCF-18 dated May 7, 2022, was also authored by Patel Nihaben, physiotherapist and recommended 12 sessions of physiotherapy for a cost of $1,197.00, 8 sessions of exercise for a cost of $560.00, plus 10 sessions of chiropractic treatment for a cost of $997.50 and $200 for form preparation, for a total cost of $2,594.50. The goals of the OCF-18 included: pain reduction, increase strength and increase range of motion to return the applicant to activities of normal living and pre-accident work activities. The OCF-18 notes that the applicant had reported a 60% improvement but that “Post-concussion symptoms still persist (sic) so he needs therapy and concussion management at this time.”
54The respondent denied the OCF-18 on the basis that the MIG applies and relied on the IE of Dr. Kopyto. I find the OCF-18 to be reasonable and necessary because the OCF-18 indicated that there had been a 60% improvement which is corroborated by the CNRs of Myers Physiotherapy. Further, the CNRs of Myers Physiotherapy in June and July 2022 note improvements in range of motion, strength and reduced pain. Moreover, the applicant’s complaints about ongoing headaches decreased. Consequently, I find the OCF-18 achieved its stated objectives in managing his post-concussive symptoms. Finally, I do not find the cost of the OCF-18 excessive.
55I conclude that the applicant has met his onus in proving on a balance of probabilities that the OCF-18 for physiotherapy and chiropractic treatment is reasonable and necessary.
Award
56The respondent is not liable to pay an award pursuant to s. 10 of Reg. 664.
57The 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. The applicant submits that the respondent unreasonably withheld or delayed the payments of benefits. He also argues that the adjuster’s log notes show that it did not consider all relevant information, and selectively ignored unfavorable information. For example, it did not consider new medical records received such as the CNRs of Dr. Hussain
58The respondent submits that the applicant has not established that an award is payable. Further, the applicant provided no particulars of his claim for an award as per the deadline provided in the Tribunal’s case conference report and order.
59I find the applicant has not established his claim for an award. As a starting point, I was not provided with the CNRs of Dr. Hussain as evidence for this hearing. Nor did the applicant articulate what records were submitted to the respondent or when and what was ignored by the respondent. I conclude the applicant has not met his onus in proving that an award is warranted in this case.
Interest
60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the two OCF-18s for physiotherapy and chiropractic treatment that I have determined to be reasonable and necessary.
ORDER
61For the above-noted reasons, I order as follows:
The applicant’s accident-related impairments fall outside of the MIG.
The applicant is not entitled to an ACBs in the amount of $485.90 per month from October 29, 2021, to date and ongoing.
The applicant is not entitled to the following OCF-18s proposed by Functionability Rehabilitation Services:
a) $1,696.26 for an in-home assessment submitted February 14, 2022.
b) $2,444.39 for occupational therapy services submitted February 14, 2022.
c) $1,546.63 for an ergonomic assessment, in a plan submitted March 21, 2022.
The applicant is not entitled to $1,995.32 for the for the psychological assessment, proposed by Major Mac Physiotherapy and Wellness in an OCF-18 submitted April 21, 2022.
The applicant is entitled to the following OCF-18s proposed by Myers Physiotherapy and Sports Injury Clinic:
a) $2,471.85 for physiotherapy submitted January 15, 2022.
b) $2,954.50 for chiropractic services submitted May 7, 2022.
The respondent is not liable to pay an award under s. 10 of Reg. 664.
The applicant is entitled to interest on the OCF-18s for physiotherapy and chiropractic treatment that I have determined to be reasonable and necessary.
Released: August 15, 2025
Rebecca Hines
Adjudicator