Citation: Korkis v. Economical Insurance, 2025 ONLAT 23-012950/AABS

Licence Appeal Tribunal File Number: 23-012950/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:

Danial Korkis

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Alex Nikolaev, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Danial Korkis, the applicant, was involved in an automobile accident on September 16, 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, Economical Insurance, 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 a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit.

ii. Is the applicant entitled to $2,094.54 for a psychological assessment proposed by William L. Parkinson in a treatment plan/OCF-18 (“plan”) dated December 8, 2021?

iii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved by the respondent) for physiotherapy proposed by Physio Art Rehabilitation in a plan dated December 21, 2021?

iv. Is the applicant entitled to $3,591.50 for physiotherapy proposed by Physio Art Rehabilitation in a plan dated February 15, 2022?

v. Is the applicant entitled to interest on any overdue payment of benefits?

3The applicant advised that the claim for an award listed in the Case Conference Report and Order (“CCRO”) has been withdrawn.

RESULT

4The applicant is subject to the MIG.

5The applicant is not entitled to $2,094.54 for a psychological assessment.

6The applicant is not entitled to $200.00 for physiotherapy treatment.

7The applicant is not entitled to $3,591.50 for physiotherapy treatment.

8The applicant is not entitled to interest.

ANALYSIS

Application of the Minor Injury Guideline

9I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.

10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”

11The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

12The applicant submits he has pre-existing conditions and a psychological impairment that warrant removal from the MIG.

Does the applicant have pre-existing conditions that prevent maximal recovery?

13I find that the applicant has not established that he should be removed from the MIG on the basis that his pre-existing conditions prevent maximal medical recovery under the MIG.

14The applicant relies on the clinical notes and records (“CNRs”) of Dr. Abeer Abu-Almaali, physician, the CNRs of Physio Art Rehab, the pre-assessment psychological consultation prepared by Dr. William Parkinson, psychologist, the consultation report and CNR of Dr. Ali Ghouse, physician, and the MRI report of his hips.

15In his submissions, the applicant summarized the CNRs of Dr. Abu-Almaali, physician, for the period of October 2021 to February 2024. The summary includes neck and lower back pain, left heel and ankle pain, bilateral hip pain, decreased range of motion in lower back, and shoulder pain. Ultrasound notes include a partial tear of the left anterior hip labrum, and partial thickness articular surface tear of the supraspinatus tendon. On September 17, 2021, the applicant’s accident-related injuries were diagnosed as “muscular pain”. The X-ray results dated September 21, 2021 notes “no evidence of acute fracture.”

16The applicant argues that the s. 44 insurer’s examination report prepared by Dr. Mohamed Khaled, physician, is flawed because it does not consider the applicant’s pre-existing health, including reports of the applicant’s hips and shoulder impairments. The applicant also argues the s. 44 insurer’s examination report prepared by Dr. Jana Atkins, psychologist, because it noted the applicant suffered moderate levels of depression and concluded the applicant’s injuries fall within the MIG.

17The respondent submits the applicant has not provided evidence to support the existence of pre-existing conditions or that they would prevent maximal recovery. The respondent submits that the applicant’s workplace injury of April 2022 broke the chain of causation.

18I find that there is documented evidence of a pre-existing condition, specifically, that the applicant is diabetic. The applicant also underwent an amputation of his left index finger due to a work-related accident in 2021.

19The family doctor CNRs note the applicant has ongoing right hip and groin pain that is not due to the accident. The family doctor CNRs included referral to several specialists, including a plastic surgeon, a physical and rehabilitation specialist, a urologist, an optometrist, and several test reports including abdominal, testicular, kidney and bladder, and a right groin ultrasound before the accident.

20However, turning to the second part of the test, I find that there is not compelling medical evidence stating that the condition precludes maximal recovery if he is kept within the MIG, as required for removal from the MIG under s. 18(2). Specifically, the applicant states his “pre-existing health was aggravated by the subject accident”, however, I was not directed to what pre-existing condition he believes was exacerbated.

21The applicant makes reference to the left hip ultrasound of a partial tear of the left anterior hip labrum, however, this report is from March 2022, six months after the accident, which precludes it from being a pre-existing injury. In any case, the applicant did not direct me to any findings from a medical professional which state that his pre-existing health condition would prevent maximal recovery if he is kept within the MIG.

22I place little weight on Dr. Parkinson’s handwritten pre-assessment psychological consultation dated December 8, 2021 because there is no clear diagnosis or note of a pre-existing condition that prevents maximal recovery.

23I also place little weight on Dr. Ghouse’s reports because the documented pre-existing condition is diabetes and there is no note that the applicant’s diabetes prevents maximal recovery from his accident related injuries. The report dated June 7, 2021 notes the applicant has right iliopsoas strain and right inguinal hernia repair. In this report, the doctor recommended physiotherapy treatment. Dr. Ghouse’s second report dated April 26, 2022 notes the applicant had a left hip labral tear that occurred after the accident.

24With respect to Dr. Khaled’s s. 44 report prepared February 7, 2024, the applicant argues the report does not consider the left hip ultrasound of March 23, 2022, or the MRI of May 5, 2023, or the right shoulder ultrasound of June 8, 2022, which the applicant argues are pre-existing health conditions that were aggravated by the accident.

25I find Dr. Khaled’s s. 44 report includes a review of several reports for the period of December 2021 to November 2022, including the details of the right shoulder ultrasound. I also note in the family doctor’s CNRs that it states the MRI of May 2023 was due to a work accident which occurred after the subject accident. Additionally, the ultrasound of June 2022 was for a work accident and also occurred after the subject accident. Consequently, these reports are unrelated to the accident and are not considered pre-accident injuries for the purposes of s. 18(2). Dr. Khaled’s report states: “normal power in both legs at hip flexion” and “back pain associated with left hip sprain/strain”. The report finds the applicant suffered “uncomplicated soft tissue injuries”. In my opinion, Dr. Khaled reviewed the corresponding medical records and imaging reports in order to determine the applicant’s condition is treatable within the MIG.

26I find Dr. Atkins’ s. 44 neuropsychology examination report dated February 14, 2024 is consistent in its findings because Dr. Atkins’ report provide an overall finding based on the results of a number of objective tests. In summary, Dr. Atkins notes the applicant has no pre-existing psychological impairments and Dr. Atkins notes there is nothing that would prevent the applicant from achieving maximal medical recovery from a neuropsychological perspective.

27It is well settled that the presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists, but also that it prevents him from achieving maximal recovery within the MIG.

28Section 18(2) requires compelling evidence of a pre-existing condition documented before the accident. The CNR of Dr. Abu-Almaali notes the applicant was involved in multiple workplace accidents in 2020 and 2021 and was off work at the time of the subject accident. However, in accordance with s. 18(2) there is no compelling evidence from any medical practitioner that these pre-existing conditions prevent him from achieving maximal recovery from a minor injury if he is limited to the MIG.

29I find the applicant has not met his onus in demonstrating that he should be removed from the MIG on the basis of a pre-existing injury that prevents maximal medical recovery.

Does the applicant have a psychological impairment that warrants removal from the MIG?

30I find the applicant has not met his burden to prove that he suffers from a psychological impairment that would warrant removal from the MIG.

31The applicant submits that he has suffered psychological injuries due to the accident and relies on Dr. Parkinson’s pre-assessment psychological consultation. The applicant argues that Dr. Atkins’ s. 44 report and Dr. Parkinson’s CNR both note the applicant suffers from depression and coping with pain since the accident. However, Dr. Parkinson’s consultation is not a formal diagnosis and Dr. Atkins’ s. 44 report notes a “moderate level” of depression that does not reach the threshold for being removed out of the MIG.

32The respondent submits that there are inconsistencies in the applicant’s reporting of psychological symptoms and relies on the family doctor’s CNRs to demonstrate these inconsistencies.

33I place less weight on Dr. Parkinson’s consultation reporting because while the applicant refers to Dr. Parkinson’s CNR as a “pre-assessment psychological consultation”, what is actually being referred to are the notes from the Additional Comments in the OCF-18 dated December 12, 2021. Dr. Parkinson did not complete the objective tests required for a formal diagnosis and notes he completed “part of our screening questionnaire and part of the Beck Depression Inventory-II” and “a comprehensive assessment for depression features has not been done at this point in time.” As a result, I find the applicant has not met his onus to establish he has a psychological impairment as a result of the accident. Furthermore, it is well-settled that OCF-18s are not medical evidence and the report refers to the applicant by the wrong name. The CNRs of the family physician also make no reference to a psychological impairment as a result of the accident.

34I place more weight on Dr. Atkins’ s. 44 report dated February 14, 2024 because the report included a documentation review, notes that the applicant presented no previous history of psychological impairment or injury and included “a comprehensive neuropsychological test battery” resulting in the finding that the applicant “does not meet the criteria for a neuropsychological diagnosis.” I find that this opinion is consistent with the medical evidence before me because Dr. Parkinson did not provide a formal diagnosis and Dr. Atkins’ report also did not find that his psychological impairment met the threshold for treatment outside of the MIG.

35I find on a balance of probabilities that the applicant has not met his burden to establish that he has a psychological impairment as a result of the accident that warrants removal from the MIG.

36Having found that the applicant is subject to the MIG and the $3,500.00 funding limit for treatment, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

37Interest 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

38The applicant is subject to the MIG.

39As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

40As there are no overdue benefits, the applicant is not entitled to interest.

41The application is dismissed.