Citation: Litavnieks v. Pembridge Insurance Company, 2025 ONLAT 24-000879/AABS

Licence Appeal Tribunal File Number: 24-000879/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:

Elmars Litavnieks

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Andrew Rodrigues, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Elmars Litavnieks (the “applicant”) was involved in an automobile accident on October 29, 2022, 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 Pembridge Insurance Company (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:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

2. Is the applicant entitled to the assessments and services proposed by HM Medical Network Ltd., in OCF-18 treatment plans, as follows:

(a) Physiotherapy services in the amount of $4,610.69, dated November 22, 2022;

(b) Psychological assessment in the amount of $2,460.00, dated April 18, 2023;

(c) Orthopaedic assessment in the amount of $2,460.00, dated April 18, 2023;

(d) Attendant care assessment in the amount of $2,178.38, dated April 18, 2023; and

(e) Physiotherapy services in the amount of $4,184.39, dated July 3, 2023?

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

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18 treatment plans. No interest is payable.

ANALYSIS

The applicability of the MIG

4I find the MIG applies to the applicant’s claim.

5Section 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.”

6The 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) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from his accident-related injuries if kept in 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.

7For this matter, the applicant submits his physical injuries fall outside the MIG, and that MIG removal is warranted by accident-related psychological impairment.

8I would point out here too, that while the applicant’s submissions in one instance describe his pain as “functionally disabling and chronic,” I did not assess the applicability of the MIG in the context of chronic pain. This is because I find the applicant’s submissions make no discernible arguments that dispute the MIG owing to chronic pain, nor does the applicant point to a medical opinion in evidence that supports chronic pain in his case. In my view, the thrust of the applicant’s position centers on whether the applicant’s physical injuries fall within the MIG and psychological impairment.

The applicant’s physical injuries are consistent with the MIG

9I find the accident-related physical injuries sustained by the applicant are within the MIG.

10The applicant submits he sustained severe physical injuries to his head, neck, shoulders, and back as a result of the accident. The applicant relies on the October 2022 records of North York General Hospital, a May 2023 report by Dr. Tajedin Getahun (orthopaedic surgeon), a May 2023 attendant care needs assessment by Pawan Chopra (occupational therapist), and the disability certificate (“OCF-3”) completed by Dr. Mikhail Shteyberg (chiropractor) in November 2022, to show he sustained non-MIG physical injuries in the accident.

11The respondent argues that the accident-related physical injuries sustained by the applicant are within the MIG and relies on a May 2023 section 44 examination performed by Dr. Christopher Boulias (physiatrist) to show these injuries are limited to soft-tissue damage.

12I am persuaded that the applicant’s medical evidence documents physical injuries that fall squarely within the MIG. The applicant reported pain in his cervical spine and head when examined at the hospital the same day the accident occurred. The emergency room physician diagnosed a cervical strain, which is a minor injury as defined by the Schedule. The OCF-3 completed by Dr. Shteyberg on November 1, 2022, also identifies physical injuries consistent with the MIG, including cervicalgia, sprain and strain of the applicant’s cervical and thoracic spine, and whiplash-associated disorder as well as complaints of pain associated with these injuries.

13The applicant’s physical injuries and pain were assessed seven months later by Dr. Getahun on May 9, 2023. I find that Dr. Getahun, like the hospital emergency physician and Dr. Shteyberg, documented physical injuries consistent with the MIG (i.e., myofascial strains of the cervical and lumbosacral spine).

14Dr. Getahun nevertheless concluded that the applicant’s physical injuries do not fall in the MIG. The basis for Dr. Getahun’s opinion—as articulated in the applicant’s submissions—is that degenerative change (i.e., underlying osteoarthritis) in the applicant’s cervical spine was exacerbated and rendered symptomatic by the accident. In my view, this is a reference to the pre-existing medical condition provision at section 18(2) of the Schedule. However, the applicant’s submissions do not argue the MIG on this basis, and in any event, do not point to compelling evidence of this pre-existing medical condition documented by a health practitioner before the accident as the Schedule requires him to do. I therefore did not further consider the applicability of the pre-existing medical condition provision.

15The evidence of Mr. Chopra is unpersuasive. The applicant’s submissions do not point to physical injuries assessed by Mr. Chopra that may have been different (i.e., outside the MIG) from those explored by Drs. Getahun or Shteyberg. Further, I find the applicant’s submissions on this evidence serve to focus on his functionality as virtually assessed by Mr. Chopra. While I would undertake an analysis of functional impairment if the applicant argued chronic pain as a reason to be excluded from the MIG, I find it bears little on whether the applicant’s physical injuries, as documented in the medical evidence, are minor as defined by the Schedule.

16Taken together, I find this evidence establishes on a balance of probabilities that the applicant’s physical injuries fall within the MIG.

The applicant did not sustain an accident-related psychological impairment

17I find the applicant has not demonstrated that he sustained an accident-related psychological impairment.

18The applicant submits that Dr. Kenneth Keeling (psychologist) diagnosed him with multiple psychological impairments, which include major depressive disorder, post-traumatic stress disorder, pain disorder with psychological factors, and a specific phobia related to vehicle travel.

19The respondent argues that the applicant did not sustain an accident-related psychological impairment. The respondent relies on a May 2023 section 44 examination performed by Dr. Tatiana Dumitrascu (psychologist) to demonstrate the applicant is not experiencing symptomology that would meet established criteria for a psychological disorder resulting from the accident.

20For context, the applicant’s psychological assessment was conducted on July 21, 2023, by Mila Popova (psychotherapist) under the supervision of Dr. Keeling. I accept, however, that the clinical formulation and diagnoses resulting from the assessment by Ms. Popova were, in fact, offered by Dr. Keeling because the report explicitly states such.

21I find there is a lack of evidence that corroborates the applicant’s own reports of psychological difficulties to Dr. Keeling. In my view, this diminishes the probative value of the diagnoses offered by Dr. Keeling. The assessment with Dr. Keeling occurred in July 2023. The applicant did not point to evidence of contemporaneous psychological symptomology in medical records or otherwise from the time of the accident to his consultation with Dr. Keeling almost nine months later. For example, the applicant’s submissions do not direct me to evidence that establishes he suffered, at any point prior to Dr. Keeling’s report, psychological symptoms of social withdrawal, “profound” loss of motivation, and “excessive” negative thinking that “significantly” impact his ability to function in daily life and work.

22In contrast, the applicant reported just two months earlier to Dr. Dumitrascu that he goes to work at 6 a.m. and returns from work 12 to 14 hours later. The applicant conveyed that he continued to socialize with friends and co-workers, whether in person on the telephone, and that there have been no notable changes in his cognitive functioning since the accident. Dr. Dumitrascu notes the applicant did not report experiencing symptoms of post-traumatic stress disorder. In terms of vehicular anxiety, the applicant expressed that while he becomes uncomfortable when other vehicles come too close to his vehicle from behind, he did not report any significant emotional difficulties with driving or being a passenger in motor vehicles. I find this evidence further diminishes the reliability of the applicant’s contrasting reports to Dr. Keeling about the psychological difficulties he experienced since the accident, as well as the resulting diagnoses.

23Further, Dr. Keeling’s August 2023 report establishes that he did not have any clinical notes or records of treating physicians available to corroborate the applicant’s medical history. This lack of evidence is supported by the respondent’s submissions, which point to the sparse clinical notes of the applicant’s family physician of record (i.e., Dr. Charles Osime) since February 23, 2023. Dr. Osime makes an entry in August 2023—contemporaneous to Dr. Keeling’s report—that mentions an October “2023” accident, which I presume, given the date this entry was made, was intended to refer to the October 2022 accident. In any event, there are no complaints of psychological difficulties documented on this visit, no medications prescribed to treat psychological symptomology, and no referrals for psychological assessment or services.

24When I consider this evidence in totality on a balance of probabilities, I conclude the applicant did not sustain an accident-related psychological impairment and therefore disagree he should be removed form the MIG on this basis.

The applicant’s entitlement to the disputed OCF-18 treatment plans

25I find the applicant is not entitled to the OCF-18 treatment plans in dispute.

26To 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 treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

27The respondent’s submissions indicate that $23.36 remains available in the MIG, and the applicant did not avail himself of a reply to dispute this value or any other aspect of the respondent’s submissions. Given that I have decided the applicant remains in the MIG, I find it is unnecessary to determine whether the disputed OCF-18 treatment plans are reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no benefits payable in this case, so no interest is payable.

ORDER

29The applicant remains in the MIG and is not entitled to the disputed OCF-18 treatment plans. No interest is payable. The application is dismissed.