Licence Appeal Tribunal File Number: 23-013756/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:
Sergey Baranov
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Edward Langley
APPEARANCES:
For the Applicant:
Alex Rozine, Counsel
For the Respondent:
Melanie Sousa, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sergey Baranov, the applicant, was involved in an automobile accident on November 19, 2018, 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, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL ISSUE
2In their response submissions, the applicant advised that the respondent was in violation of the Case Conference Report and Order of Vice-Chair Painchaud of May 14, 2024, which orders that the submissions of both parties will not exceed 10 pages. In their submissions, the applicant requested no relief. While I acknowledge that the respondent exceeded the page limit, the content of page 11 consisted of a single line that merely drew a conclusion that “all of the applicant’s claims should be dismissed.” This information had no bearing on the outcome of this written hearing.
ISSUES
3The issues in dispute are:
a. Is the applicant entitled to $8,110.00 for a psychiatric assessment, proposed by All Health Medical Centre in a plan submitted February 7, 2023?
b. Is the applicant entitled to $2,520.00 for an orthopaedic assessment, proposed by All Health Medical Centre in a plan submitted February 16, 2023?
c. Is the applicant entitled to $2,520.00 for a neurological assessment, proposed by All Health Medical Centre in a plan submitted March 8, 2023?
d. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical Centre in a plan submitted March 17, 2023?
e. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
f. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has not demonstrated that the disputed treatment plans are reasonable and necessary.
5No interest is payable.
6No award is payable.
7The application is dismissed.
ANALYSIS
The applicant is not entitled to the treatment plan for a psychological assessment
8I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for a psychological assessment is reasonable and necessary.
9To receive payment for a treatment plan under s.15 and s.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.
10The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrates that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
11The treatment plan, completed by, Dr. Shahzad Shahmalak, Physician, of All Health Medical Centre, states the goals of the treatment plan are to evaluate the applicant’s depression, anxiety and PTSD, as well as mental health status given symptoms or depression which continue to interfere with essential activities of daily life and quality of life. The applicant should continue focusing on management recommendations and medication suggestions if indicated.
12The applicant submits that he was assessed by Dr. Zai, Psychiatrist, in April 2021. After diagnosing the applicant with PTSD and recommending treatment, Dr. Zai concluded that the applicant would require another psychological assessment in one year’s time. After finishing a final block of psychotherapy in October 2021, a psychological assessment was submitted based on the original recommendation of Dr. Zai.
13The respondent’s submitted that the applicant received psychological treatment for injuries suffered between June 2019 and January 2020 as confirmed by the OCF – 21s from General Med M Inc. submitted as evidence. Further, the applicant attended six more approved sessions between September 2020 and January 2021. Prior to the Psychological Assessment of February 16, 2023, there have been no treatment sessions or submitted OCF-18s from the applicant for psychological treatment or assessment since October 2021.
14In the applicant’s submissions, there is no indication or explanation as to the reason for the significant time gap of over four years post-accident between the accident date, November 19, 2018, and the date of the treatment plan for a psychological assessment, February 16, 2023. Dr. Remtulla’ s clinical notes and records of December 15, 2018 diagnose the applicant with PTSD and anxiety. Four months later, Psychologist Dr. Hewchuk, on April 19, 2019, opines that the applicant suffers from somatic system disorder and pain/panic disorder.
15I was not persuaded by the applicant’s evidence on this issue. The applicant received psychological treatment post-accident. This treatment stopped in October of 2021. There is no medical evidence presented by the applicant from the ending of that treatment until the assessment on February 7, 2023 that confirms that the assessment was reasonable and necessary. The applicant further submits that in April of 2021, Dr. Zai, Psychiatrist, recommended that the applicant would require a further Psychiatric assessment in 1 years’ time. However, there is no evidence submitted that this was done.
16On a consideration of the evidence from the applicant and the respondent, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary.
The applicant is not entitled to the treatment plan for an orthopaedic assessment
17I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for an orthopaedic assessment is reasonable and necessary.
18The treatment plan, completed by, Dr. Michael West, Physician, of All Health Medical Centre, states the goals of the treatment would be pain reduction, increased strength, increased range of motion, treatment recommendations, a return to activities of normal living, and identify impairments and help achieve maximum recovery. Progress would be measured through re-evaluation and a review of subsequent medical information.
19In the applicant’s submissions, there is no indication or explanation as to the reason for the significant time gap of four years post-accident between the accident date, November 19, 2018, and the date of the treatment plan for an orthopaedic assessment, February 16, 2023. In their submissions, the applicant submits that Dr. Yewchuk noted chronic pain symptoms since April of 2019, while Dr. Zin noted the chronicity of back, right shoulder and neck pain in her report of March 2021.
20The respondent submitted that the physical injuries suffered by the applicant in the accident of November 19, 2018 were a diagnosed whiplash injury. This type of whiplash injury is corroborated by the applicant’s family physician in December 2018. On August 13, 2019, assessor Dr. Jennifer Gordon, Physiatrist, diagnosed the applicant with WAD2, lumbar spine sprain/strain and right sacroiliac joint dysfunction.
21I am not persuaded by the applicant’s evidence on this issue because I have not been provided with an explanation for the gap between the date of loss, treatment of original injuries, and this request for an Orthopaedic assessment. In April of 2021, the applicant reported to Dr. Verrilli, his Family Physician, that his shoulder was doing better but his low back pain was not. The applicant was sent for an MRI, the result of which is reviewed by his Family Physician, who recommended that the approach for his pain should be rehabilitation and not surgical.
22In the absence of an explanation between the accident in November 2018 and the request for an orthopaedic assessment more than four years later, I am unable to determine that the recommended assessment is related to the accident. Further, the preponderance of evidence before me suggests that the applicant’s shoulder had improved as of April 2021, and he required rehabilitation for his lower back. It is not until two years later that the treatment plan for an orthopaedic assessment was submitted.
23On a consideration of the evidence from the applicant and the respondent, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary.
The applicant is not entitled to the treatment plan for a neurological assessment
24I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for a neurological assessment is reasonable and necessary.
25The treatment plan, completed by, Dr. Vincenzo Basile, Physician, of All Health Medical Centre, states the goals of the treatment would be pain reduction, increased strength, increased range of motion, treatment recommendations, a return to activities of normal living, and to identify impairments and help achieve maximum recovery.
26The applicant submitted that that he suffered from ongoing neurological issues with headaches, radiculopathy and tingling in his right hand. The applicant submits that the respondent relies on the assessment of Dr. J. Gordon, Physiatrist, and that there should be no weight given to this opinion as Dr. Gordon, because as a physiatrist, she is not qualified to provide a neurological opinion.
27The respondent submitted that the neurological assessment was submitted on March 8, 2023, fours years and four months after the applicant’s motor vehicle accident. Further, the injuries of the applicant that could relate to the necessity of such an assessment, specifically low back pain, right-hand tingling, neck tension and pain, and bilateral hand pain all pre-date the accident date. It submits that, in the clinical notes and records of the applicant’s Family Physician, Dr. Verrilli, the applicant reports low back pain on both sides on July 30, 2018, which pre-dates the subject accident.
28I was not persuaded by the applicant’s submissions on this issue. There are no reported neurological issues or complaints reported by the applicant to his family physician, nor are there any treatment recommendations, between October 2021 and the date of the treatment plan for a neurological assessment in March 2023. I give weight to the report of Dr. Gordon, who, as a physiatrist, contrary to the applicant’s submissions, is qualified to give an opinion in this matter. The applicant does not provide compelling medical evidence to dispute the opinion of Dr. Gordon, nor does he provide an explanation to address the timeline of events pre and post accident showing that the treatment is reasonable and necessary.
29On a consideration of the evidence from the applicant and the respondent, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary.
The applicant is not entitled to the treatment plan for a chronic pain assessment
30I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for a chronic pain assessment is reasonable and necessary.
31The treatment plan, completed by, Dr. Igor Wilderman, Physician and Chronic Pain Consultant, states the goals of the assessment are to establish the current diagnosis(es), the extent of current injuries, and the prognoses and recommendations for recovery. The applicant should continue focusing on restoring strength, flexibility, managing pain, and improving functional abilities through treatment and education.
32The applicant submitted that, similar to the 2023 case of Singh v. Aviva General Insurance Company (2023 CanLII 442 ON-LAT), the Tribunal was asked to decide if a chronic pain assessment was reasonable and necessary. In that case, the Tribunal looked at whether there was a clear rationale for requesting a chronic pain assessment. I am not bound by the decisions of the Tribunal and in this case, it is distinguishable. The applicant does not provide evidence as to the same rationale in this application.
33The respondent submitted that the chronic pain assessment dated February 6, 2023 was submitted to the respondent on March 17, 2023, or four years and four months after the motor vehicle accident. The respondent further submitted that the applicant continued to work full time after the accident and attended physiotherapy treatments from December 2018 to February 2020. The physiatry report of Dr. J. Gordon, Physiatrist, opines that the applicant was able to perform activities of daily living without assistance, treatment, or pain medication. The family doctor clinical notes and records show no visits for pain treatments since 2021. Dr. Jennifer Gordon’s progress report August 27, 2020 opines the applicant does not require any further diagnostics, tests or investigation.
34I was not persuaded by the applicant’s evidence on this issue. At issue is the timeline between the date of loss, treatment of original injuries, and this request for a chronic pain assessment. The IE completed by D. Gordon was done in August of 2020, which is a period of 2 years and 7 months prior to the chronic pain assessment of March 17, 2023. There is no evidence from the applicant to confirm on-going chronic pain issues from the date of loss to the assessment date. The clinical notes and records of the Family Physician do indicate on-going back pain and physiotherapy treatment.
35On a consideration of the evidence from the applicant and the respondent, I find that the applicant has not proven on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no treatment plans payable, interest is not payable.
Award
37The 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.
38The applicant submitted that he is eligible for an award as the respondent acted unreasonably in denying and withholding the costs of disputed assessments, Further, the respondent refused to adjust the file on an ongoing and good faith basis, and that the respondent fell below the standard of a reasonable, careful and prudent adjuster while adjusting the applicant’s claim, and fell short of their duty.
39The respondent submitted that the applicant has not provided evidence of an award, or that the medical records support any of the assessments in dispute are reasonable and necessary.
40As I have found the applicant is not entitled to the benefits in dispute, there is no basis for an award.
ORDER
41I find that:
i. The applicant has not demonstrated, on a balance of probabilities that the assessments on the application are reasonable and necessary.
ii. As there are no benefits owing, interest is not payable.
iii. No award is payable.
iv. The application is dismissed.
Released: March 18, 2026
Edward Langley
Adjudicator