Licence Appeal Tribunal File Number: 24-001330/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:
John Brimo
Applicant
And
Liberty Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Estella Muyinda
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Mitchell J Barber, Counsel
HEARD:
By way of written submissions
OVERVIEW
1John Brimo, the applicant, was involved in an automobile accident on February 19, 2014, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).
2The applicant was denied benefits by the respondent, Liberty Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by A&B Medical Assessments Inc., in a treatment plan/OCF-18 (“plan”) submitted February 14, 2022?
ii. Is the applicant entitled to $1,417.70 for chiropractic and massage services, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted February 11, 2022?
iii. Is the applicant entitled to $1,417.70 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted February 8, 2023?
iv. Is the applicant entitled to $2,486.00 for chronic pain assessment proposed by A&B Medical Assessments Inc., in a plan submitted January 26, 2022?
v. Is the applicant entitled to $15,161.00 for a catastrophic determination assessment, proposed by Galit Liffshiz & Associates Inc., in a plan submitted December 5, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to $2,486.00 for a psychological assessment.
5The applicant is not entitled to $1,417.70 for chiropractic and massage services.
6The applicant is not entitled to $15,161.00 for a catastrophic determination assessment.
7The applicant is not entitled to $2,486.00 for chronic pain assessment.
8The applicant is not entitled to $1,417.70 for physiotherapy services.
9The applicant is not entitled to interest.
Is the applicant entitled to a psychological assessment?
10I find that the applicant is not entitled to the psychological assessment.
11To receive payment for a treatment and assessment 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 because 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.
12The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
13The goals of the treatment plan are pain reduction, return to activities of normal living, return to pre-accident activities, and they will be assessed by mindfulness, and psychoeducation to improve the applicant’s coping mechanisms and pain management. Further, the goals will be evaluated through clinical interviews, clinical testing, clinical feedback, consultation with professionals involved in the client’s rehabilitation, external file review, and client feedback interview, attendance and level of motivation and compliance with treatment.
14The applicant submits that the treatment plan is reasonable and necessary because she has made psychological complaints to treating physicians and a clinical psychologist, all of which confirm the presence of a psychological impairment identified as depression. The applicant specifically points to the Clinical Notes and Records (CNRs) of Dr. Joonseong Park, family doctor in support of his position.
15The clinical notes of Dr. Park dated June 19, 2023, and August 24, 2023, show that the applicant suffers from depression. The notes reveal that Dr. Park prescribed an anti-depressant and medication used to treat depression and generalized anxiety disorder for the applicant. Additionally, Dr. Joseph Chu, neurologist, also noted in his report to Dr. Park dated January 3, 2017, that the applicant’s functional inquiry shows he does feel sad and depressed. I am therefore of the view that there is evidence that there are grounds to believe that the applicant has a psychological condition that warrants a psychological assessment.
16Further, I find that Dr. Park’s diagnosis of the applicant’s depression is corroborated by the psychological assessment conducted by Dr. Bita Sharifzadeh, psychologist, dated March 15, 2022. In her report, Dr. Sharifzadeh in reference to the accident opines that the applicant’s primary complaints included chronic pain, depression, anxiety, as post-accident headaches, heightened anxiety while driving, irritability, and emotional distress.
17In the same report, Dr. Sharifzadeh’s diagnostic findings indicated Major Depressive Disorder (due to accident-related chronic pain) and somatoform disorder, with psychological symptoms significantly impacting the applicant’s daily functioning, employment, and social life. The assessment also found avoidance and hyperarousal symptoms consistent with posttraumatic stress but not meeting the full criteria for PTSD.
18Dr. Sharifzadeh recommended a 12-session psychotherapy treatment plan, utilizing trauma-focused therapy, cognitive-behavioral therapy (CBT), mindfulness, and psychoeducation to improve the applicant’s coping mechanisms and pain management.
19The respondent submits that the applicant is not entitled to this plan. The respondent relies on the November 24, 2015, report from the section 44 insurer examination (IE), conducted by Dr. Irina Safir, general practitioner, to assert that the treatment plan is not reasonable and necessary. The respondent submits that Dr. Safir opines that the applicant sustained soft tissue related injuries that fit well in the Minor Injury Guideline, and that the anticipated physiological recovery time was within eight to twelve weeks. The respondent asserts that this position is supported by the opinion of the IE assessor, Dr. Curt West, psychologist, dated November 24, 2015, stating that the applicant does not meet the criterion for any specific DSM-IV or DSM-5 diagnosis of mental disorder.
20Further, the respondent asserts that the applicant has not provided persuasive medical evidence supporting the need for any continued treatment related to this accident or that he required or attended any treatment from the date of the accident on February 19, 2014, until the second accident on December 9, 2014.
21Upon the review of the family physicians’ clinical notes and the assessment report by Dr. Sharifzadeh, I find that the applicant has not met his onus because as much as Dr. Park’s CNR corroborates the date of the accident, the physician’s notes do not verify whether the psychological injury was caused by the subject accident. As such, the applicant has not provided objective medical evidence linking the psychological injury, in this instance depression, to the accident, which is a requirement under the Schedule. Given the multiple accidents experienced by the applicant, I find that the applicant has not provided any corroborating evidence that the psychological injury was caused by the subject accident.
22Accordingly, I find that the treatment plan is not reasonable and necessary because the applicant has failed to show how the psychological injury is related to the accident and not the subsequent accidents.
23I find on a balance of probabilities that the applicant is not entitled to the treatment plan for a psychological assessment.
Is the applicant entitled to $1,417.70 for chiropractic and massage services dated February 11, 2022, and $1,417.70 for physiotherapy services in a plan submitted February 8, 2023?
24I find that the applicant is not entitled to the treatment plans.
25The treatment plan dated February 11, 2022, was prepared by Dr. Edwin Wong, chiropractor and Mr. David Bedford, massage therapist. The injuries outlined in the treatment plan include sprain and strain of the cervical spine, the thoracic spine, the lumbar spine, and the sacroiliac joint, chronic post-traumatic headache, radiculopathy, sleep disorders, acute stress reaction, anxiety disorders, malaise and fatigue, dizziness.
26The goals of the treatment plan that the applicant seeks to achieve include pain reduction, increase in strength and increased range of motion. The functional goals include a return to activities of normal living, return to modified work activities. The progress of the goals will be evaluated by ROM, VAS and orthopaedic testing. The estimated duration of the treatment plan is six weeks with a total of 27 sessions.
27The applicant submits that pain relief is a legitimate treatment goal and points to Tribunal decisions in support of this position. He submits he has persistent pain reported to multiple treating health care providers and that the need for treatment is a result of the accident.
28The respondent submits that it denied the proposed physiotherapy treatment plan on March 4, 2022, based on the opinion of IE assessor Dr. Irina Safir, who states that the injuries the applicant sustained in the accident of February 19, 2014, were soft tissue related and had an expected physiologic recovery time of 8-12 weeks.
29Additionally, the respondent submits that in the past eleven years, except for a few months in 2016, the applicant has not had physiotherapy treatment. The respondent states that the applicant has not met his onus to prove that the physiotherapy treatment plans are reasonable and necessary.
30The applicant submits that he had regular ongoing reporting of pain to Dr. Park, his family doctor. The applicant submits that in 2017 and 2018, Dr. Park noted that he had ongoing pain, limited range of motion, and worsening right arm numbness due to right ulnar neuropathy. His symptoms intensified by 2019, he began experiencing depression, memory issues, and concentration difficulties, prompting a disability application. Through 2022 to early 2023 the applicant was still on disability. His condition further worsened with decreased neck range of motion, trapezius tenderness, and chronic pain, requiring multiple prescription refills.
31I find that the applicant has provided limited submissions concerning chiropractic and massage treatment. Additionally, the plans are dated 2022 and 2023 and the applicant is relying on complaints from 2017 and 2018,I find that the applicant has not pointed to contemporaneous, corroborating evidence in support of the treatment plans. Thus, he has not met his onus to establish that the treatment plans are reasonable and necessary.
32While the applicant makes the same submissions in support of the treatment plan dated February 8, 2023, he has not submitted this plan into evidence. Further, even if it was in evidence, I find he has not met his onus because of the lack of contemporaneous corroborating evidence in support of the treatment plans. Accordingly, I find that this treatment plan for physiotherapy is not reasonable and necessary.
33I find on a balance of probabilities, the applicant is not entitled to the treatment plans for chiropractic, massage and physiotherapy treatment.
Is the applicant entitled to a chronic pain assessment?
34I find that the applicant is not entitled to a chronic pain assessment.
35The treatment plan for the chronic pain assessment was prepared by Dr. Michael Gofeld, physician. The injuries outlined in the treatment plan include chronic post-traumatic headache, sprain and strain of the cervical spine, the thoracic spine, the lumbar spine, and the sacroiliac joint, radiculopathy, sleep disorders. The estimated duration of the plan is two sessions in one week.
36The progress of the goals will be monitored and evaluated with the help of verbal and visual pain scales, activity of daily living functions assessments, physical reassessment, pain indications through range of motion (ROM) testing and strength testing.
37The applicant submits he has demonstrated a clear and ongoing need for this assessment, as multiple medical records document chronic neck pain and a persistent condition affecting the right arm. He submits that conducting a chronic pain assessment is essential for the applicant’s healthcare providers to accurately evaluate the severity and nature of his condition, enabling the development of a targeted treatment plan, effective symptom management, and improved quality of life.
38The respondent submits that the applicant is not entitled to the treatment plan for chronic pain assessment because all the symptoms except the right sided neck pain are a result of the December 9, 2014, accident. The respondent asserts that the applicant has not linked any objective evidence of the alleged ulnar neuropathy symptoms, depression symptoms, back pain, head pain, knee pain or right arm pain to the accident dated February 19, 2014.
39The applicant’s family physician, Dr. Park, referred the applicant to Dr. Joseph Chu, neurologist, for a neurological assessment. In his reporting letter dated February 1, 2016, Dr. Chu stated that he was consulted about tingling and numbness in the right 4th and 5th digits that the applicant was experiencing for a couple of months and right sided neck pain since February 2014 following an accident. Thus, he substantiates the applicant’s prior injury in the neck. He also states that applicant sustained a second accident in December 2014, which he opines may have aggravated the applicant’s neck pain.
40The applicant submits that Dr. Chu’s Electromyography (EMG) and Nerve Conduct Study (EMG NCS) confirmed mild to moderate right axonal ulnar sensory neuropathy. A follow-up EMG NCS was scheduled, and for his mild cervical degenerative disc disease (DDD). Dr. Chu advised the applicant to continue neck care and exercises, and he prescribed medication for chronic neck pain and burning sensations.
41Further, Dr. Chu reveals that the applicant was off work since December 2014 and attended physiotherapy twice per week since the accident. Furthermore, in the February 7, 2017, consultation report by Dr. Emily Crookshank, medical doctor, she opined that the applicant’s neurological examination electrophysical studies are most consistent with a right ulnar neuropathy at the elbow.
42The applicant was counseled on using conservative techniques to avoid worsening the ulnar neuropathy aiming for improvement. It was Dr. Crookshank’s opinion that there was a possibility that the applicant has a mild sensory cervical radiculopathy which is not captured on electrophysiological studies, alternatively, he may have a musculoskeletal cause for his neck pain.
43The applicant submits that he has demonstrated a consistent pattern of medical follow-ups with his family physician, following the accident, regularly reporting ongoing pain and related symptoms. Yet, the applicant does not explain why it has taken approximately eight years, to submit the treatment plan to the respondent. I find that the applicant has not met his onus because he does not provide corroborating medical evidence during the eight-year period nor does he provide an explanation for the long period it has taken to submit the treatment plan.
44Accordingly, I find that the treatment plan is not reasonable and necessary because of the lack of corroborating medical evidence during the eight-year gap.
45I find on a balance of probabilities that the applicant is not entitled to a chronic pain assessment because he has not met his burden of proving that the treatment was reasonable and necessary.
Is the applicant entitled to $15,161.00 for a catastrophic determination assessment?
46I find that the applicant is not entitled to a catastrophic (CAT) determination assessment.
47The treatment plan proposes an assessment for the applicant under Criteria 7 or 8, that will include 2 days of occupational therapy situational assessment, an orthopaedic surgeon CAT assessment, Psychiatrist CAT assessment, and a physician file analysis/OCF-19 if appropriate. It will help determine the applicant’s level of impairment.
48The applicant submits that pursuant to section 25 of the Schedule, he is entitled to $15,161.00 for a treatment plan for catastrophic determination assessment under Criteria 7 or 8.
49The applicant submits that given his worsening physical and psychological impairments 10 years post-collision, a CAT assessment is crucial for evaluating the full extent of his injuries. Denying or restricting access to CAT assessments undermines the fairness and purpose of Ontario’s accident benefits system, which is designed to ensure that severely injured claimants receive appropriate care. The Tribunal has repeatedly held that progressive impairments require reassessments. As such, the costs of these assessments are reasonable and necessary, ensuring that the applicant’s chronic and worsening condition is properly evaluated.
50The respondent submits that the catastrophic determination is not reasonable and necessary because the applicant suffered minor, soft tissue neck strain injures which did not prevent him from working or engaging in his activities of daily living.
51I find that the applicant has not met his onus. While he makes general submissions in support of the CAT assessment, he does not address the specific elements of the plan or identify how the elements are reasonable and necessary for his accident-related condition. I note that the plan spans both orthopaedic and psychiatric assessments, but the applicant does not address why these specific assessments are required.
52Further, I find that the applicant has not established that his impairments meet the definition of catastrophic impairment under Criterion 7. Furthermore, I find that the applicant does not qualify under Criteria 8 because he has failed to prove that he suffers from an impairment due to a mental or behavioural impairment that in accordance with the American Medcation Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993 (“Guides”), results in a Class 4 impairment in three or more areas of function that significantly impedes useful functioning or a Class 5 impairment in one or more areas of function that precludes useful functioning.
53As a result, I find that the applicant has not established, on a balance of probabilities, that he is entitled to the CAT assessment.
Interest
54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable.
ORDER
55The applicant is not entitled to $2,486.00 for a psychological assessment.
56The applicant is not entitled to $1,417.70 for chiropractic and massage services.
57The applicant is not entitled to $15,161.00 for a catastrophic determination assessment.
58The applicant is not entitled to $2,486.00 for chronic pain assessment.
59The applicant is not entitled to $1,417.70 for physiotherapy services.
60The applicant is not entitled to interest.
Released: April 1, 2026
Estella Muyinda
Adjudicator