Release date: 05/28/2021
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:
Joshgun Hasanov
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Sevda Guliyeva
For the Respondent:
Symone Marlow
HEARD:
By way of written submissions
OVERVIEW
1Joshgun Hasanov, (“the Applicant”), was injured in an automobile accident on March 12, 2018 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2Wawanesa Mutual Insurance Company, (“the respondent”) determined the Applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and refused to pay for certain medical benefits. As a result, the Applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
I. 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 limit and in the Minor Injury Guideline?
II. Is the Applicant entitled to $2,295.33 for psychological treatment, recommended by Nina Belyakova in a treatment plan (OCF-18) submitted June 20, 2018?
III. Is the Applicant entitled to $2,680.38 for chiropractic treatment, recommended by Dario Mirian in a treatment plan (OCF-18) submitted May 14, 2019?
IV. Is the Applicant entitled to $2,326.04 for chiropractic treatment, recommended by Dario Mirian in a treatment plan (OCF-18) submitted August 14, 2018?
V. Is the Applicant entitled to $1,971.70 for a Psychological Assessment, recommended by Reshma Shetty in a treatment plan submitted June 20, 2019?
VI. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant suffered a minor injury as a result of the accident as defined in the Schedule.
5He is not entitled to the disputed treatment plans or interest.
BACKGROUND
6The Applicant was struck by a left-turning vehicle on the lower left leg while he was attempting to cross the street at an intersection. Paramedics attended at the scene of the accident and recorded that the Applicant had no loss of consciousness, nor any neck or back pain. Remarkably, his only complaint was left leg pain from the knee down, causing him to have difficulty with weight-bearing. He was transported to the hospital by paramedics where he was further assessed. Hospital records note that the Applicant denied hitting his head or having neck and back pain - his primary complaint was left leg pain. X-rays were taken and showed no bony injury or knee effusion. The Applicant was advised to take Tylenol and Advil and discharged.
7The Applicant started treatment at Humber Civic Care Centre Inc. (“Humber”) about two days following the accident. The treatment was commenced pursuant to the MIG and consisted of chiropractic modalities, massage therapy, and physiotherapy.
THE MINOR INJURY GUIDELINE
8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9If an insurer deems an Applicant’s injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.
10The Applicant submits that he developed chronic pain and psychological impairments following the accident. Thus, he should no longer be subject to the MIG and is entitled to the disputed treatment plans listed above. The respondent submits that the Applicant has exaggerated his accident-related injuries and failed to prove he sustained a physical or psychological injury, as a result of the accident, that would remove him from the MIG.
Chronic Pain
11While the Applicant submits that he ought to be removed from the MIG due to chronic pain, there is no evidence to suggest he suffers from chronic pain or a functional impairment as a result of chronic pain which would warrant his removal from the MIG and the $3,500.00 funding limit on treatment.
12The Applicant led no evidence or submissions explaining how or why he believes he has a chronic pain condition. He provides no diagnosis of chronic pain or chronic pain syndrome and no evidence of a functional impairment due to pain. If anything, the evidence shows that the Applicant returned to his pre-accident function. The Applicant was unemployed prior to the accident but started employment as an Uber driver following the accident, in July 2018. There is no compelling evidence of a withdrawal from social activities or an overdependence on healthcare providers and prescription medication.
13The August 7, 2018 IE report of Dr. T. Levy, physician, found no evidence to suggest that the Applicant’s injuries fall outside of the MIG. Dr. Levy assessed the Applicant and concluded that the Applicant sustained primarily soft-tissue injuries and developed post-traumatic headaches and sleep and mood disturbance. Dr. Levy, having reviewed the IE report of Dr. A. Rubenstein, dated August 7, 2018, deferred any further comment on the proposed psychological assessment because it was outside of his area of practice. Dr. Levy conducted another assessment and produced a second report, dated July 10, 2019. Again, the assessment produced unremarkable results and Dr. Levy maintained that the Applicant sustained a minor injury as it is defined in the Schedule.
14Dr. Levy recommended that the Applicant continue performing his pre-accident activities of daily living and advised that he may benefit from restorative yoga. Contrary to the Applicant’s submissions, mentioning that the Applicant may benefit from restorative yoga is not an admission that the Applicant requires treatment beyond the MIG limits to recover from his accident-related injuries. To me, Dr. Levy’s suggestion is not a recommendation for reasonable and necessary treatment but, instead, it provides the Applicant with a low-risk treatment option if he insists on further treatment.
Psychological Injuries
15I find no compelling evidence of a psychological injury which would warrant the Applicant’s removal from the MIG and the $3,500.00 funding limit on treatment.
16The psychological symptoms reported by the Applicant are minor and do not warrant removal from the MIG. An initial physiotherapy assessment report by R. Shetty, dated March 14, 2018, lists predominantly soft tissue injuries as well as “sleep issues, stress, anxiety” in the comments section. These symptoms are, for the most part, repeated in a treatment plan by Dr. D. Mirian, chiropractor, dated March 22, 2018, and disability certificates by R. Shetty, dated April 9, and August 8, 2018. A physiotherapy re-assessment report by R. Shetty, dated June 5, 2019, notes “anxiety sometimes” and “sleep issues improving”. No significant detail is provided to accompany the above-noted references to symptoms of a psychological injury. References by chiropractors or physiotherapists to broad psychological symptoms are uncompelling evidence of a psychological injury which warrants removal from the MIG.
17As noted above, the Applicant commenced employment as an Uber driver in July 2018, despite the reported symptoms and lack of psychological treatment. This contradicts the Applicant’s report to Dr. Levy that he has situational phobia with respect to driving and being a pedestrian. The Applicant submits that he works only at night, due to less traffic, but provides no evidence to support this claim, such as driving records from Uber.
18While it may not be required to establish the existence of a psychological injury, I find that the Applicant’s medical record includes no formal diagnosis of a psychological injury. The psychological assessment pre-screen interview, which was performed on June 11, 2018 by Y. Shcherbina, registered psychotherapist, provided a provisional diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational, pedestrian, based solely on the Applicant’s self-reported symptoms. Whereas the August 7, 2018 IE report of Dr. Rubenstein, found that the psychological test findings during the assessment suggested the Applicant compromised the validity of objective testing due to symptom magnification. Dr. Rubenstein concluded that the Applicant does not meet the criteria for any diagnosis according to DSM-IV and has not sustained any diagnosable psychological impairment as a direct result of the accident. I acknowledge the typographical error in Dr. Rubenstein’s report, referring to the Applicant by a different and unrelated surname. However, this error fails to upset the balance of the evidence in the report and the Applicant’s medical records. Further, Dr. Rubenstein assessed the Applicant again and produced a second report dated July 10, 2019. Dr. Rubenstein maintained that the Applicant has not sustained any diagnosable psychological impairment.
THE DISPUTED TREATMENT PLANS
19The Applicant is not entitled to the disputed treatment and assessment plans. The Applicant sustained a minor injury as a result of the accident and the treatment plans propose treatment outside of the MIG.
INTEREST
20Pursuant to section 51, interest is only payable on overdue payments. No amounts are payable and, as a result, no interest is payable.
CONCLUSION
21The Applicant sustained a minor injury as it is defined in the Schedule. He is subject to the $3,500.00 funding limit on medical benefits.
22The Applicant is not entitled to the disputed treatment and assessment plans because they propose treatment outside of the MIG.
23No interest is payable as no payments went overdue.
Released: May 28, 2021
Brian Norris, Adjudicator