Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 20-015260/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:
Volodymyr Zhylavyy Applicant
and
Wawanesa Mutual Insurance Company Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Ioulia Logoutova, Counsel
For the Respondent: Shannon Mulholland, Counsel
HEARD: By way of written submissions
OVERVIEW
1Volodymyr Zhylavyy, the applicant, was involved in an automobile accident on May 8, 2019, 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 Wawanesa Mutual 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:
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 (MIG)?
ii. Is the applicant entitled to $1,212.11 for physiotherapy services, recommended by East Sheppard Rehab in a treatment plan (OCF-18) submitted August 25, 2019?
iii. Is the applicant entitled to $2,894.33 for physiotherapy services, recommended by East Sheppard Rehab in a treatment plan (OCF-18) submitted November 18, 2019?
iv. Is the applicant entitled to $1,603.57 for physiotherapy services, recommended by East Sheppard Rehab in a treatment plan (OCF-18) submitted April 19, 2020?
v. Is the applicant entitled to $2,641.62 for physiotherapy services, recommended by Normed Assessment Services in a treatment plan (OCF-18) submitted August 28, 2019?
vi. Is the applicant entitled to $2,000.00 for a neurological examination, recommended by Normed Assessment Services in a treatment plan (OCF-18) submitted October 28, 2019? (no interest)
vii. Is the applicant entitled to $2,000.00 for an orthopaedic assessment, recommended by Normed Assessment Services in a treatment plan (OCF-18) submitted September 30, 2019? (no interest)
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has failed to prove any entitlement to benefits. It follows that there is no entitlement to interest.
ANALYSIS
The Applicant has not proven injuries outside of the MIG
4Section 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."
5An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of 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.
6The respondent highlights in their submissions that the applicant did not address the MIG at all in their written submissions. Having reviewed the submissions and evidence, I can see an indirect argument that the applicant has suffered injuries which are not predominantly minor.
The applicant did not prove the diagnosis of an injury that is not minor
7While the entitlement to benefits is not dependant on the circumstances surrounding the accident, I will address the circumstances of this accident. According to the police report submitted as evidence, the accident occurred at 10:50am on May 8, 2019. Immediately following the accident, the vehicle was towed to a collision reporting centre. Neither ambulance nor police attended on scene, and the applicant completed the process of self-reporting the collision.
8That same day, the applicant was assessed by Dr. P. Bruni, a chiropractor. A report covering that assessment was submitted as evidence by the respondent. Dr. Bruni diagnosed a loss of consciousness and a concussion in that report and in the subsequent OCF-3. The respondent notes that during the neurological assessment, Dr. Bruni notes, "Motor testing revealed adequate strength globally in the upper extremities. Sensory testing revealed adequate sensation bilaterally at C5-T1. DTRs were within normal limits. Plantar response was down-going. A cranial nerve examination was unremarkable." While Dr. Bruni did provide a diagnosis of a concussion, the respondent challenges that diagnosis as there were no abnormal neurological findings documented by Dr. Bruni.
9The respondent further highlights that in s.44 assessments conducted by Dr. T. Dumitrascu (psychologist) and Dr. C. Boulias (physiatrist) on July 19, 2019 and July 23, 2019 respectively, the applicant denied losing consciousness.
10There is no supporting diagnosis or clinical notes or records from a physician to confirm the diagnosis of a concussion, and no imaging was obtained. I find that on the balance of probabilities, the applicant has not proven they suffered from a concussion or any injury which would warrant removal from the MIG.
The applicant did not prove a diagnosis of chronic pain
11The Tribunal has determined that a diagnosis of chronic pain with a functional impairment is enough to remove the applicant from the MIG. The applicant saw Dr. A. Dermen, (physician), on September 9, 2020. Present at this appointment was the applicant's legal representative and the applicant's pharmacist who provided translation for the applicant.
12In his clinical notes, Dr. Dermen noted that the applicant suffers from what is "likely chronic pain". A statement where the word 'likely' is used is not a definitive diagnosis. There is also no reference to a functional impairment. There are no other medical notes provided which reference chronic pain.
13I find that on the balance of probabilities the applicant has not proven that they suffer from chronic pain with a functional impairment that would warrant their removal from the MIG.
The applicant is not entitled to any of the disputed treatment plans
14While I am aware that the applicant has put forward considerable submissions on the reasonableness and necessity of the disputed treatment plans, I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits. Therefore, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.
Interest
15As there are no benefits owing, no interest is payable.
ORDER
16For the reasons outlined above, I find that:
i. The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;
ii. The applicant is not entitled to interest; and
iii. The application is dismissed
Released: April 25, 2023
__________________________
Julian DiBattista
Vice-Chair