Licence Appeal Tribunal File Number: 22-009442/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:
Orkhan Mammadov
Applicant
and
Unifund Assurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Dean Trinetti, Counsel
For the Respondent: Nicholas Voight, Counsel
HEARD: By way of written submissions
OVERVIEW
1Orkhan Mammadov, the applicant, was involved in an automobile accident on March 5, 2021, 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, Unifund Assurance Company, 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from November 4, 2021 to date and ongoing?
iii. Is the applicant entitled to $2,471.33 for physiotherapy services, proposed by Hydroactive in a treatment plan/OCF-18 (“plan”) dated April 27, 2022?
iv. Is the applicant entitled to $1,080.13 for other assistive devices, proposed by Hydroactive in a treatment plan dated March 25, 2022?
v. Is the applicant entitled to $3,004.79 for chiropractic services, proposed by Hydroactive in a treatment plan dated September 24, 2021?
vi. Is the applicant entitled to the assessments proposed by Hydrohealth, as follows:
$2,460.00 for a Physiatry Assessment, in a treatment plan dated February 25, 2022; and
$2,657.75 for a Psychological Assessment, in a treatment plan dated August 6, 2021?
vii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
WITHDRAWN AND NARROWED ISSUES
3In written submissions, the applicant has narrowed issue ii to the following:
i. Is the applicant entitled to an IRB in the amount of $277.67 per week from November 4, 2021 to March 5, 2023?
4In written submissions, the applicant has withdrawn issue vii.
RESULT
5The applicant’s injuries are minor in nature and subject to the limits of the MIG.
6The applicant is not entitled to an IRB or any disputed treatment plans.
7This application is dismissed.
ANALYSIS
The applicant’s injuries fall within the Minor Injury Guideline
8I find that the applicant’s injuries sustained in the accident fall within the definition of “minor injury”.
9An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1) of the Schedule. The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.
10In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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 MIG.
11The applicant submits that they should be removed from the MIG on the basis of chronic pain and psychological injuries sustained in accident.
The applicant does not suffer from chronic pain syndrome with a functional impairment
12I find that the applicant has not demonstrated chronic pain with an accompanying functional impairment that would warrant removal from the MIG.
13The applicant submits that his accident-related physical pains have become chronic as noted in the clinical notes and records of Dr. Ashfaq Saleem, the applicant’s family physician.
14The respondent submits that the applicant has sustained uncomplicated soft tissue injuries. The respondent cites s.44 assessments from Dr. Gianni Maistrelli, orthopaedic surgeon, and Dr. Brandon Kucher, neurologist.
15In reviewing the clinical notes and records of Dr. Saleem, it is evident that the applicant has a history of reporting pain from the accident. However, it is well-settled that chronic pain must be accompanied by a functional impairment to warrant removal from the MIG.
16The clinical notes and records referenced by the applicant show that he reported experiencing pain to Dr. Saleem. However, no reference is made to associated functional impairments associated with that pain.
17Dr. Maistrelli examined the applicant on August 19, 2021. Dr. Maistrelli notes that the applicant sustained a minor uncomplicated soft tissue strain injury to the neck. Dr. Maistrelli further notes that resolution for this type of injury should occur within 12 weeks. Dr. Maistrelli found no objective evidence of any functional limitation or physical limitation.
18Dr. Kucher examined the applicant on September 23, 2021. Dr. Kucher found that the applicant did not suffer a neurologic injury or impairment as a result of the accident.
19The s.44 reports are aligned with the clinical notes records of Dr. Saleem. The applicant has not demonstrated chronic pain with a functional impairment that would warrant removal from the MIG.
20Therefore, I find that the applicant has not met the burden to prove chronic pain with a functional impairment.
The applicant does not suffer from a psychological impairment that would warrant removal from the MIG
21I find that the applicant has not demonstrated a psychological impairment that warrants removal from the MIG.
22The applicant submits that he made psychological complaints to Dr. Sean Kerr, chiropractor, and noted them in his affidavit.
23The only clinical note from Dr. Kerr is the OCF-3. It is well settled that an OCF-3 alone, without corroborating medical evidence is not sufficient evidence to remove an applicant from the MIG.
24The affidavit submitted by the applicant is not medical evidence of a diagnosed psychological impairment that would warrant removal from the MIG. It is the applicant’s subjective observations regarding the accident and does not meet the threshold of a medical diagnosis.
25I have also reviewed the clinical notes and records of Dr. Saleem. These were submitted as evidence by the applicant. In these notes, Dr. Saleem does not diagnose the applicant with a psychological impairment, nor does he make a referral for further psychological assessment or treatment.
26The respondent submits a s.44 report completed by Dr. Louise Koepfler, psychologist. Dr. Koepfler assessed the applicant on August 11, 2021 and noted that she does not have any valid or reliable data on which to base a formal diagnosis.
27I agree with the respondent’s position. There has been no evidence adduced which would, on the balance of probabilities, support the assertion that the applicant has developed a psychological impairment as a result of the accident.
28I therefore find that the applicant has not demonstrated a psychological impairment that warrants removal from the MIG.
The applicant is not entitled to an income replacement benefit
29I find that the applicant has not proven entitlement to an income replacement benefit of $277.67 per week from November 4, 2021 to March 5, 2023.
30To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
31The applicant was employed at Alcon Reno as a painter at the time of the accident.
32Following the accident, the applicant was unable to work and received an IRB from the respondent in the amount of $277.67 per week until November 4, 2021.
33The applicant submits that he suffers a substantial inability to perform the essential tasks of his employment and should be entitled to a continuing IRB to the 104 week mark based on the disability certificate of Dr. Kerr dated March 31, 2021, and the clinical notes and records of Dr. Saleem.
34The respondent submits that the applicant is not entitled to a continuing IRB as evidenced by the s.44 assessments of Ms. Michelle Becker OT, Dr. Gianni Maistrelli, orthopaedic surgeon, and Dr. Louise Koepfler, psychologist.
35In the context of this dispute, the disability certificate of Dr. Kerr holds no weight. The certificate is dated March 31, 2021. On March 31, 2021, the applicant was entitled to an IRB. Therefore, Dr. Kerr’s findings on March 31, 2021 do not speak to the applicant’s ability to perform the tasks of his employment during the time period in dispute.
36In reviewing the clinical notes and records of Dr. Saleem, I note that nowhere in the notes does Dr. Saleem advise the applicant not to work, nor are the essential tasks of his employment referenced. The only reference to the applicant’s ability to work was noted on May 12, 2022. Dr. Saleem notes, in the ‘subjective’ section of the SOAP notes, that the applicant was working in construction and unable to do that now due to pain.
37This comment is not a diagnosis or recommendation from a physician, it is information that the applicant revealed during the appointment. Dr. Saleem has not made any finding on the applicant’s ability to perform the tasks of his employment.
38The applicant also references an affidavit completed by the applicant as evidence. The affidavit is of limited value in the context of this specific dispute. The applicant makes numerous references to medical appointments and clinical notes which cover the time period during which an IRB was being paid.
39It is agreed that there was an original entitlement to an IRB. Referencing clinical notes and records that cover time periods where the applicant was receiving the benefit limits the value of the affidavit.
40I cannot, on the balance of probabilities, find that this affidavit supports an entitlement to an IRB for the time period in dispute. There is no delineation between the applicant’s condition before and after November 4, 2021, when the respondent denied the continuing IRB.
41The burden of proof rests with the applicant to prove they are entitled to the benefit. While I note that the respondent has referenced several s.44 reports in support of denying the benefit, it is not necessary for me to address these, as the applicant has not submitted evidence which, on the balance of probabilities, would demonstrate an entitlement to an IRB for the period in dispute.
42Therefore, for the reasons above, I find that the applicant is not entitled to an IRB from November 4, 2021 to March 5, 2023.
The applicant is not entitled to the disputed treatment plans
43As the applicant’s injuries are minor in nature, it is unnecessary for me to analyze the disputed treatment plans. The applicant is entitled to treatment to the $3,500.00 limits of the MIG.
Interest
44As no benefits are payable, there is no entitlement to interest.
ORDER
45For the reasons above I find that:
i. The applicant’s injuries are minor in nature and subject to the Minor Injury Guideline;
ii. There is no entitlement to an Income Replacement Benefit;
iii. There is no entitlement to the disputed treatment plans;
iv. As no benefits are overdue, there is no entitlement to interest; and
v. This application is dismissed.
Released: August 27, 2024
Julian DiBattista
Vice-Chair