Citation: Hatamov v. The Commonwell Mutual Insurance Group, 2025 ONLAT 23-012586/AABS

Licence Appeal Tribunal File Number: 23-012586/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:

Bobomurod Hatamov

Applicant

and

The Commonwell Mutual Insurance Group

Respondent

DECISION

ADJUDICATOR:

John Mazzilli

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Cecil Jaipaul, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Bobomurod Hatamov, (the “applicant”), was involved in an automobile accident on February 21, 2023, 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 Commonwell Mutual Insurance (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 Minor Injury Guideline (MIG) limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $3,243.55 for chiropractic services, proposed by Essential Physio Rehabilitation Inc. in a treatment plan/OCF-18 (“plan”) submitted March 16, 2023?

iii. Is the applicant entitled to $4,904.76 for chiropractic services, proposed by Essential Physio Rehabilitation Inc. in a plan submitted July 17, 2023?

iv. Is the applicant entitled to the assessments proposed by Essential PhysioRehabilitation Inc. as follows:

i. $2,200.00 for a psychological assessment, in a plan submitted July 13, 2023; and

ii. $2,153.00 for a chronic pain assessment, in a plan submitted September 11, 2023?

RESULT

3The applicant remains in the MIG and therefore it is not necessary to consider whether the disputed treatment and assessment plans are reasonable and necessary.

4The application is dismissed.

ANALYSIS

The applicant has not demonstrated why he should be removed from the MIG

5I find that the applicant has not demonstrated that he should be removed from the MIG.

6Section 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.”

7An 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.

8The applicant refers to injuries arising from previous motor vehicle accidents in 2018 and 2019 which resulted in diagnoses of adjustment disorder with mixed anxiety and depressed mood, right shoulder strain and lumbosacral musculoligamentous strain. The applicant mainly references the medical evidence from his previous accidents and relies on the respondent’s denial letters from the subject accident. However, I am not entirely clear on the applicant’s arguments for removal from the MIG because his submissions were not assistive.

9The applicant submits that the respondent’s denial letter of March 27, 2023, acknowledges that “the injuries reported to us were aggravation of pre-existing injuries sustained from prior motor vehicle accidents.” which he argues supports his position that those prior injuries were worsened. The applicant relies on the clinical notes and records (“CNRs”) of Unison Health and Community Centre, OCF-18’s dated July 17, 2023 and March 13, 2023, completed by Dr. Narula, chiropractor, and a OCF-18 dated July 10, 2023, completed by Dr. Gosselin, psychologist, and the respondent’s denial letter dated March 27, 2023 to presumably demonstrate that removal from the MIG is warranted.

10The respondent argues that the applicant returned to work following the accident as a construction foreman. It argues that the applicant did not report any psychological symptoms interfering with his functioning at work, and that the applicant’s physical pain from previous accidents had resolved by 2022. The respondent further argues that eight months after the subject accident, the applicant traveled to Uzbekistan for a month and there is no evidence that he received any medical treatment during that time.

11In addition, the respondent argues that the applicant was involved in yet another accident in January of 2021 which the applicant did not mention in his submissions. The respondent argues that the applicant is not entitled to treatment outside the MIG because he has failed to establish that he sustained any non-minor physical injuries as a result of the subject accident, and that he does not suffer from a documented pre-existing mental or physical condition from which recovery would be precluded within the MIG pursuant to s. 18(2). The respondent relies on a multidisciplinary report dated March 26, 2024, completed by Marco Chiodo, psychological associate, and Dr. Delaney, orthopaedic surgeon.

Pre-existing and accident-related physical injuries

12I find on a balance of probabilities that the applicant does not suffer from a pre-existing physical or medical condition that would preclude the applicant’s recovery if he were kept within the MIG. I also find that the applicant’s accident-related physical injuries do not warrant a removal from the MIG.

13The applicant has not met his onus as his submissions are not clear. It is not the role of the Tribunal to construct the applicant’s case, it must consider the evidence before it.

14Further, while the applicant suggests that his injuries from his previous motor vehicle accidents were not resolved prior to the subject MVA, I find that the evidence does not support this suggestion for the following reasons.

15An OCF-23 dated March 13, 2023, completed by Dr. Narula, confirms that the applicant had no pre-existing injuries. This was based on the applicant’s self-report during an Insurers examination with Marco Chiodo, psychological associate. According to Mr. Chiodo’s report, the applicant reported that the physical pains from previous accidents had fully resolved by 2022 and that his previous anxiety and depressive symptoms had resolved by 2021.

16In addition, there are no CNRs suggesting the applicant visited his family physician from April 2020 to February 2023. I find that this three-year gap in CNRs supports that his previous injuries had resolved prior to the subject accident. In addition, the evidence shows that the injuries sustained from the subject accident do not support a removal from the MIG for the following reasons.

17Dr. Delaney, the s.44 orthopaedic surgeon, examined the applicant on November 7, 2023. Dr. Delaney’s report included a thorough file review of the applicant’s pre and post subject accident history. Dr. Delaney concluded that the applicant sustained a soft tissue injury to his right shoulder, with no evidence of internal derangement and an uncomplicated soft tissue injury to the applicant’s lumbosacral spine, as well as a myofascial strain with no evidence of any nerve root tension signs.

18Dr. Delaney opines that while these symptoms were pre-existing conditions from his 2018 and 2019 accident, the applicant’s pre-existing condition would not preclude the applicant from achieving maximum medical recovery under the cap of the MIG. I accept Dr. Delaney’s opinion because of his comprehensive file review of the applicant’s pre and post accident medical condition, his thirty-five-minute in-person examination of the applicant and because I was not persuaded by the applicant’s evidence to support his argument to be removed from the MIG.

19Finally, one week after the accident the applicant reported to his family doctor, by telephone, of minor injuries sustained in the accident to his back, right shoulder, and neck pain. However he returned to work shortly after the accident, to his pre-accident employment as a construction foreman: a job that involves supervising workers, demonstrating tasks to other workers and monitoring safety issues., further suggestive that the applicant does not suffer from an injury that precludes recovery within the MIG or a functional impairment as a result of the subject accident that would warrant removal from the MIG.

20For the reasons above, I find that the applicant has not met his onus to establish that he should be removed from the MIG due to a pre-existing condition. The applicant did not provide compelling medical evidence stating that his condition precludes recovery if he were kept within the confines of the MIG, as required for removal from the MIG under s. 18(2).

21Accordingly, I find on a balance of probabilities that the applicant does not suffer from a pre-existing physical medical condition that would preclude recovery outside of the MIG. I also find that the applicant’s accident-related physical injuries do not warrant removal from the MIG because they fall within the s. 3 definition of a minor injury.

Pre-existing and accident related psychological injuries

22I find that the applicant does not suffer from a pre-existing psychological injury that would preclude the applicant’s recovery if kept within the MIG. I also find that the applicant’s psychological injuries related to the subject accident do not warrant removal from the MIG.

23In this case, I prefer the multidisciplinary approach taken by the respondent and their findings that the applicant’s accident-related injuries can be addressed within the MIG for the following reasons.

24Marco Chiodo, the respondents s.44 psychological assessor, conducted a three hour and forty-minute assessment of the applicant which included a thorough document review of the applicant’s pre and post accident records. Mr. Chiodo also relied on the applicant’s self report, psychometric testing, and Mr. Chiodo’s observations of the applicant.

25As noted above, the applicant by his own admission informed the assessor that his pre-accident psychological conditions had resolved prior to the subject accident. In addition, I accept Mr. Chiodo’s finding that the applicant does not require formal psychological treatment as a result of the subject accident because Mr. Chiodo found the applicant has not sustained a psychological impairment as a result of the accident or a pre-existing psychological impairment that was exasperated as a result of the accident.

26The applicant has not satisfied the Tribunal that he should be removed from the MIG. In the absence of contemporaneous corroborating medical evidence, the applicant has not established his burden of proof to be removed from the MIG.

27I find on a balance of probabilities that the applicant does not suffer from a pre-existing psychological injury that would preclude the applicant’s recovery outside of the MIG. I also find that the applicant did not suffer any psychological injuries related to the subject accident, therefore the applicant remains within the MIG.

28The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment plans is not required.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable interest is not owing.

ORDER

30It is ordered that:

i. The applicant remains in the MIG and therefore it is not necessary to consider whether the disputed treatment and assessment plans are reasonable and necessary.

ii. The application is dismissed.