Safety, Licensing Appeals and Standards Tribunal Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto, ON M7A 1N3

In Person Service: 20 Dundas St. W., Suite 530, Toronto, ON M5G 2C2

Tel:

416-314-4260

1 800-255-2214

TTY:

416-916-0548

1 844-403-5906

FAX:

416-325-1060

1 844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3

Adresse municipale : 20, rue Dundas Ouest,

Bureau 530, Toronto ON M5G 2C2

Tél. :

416-314-4260

1 800-255-2214

ATS :

416-916-0548

1 844-403-5906

Téléc. :

416-325-1060

1 844-618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before:

Linda Lamoureux, Executive Chair

Date:

January 25, 2018

File:

16-001320/AABS

Case Name:

P.I. v Aviva Insurance Canada

Written Submissions By:

For the Applicant:

Deva Devendran, Counsel

For the Respondent:

Danielle N. Wilkinson and Michelle T. Friedman, Counsel

Overview

1. The applicant, P.I., was injured in a motor vehicle accident on March 7, 2014. He initially received accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). However, the respondent, Aviva Insurance Canada (“Aviva”), denied him payment of further benefits when he reached the $3,500 monetary limit for minor injuries set out in s. 18(1) of the Schedule and the Minor Injury Guideline (the “MIG”). As a result, P.I. applied to the Licence Appeal Tribunal (the “Tribunal”) to dispute, among other things, whether he should be treated within the MIG.

2. Following a written hearing, the Tribunal determined that P.I.’s injuries fell within the MIG and that he was therefore not entitled to further benefits. The Tribunal considered and rejected three arguments upon which P.I. relied to establish that the MIG did not apply to his injuries: psychological impairment, physical injuries, and pre-existing injuries.

3. P.I. requests reconsideration of that decision. He alleges that the Tribunal violated the rules of natural justice and erred in law. For the reasons that follow, I dismiss this request for reconsideration.

ANALYSIS

4. P.I. submits that reconsideration should be granted based on the following grounds in Rule 18.2 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016):

(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness; and

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

5. P.I.’s submissions relate to each of the three issues considered by the Tribunal: psychological impairment, physical injuries, and pre-existing injuries.

Psychological injuries

6. P.I. submits that the Tribunal violated the rules of natural justice by preferring a psychological report prepared by an insurer’s examiner, Dr. Nikkhou, over one prepared by P.I’s doctor, Dr. Pilowsky. P.I. takes issue with the statement in the Tribunal’s reasons that the Tribunal “prefer[red] Dr. Nikkhou’s analysis because her 2017 report is the latest pronouncement on the applicant’s condition.” P.I. submits that this line of reasoning is “extremely unreasonable and shows potential bias on the part of the Adjudicator,” as Dr. Nikkhou’s report was prepared only two months later than Dr. Pilowsky’s. P.I. submits that the Tribunal’s reasoning is illogical, as the Tribunal rejected the possibility that Dr. Nikkhou’s report reflected an improvement in P.I.’s condition.

7. I find P.I.’s allegation of bias to be entirely without foundation. Preferring one report to another does not amount to bias. I also see no error in the Tribunal’s consideration of the various psychological reports. It is not my role on reconsideration to reweigh the evidence considered by the Tribunal. The Tribunal preferred Dr. Nikkhou’s report for a number of reasons, only one of which was the timing of it. I find it reasonable for the Tribunal to have put some weight on the timing of the report, particularly as the Tribunal noted that Dr. Nikkhou was able to review the prior reports and factor them into her analysis. The Tribunal also found the report of Dr. Nikkhou to contain conclusions “drawn from reasonable inferences that arise on her sound testing methods” and that “the analysis is a thoughtful and reasonable pronouncement.” These conclusions were open to the Tribunal on the evidence.

Physical Injury

8. P.I. submits that the Tribunal made two errors in determining that his physical injuries fell within the MIG. First, he argues that the Tribunal violated the rules of natural justice and committed an error of law by refusing to accept Dr. Pilowsky’s diagnosis of somatic symptom disorder in the 5^th edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) as the equivalent of a diagnosis for chronic pain in DSM-4. The Tribunal’s decision stated:

With respect to the chronic pain diagnoses, the applicant states in his submissions: “be advised that Chronic Pain, which was included as a diagnosis in DSM-4, was replaced with Somatic Symptom Disorder in DSM-5 …” I need evidence on this issue. There is none. I refuse to accept this on the basis of submissions alone.

9. P.I submits that the Tribunal should have taken judicial notice of the change in the DSM, and its refusal to do so is an error of law, a violation of the rules of natural justice, and that it compromised his right to a fair hearing.

10. I see no error in the Tribunal’s refusal to take judicial notice of a change in the DSM. At the written hearing, P.I. made no submission that the Tribunal ought to take judicial notice. Judicial notice may be taken of a fact that is “1) so notorious or generally accepted as not to be the subject of debate among reasonable persons, or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”: R. v. Spence, 2005 SCC 71, at para. 53. I do not have ready access to a source of indisputable accuracy confirming that “chronic pain” in DSM-4 is equivalent to “somatic symptom disorder” in DSM-5. Those two diagnoses may be equivalent, they may not be, or there may be room for debate among experts. I simply do not know. Thus, I see no error in the Tribunal’s determination that it required evidence on that point.

11. Second, P.I. submits that the Tribunal erred by failing to accept that his injury was not subject to the MIG based on an assessment report that showed that P.I. suffered from a number of physical functional limitations. I disagree. P.I. was required to establish that his functional limitations did not fall within the definition of a minor injury, that is to say that they were not “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.” Functional limitations may or may not be “clinically associated sequelae” to a minor injury. The applicant is required to establish on the evidence that they are not. The Tribunal found that there was a “lack of evidence proving that the functional limitations are the result of an injury that is not predominantly minor.” This finding was open to the Tribunal.

Pre-existing Injuries

12. P.I. submits that the Tribunal made an error of fact in failing to consider all of the evidence in determining whether P.I. suffered from any pre-existing injuries. According to s. 18(2) of the Schedule, the $3,500 monetary limit for minor injuries does not apply if there is a pre-existing medical condition that will prevent him from achieving maximal recovery from the minor injury if he is subject to the $3,500 limit.

13. I am not satisfied that the Tribunal made the error alleged. In fact, the Tribunal did not make a finding on whether the applicant suffered from pre-existing injuries. Rather, the Tribunal found that there was “insufficient indication that the applicant is prevented from achieving maximal medical recovery if he is subject to the Guideline” (emphasis in original). P.I.’s submission that the Tribunal failed to consider evidence of pre-existing injuries does not impugn the Tribunal’s finding that there was insufficient evidence that any pre-existing injuries prevented him from achieving maximal recovery.

Order

14. For the reasons set out above, I dismiss this request for reconsideration.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: January 25, 2018