S.K. v. Aviva Insurance Canada, 2019 CanLII 126203

RECONSIDERATION DECISION

Before: Lindsay Lake, Adjudicator

Date: December 16, 2019

File: 18-003544/AABS

Case Name: S.K. v. Aviva Insurance Canada

Written Submissions By:

For the Applicant: W. Ryan Moriarty, Counsel Domenic Pellegrino, Counsel

For the Respondent: Kristofer B. Angle, Counsel

OVERVIEW

1The applicant, S.K., filed a request for reconsideration of the June 27, 2019 decision (the “decision”)¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2In the decision, the Tribunal found that S.K.’s injuries fell within the Minor Injury Guideline (the “MIG”).² Because S.K. had exhausted the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG, the Tribunal did not consider the reasonableness and necessity of disputed treatment plans. The Tribunal also held that S.K. was not entitled to interest or an award.

3S.K. submits that the Tribunal made significant errors of fact and law such that the Tribunal would likely have reached a different decision. More specifically, S.K. argues that the Tribunal erred in its finding that S.K. did not suffer from chronic pain syndrome and, as a result, that her injuries fell within the MIG. S.K. also requests that the disputed treatment plans are reconsidered.

4The respondent, Aviva Insurance Canada (“Aviva”), submits that the decision should be upheld and the request for reconsideration be dismissed.

5Pursuant to s. 17(2) of the [Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009],³ I have been delegated the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

6S.K.’s request for reconsideration is dismissed.

ANALYSIS

7The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). The ground that S.K. submits applies in this matter is Rule 18.2(b), that the Tribunal made errors of fact and law.

8In order to interfere with a decision under Rule 18.2(b), however, the Tribunal must not only have made an error of law or fact, but that error of law or fact must be enough that the Tribunal likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

9S.K. argues that the Tribunal made three errors of fact and/or law regarding its determination on the issue of chronic pain syndrome, which are as follows:

(i) The Tribunal erred in giving little weight to the February 6, 2018 AB Orthopaedic Assessment Report by Dr. Michael West, orthopaedic surgeon (“Dr. West’s Report”);

(ii) The Tribunal erred in its finding that, “there is a lack of ‘…any other evidence that supports a diagnosis of chronic pain syndrome;’”⁴ and

(iii) The Tribunal erred by failing to conclude that S.K.’s suffered from chronic pain syndrome as a result of her partial left shoulder tear.

10I find that S.K. has failed to establish that the Tribunal made an error of law or fact in affording Dr. West’s Report little weight. Additionally, I find that S.K. failed to prove on a balance of probabilities that the Tribunal made an error of law or fact such that the Tribunal would have come to a different decision regarding whether or not S.K. suffered from chronic pain syndrome and, as a result, that her injuries fell within the MIG.

Weight of Dr. West’s Report

11The Tribunal gave Dr. West’s Report little weight in the decision as it found that the report lacked details including Dr. West’s credentials to diagnose chronic pain syndrome. Specifically, the Tribunal noted that there was no specific training or education outlined in the statement of qualifications portions of Dr. West’s Report to substantiate his expertise in this area.

12S.K. submits that this was an error by the Tribunal and that Dr. West has expertise in the subject of chronic pain. S.K. argues that according to Dr. West’s statement of qualifications, Dr. West had expertise with respect to chronic pain “based on his history of being a practicing orthopaedic surgeon of thirty-four years who authored numerous medical-legal reports.”⁵

13I find that the Tribunal did not make an error in giving little weight to Dr. West’s Report because there was no information about Dr. West’s credentials, specific training or education regarding chronic pain syndrome included in the report. I also do not accept that simply because Dr. West has completed “numerous medical-legal reports” and has been an orthopaedic surgeon for thirty-four years that this would qualify him as a chronic pain specialist or as an expert in chronic pain syndrome.

14The Tribunal also afforded little weight to Dr. West’s report because Dr. West provided no discussion, criteria or definition that S.K. met to be diagnosed with chronic pain syndrome aside from a brief statement that S.K.’s symptoms have persisted, “far beyond the normal expected time of healing.”

15S.K. submits that the Tribunal erred in affording little weight to Dr. West’s Report for this reason because Dr. West noted a left shoulder injury, subsequent trauma and surgical intervention in his report. S.K. also argues that Dr. West’s Report contained a review of diagnostic imaging and medical documentation, a detailed physical examination of S.K. and an interview with S.K.

16I find that the Tribunal did not err in giving little weight to Dr. West’s Report as a result of his failure to provide a discussion, criteria or definition that S.K. met to be diagnosed with chronic pain syndrome. Simply noting excepts from Dr. West’s report does not provide any information to the Tribunal on what criteria Dr. West considered or evaluated in diagnosing S.K. with chronic pain syndrome.

Lack of Any Other Evidence

17S.K. also argues that the Tribunal erred by failing to consider the evidence of S.K.’s pain complaints to her family physician, Dr. Bellaire, in its finding that S.K. failed to prove on a balance of probabilities that she suffered from chronic pain syndrome.

18While Dr. Bellaire’s evidence was included in S.K.’s original written hearing submissions, Dr. Bellaire’s clinical notes and records (CNRs) and July 12, 2018 medical note were not referenced by S.K. in the portion of her original written submissions that addressed chronic pain syndrome. S.K. only referred to Dr. Bellaire’s CNRs and July 12, 2018 medical note as evidence supporting her partial left shoulder tear and to support her entitlement to the February 7, 2019 treatment plan for assistive devices. Moreover, S.K. advanced three separate criteria to support her removal from the MIG⁶ and the only evidence specifically referred to by S.K. under the third criteria of, “Clinical Diagnosis of Chronic Pain Syndrome,” in support of her position that she suffered from chronic pain syndrome was Dr. West’s Report. S.K. also failed to make any submissions to the Tribunal at first instance on how the evidence of Dr. Bellaire should be applied to the issue of whether or not she suffered from chronic pain syndrome.

19In spite of this, if I accept that the Tribunal erred in not considering Dr. Bellaire’s CNRs and July 12, 2018 medical note on the issue of chronic pain syndrome, I find that S.K. has not established on a balance of probabilities that the Tribunal would have arrived at a different decision had this evidence been considered as I would give little weight to Dr. Bellaire’s CNRs and medical note in determining the issue of chronic pain syndrome for the following reasons.

20Firstly, the only criteria advanced in the written hearing regarding chronic pain syndrome was included in Aviva’s submissions and it referenced the six criteria described in the American Medical Association (AMA) Guides. The AMA Guides state that at least three of the following criteria must be present for a diagnosis of chronic pain syndrome to be established:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contracts;

(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.⁷

21S.K. did not contest these criteria and failed to provide any reply submissions at first instance.

22I find that Dr. Bellaire’s CNRs do not establish any of these criteria and, in fact, display the opposite. For example, Dr. Bellaire’s CNRs report that S.K. returned to work part-time approximately two months after the accident and a return to full-time work on February 8, 2016. No further reduction or modification in work hours were noted in the CNRs beyond this date. Therefore, I find that S.K. was not withdrawing from work as she was able to return to full-time work within six months of the accident.

23Dr. Bellaire’s CNR entries also note that S.K. was going to the gym (January 18, 2016) and was exercising two to three times per week (July 6, 2017). Therefore, I also find that she was not withdrawing from recreational activities. Further, S.K. submitted a “fitness for air travel medical information form” to Dr. Bellaire on September 16, 2015, within one month of the accident, which indicates to me that some form of air travel was being pursued that S.K. needed approval for. The CNRs also report that as of May 31, 2016, S.K. was not on any prescription medication, except for pain medication following her shoulder surgery in April 2017, and there were no reports of mental health symptoms since the accident.

24I also find that the CNRs do not demonstrate that S.K. was excessively dependent upon Dr. Bellaire since S.K. return to full-time work. From February 8, 2016 to July 6, 2017, Dr. Bellaire’s CNRs only reflect four pain complaints from S.K. during this period of almost one and a half years.

25Finally, Dr. Bellaire’s CNRs were only submitted up to July 6, 2017, which was a visit for S.K.’s annual physical. Therefore, there is a gap in time of over one year in Dr. Bellaire’s evidence until his medical note dated July 12, 2018. As a result, the frequency of S.K.’s pain reports to Dr. Bellaire are unknown during this time period. I also give Dr. Bellaire’s medical note little weight as it was very limited, being nine lines in length, and, although it states that S.K. had ongoing daily pain in her shoulder and neck, there is no information provided on her pain intensity and its impact on her function.

Partial Left Shoulder Tear

26S.K. also argues that the Tribunal erred as it ought to have concluded that S.K. suffered from chronic pain syndrome on the basis of her left shoulder tear.

27To reiterate from paragraph [18] above, S.K. relied solely upon Dr. West’s Report in support of her argument that she suffered from chronic pain syndrome in the written hearing. As such, much my comments in paragraph [18] above apply equally to this ground for reconsideration, as S.K. failed to make any submissions or direct the Tribunal to any evidence in addition to Dr. West’s Report pertaining to her left shoulder tear when addressing the issue of chronic pain syndrome in her initial written hearing submissions.

28In any event, if I accept that an error was made by the Tribunal by not considering the argument that S.K.’s partial shoulder tear equated with her suffering from chronic pain syndrome, I find that S.K. has not proven on a balance of probabilities that the Tribunal likely would have come to a different decision if it considered this argument.

29S.K. submits that her partial shoulder tear can support a finding of chronic panic syndrome and relies upon the reconsideration decision of G.S. v. Aviva General Insurance Company⁸ in which the Tribunal upheld the hearing decision that the applicant could not be treated sufficiently within the MIG regardless of whether there was a complete tear.⁹ In this decision, however, the hearing adjudicator held that an important factor in his decision was the evidence of “an accomplished chronic pain specialist.”¹⁰ I find that the reasoning from G.S. v. Aviva is not applicable to S.K.’s reconsideration request as the hearing adjudicator did not accept Dr. West as a chronic pain specialist and, therefore, the decision is distinguishable to S.K.’s matter.

30S.K. advanced no additional hearing evidence or case law in her reconsideration submissions to support her argument that her partial shoulder tear supports an automatic finding that she suffers from chronic pain syndrome.

31For the reasons outlined above, S.A.’s request for reconsideration is dismissed as I find that:

(i) the Tribunal did not err in giving little weight to Dr. West’s Report on the issue of chronic pain syndrome; and

(ii) S.A. failed to establish that any error of law or of fact by the Tribunal would likely have led the Tribunal to reach a different result on its determination of whether or not S.K. suffered from chronic pain syndrome.

Lindsay Lake

Adjudicator

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 118-003544 v Aviva Insurance Canada, 2019 CanLII 76839 (ON LAT).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issues pursuant to s. 268.3(1.1) of the Insurance Act.
3. 3S.O. 2009, c. 33, Sched. 5.
4. 4Request for Reconsideration by the Applicant, para. 11.
5. 5Ibid. at para. 8.
6. 6Applicant’s Hearing Submissions, para. 6.
7. 7American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 32-33, included in Aviva’s submissions.
8. 82019 CanLII 51320 (ON LAT) (“G.S. v. Aviva”).
9. 9Ibid. at para. 25.
10. 10Applicant v Aviva General, 2018 CanLII 81912 (ON LAT) at para. 9.