RECONSIDERATION DECISION
Before: Heather Trojek, Vice Chair
File: 17-000565/AABS
Case Name: V.T. v. Wawanesa Insurance Company
Written Submissions by:
For the Applicant: Peter Cimino, Counsel
For the Respondent: Tim Gillibrand, Counsel
OVERVIEW
1This Request for Reconsideration was filed by the applicant. It arises out of a decision in which the Tribunal found, after the completion of a written hearing, that the applicant’s injuries fall within the Minor Injury Guideline (MIG)1. Since the applicant had already exhausted the $3,500.00 payable for treatment under the MIG, the Tribunal did not consider if the medical and rehabilitation benefits that were also in dispute at the hearing were reasonable and necessary.
2At the crux of this Request for Reconsideration is the Tribunal’s finding regarding the credibility of statements made by the applicant to his medical assessors. The applicant argues that the Tribunal erred because it based its decision solely on the issue of credibility. As a result, the applicant requests that I find that his injuries fall outside the MIG or in the alternative that I send the matter back to be determined at an in-person, as opposed to a written, hearing.
3The respondent submits that the Tribunal’s decision is correct and should not be overturned.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The applicant’s Request for Reconsideration is dismissed.
ANALYSIS
6The grounds that must be established in order for a Request for Reconsideration to be successful are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. The grounds that the applicant argues that apply to this case are as follows:
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.
7More specifically, the applicant argues that the Tribunal erred because it:
a. based its decision entirely on his credibility;
b. did not exercise its discretion and request that he give oral evidence at the hearing; and
c. incorrectly found that the statements he made to his medical assessors were unreliable because of the surveillance evidence submitted by the respondent.
8I am not persuaded by any of the arguments made by the applicant. I do not find that the Tribunal violated the rules of natural justice or made significant errors in fact and/or in law such that it likely would have found that the applicant’s injuries fell outside the MIG.
The Tribunal based its decision on the totality of the evidence
9In his Request for Reconsideration, the applicant argues that the Tribunal made an error in law because it based its decision solely on the issue of credibility. I do not agree.
10Contrary to the argument made by the applicant, I find that the Tribunal carefully weighed the totality of the evidence before it and provided sound reasons for finding that the applicant’s injuries fall within the MIG.
11At the hearing, the applicant relied on two medical reports. One was written by Dr. Karmy, chronic pain specialist and the other by Dr. Waxer, psychologist. Based on the March 2017 reports of these experts, the applicant argues that he suffers from post-concussion syndrome, chronic pain, somatic symptom disorder, adjustment disorder and a mild traumatic brain injury. As these injuries fall outside the prescribed definition of minor injury, the applicant submits that that the Tribunal erred in finding that his injuries did not fall outside the MIG.
12The Tribunal placed minimal weight on the reports of Dr. Karmy and Dr. Waxer. It did so because it found that what the applicant reported to these assessors in terms of his pain and levels of post-accident activity, were incongruent with the surveillance and social media evidence submitted by the respondent.
13The Tribunal did not, however, only consider the reports of Dr. Karmy and Dr. Waxer, when making its decision.
14On page 7 of its decision, in a section subtitled Medical Evidence, the Tribunal states that, in addition to concerns about applicant’s credibility, it finds that the applicant’s own treatment providers support the finding that the applicant’s injuries fall within the MIG. The Tribunal, for instance, refers to three treatment plans completed in 2015, by Dr. Bibi, which confirmed that the applicant sustained primarily whiplash type injuries.
15The Tribunal also considered the report of Dr. Lloyd Gordon, emergency room physician, as evidence that the applicant’s injuries fell within the MIG. On the day of the accident, Dr. Gordon opined that the applicant sustained a contusion, which falls with the prescribed definition of a “minor injury”. He does not diagnose the applicant with either a concussion or with a mild traumatic brain injury. As confirmation of Dr. Gordon’s assessment, the Tribunal refers to a normal CT scan that the applicant had in August 2016.
16The Tribunal’s reference to the medical evidence submitted by the respondent also supports that it reviewed and based its decision on the totality of the evidence. In paragraph 13 of its decision the Tribunal notes that all of the respondent’s assessors found that the applicant’s injuries fell within the MIG. These assessors included Dr. Castiglion, general practitioner, Dr. Moddell, neurologist, and Dr. Day, psychologist.
17For the above-noted reasons, I do not accept the applicant’s argument that the Tribunal made an error in law because it based its decision solely on the credibility of the applicant. Instead, I find that the Tribunal considered that totality of the evidence before it. As a result, the applicant’s request for reconsideration cannot succeed on this ground.
The Tribunal did not violate the principals of natural justice and procedural fairness
18In his Request for Reconsideration, the applicant argues that the Tribunal denied him the right to be heard. More specifically, the applicant argues that because the Tribunal based its decision solely on his credibility, it should have changed the format of the hearing to allow him to testify and address what the Tribunal considered to be discrepancies in the evidence.
19The applicant points to Rule 9.1 of the Tribunal’s Rules. This Rule gives the Tribunal the discretionary authority to request additional evidence and submissions that it considers necessary in order to have a full and satisfactory understanding of the issues in a proceeding.
20In some cases, I agree that it is necessary and in fact incumbent upon the Tribunal to exercise its discretion under Rule 9.1. However, because the Tribunal did not, as the applicant alleges, base its decision solely on his credibility, I find that it was not procedurally unfair the Tribunal chose not to do so. In addition, the applicant filed reply submissions and had the opportunity to respond to the respondent’s evidence. The Tribunal specifically notes on several occasions that the applicant’s reply submissions did not adequately address the credibility concerns raised by the respondent2.
21In addition to the above, I find for the following reasons, no evidence of procedural unfairness on behalf of the Tribunal
a. The applicant consented to a written hearing. I acknowledge that the applicant did not know the respondent had surveillance evidence at the time he agreed to the format of the hearing.
b. Even after the applicant became aware of the surveillance, at no time prior to his filing his Request for Reconsideration did the applicant request that the Tribunal change the format of the hearing.
c. The applicant was provided with the respondent’s surveillance evidence ten days prior to the date he was required to submit his evidence and initial submissions to the Tribunal. The applicant, however chose not to file an affidavit to respond to the surveillance or file a motion with the Tribunal requesting that the format of the hearing be changed to allow the applicant to provide oral evidence.
d. The applicant had the opportunity to file Reply submissions with the Tribunal. Rather than raise the issue of procedural fairness and need for an oral hearing in his Reply submissions, the applicant simply argued that the respondent’s evidence mischaracterized his credibility.
22I find no evidence that the applicant was denied the right to be heard by the Tribunal. If the applicant wanted to file additional evidence or make submissions to respond to the surveillance evidence submitted by the respondent he had numerous opportunities to do so. Having been provided with these opportunities, I do not accept the applicant’s argument that the Tribunal’s decision was procedurally unfair to him. The applicant has failed to persuade me that because the Tribunal did not independently and on its own initiative request that the applicant provide oral evidence at the hearing, that its decision should be overturned.
The Tribunal did not make a significant error in fact
23The Applicant has failed to point me to any error in fact that was made by the Tribunal such that its decision should be overturned. The applicant argues that the Tribunal erred in fact when it determined that he under-reported his level of post-accident physical activity to his medical assessors. For instance, the applicant argues in his Request for Reconsideration that although the surveillance evidence shows him driving his children to school and working as a nail technician after the accident, he never specifically told his or the respondent’s assessors that he was completely unable to perform these activities after the accident.
24The applicant has failed to persuade me that the Tribunal made an error of fact. In its decision, the Tribunal devotes 6 paragraphs to reviewing and assessing the surveillance evidence submitted by the respondent against what the applicant reported to Dr. Karmy and to Dr. Waxer. For instance, in paragraph 18 of its decision, the Tribunal correctly finds that in March 2017 the applicant reported to Dr. Karmy that after the accident he was forced to curtail all [emphasis mine] of his recreational and social activities. The applicant attributed his lack of activity to the physical pain and psychological problems he experienced following his accident in 2014. The applicant also reported to Dr. Waxer that the amount of work he performed after the accident declined significantly and was primarily administrative in nature.
25The Tribunal compared the bleak picture painted of the applicant in the reports of Dr. Karmy and Dr. Waxer with the surveillance evidence submitted by the respondent. The Tribunal correctly finds that the surveillance evidence submitted by the respondent confirms that the applicant took a cruise to Spain, France and Italy in August 2016. In its decision the Tribunal also refers to video footage of the applicant taken in April 2017 in which he is observed going to a restaurant and a grocery store with his family. The Tribunal notes that in the video the applicant is seen walking, running, laughing and carrying bags and lifting a box over a two day period without any visible discomfort. Other evidence submitted by the respondent shows the applicant working as a nail technician in June 2015 and in May 2017.
26Finally, many of the arguments the applicant makes regarding the Tribunal having made an error in fact are not persuasive or logical. For instance, the applicant argues that the Tribunal should have taken the validity testing conducted by Dr. Day, the respondent’s psychologist, into consideration when assessing his credibility. I do not accept this argument. Simply because the validity testing administered by Dr. Day indicates that the applicant did not exaggerate his symptoms to Dr. Day does not mean that the applicant did not exaggerate his symptoms or under-report his activities of daily living after the accident to his own assessors. In addition, I fail to understand the logic of the applicant arguing that the Tribunal should have put weight on the findings of Dr. Day, when Dr. Day found that the applicant did not sustain any psychological injuries which would take him out of the MIG.
27Based on the Tribunal’s analysis of the evidence before it, I find no reason to question the Tribunal’s determination that the applicant’s injuries fall within the MIG.
CONCLUSION
28For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Released: February 14, 2019
______________________
Heather Trojek Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Footnotes
- A minor injury is defined in s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 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.” See also Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act
- See paragraphs 19-22 of the Tribunal’s decision.