RECONSIDERATION DECISION
Before: Heather Trojek, Vice Chair
File: 17-002907/AABS
Case Name: P.L. v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Michael Brill, Counsel
For the Respondent: Chris Macaulay, Counsel
OVERVIEW
1This Request for Reconsideration was filed by Aviva Insurance, the respondent in this matter. It arises out of a decision in which the Tribunal found that the applicant’s injuries fall outside the Minor Injury Guideline (MIG)1. The respondent submits that the Tribunal’s decision is incorrect and should be reconsidered.
2P.L., the applicant, submits that the Tribunal’s decision is correct and should not be overturned.
3The applicant was involved in an accident on October 10, 2015. He was denied certain benefits from the respondent and filed an application with the Tribunal. Following a written hearing, the Tribunal found that the applicant should be removed from the MIG because his spine was injured and he developed a chronic pain disorder as a result of the accident. The Tribunal rejected the applicant’s submission that he sustained psychological injuries and/or had a documented pre-existing medical condition which would remove him from the MIG.
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 respondent’s Request for Reconsideration is dismissed.
ANALYSIS
6The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. The ground that the respondent argues applies to this case is as follows:
a. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
More specifically, the respondent argues that the Tribunal erred;
b. in fact, because it found that the applicant was diagnosed with chronic pain syndrome when there was no medical evidence to support this finding;
c. in law, because it did not consider the complete definition of a “minor injury” which includes clinically associated sequelae; and
d. in law, because it failed to address the causation arguments made by the respondent with regards the applicant’s back injuries.
7I agree with the respondent that the Tribunal made an error in fact regarding the applicant being specifically “diagnosed” with chronic pain syndrome. I do not, however, agree that this error was significant enough that the Tribunal likely would have come to a different decision had this error not been made.
8Although the respondent’s submissions were well written and argued, the respondent failed to persuade me that the Tribunal made any errors in law in rendering its decision.
9As the Tribunal did not make a significant error in fact and no errors in law, I find that the respondent’s Request for Reconsideration must be dismissed.
The Tribunal did not made a significant error in fact – Chronic Pain Syndrome
10The respondent correctly argues that the Tribunal made an error in fact when it states in paragraphs 13 and 21 of its decision that Dr. Robertus diagnosed the applicant with “chronic pain syndrome” (CPS). In paragraph 13, the Tribunal reiterates that applicant’s claim that he suffers from CPS but does not make a finding. In paragraph 21, the Tribunal discusses whether the applicant’s participation in a chronic pain program is reasonable and necessary. Neither of these paragraphs contains the reasons why the Tribunal removed the applicant from the MIG. The basis of the Tribunal’s finding is set out clearly in paragraph 17 of its decision.
11In her report of January 4, 2017, Dr. Robertus diagnoses the applicant as having a Pain Disorder with a General Medical Condition. She states that the applicant had disabling pain for 15 months such that he shifted from an acute pain state to a chronic pain state. Due to the extent of his chronic pain symptoms, Dr. Robertus opines that the applicant’s prognosis for global improvement is guarded to poor. On the last page of her report, although Dr. Robertus does not specifically diagnosis the applicant with CPS, she does state that after the applicant has completed a chronic pain program, he will require ongoing treatment for the “management of his chronic pain syndrome”.
12Although I agree that the Tribunal made an error with regards to saying that Dr. Robertus specifically diagnosed the applicant with CPS, I do not find that it is a fatal error. For the following reasons, I conclude that the Tribunal likely would have come to the same decision even if this error had not been made:
i. The paragraphs in which the Tribunal made the error of stating that the applicant was diagnosed with CPS are not part of the Tribunal’s analysis or reasons for removing the applicant from the MIG. In my mind, the Tribunal’s references to CPS are very minor errors. The Tribunal states in paragraph 17 of its decision that it is removing the applicant from the MIG for two reasons: because of injuries to his spine and because the evidence supports that he has a chronic pain disorder. Based on the report of Dr. Robertus, the Tribunal made no error in finding that the evidence supported that the applicant had a chronic pain disorder;
ii. The fact that Dr. Robertus states in the last page of her report that the applicant will require treatment for the management of his CPS, implies a diagnosis and further negates the significance of the Tribunal’s error;
iii. In its Request for Reconsideration, the respondent refers to the Tribunal’s use of the phrase “chronic pain diagnosis” in paragraph 17 of its decision as being a significant error in fact, I do not agree. I find that the respondent’s argument in this regard is really one of semantics and is not significant enough to warrant a reconsideration of the Tribunal’s decision;
iv. In this case, the primary reason why the Tribunal removed the applicant from the MIG was because of physical injuries to his spine and secondly because of related complaints of pain. This is confirmed in paragraph 17 of the Tribunal’s decision where it states the following:
I find the evidence overwhelming that he sustained disc bulges, central canal stenosis, degenerative changes and a chronic pain disorder which are not minor injuries. The CT scan contained in the clinical notes and records is clear, objective evidence which supports the position that the injuries are not minor, as the applicant was diagnosed with disc bulges and degenerative changes in the spine. This supports the pain complaints he indicated to all of the assessors.
v. The Tribunal did not err when it found that the applicant complained of experiencing chronic pain after the accident. In paragraph 18 of its decision, the Tribunal correctly finds that throughout many assessments, including a psychological assessment, the applicant complained mainly about the pain he was in;
vi. I do not agree with the respondent’s argument that a “clear and unequivocal determination and diagnosis” of CPS is essential in order for an applicant to be removed from the MIG. This argument is for all intents and purposes moot because the Tribunal, in this case, removed the applicant from the MIG primarily because of his spinal injuries. However, even if that had not been the case, I find that the Tribunal would have been correct in removing the applicant from the MIG because of the chronic pain disorder or symptoms he experienced as a result of the accident. Contrary to the respondent’s arguments, I find that an actual diagnosis of CPS is not required to remove an applicant from the MIG. My finding is based on the reconsideration decision of Executive Chair, Linda Lamoureux, in T.S. v. Aviva General Insurance Canada. The Executive Chair in that decision found that chronic pain is by definition a condition that persists for three to six months, and that a diagnosis of CPS is not required to remove an applicant from the MIG. In the case before me, the Tribunal found that the applicant’s complaints of pain persisted for more than a year after the accident and that the pain the applicant experienced was chronic and significant enough to remove him from the MIG. I find that the Tribunal did not make an error in fact in this regard.
13In order for a decision of the Tribunal to be overturned it must not only have made an error in fact but that fact must be significant enough that the Tribunal likely would have come to a different decision. In this case, I find, for the reasons noted above, it extremely unlikely that the Tribunal would have found that the applicant’s injuries were in the MIG had this error not occurred.
The Tribunal considered and applied the complete definition of a minor injury
14The respondent has failed to persuade me that the Tribunal made an error in law because it failed to consider the full definition of a minor injury. A minor injury is defined as “one or more of a sprain, strain, and whiplash associated disorder, contusion, laceration or subluxation… [Including] any clinically associated sequelae to such an injury”. As evidence that the Tribunal did not consider the full definition of the MIG, the respondent points out that “at no point are the words clinically associated sequelae or any related synonyms contained in the Tribunal’s decision.” The respondent argues that had the Tribunal considered the full definition of the MIG, it would have found that the applicant’s pain as clinically associated sequalae to the injuries he sustained in the accident.
15I do not agree.
a. In the prescribed definition of “minor injury”, clinically associated sequelae refer to symptoms arising from sprains and strains and other injuries defined as “minor”. As the Tribunal found that the applicant’s pain was related to injuries in his spine, which included a herniated disc, there was no reason for the Tribunal to consider whether the applicant’s pain was clinically associated sequelae to the minor injuries which are included in the MIG. Since the Tribunal found in paragraph 17 of its decision that the applicant complaints of pain were not soft-tissue in nature, it was not necessary for it to address this part of the definition.
b. In the reconsider decision of T.S. v. Aviva General Insurance Canada, the Executive Chair found that the Tribunal in that matter was incorrect in finding that chronic pain was “clinically associated sequelae” to the applicant’s minor injuries. In the case before me, the Tribunal accepted that the applicant suffered from a chronic pain disorder. As a result, I find the Tribunal made no error in law in not addressing the respondent’s argument on the issue of “clinically associated sequelae.”
16I have no reason to find that the Tribunal did not consider the full definition of a minor injury when rendering its decision. The respondent’s request for reconsideration must therefore be dismissed on this point.
The Tribunal did consider the legal test of causation
17The respondent argues that the Tribunal made an error in law because it failed to address whether or not the applicant’s back injuries, as revealed in the post-accident CT scan, were a direct result of the accident. In its Request for Reconsideration, the respondent points out that at the hearing it argued, on numerous occasions, that the applicant’s pre-accident work as a welder is the obvious cause of his back problems. The respondent also argued that the burden of proof is on the applicant to establish that his injuries were related to the accident and that the Tribunal erred in law because it did not address this in its decision.
18Having read the Tribunal’s decision, I am satisfied that the Tribunal considered and found that the applicant’s back injuries were related to the motor vehicle accident:
i. The Tribunal points out that the CT scan that shows the disc bulge was contained in post-accident clinical notes and records (CNRs). The Tribunal made it clear in paragraph 12 of its decision that it did not have any pre-accident CNRs before it. This satisfies me that the Tribunal found that because the CT scan of the applicant’s back was taken after the accident that it concluded that the applicant’s back injuries were caused by the motor vehicle accident;
ii. The Tribunal, in paragraph 17 of its decision, states that it finds the evidence overwhelming that the applicant sustained an injury [emphasis mine] to his back which was not minor. Once again, to me it is clear from this statement that the Tribunal found that the motor vehicle accident is what caused the applicant to sustain the injury;
iii. The Tribunal finds that the respondent did not provide any medical evidence to refute the assertion that disc injuries detected by the CT scan were caused by the accident. In paragraph 17, the Tribunal states that many of the respondent’s assessors did not have the CT scan at the time of their assessments, nor was it later given to them for addendum reports. In paragraph 14, the Tribunal notes that the Dr. Finkelstein, who conducted an assessment on behalf of the respondent and had a copy of the CT scan, does not explain why the disc bulges would render the applicant still to be within the MIG. The Tribunal lacked the medical evidence to conclude that the applicant’s back injuries were related to anything but the accident. Once an applicant has adduced evidence, that his/her injuries are related to the accident, which in this case was the applicant’s post-accident CT scan, it takes more than the mere suggestion of alternative causes to refute that evidence.
iv. Although I agree that the Tribunal did not specifically respond to the respondent’s argument regarding the applicant’s pre-accident work history as a welder, I do not consider this to be an error in law that requires that its decision be overturned. The Tribunal is not required to expressly address every piece of evidence and every argument made by a party. In light of the evidence before it and the reasons provided by the Tribunal, I cannot conclude, simply because the Tribunal did not refer specifically to the applicant’s pre-accident work, that it made a significant error in law which should result in it being overturned. Moreover, the respondent’s mere reference to the fact that the applicant had a physically demanding job as a welder before the accident alone, without any further medical or other evidence, is not enough to establish that his injuries are not accident related.
20I am satisfied that the Tribunal found that the applicant’s back injuries were caused by the accident. I am not persuaded by the respondent’s argument that the Tribunal made an error in law on the issue of causation such that its decision should be overturned.
CONCLUSION
21For the reasons noted above, I dismiss the respondent’s Request for Reconsideration.
Heather Trojek
Vice Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: March 5, 2019