G.S. v. Aviva General Insurance Company, 2019 CanLII 51320

RECONSIDERATION DECISION

Before: Susan Mather, Vice-Chair

Date: May 10, 2019

File: 17-004847/AABS

Case Name: G.S. v. Aviva General Insurance Company

Written Submissions By:

For the Applicant: Monica Pathak, Counsel

For the Respondent: Michael Ferrante, Counsel

OVERVIEW

1G.S. (the "applicant") was involved in a car accident on December 2, 2013. He claimed accident benefits from the respondent ("Aviva"). Aviva deemed his injuries to fall within the Minor Injury Guideline (the Guideline) which caps medical and rehabilitation benefits at $3,500.

2The applicant disputed that his injuries fell within the Guideline and on July 31, 2017 he filed an application with the Tribunal.

3A written hearing was held on March 27, 2018. The hearing adjudicator found that the applicant's injuries fall outside the Guideline due to his chronic pain. The adjudicator also found that the applicant was entitled to a medical benefit for his chronic pain assessment and partially entitled to a rehabilitation benefit for a Comprehensive Rehabilitation Programme¹.

4Aviva requested a reconsideration of the Tribunal's decision that the applicant sustained injuries in the accident that are not predominately minor injuries. Aviva does not argue that the applicant is not entitled to the medical and rehabilitation benefits approved by the adjudicator if his injuries fall outside of the Guideline. Aviva argues that the reconsideration of the decision should be granted on the basis that:

(i) The Tribunal made a significant error or law or fact such that the Tribunal would likely have reached a different decision and/or;

(ii) The Tribunal violated the rules of natural justice or procedural fairness.

5Both of these grounds are applicable criteria set out in Rule 18.2 (a) and (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1(April 2016) (the "LAT Rules") which are the Rules applicable to this reconsideration.

6The applicant opposes this request for reconsideration arguing that Aviva is attempting to reargue the case and that it has not shown that the adjudicator made an error of law or fact or violated the principles of natural justice and procedural fairness so as to entitle him to a reconsideration of the decision.

7Aviva's reconsideration request does not state the outcome Aviva is seeking. LAT Rule 18.4 allows me to confirm, vary or cancel the decision or to order a rehearing on all or part of the matter.

8Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009², I have been delegated responsibility to decide this matter in accordance with the applicable rules of LAT.

RESULT

9For the reasons provided below Aviva's request for reconsideration is denied.

Preliminary Issue

10LAT Rule 18.1 allows the Tribunal upon the request of a party or on its own initiative to reconsider any decision of the Tribunal if the request is made within 21 days of the date of the decision.

11The applicant asks that I dismiss the request on the grounds that the timeline in the LAT Rules was not met. The decision was released on May 24, 2018. Aviva filed its request for reconsideration on June 15, 2018.

12I agree with the applicant that Aviva was one day late in filing its request for reconsideration. I calculate the due date to be June 14, 2018.

13For the reasons provided below I am exercising the discretion given to me by LAT Rule 3.1 and considering Aviva's request for reconsideration.

14LAT Rule 3.1 requires me to interpret the LAT Rules liberally and gives me the discretion to vary or apply the LAT Rules on my own initiative or on the request of a party.

15The LAT Rules require that I facilitate an open, fair and accessible process to ensure effective participation by all parties. They also require that I ensure an efficient, proportional and timely resolution of the proceedings on the merits.

16The request for reconsideration was delivered only one day late and the applicant does not argue that he has suffered any prejudice by the late delivery. The applicant delivered a timely response and the request is ready to be considered.

Alleged Errors of Law and Breaches of Rules of Natural Justice and Procedural Fairness

17Aviva's main concern with the decision arises from adjudicator's finding that the applicant suffers from chronic pain as a result of the accident and that because of his chronic pain his injuries do not fall within the Guideline.

18Aviva argues that the adjudicator made an error of law and denied natural justice and procedural fairness because he did not apply the appropriate legal test in reviewing the evidence to reach his decision. Specifically, Aviva alleges that the decision "fails to articulate or define in any way, on the evidence, the Applicant's injuries:

i. escape the ambit of clinically associated sequelae as circumscribed in section 3(1) of the Schedule; and/or

ii. alternatively, meet the minimum definition of chronic pain/chronic pain syndrome espoused by the Tribunal in I.A. v. Unifund Claims³ and YXY v. the Personal Insurance⁴.

19Aviva argues that the burden of proving chronic pain and psychological impairment are not any clinically associated sequelae lies upon the insured. Aviva argues that an insured may suffer from chronic pain/chronic pain syndrome and still remain within the scope of the Guideline.

20The applicant argues that because Aviva's request for reconsideration does not specifically ask for the Guideline decision to be reconsidered the finding that the applicant's injuries do not fall within the Guideline cannot be disputed.

21I see no merit to this argument. Aviva's submissions leave no doubt that it is seeking to have the adjudicator's decision that the applicant's chronic pain took him out of the Guideline reconsidered.

22After reviewing the parties' submissions on this request for reconsideration and Aviva's written hearing submissions, I am not satisfied the Tribunal made errors of fact and law that would materially affect the decision. I am also not satisfied that there were serious breaches of natural justice and procedural fairness that warrant a reconsideration of the decision.

ANALYSIS

23Applying the criteria set out by the Divisional Court ("Div. Court") in Melo v. Northbridge Personal Insurance Corporation⁵ I am satisfied that the adjudicator cited the correct legal test with respect to determining if an insured's injuries fall within the Guideline and identified the requirements to meet the test in paragraph 6 of the decision. He reviews the definition of minor injury and confirms that the applicants are required to establish on the balance of probabilities entitlement to coverage beyond $3500 for medical and rehabilitation benefits.

24The medical evidence included an MRI report on the applicant's right wrist that was open to interpretation. The applicant argued that report confirmed a ligament tear while Aviva argued that that the report should be interpreted as an indication that there was not a tear and the injury was minor.

25The adjudicator weighed the evidence and found "the medical evidence available to be an indication on a balance of probabilities" that the applicant had an impairment that could not be treated sufficiently within the Guideline regardless of whether there was a complete tear to the volar band of his scapholunate ligament.

26He also found on the evidence that the applicant had ongoing pain in his right wrist and to a lesser degree his right shoulder since the accident and that could be considered to be chronic and outside of the Guideline.

27The adjudicator reviewed the medical evidence documenting the pain from shortly after the accident and found that there was consistent reference to right hand and wrist pain, right hand/wrist problems, residual hand pain, chronic wrist pain and shoulder pain. He found the applicant's self-reporting to be consistent and credible.

28He also took into consideration the Chronic Pain Assessment report of Dr. Brown who diagnosed the applicant with chronic pain. The report of Dr. Brown indicated that the applicant's pain was continual, was accompanied by some functional impairment in his home and work life and was severe enough to potentially hamper the applicant's functionality in the future. The adjudicator found Dr. Brown to be an accomplished pain specialist and found he had no reason to question his credentials or validity testing methods.

29The adjudicator disagreed with Aviva's submission that Dr. Brown's report was predicated on a diagnosis of a complete tear and Aviva's submission that because the applicant continued to work and perform his routine tasks and participate in most of his pre-accident activities, the impairments do not rise to the level of severity to cause suffering and distress accompanied by functional impairment.

30The adjudicator stated that regardless of the basis of Dr. Brown's diagnosis he was satisfied that the applicant's pain had persisted for four years and reached the point of being unbearable. He stated that while he found Dr. Brown's diagnosis of chronic pain to be an important factor in his decision, it was not the only factor. He found that the applicant's pain causes enough functional impairment in his work and home life to remove him from the Guideline and entitled him to seek treatment beyond the Guideline limit.

31While the adjudicator included the "associated sequelae" to minor injuries in his definition of minor injuries, the written reasons do not address Aviva's argument that the applicant's chronic pain was merely a sequelae of his minor injuries. Aviva relied on the same case law at the hearing as it relies on in this request for reconsideration.

32Aviva relies on the Tribunal decision in T.S. and Aviva General Insurance⁶ ("T.S. V. Aviva") to support it argument that the adjudicator was required to consider if the applicant's chronic pain was a sequelae of his minor injuries. In T.S. v. Aviva the adjudicator concluded that the applicant suffered from chronic pain syndrome but went on to find that the applicant's chronic pain syndrome falls within the Guideline because it was a sequelae of his minor injuries.

33The decision in T.S. and Aviva is not binding precedent. Further, the decision was reconsidered, and overturned by the Tribunal's Executive Chair Linda Lamoureux in a Reconsideration Decision dated July 27, 2018⁷.

34The Reconsideration Decision found that the Tribunal made significant errors in rendering its decision. Executive Chair Lamoureux found that the adjudicator in T.S. v. Aviva did not adequately consider the context and purpose of the Schedule and as a result adopted a narrow interpretation of the definition of minor injury.

35She found that chronic pain does not fall within the minor injury framework. In her view the Guideline provides a framework for early resolution of claims for medical and rehabilitation benefits and chronic pain by its nature does not lead to early resolution. She found the term "minor injury" does not encompass chronic pain because chronic pain is not included in the definition and does not fit into the Guidelines 12 week program.

36The T.S. v. Aviva Reconsideration Decision was recently relied upon by Vice-Chair Heather Trojek in the Reconsideration Decision P.L. v. Aviva Insurance Canada⁸. Vice-Chair Trojek agreed with Executive Chair Lamoureux that chronic pain is not a clinically associated sequelae to a minor injury.

37While I am not bound by the decision of the Executive Chair or Vice Chair Trojek, I agree with their interpretation of the Schedule. For that reason I am satisfied that the adjudicator in this case did not make a reviewable error when he failed to consider in his written reasons whether the applicant's chronic pain was a sequelae of his minor injuries.

38I have also considered whether the adjudicator's failure to address Aviva's argument in the written decision is a serious denial or natural justice and or procedural fairness.

39One of the main purposes of written reasons is to allow the parties to know why they won or lost an application. In this case the written reasons are clear that the adjudicator found that the applicant's chronic pain took him out of the Guideline.

40I do not find his failure to state in his written reasons that the applicant's chronic pain was not a sequelae to his minor injuries to be a serious denial of natural justice and procedural fairness. In my view this conclusion is inherent in his finding that the applicant's chronic pain took him out of the Guideline.

41Aviva also argues that the applicant did not meet his burden of proof to show that he suffered from chronic pain. This argument is related to Aviva's argument with respect to whether or not chronic pain is a sequelae of a minor injury.

42Aviva submits unless the pain a person is suffering from is pain that substantially interferes with all of the person's daily activities and is causing suffering and distress it is not chronic pain which take a person's injuries out of the Guideline.

43Aviva relies on the case of YXY v. The Personal Insurance Company⁹ to support its argument.

44In this case the adjudicator found that when chronic pain causes functional impairment and disability it takes one out of the Guideline. She stated: "That ongoing pain must be accompanied by some functional impairment. Must be of a severity to cause suffering and distress accompanied by functional impairment. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person's function or whether the pain is bearable without treatment will not meet the applicant's burden to show that chronic pain is more than mere sequelae.

45Applying the approach and reasoning stated above from Reconsideration Decision in T.S. v. Aviva of Executive Chair Lamoureux, Aviva's argument has no merit. Further, the adjudicator did not merely accept the diagnosis of chronic pain without also considering the applicant's level of functioning and the effect of the pain. In paragraph 11 of his decision the review the evidence and find that the applicant's chronic pain caused enough functional impairment in his work and home life to remove him from the Guideline.

46The written decision clearly sets out the evidence the adjudicator relied on to reach his conclusion that the applicant was suffering from chronic pain.

47For the reasons provided above I Order:

1. The request for reconsideration is denied.

Susan Mather Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1G.S. and Aviva General Insurance, Tribunal File Number: 17-004847/AABS
2. 2S.O. 2009, c. 33, Sched. 5. I
3. 32017 CanLII 77346 (ON LAT)
4. 417-000785/AABS, June 12, 2017
5. 52017 ONSC 5885
6. 6Tribunal File Number 17-00835/AABS
7. 7I acknowledge that this reconsideration decision was released after Aviva filed its reconsideration request with the Tribunal. Aviva should have been aware, however that the decision was under reconsideration.
8. 817-002907/AABS
9. 916-000438 v. The Personal Insurance Company, 16-000438/AABS