J.S. v. Aviva General Insurance, 2019 CanLII 63355

RECONSIDERATION DECISION

Before: Susan Mather, Vice-Chair

Date: May 30, 2019

File: 17-003600/AABS

Case Name: J.S. v. Aviva General Insurance

Written Submissions By:

For the Applicant: F. Blasi, counsel

For the Respondent: C.N. Schneider, counsel

OVERVIEW

1J.S. (the “applicant”) was involved in a car accident in Brampton on January 13, 2016. She claimed accident benefits from the respondent (“Aviva”). Aviva deemed her injuries to fall within the Minor Injury Guideline (the Guideline) which caps medical and rehabilitation benefits at $3,500.

2The applicant disputed that her injuries fell within the Guideline and on June 2, 2017 she filed an application with the Tribunal.

3A written hearing was held on November 8, 2017. The hearing adjudicator found that the applicant’s injuries fall outside the Guideline because “the extent of her psychological symptoms do not fall within the definition of minor injury”. The adjudicator also found that the applicant was entitled to the cost of her psychological assessment in the amount of $2,200.00.¹

4Aviva requested a reconsideration of the decision. Aviva argues that the reconsideration of the decision should be granted on the basis that the Tribunal acted outside of its jurisdiction or violated the rules of natural justice or procedural fairness and made significant errors of law or fact such that the Tribunal would likely have reached a different conclusion.

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 has not met the high onus it must meet to be entitled to have the decision reconsidered. The applicant relies on the reconsideration decision of the Associate Chair Jonathan Batty that found that the request for reconsideration remedy only affords LAT the opportunity to remedy serious breaches of procedural fairness or legal and factual errors that materially affect decisions².

7Aviva seeks an order setting aside the decision of the adjudicator and replacing it with a new decision that the applicant’s injuries fall within the Guideline and that the treatment plan is not payable. In the alternative Aviva asks for a new hearing with a different adjudicator.

8Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009³, I have been delegated responsibility to decide this matter in accordance with the applicable rules of LAT.

RESULT

9The request for reconsideration is denied. For the reasons provided below I am not satisfied that Aviva has met its onus to show that the adjudicator made significant errors of law or fact such that the Tribunal would have reached a different decision. I am also not satisfied that the adjudicator made serious breaches of the rules of natural justice and procedural fairness that entitle Aviva to a reconsideration of the decision.

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

10Aviva’s main concern with the decision is that the adjudicator accepted the psychological assessment of the applicant’s psychologist, Dr. Padda⁴ over the Insurer’s Examination (IE) report of psychologist, Dr. Sayed⁵.

11Dr. Padda’s assessment diagnoses the applicant with adjustment disorder with mixed anxiety and depression and somatic symptom disorder. On the basis of this diagnosis, the adjudicator was satisfied that the applicant’s psychological injuries took her out of the Guideline and that the applicant was entitled to the Treatment and Assessment Plan⁶ (“treatment plan”) submitted by psychologist Dr. Pilowksi for a psychological assessment.

12Dr. Sayed found that although the applicant exhibited some psychological symptoms from the accident any psychological impairment was minor in nature and did not warrant a diagnosis. She provided the opinion that the applicant’s injuries fell within the Guideline. Dr. Sayed remained of this opinion in her supplemental paper review where she had the opportunity to review Dr. Padda’s report.⁷

13In order to determine whether the adjudicator made a significant error of law or fact or denied natural justice and procedural fairness in making her decision, I have reviewed the parties written submissions for the hearing, the written decision and the submissions submitted for this reconsideration request.

Aviva’s Written Hearing Submissions

14Aviva challenged the qualification of Dr. Padda as an expert witness in its written submission filed for the written hearing.⁸ Aviva pointed out that Dr. Padda had just been practicing for three months and submitted that at the very least her report should be given little weight.

15Aviva also argued that Dr. Padda’s diagnosis that the applicant suffered from significant psychological symptoms was inconsistent with the clinical notes and records of her treating doctors which do not make any mention of emotional problems.

16Aviva also argued that Dr. Padda’s opinion was not based on a totally accurate medical history for the applicant most significantly that Dr. Padda was not made aware that the applicant was having problems with her optic nerves or that she had been referred to a neurologist before the accident.

17Aviva argued that Dr. Padda was not qualified to give expert evidence as she did not comply with Rule 10 of the Rules. Specifically that she did not provide the signed statement as required by s. 10.2 (b) of the Rules and did not provide her qualifications as provided for in Rule 10.2(c).

18Aviva argued that without this information, there was not enough evidence to establish that Dr. Padda would qualify as an expert on the test set out in the Ontario Court of Appeal decision R.v. Abbey.⁹

Applicant’s Written Hearing Reply Submissions

19In her reply submissions for the hearing the applicant¹⁰ did not fully address Aviva’s argument that Dr. Padda should not be qualified as an expert witness. She made no submissions on the fact that Rule 10.2 was not complied with or the applicability of the Court of Appeal decision in R. v. Abbey.

20The applicant simply argued that Aviva had over-exaggerated the experience of Dr. Sayed who was first licenced in December 2008. With respect to the weight to be given to Dr. Padda’s report, the applicant submitted that Dr. Padda had no limitations, terms or conditions attached to her licence.

Written Decision

21The written decision does not specifically address all of the arguments raised by Aviva in its submissions. Specifically, the reasons do not address the following:

• the applicability of LAT Rule 10.2;
• the fact that Dr. Sayed reviewed more documentation than Dr. Padda in preparing his report;
• the clinical notes and records of the family doctor or neurologist;
• whether the applicant’s psychological issues were merely a sequelae of her physical injuries; and
• Aviva’s submission that an adverse inference should be drawn because the applicant did not swear an affidavit; the applicant did not provide a medical report from her GP to support her claim; and the applicant did not provide an expert report from a musculoskeletal expert to support her claim.

22For the reasons provided below I am satisfied that there was no material error of law or fact or serious breach of procedural fairness made by the adjudicator that would materially affect the outcome of this application.

23I find that there was no error of law made by the adjudicator in considering and relying upon the evidence of Dr. Padda as the basis for her decision that would materially affect the outcome of this application.

24Despite the fact that the written decision does not specifically address all of the arguments/issues raised by Aviva in its submissions, I am satisfied that the written reasons are sufficient to allow Aviva to understand why it was not successful in opposing the application.

25The adjudicator’s failure to address all of Aviva’s submissions did not result, in this case, in a serious denial of natural justice and breach of procedural fairness that would materially affect the decision.

Errors of Law and Fact

26Aviva argues that by relying solely on Dr. Padda’s report the adjudicator made the following significant errors of fact and law that entitle it to a reconsideration of the decision:

• Qualifying Dr. Padda as an expert witness;
• Ascribing undue weight to the substance of Dr. Padda’s report in light of the issue of her qualifications;
• Finding that is was “absurd” that that the fact the Dr. Padda had practiced psychology for only three months was a relevant consideration to be factored in with respect to the weight to be considered for an expert;
• Accepting Dr. Padda’s report without Dr. Padda meeting the requirements of the LAT Rules with respect to expert evidence.

27The applicant submits that there is no issue that Dr. Padda was a duly licensed psychologist at the time she assessed the applicant. She also submits that the requirement for Dr. Padda to provide the signed statement under LAT Rule 10.2 of the rules is a technical argument and that Aviva has not suffered any prejudice by the lack of an Acknowledgement of Expert’s Duty.

28The case of R. v. Abbey (“Abbey”) is cited by Aviva both in its written submissions for the hearing and in its submissions for this reconsideration. In Abbey the Court of Appeal confirmed the four criteria that control the admissibility of expert opinion evidence that were identified by the Supreme Court of Canada in R. v. Mohan¹¹. The only criteria in issue in this reconsideration request is whether Dr. Padda was properly qualified to provide expert/opinion evidence.

29I do not find the decision in the Abbey case to be of any assistance in deciding this reconsideration request. The reason for that is that in Abbey there was no issue with respect to whether the proposed expert witness was properly qualified to provide expert/opinion evidence in his area of expertise. The issue was whether the proposed testimony was relevant and the limits, if any, that should be imposed on the scope of the expert evidence.

30The Ontario Court of Appeal decision in Westerhof v. Gee Estate¹² (Westerhof”) provides direction in considering the admissibility of expert evidence and the requirements of Rule 53.03 of the Rules of Civil Procedure¹³.

31Rule 53.03 of the Rules of Civil Procedure sets out the requirements for introducing the evidence of expert witnesses at trial. The Rule was implemented in the 2010 amendments to the Rules of Civil Procedure and is aimed at ensuring the neutrality and expertise of expert witnesses as well as adequate disclosure for the basis of an expert’s opinion.

32The amendments set out the overriding duty of an expert “engaged by or on behalf of a party” to provide opinion evidence “in relation to a proceeding” that is fair, neutral and non-partisan and within the expert’s area of expertise. The 2010 amendment also specified certain information relating to an expert’s opinion and expertise that must be included in an expert’s report and required that the expert sign an acknowledgment of his or her duty, which identifies the party by or on behalf of whom the expert was engaged.

33The LAT Rule 10.2 is modelled after Rule 53.03. It includes the requirement for a signed statement from the expert acknowledging his/her duty to the Tribunal and a requirement for providing the qualifications of an expert witness specifically referring to the education, training and experience relied upon to qualify the expert.

34The Court of Appeal in Westerhof draws a distinction between experts engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding (“litigation experts”) and witnesses with special expertise who give opinion evidence (“participation experts”). Included in the participation expert group are treating physicians who form opinions based on their participation in the underlying events.

35The Court also included experts retained by a non-party to the litigation who form opinions based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation. Interestingly, the Court refers to the IE assessors retained by an insurance company as an example of a “non-party expert”.

36The Court of Appeal held that participant experts and non-party experts may give opinion evidence without complying with Rule 53.03. It held that Rule 53.03 only applied to experts who are engaged by a party to provide an opinion for the purpose of the litigation.

37Relying on the Westerhof decision, I am satisfied that the Tribunal did not make an error of law in accepting the opinion evidence of Dr. Padda without the applicant complying with Rule 10.2.

38Applying Westerhof, Dr. Padda was a participant expert. Her report was done in September 2016 to support the treatment plan proposed by Dr. Pilowksy. There is no evidence that it was done solely for the purpose of the June 7, 2017 application to the Tribunal. For that reason I am satisfied that the adjudicator did not make an error of law in considering the opinion of Dr. Padda without the requirements of Rule 10.2 being met.

39The Rules are meant to be interpreted liberally and even if Dr. Padda was an expert witness the adjudicator had the discretion to waive the requirements in Rule 10.2 if she was satisfied that the witness had the expertise to form the opinions and to the make recommendations she made.

40While I agree with Aviva that the experience of Dr. Padda was a relevant consideration in determining the weight to be given to her evidence I do not agree that it was an error of law for the adjudicator to prefer the evidence of Dr. Padda over Dr. Sayed.

41The adjudicator considered and rejected Aviva’s argument that Dr. Syed’s evidence should be preferred because Dr. Padda had only been a licensed psychologist for three months stating:

“There was no evidence before me that showed that Dr. Padda’s testing or conclusion should be discounted by virtue of the fact that Dr. Syed has been a psychologist for longer. This would lead to an absurd result of expert opinion being supported by the length of time a person has worked rather that based on an examination of the evidence itself as found in the reports.”

42A psychologist who has only been licensed for three months has undergone years of training to obtain the license and has gained experience during the training. The college registration for Dr. Padda indicates that she was authorized for a supervised practice for almost two years prior to gaining her full licence.

43The adjudicator made a poor choice of words when she found Aviva’s submission with respect to the weight to be given Dr. Padda’s evidence to “be absurd”. I do not, however, find that she made an error or law in exercising her discretion as to the weight to be given to the evidence.

44The adjudicator preferred the evidence of Dr. Padda because she found that Dr. Sayed did not give a reasonable explanation as to why her tests showing moderate impairment were discounted. She found the conclusion “hard to accept”.

45It is well established that when there is a dispute over whether an applicant’s injuries fall within the Guideline the applicant has the onus to prove on the balance or probabilities that he/she sustained more than “minor injuries in the accident¹⁴.

46In this case the applicant has provided the diagnosis and opinion of a licensed psychologist that she sustained psychological impairment in the accident that takes her out of the Guideline.

47To counter the applicant’s evidence, Aviva relied on the IE of Dr. Sayed. Dr. Sayed conducted similar psychological tests on the applicant which produced results similar to the results obtain by Dr. Padda. While Dr. Sayed stated that the tests used have no embedded validity measures he conducted other tests that confirmed the applicant did not attempt to present herself in an unduly negative or positive manner.

48The main difference between the reports of Dr. Padda and Dr. Sayed is that Dr. Padda makes a DSM5 diagnosis (adjustment disorder with mixed anxiety and depression and somatic symptom disorder) while Dr. Sayed does not.

49Dr. Sayed concluded that the applicant showed only subtle indications of current and active depressive and anxiety experience. In his opinion there was no impairment that would warrant a diagnosis as per the DSM5.

50There is no evidence as to the criteria that must be met for a DSM diagnosis. There is no absolute requirement in law that a person have a DSM diagnosis to be removed from the Guideline for psychological reasons.

51It was open to the adjudicator to exercise her discretion and find that the applicant’s psychological impairment confirmed by both Dr. Padda and Dr. Sayed¹⁵ took her out of the Guideline.

Errors of Law and Violations of the Principle of Natural Justice and Procedural Fairness

52Aviva also argues that the adjudicator made significant errors of law and violated the principals of natural justice or procedural fairness by:

(i) Not addressing her decision not to disqualify Dr. Padda as a witness due to her failure to comply with Rule 10.2 (b) 10.2(c) her reasons.

(ii) Failing to account for the fact that the only documentation review by Dr. Padda was a disability certificate prepared on behalf of the claimant while Dr. Sayed reviewed much more comprehensive documentation in preparing his reports including the Dr. Padda’s report.

(iii) Failing to address the evidence that was submitted in the written materials. Specifically Aviva argues that the adjudicator did not address the fact that is no mention of any psychological problems in any of the clinical notes and records of the treating family doctors or the treating neurologist.

(iv) Placing too much emphasis on the mini-assessment of Dr. Pilowsky and rejecting the full-fledged report of expert Dr. Sayed despite that fact that Dr. Pilowsky did not submit any credentials as required by Rule 10.2.

(v) Failing to address whether the applicant’s psychological problems were merely a sequelae of her physical pain. Aviva argues that the adjudicator failed to properly apply the test as to what constitutes a minor injury.

(vi) Failing to address the arguments by Aviva that:

• The applicant did not swear an affidavit to support her case.
• Did not produce a medical report from her general practitioner to support her case.

(vii) Misunderstanding/ascribing undue weight to the subjective psychological testing performed by the psychologists. Aviva argues that the adjudicator placed an “undue influence” on the nature of the testing and very little emphasis on the importance for a psychologist to interpret the results. Aviva argues that the adjudicator interpreted the psychological testing to be objective results when in fact they are subjective in nature.

(viii) By not requiring the applicant to prove on the balance of probability that the treatment sought is reasonable and necessary.

53In some circumstances an adjudicator’s failure to address all issues in the decision may result in an error of law and/or a denial of natural justice which would materially affect the outcome of an application. I am not satisfied that in this case it does. Aviva’s arguments are addressed below.

(i) I have already addressed the issue with respect to the qualification of Dr. Padda as an expert witness and the non-compliance with Rule 10.2. Because Dr. Padda is a participant witness and not an expert witness the applicant was not required to comply with Rule 10.2. I am not satisfied that granting a rehearing because the written decision does not address the issue will materially affect the outcome of the application.

(ii) While this issue is not addressed by the adjudicator, the written decision is clear that the adjudicator was satisfied that the applicant met her onus to show that she sustained more than minor injuries in the accident on the basis of Dr. Pilowsky’s treatment plan and Dr. Padda’s report. There is no requirement in law that a participant expert must review and comment on the reports of a non-party expert. While Dr. Sayed did do a paper review of Dr. Padda’s report, he does not point to any flaws in Dr. Padda’s analysis. He simply confirms his original opinion.

(iii) A LAT adjudicator is required by the Statutory Powers Procedure Act¹⁶ to give a final decision and order in writing and to give reasons in writing if requested by a party. I find that the fact the decision does not specifically note that the CNRs lack reference to the applicant’s psychological issues does not amount to a serious breach of the rules of natural justice and procedural fairness. For the reasons already provided I am satisfied that the adjudicator had sufficient evidence to reach the conclusion that the applicant had met her onus to show that the Guideline does not apply.

(iv) The adjudicator did not rely solely on the evidence of Dr. Pilowsky in reaching her decision that the Guideline did not apply. She did refer to the evidence of Dr. Pilowsky in reaching her conclusion that the treatment plan for a psychological assessment was reasonable and necessary. Her conclusions however were primarily based on the reports of Dr. Padda and Dr. Syed.

(v) I have reviewed Aviva’s submissions for the written hearing. I am unable to find any reference to the applicant’s symptoms being only a sequelae of her minor injuries.

(vi) In a written hearing it is up to each party to submit the evidence they will rely on to support their case. In the order sending this application to hearing there was no requirement for the applicant to submit an affidavit in support of her claim or to provide a medical report from her general practitioner.

In practice, LAT discourages the filing of affidavits for written hearings because of the natural justice and procedural fairness implications of an adversary not having the opportunity to cross-examine the person who swore the affidavit.

I do not see that there was any denial of procedural fairness or denial of natural justice by the adjudicator when she did not address this submission in her reasons as there was no requirement for the applicant to submit this evidence.

(vii) The adjudicator carefully analysed the reports of Dr. Padda and Dr. Sayed in her written reasons. I do not find that there was an error of law or a denial of natural justice or procedural fairness in her analysis that would have led to a different conclusion.

(viii) I am satisfied that the comments of Dr. Pilowsky in her treatment plan for a psychological assessment and the findings of both Dr. Padda and Dr. Syed were sufficient evidence to allow the adjudicator to conclude on the balance of probabilities that the applicant suffered psychological impairment that takes her out of the Guidelines.

54For the reason provided above I Order:

1. Aviva’s request for a reconsideration of the hearing decision is denied.

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

Footnotes

1. 1J.S. and Aviva General Insurance, Tribunal File Number: 17-003600/AABS
2. 2Reconsideration Decision of Associate Chair J. Batty dated April 24, 2018, File 16-002782/AABS
3. 3S.O. 2009, c. 33, Sched. 5. I
4. 4Tab 5, Claimant’s Responding Submissions to Insurer’s Reconsideration Request
5. 5Tab 10, Dr. Sayed’s Report dated June 10, 2016, Aviva’s Reconsideration Submissions
6. 6Treatment and Assessment Plan dated
7. 7Tab 11 Aviva’s Reconsideration Submissions
8. 8Page 6, Submission of the Respondent Aviva General Insurance Company dated October 25, 2017, Tribunal File
9. 9(2009) 2009 ONCA 624, 97 O.R. (3d) 330 O.C.A.
10. 10Reply by the Applicant, November 1, 2017, Tribunal Record the
11. 111994 CanLII 80
12. 12Westerhof v. Gee Estate, 2015 ONCA 206
13. 13Westerfhof was not referred to by either party in their submissions. In my view this Ontario Court of Appeal decision is applicable to the LAT because it has made Rules with respect to expert evidence modeling the Rules of Civil Procedure.
14. 14Scarlett v. Belair Insurance, (2015) ONSC 3635 Div. Ct.
15. 15Dr. Sayed concluded that the applicant show subtle indications of current and active depressive and anxiety experience.
16. 16R.S.O. 1990, CHAPTER S.22