M.V. v. Aviva Insurance Company of Canada, 2019 CanLII 72212

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Sandeep Johal, Adjudicator

Date: June 19, 2019

File: 17-008622/AABS

Case Name: M.V. v. Aviva Insurance Company of Canada

Written Submissions by:

For the Applicant: Lyndsay Caruana, Paralegal

For the Respondent: Maggie Morgan, Counsel

OVERVIEW

1This Request for Reconsideration was filed by the applicant (the insured). It arises out of a decision in which the Tribunal found the applicant’s injuries were within the Minor Injury Guideline (the “MIG”) and therefore not entitled to any of the treatment plans in dispute. The Tribunal also found that the applicant was not entitled to an Income Replacement Benefit (“IRB”).

2The applicant submits that the Tribunal made several significant errors of law or fact such that the Tribunal would likely have reached a different decision and that the applicant now has new evidence that could not have reasonably been obtained earlier and would affect the result.

3The applicant requests the Tribunal cancel the previous decision dated August 14, 2018 and the matter be set before a new adjudicator for a new hearing.

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 denied.

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. A request for reconsideration will not be granted unless one or more of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

7The applicant submits that Rule 18.2(b) applies as the Tribunal erred in making the following findings:

i. That the applicant’s injuries fell within the definition of the MIG.

ii. That the applicant’s family doctor’s clinical notes and records did not contain back pain complaints between September 15, 2015 and January 26, 2016.

iii. The applicant’s family doctor did not make a note of psychological injuries as a result of the accident before October 16, 2017.

iv. The applicant’s diabetes and ongoing pain was not pre-existing and documented at the time of the motor vehicle accident.

v. The applicant’s family doctor did not set out why the applicant could not work.

8The applicant also relies on Rule 18.2(d) in order to introduce new evidence that was not available during the written hearing and would have affected the result.

The Tribunal did not err under Rule 18.2(b)

Pre-existing Shoulder Pain and Diabetes

9In order to interfere with the original decision of the Tribunal under Rule 18.2(b) the Tribunal must not only have made an error of law or fact, but that error must be significant enough that the Tribunal likely would have come to a different conclusion. On the evidence, I am not convinced. I find it unlikely that the Tribunal would have come to a different conclusion based on the errors alleged by the applicant.

10The applicant submits that there were complaints of ongoing shoulder pain prior to the motor vehicle accident and that the applicant’s “Chronic Denervation in 2007 as a result of his diabetes...”¹ caused the applicant pain for over 7 years and is deemed chronic in nature. The applicant further submits it is unreasonable for the hearing adjudicator to assume the pain was not pre-existing at the time of the accident. The applicant also asserts that the clinical notes and records of the physiotherapy clinic, Complete Rehab Centre state that the applicant’s diabetes is a barrier to recovery.

11I do not agree with the applicant’s submissions for the following reasons.

12I find that the Tribunal correctly noted what the requirements are to successfully show a pre-existing condition that can remove a person from the MIG. In paragraph 11 the Tribunal states:

The onus is on the applicant to demonstrate that he has physical injuries that do not come within the MIG. In this case, the applicant did not provide any evidence that supported anything other than soft tissue injuries. Therefore, the only way he can rely on his physical injuries to remove him from the $3500 MIG limit is to demonstrate that he had pre-existing injuries that meet the following conditions:

i. The applicant’s health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing medical condition will prevent him from achieving maximal recovery (MMR) from the minor injury.

13The Tribunal considered the applicant’s pre-existing shoulder pain. In paragraph 13 of the decision the Tribunal wrote that the following:

The applicant also relies on the notes of Dr. Paleksic who saw the applicant in August 2015 to substantiate a pre-existing shoulder condition. However, her note states that the applicant had a couple of days of shoulder pain in April 2015 that his ultrasound was then normal and his pain resolved. Dr. Poonah’s clinical note also says the applicant’s x-ray was normal. I find that the applicant has not proved that he had a pre-existing shoulder condition at the time of the accident that would prevent him from reaching maximal medical recovery under the MIG.

14I agree with the Tribunal’s assessment. I find no error with that conclusion. After a review of all the medical evidence submitted, there were notations that the pain had resolved and even if the pain had not resolved as alleged by the applicant, there was no medical opinion that it would prevent MMR if treated within the MIG in accordance with section 18(2) of the Schedule.²

15The applicant provides submissions that ongoing complaints of pain were made for over seven years and are deemed to be chronic in nature, however submissions alone are not evidence and the applicant did not point to any medical practitioner’s notes and evidence that the applicant has chronic pain or a chronic pain diagnosis. The Tribunal addressed the issue of chronic pain in paragraph 16 of its decision and its reasons for dismissing the chronic pain submission. The Tribunal reviewed and considered the evidence and concluded that the mere mention of chronic pain was not enough to remove someone from the MIG. In paragraph 16 of the decision, the Tribunal stated:

At the end of his reply submissions, the applicant submits that because his doctor stated “chronic pain” in his clinical note dated April 2016, he should be exempt from the MIG. Leaving aside the fact that the applicant raised this only in reply, I find that the mere mention of chronic pain in one clinical note is not sufficient medical support for the applicant’s removal from the MIG limits.

16A Request for Reconsideration is not a chance to re-litigate the hearing with similar arguments. Based on a review of the evidence, I find no error in the conclusion reached by the Tribunal that the applicant did not have sufficient medical evidence to support a finding of chronic pain, or sufficient medical evidence to support the applicant’s submission that the pre-existing condition of “diabetes and deconditioned” is preventing the applicant’s recovery in accordance with s. 18(2) of the Schedule.

No psychological injury proven

17At the hearing the applicant took the position that psychological injuries exempted him from the MIG limits. The applicant submits that a significant error of fact was made in paragraph 19 of the decision where the adjudicator wrote that the applicant’s family doctor did not make a referral for psychological services until October 16, 2017 “...more than two years after the accident, which is also after a second motor vehicle accident.” The applicant further submits that the family doctor endorsed a referral dated October 28, 2015 and the applicant was not involved in any other car accident.

18After a review of the medical evidence, it would appear the reference to another car accident may have been in error. However, in the circumstances of this case the reference to another motor vehicle accident is not significant enough to have changed the conclusion reached by the Tribunal. The Tribunal correctly noted that the applicant’s family doctor did not in fact make a referral for psychological services or treatment until October 2017 and the Tribunal’s decision also states that the family doctor’s notes did not provide any insight into why his clinical notes and records made no mention of any psychological issues before October 2017.

19The reference letter for psychological services being referred to by the applicant from October 28, 2015 was in fact written by the applicant’s physiotherapist. This reference letter was not highlighted or referred to in the applicant’s hearing submissions and a psychological referral from a physiotherapist would likely have been given little to no weight. I agree with the respondent’s submissions that a psychological diagnosis or recommendations for assessment and treatment by a physiotherapist is outside their scope of practice. I find the Tribunal’s decision provides a well-reasoned analysis of the submissions and evidence and the reasons for its decision to find that applicant has not proved that he has psychological issues that would exempt him from the MIG limits. As a result, I see no reason to interfere with the decision the Tribunal arrived at.

Income Replacement Benefit

20The applicant submits the Tribunal made the following errors in law in respect of the applicant’s IRB claim: First, in determining that the time period in dispute was unclear; and second, that the Tribunal made an error in fact by stating that there was no notation of back pain in the family doctor’s clinical notes and records of September 15, 2015 and January 26, 2016.³

21I disagree with the applicant on both of the alleged errors. I am not convinced there was any error in law or in fact. The Tribunal’s decision states that the time period in dispute is unclear based on the lump sum amount being claimed by the applicant. The issue is moot considering the applicant was found not to be entitled to an IRB. I do not find this to be an error and even if it was, it is of a minor consequence that would not have changed the outcome of the decision. I also find no error with the Tribunal’s reasoning and conclusion in respect of any reference to back pain in the doctor’s records. The September 15, 2015 note states the applicant has left flank pain for the past couple of days and the January 26, 2016 note states that the applicant self-reported pain in his shoulder and back and the doctor’s observations were of a tender neck and a tender right shoulder with low range of motion for both. The doctor then diagnoses the applicant with only shoulder pain. As a result, I find no error with the Tribunal’s reasoning and conclusion.

22The Tribunal’s decision provides a well-reasoned analysis of the submissions and evidence and the reasons for its decision to deny the applicant’s IRB claim.⁴ I see no reason to interfere with the decision.

23The test for a pre-104 week IRB requires a “substantial inability to perform the essential tasks of that employment” ⁵ (emphasis added). The Tribunal correctly noted in its decision in paragraphs 40-41 that the applicant did not provide any specifics about his inability to work as of the date of the termination of the benefit. In paragraph 43 the Tribunal wrote that the reports of back pain, shoulder pain and a referral to a psychiatrist do not explain how those injuries interfere with the applicant’s ability to work.

24For the purposes of the Reconsideration, the applicant makes essentially the same arguments, that the applicant has pain and relies on the Disability Certificates that state the applicant has a substantial inability and a complete inability to work. However no evidence of the essential tasks of his employment are provided and no explanation of how the stated injuries prevent the applicant from completing those essential tasks. A Request for Reconsideration is not a chance to re-litigate the hearing with similar arguments already put forward.

New Evidence under Rule 18.2(d)

25In the applicant’s Request for Reconsideration he points out that psychiatrist, Dr. A’s clinical notes and records were requested prior to the submission deadline from the case conference order in this matter. However the documents were not received until after the submission deadline has passed. The applicant makes no further submissions on why they should be accepted as new evidence in accordance with Rule 18.2(d).

26The respondent submits the records should be inadmissible for the purposes of this Reconsideration as a result of Rule 9.4 of the License Appeal Tribunal Rules of Practice and Procedure and further, if admitted, these documents would violate natural justice and procedural fairness as the applicant had ample opportunity to serve these documents prior to the production deadline and hearing submission deadlines. I agree with the respondent.

27Reconsideration is not an opportunity to supplement evidence. The applicant’s “new” evidence could reasonably have been obtained in advance of the production deadline. In any event, the applicant could have brought a motion prior to the hearing to vary the production deadline but chose not to and further the applicant agreed with the respondent not to use the records for the purposes of the hearing.⁶

28I find that even if the records were admitted, they would not have affected the Tribunal’s result in any event because the “new” evidence of clinical notes and records of Dr. A are from March 2018, however the treatment plan (OCF-18) for a psychological assessment in dispute is from November 2015. Furthermore, although the applicant’s mental status examination by Dr. A notes that the applicant was distressed, in a low mood and somewhat anxious, his examination of the applicant was otherwise unremarkable and there was no recommendation for treatment.

29Although the applicant’s chiropractor provided a recommendation for a psychological assessment, the Tribunal in paragraph 22 of its decision provided its reasons for assigning limited weight to that recommendation, namely that a chiropractor does not treat psychological issues and as a result the Tribunal preferred the evidence of the respondent’s psychologist, Dr. Rubenstein who is trained to conduct such testing and whose expertise is in psychology.

30For these reasons, I find that the Tribunal did not commit an error of fact or law under Rule 18.2(b) such that the Tribunal would likely have reached a different conclusion and under Rule 18.2(d) I find that the “new” evidence could have reasonably been obtained earlier and in any event would not have affected the result.

CONCLUSION

31For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.

Sandeep Johal Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Applicant’s Supplementary Submissions for Reconsideration at para 5.
2. 2Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)
3. 3Tribunal decision dated August 14, 2018 at paragraph 37.
4. 4Ibid at paragraphs 40-43.
5. 5Section 5(1) 1.C. of the Schedule.
6. 6Respondent Reconsideration Submissions at Tab 2D.