S.T. v. Certas Direct Insurance Company, 2019 CanLII 76843

RECONSIDERATION DECISION

Before: Heather Trojek, Vice-Chair

Date: June 26, 2019

File: 17-005871/AABS

Case Name: S.T. v. Certas Direct Insurance Company

Written Submissions by:

For the Applicant: Elena Steinberg, Counsel

For the Respondent: Sylvia M. Robin, Counsel

OVERVIEW

1This request for reconsideration was filed by Certas Direct Insurance (“Certas”), the respondent in this matter. It arises out of a decision in which the Tribunal found that the applicant’s injuries fell outside the Minor Injury Guideline (MIG).¹ The Tribunal removed the applicant from the MIG because it was satisfied that the applicant had developed chronic pain and had a pre-existing injury shoulder that was exacerbated by the accident. The respondent submits that the Tribunal’s decision is incorrect and should be reversed. It also requests that the applicant be denied entitlement to a chronic pain assessment, which the Tribunal approved.

2S.T., the applicant, submits that the Tribunal’s decision is correct and should be upheld.

3Pursuant 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

4The respondent’s request for reconsideration is dismissed for the reasons provided below.

BACKGROUND

5The applicant was involved in an accident on September 10, 2015. After being denied entitlement to certain benefits by the respondent, the applicant submitted an application to the Tribunal. The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a written hearing. The decision rendered following that hearing is the subject of this request for reconsideration.

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.

7More specifically, the respondent argues that the Tribunal erred;

a. in fact, because it found that the applicant’s right shoulder pain was exacerbated by the accident;

b. in fact, because it found that the applicant participated in treatment for a significant length of time when he did not in fact do so; and

c. in law, because it did not consider the applicant’s functionality when determining that his injuries fell outside the MIG.

8Although I agree that the Tribunal did make some errors in rendering its decision, the respondent has failed to persuade me that those errors likely would have resulted in the Tribunal coming to a different conclusion. The respondent’s request for reconsideration is therefore dismissed.

The Tribunal did make an error of fact - Shoulder Pain

9The respondent argues, and I agree, that the Tribunal erroneously found in paragraph 16 of its decision that the applicant’s shoulder pain was exacerbated by the accident. The applicant does not contest the fact that the Tribunal made an error in this regard. Based on the clinical notes and records (CNRs) of the applicant’s family doctor, the applicant’s right shoulder was exasperated, it appears, by him lifting heavy objects at work in January 2016, not as a result to the motor vehicle accident.

The Tribunal did not make an error of fact - Neck and Lower Back Pain

10Nevertheless, I agree with the applicant’s submissions that, although the Tribunal erred with regards to his shoulder pain, it was correct in finding that the applicant had chronic pain in his cervical and lumbar spine. My finding on this issue is guided by the Executive Chair’s reconsideration decision in T.S. v. Aviva General Insurance Canada.² In that decision, the Executive Chair found that chronic pain is, by definition, a condition that persists for three to six months, and that a diagnosis of chronic pain syndrome is not required to remove an applicant from the MIG.

11I agree with the Tribunal’s findings as stated in paragraphs 19, 20, 21 and 22 of its decision, that Dr. Sandhu’s reports, which were filed by the respondent, support that the applicant’s injuries fall outside, rather than within, the MIG. Indeed, Dr. Sandhu, as the Tribunal correctly notes, reported in February 2018 that despite the passage of time, the applicant continued to complain of ongoing pain because of his accident related injuries.³ The Tribunal found that Dr. Sandhu findings supported the diagnosis of chronic pain made by Dr. Minnella, chiropractor, whose report was submitted by the applicant. I find no reason to overturn the Tribunal’s finding.

12Having reviewed the evidence and based on the Executive Chair’s reconsideration decision referenced above, I agree with the Tribunal’s finding that the applicant, on a balance of probabilities, has chronic pain in his neck and lower back. Contrary to the arguments made by the respondent, I can find no medical evidence to support the notion that the pain in the applicant’s neck is related to, or referred from, the pain in his shoulder and thus is unrelated to the accident. The CNRs of the applicant’s family doctor confirm that the applicant was diagnosed with neck and lower back strain two days after the accident. The applicant’s work-related shoulder pain started approximately four months after the accident. In addition, in 2018 the applicant reported to Dr. Sandhu that he had no shoulder pain but did have localized neck pain which he rated as being 7/10. As a result, there was no evidence before the Tribunal to support the respondent’s submission that the applicant’s ongoing neck pain is not causally connected to the accident.

Applicant’s Participation in Treatment

13The respondent submits that the Tribunal made a factual error regarding the applicant’s participation in treatment and, had this error not been made, the Tribunal would not have found that the applicant injuries fall outside the MIG. The respondent argues that the Tribunal incorrectly found in paragraph 17 of its decision that the applicant participated in treatment from February 2016 to October 2017. This gap in treatment, the respondent argues, undermines the Tribunal’s finding of chronic pain. I do not agree.

14I find that the Tribunal did not make an error, as alleged by the respondent, regarding the applicant’s participation in treatment. In addition to its finding in paragraph 17, the Tribunal states in paragraph 22 of its decision, that its finding of chronic pain is supported by the fact that the applicant has taken continuous action to address his pain by participating in treatment. The respondent alleges that the Tribunal erred because it failed to take into consideration the fact that there was as significant span of time when the applicant did not seek medical attention or participate in treatment.

15The respondent’s submissions, however, fail to address that fact that the Tribunal accepted that the applicant participated in treatment in the form of self-directed exercise. Dr. Sandhu states in his 2017 and 2018 reports that the applicant reported that he had an independent exercise program which he performed two-to-three times a week. In addition, Dr. Minnella’s report confirms that the applicant self-reported that, after he stopped going to Toronto Healthcare in March 2016, that he went to a different facility but obtained minimal benefit. I am therefore unable to find that the Tribunal made a significant error regarding the applicant’s participation in treatment such that it should be overturned.

Applicant’s Functionality

16I agree with the respondent that the Tribunal did not correctly or sufficiently address the applicant’s ability to perform his activities of daily living when determining that he had chronic pain. The only place that the Tribunal refers to the applicant’s functionality is in paragraph 16 of its decision. In that paragraph the Tribunal states that the CNRs of the family doctor indicate that the applicant regularly complained about his pain affecting his life [emphasis mine]. The respondent argues and I agree that the CNRs do not support the Tribunal’s finding because they only indicate that the applicant complained of pain affecting his life in relation to his shoulder, which the Tribunal incorrectly determined was related to the accident.

17Although I agree that the Tribunal made a factual error in this regard and a legal error in terms of sufficiency of reasons, I do not find these errors significant enough to reverse the Tribunal’s decision.

18Based on the evidence adduced by the applicant regarding functionality, I find, at the end of the day that, had the Tribunal considered or addressed the issue fully, it would have come to the same conclusion – that the applicant has chronic pain. In his request for reconsideration, the applicant submits that the Tribunal’s decision is correct because the evidence demonstrates that his neck and back pain negatively affected his ability to perform his activities of daily living particularly his ability to work. I agree.

19The applicant, reported to Dr. Sandhu, the respondent’s IE assessor, in March 2017 that he missed one week of work after the accident and then worked for nine months before leaving his position as kitchen cabinet assembler in a factory due to his ongoing neck and low back pain. According to Dr. Minnella, the applicant self-reported that, at the time of the accident, he was employed as a cabinet assembler and as a teller in a convenience store. The applicant reported to Dr. Minnella, that he returned to work as a cabinet assembler after the accident despite symptom aggravation, but did not return to his work at the convenience store.

20The respondent argues that the applicant’s ability to work has not been negatively affected by his accident-related injuries. The respondent relies on the fact that the applicant told Dr. Sandhu in March 2017 that he currently works eight hours per day, four days a week, as a line cook. I am not persuaded by the respondent’s argument. There was no evidence before the Tribunal that the applicant’s employment as a line cook is as physically demanding as his previous work as a kitchen cabinet assembler. Taking into account the Tribunal’s other findings, it is logical to conclude, and the evidence supports, that as a result of his accident-related pain, the applicant reduced the number of hours he worked before the accident and left his pre-accident job for what he described as a less physically demanding job. Based on the evidence at the hearing, I find that, had the Tribunal considered the effect of the applicant’s neck and low back pain on his post-accident level of functioning the Tribunal’s decision to remove him from the MIG ultimately would have been the same.

CONCLUSION

21For the reasons noted above, I dismiss the respondent’s request for reconsideration. I find that the respondent has failed to establish that the Tribunal made any error in law or in fact, that had they not occurred the Tribunal would likely have come to a different decision.

Heather Trojek

Vice-Chair

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1s. 12(1)(1) of the O.Reg. 34/10: Statutory Accident Benefits Schedule – effective September 1, 2010.
2. 22018 CanLII 83520
3. 3Dr. Sandhu states in his report that the applicant’s presentation was consistent with residual symptoms of strain in his cervical and lumbar spine.