M.D.H. v. Wawanesa Mutual Insurance Company, 2019 CanLII 77006

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: Deborah Neilson, Adjudicator

Date: July 4, 2019

File: 17-007887/AABS

Case Name: M.D.H. vs. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Jeton Memeti, Paralegal

For the Respondent: Emily Schatzker, Counsel

I. OVERVIEW

1This request for reconsideration, filed by the insured applicant, arises out of a decision dated August 28, 2018, in which the Tribunal found that the applicant sustained minor injuries and is subject to the Minor Injury Guideline (the “MIG”). The Tribunal also denied the applicant’s request for payment for three treatment plans recommending chiropractic and psychological treatment and a psychological assessment. The applicant submits that the Tribunal made significant errors of law and fact. He seeks an order that his injuries are not within the MIG and that the denied treatment plans be reconsidered or ordered for a rehearing.

2Pursuant 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 LAT Rules. ¹

II. RESULT

3I deny the applicant’s request for reconsideration.

III. BACKGROUND

4The applicant was involved in an automobile accident on February 18, 2017. He sought and received benefits from the respondent pursuant to the ''Schedule''.² After the respondent denied his request for further medical benefits and payment for cost of examinations, he applied to the Tribunal. ³ The respondent denied the applicant’s claims because it determined that the applicant’s injuries fit the definition of “minor injury” under s. 3 of the Schedule.

5The applicant asserted that his injuries were not predominantly minor injuries because he sustained a psychological injury and had pre-existing injuries that limited his ability to reach maximum medical recovery within the MIG limits. The Tribunal determined that the applicant’s injuries were predominantly minor because the applicant did not prove that he sustained a predominantly psychological impairment. The Tribunal found that the applicant did not adduce evidence to explain inconsistencies in the evidence regarding the applicant’s alleged psychological impairment and, therefore, the Tribunal did not accept that the applicant sustained a psychological injury.

6The Tribunal determined that the applicant’s injuries were minor. This means that the policy limits available to the applicant for medical benefits and cost of examinations is $3,500.00. Once the Tribunal determined that the applicant sustained a minor injury, the Tribunal dismissed the applicant’s claims for chiropractic treatment, psychological treatment and a psychological assessment.

IV. ANALYSIS

7The grounds for a request for reconsideration are contained in LAT Rule 18. The grounds that the applicant argues apply to this case are LAT Rule 18.2(a) and (b):

(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.

8It is not clear from the applicant’s submissions in what way the Tribunal is alleged to have violated the rules of procedural fairness or exceeded its jurisdiction. It appears the specific allegations may be as follows:

(a) the Tribunal failed to exercise its jurisdiction to determine whether or not the applicant was entitled to the medical benefits and the cost of the examination in dispute; and

(b) the Tribunal violated the rules of procedural fairness and erred in law because the Tribunal failed to consider the issue of whether the applicant had a pre-existing medical condition consisting of a back injury that was documented by a health practitioner before the accident and that prevents him from achieving maximal recovery within the MIG limits.

9Additionally, the applicant argues that the Tribunal erred:

(a) in law because the Tribunal applied an incorrect test to determine whether the applicant was entitled to the medical benefits claimed;

(b) in-law because the Tribunal failed to find the applicant’s pre-existing back pain was exacerbated by the accident and took him out of the MIG; and

(c) in fact because there was no evidence to support the Tribunal’s finding that the respondent and its expert were not provided with the report of the applicant’s psychologist, Dr. Pilowsky, which led to a preference for the opinion of the respondent’s expert over the applicant’s expert on the issue of the applicant’s psychological impairment.

10I am not persuaded by the applicant’s arguments that the Tribunal made any jurisdictional or other errors of fact or law. Nor am I persuaded that, if the Tribunal did make any errors, a different decision likely would have been reached but for the error.

a) Test for Entitlement to Medical Benefits

11The applicant submits that the Tribunal failed to apply the proper test or any test to determine entitlement to medical benefits. The test for entitlement to medical benefits is whether the expenses are reasonable or necessary. The Tribunal did not apply the test because it determined that it was not necessary once it determined the applicant was within the MIG. I find no fault with this. There was no dispute that the applicant had exhausted the $3,500.00 limit for medical benefits and cost of examinations allowed for minor injuries. Once the Tribunal determined that the applicant’s injuries were predominantly minor injuries and that he was subject to the MIG, there could be no further entitlement to any more medical benefits as there were no policy limits remaining to cover the cost of any of the treatment plans in dispute.

b) Pre-existing Condition

12The applicant submits that the Tribunal erred by not considering whether he had a pre-existing condition consisting of a low back strain. The respondent submits that the applicant did not make any submissions about the pre-existing condition to the Tribunal.

13The applicant did not make any clear submissions with reference to the exception to the MIG in s.18(2) of the Schedule for pre-existing injuries. However, he clearly referred to evidence of his low back problems prior to the accident in his clinical notes and records. The insurer’s assessor, Dr. Khaled, reviewed the applicant’s WSIB file that detailed the applicant’s pre-accident low back injury. Accordingly, there was evidence before the Tribunal that the applicant had back problems before the accident. However, it is not enough for the applicant to show that he suffered a pre-accident condition. For the exclusion to the minor injury policy limits of $3,500 to apply due to a pre-existing injury or condition, s.18(2) of the Schedule requires the applicant to provide compelling evidence that the pre-existing medical condition will prevent the insured person from achieving maximal recovery from the minor injury within the $3,500 limit or the MIG. There was no such evidence before the Tribunal. The evidence of the applicant’s family doctor, Dr. Lazare, in his November 2017 disability certificate, that the applicant’s pre-accident sciatica was exacerbated by the accident falls short of the applicant’s onus to prove that the pre-accident sciatica or low back sprain affected the applicant’s response to treatment for his accident injuries.

14Although I agree that the Tribunal did not specifically respond to the applicant’s argument regarding the pre-existing injury, 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 this case, the issue of pre-existing condition is encompassed in the following comments of the Tribunal at paragraph 15 of the decision:

Dr. Lazare provided no opinion to indicate the injuries sustained are not minor or that the injuries fall outside the MIG. Wawanesa’s assessor(s) are also of the opinion that M.D.H.’s injuries sustained in the accident do not fall outside the MIG.

15Other than the absence of a specific reference to the applicant’s pre-existing injury argument, I have no basis upon which to find that the Tribunal did not consider this issue. More importantly, I find that even if the Tribunal failed to consider this argument, the error was not significant enough, in light of the other reasons provided by the Tribunal and the lack of evidence supporting the applicant’s submission, to have led it to come to a different decision.

c) Psychological Injury and Dr. Pilowsky’s Report

16The applicant submits that in the face of conflicting psychological reports − one by Dr. Pilowsky on behalf of the applicant; the other an insurer’s examination report by Dr. Rubenstein on behalf of the respondent − the Tribunal erred in giving greater weight to Dr. Rubenstein’s report. The applicant submits that the Tribunal should not have given greater weight to Dr. Rubenstein’s report because Dr. Rubenstein failed to comment on Dr. Pilowsky’s report. The applicant submits that this was an error by the Tribunal that stems from the Tribunal’s finding of fact that the respondent and Dr. Rubenstein had no knowledge of Dr. Pilowsky’s report.

17The applicant submits that the Tribunal made an error of fact in finding that there was no evidence to suggest that Dr. Rubenstein and the respondent were aware of or were provided with Dr. Pilowsky’s psychological report. The applicant submits that, because Dr. Pilowsky’s treatment plan recommending her assessment was an exhibit before the Tribunal, it was evidence that the respondent knew that Dr. Pilowsky conducted the assessment and prepared a report. I disagree. Just because a treatment plan recommending an assessment exists, it does not follow that the assessment will be conducted, especially when the insurer has denied the expense. Evidence that the respondent knew of the assessment would have been correspondence to the respondent enclosing a copy of Dr. Pilowsky’s report. There was no such evidence before the Tribunal. At any rate, the applicant already unsuccessfully argued the same point before the Tribunal. Reconsideration is not an opportunity to reargue positions which failed at the hearing.

18The applicant essentially disagrees with the weight that the Tribunal accorded to the psychological evidence. As the first-level trier of fact, the Tribunal had the responsibility to weigh the evidence before it and, on that basis, render a decision on whether the applicant sustained a psychological injury that was more than mere sequelae of the minor injuries. I find that the Tribunal discharged its duty without error. In paragraphs 31 to 32 of its decision, the Tribunal provides reasons why it chose to give less weight to the report of Dr. Pilowsky and place more weight on the report of Dr. Rubenstein. I find no error in how or why the Tribunal made this finding and thus have no reason to interfere with its assessment of the evidence or its decision.

V. CONCLUSION

19For the reasons noted above, I dismiss the applicant’s request for reconsideration.

Deborah Neilson Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) [“LAT Rules”]
2. 2Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)