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: Samia Makhamra, Adjudicator Date: July 10, 2019 File: 17-008687/AABS Case Name: M.G. v. The Guarantee Company of North America
Written Submissions By: For the Applicant: Lawson Hennick, Counsel For the Respondent: Hermina Nuric, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, M.G. It arises out of a decision in which the Tribunal found that M.G. was not entitled to a number of benefits, as a result of her alleged physical and psychological impairments suffered in a 2015 accident.
2The benefits M.G. seeks to have reconsidered are: non-earner benefits, two treatment plans for chiropractic services, a treatment plan for Botox injections, and a treatment plan for psychological services.
3M.G. submits that, pursuant to Rule 18.2, the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness, and made a significant error of law or fact, such that it would likely have reached a different decision.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,1 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 dismissed.
ANALYSIS
6The grounds for a request for reconsideration 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 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 had the error not been made;
c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
The claim for non-earner benefits
7In short, M.G. submits that the Tribunal failed to apply the correct test, failed to consider the factors in Heath v. Economical Mutual Insurance Company ("Heath"),2 and failed to consider relevant medical evidence. In addition, M.G. argues that the Tribunal failed to properly assign more weight to "important" activities, but she did not specify what these activities are.
8I find that the Tribunal correctly set out the test for non-earner benefits, and properly relied, as it must, on the principles set out by the Court of Appeal in Heath.
9At paragraph 6 of the decision, the Tribunal identified the test, which is whether M.G. suffered a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
10At paragraphs 8 and 9, relying on Heath, the Tribunal referred to specific pre and post-accident activities. These are identified as: looking after her child, taking the child to public places, cleaning her residence, engaging in self-care, and socializing with friends.
11Based on paragraph 9 of the Tribunal decision, I find that the adjudicator did consider a number of important activities.
12It is clear that the Tribunal adequately considered the issue of pain at paragraphs 9 and 10:
The applicant indicated that post-accident, she experiences pain at times when she has to run after her child. She still takes him to the Safari, public parks, and to swimming, but avoids crowded spaces. She does not clean as often because it is painful to do so. She still does her own grooming and self-care until she reaches a certain pain level. She socializes less now compared to before the accident.
The applicant still engages in her pre-accident activities, but on more limited basis, and experiences some pain while so doing.
13The Tribunal's conclusion flows from this analysis at paragraph 11:
- Engaging in a limited or modified manner in normal pre-accident activities does not translate into a complete inability to perform those activities.
14I disagree with M.G.'s characterization of Heath. In Heath, where pain is a primary factor, the test is whether the pain prevents M.G. from engaging in (emphasis added) those important activities. The test is not, as M.G. argues, the impact of pain and her condition during or after the activities.
15Contrary to M.G.'s submissions, the adjudicator did consider the medical evidence, including that of Dr. Rosa, family physician, who testified that M.G.'s pain does not impair function.
16Based on the above, M.G.'s submissions fail. Accordingly, I cannot reconsider the decision on this basis.
The claim for chiropractic services
17M.G. submitted that the Tribunal made an error in stating that M.G. and Dr. Rosa testified that she would no longer benefit from treatment. M.G. drew my attention to excerpts from the transcripts in support of her position.
18M.G. is not wrong. On review of the transcripts, she did testify that treatment was helpful, something she only realized once treatment had stopped. Similarly, Dr. Rosa testified that he recommended this treatment. However, I do not find this sufficiently significant such that it would have led the Tribunal to a different decision.
19Particularly, the Tribunal considered a different factor, that is, the evidence of Dr. Julian Mathoo, a physiatrist who conducted an insurer's examination of M.G. This is evident at paragraph 39 of the decision. The Tribunal considered Dr. Mathoo's evidence that at some point after a critical window, treatments that would have otherwise been helpful are no longer useful. The Tribunal is entitled to prefer certain pieces of evidence over others, or assign more or less weight to certain evidence. In my view, this is reasonable and is in no way grounds for me to reconsider the decision.
The claim for Botox injections
20Regarding this benefit, M.G. raised two concerns. First, M.G. submits that at paragraph 49, the decision is prejudicial because the Tribunal expected M.G., a claimant with limited financial means, to have pursued denied treatment, and spoken to its benefits at the hearing. Secondly, M.G. submits that the adjudicator failed to address Dr. Mathoo's inaccurate evidence regarding a meta-analysis study cited in his report. The study concluded that Botox injections are not indicated for non-migraine headaches, as in M.G.'s case. I respectfully disagree with both arguments.
21Dr. Mathoo was qualified as an expert, and, as such, the Tribunal was entitled to prefer his opinion. Dr. Mathoo's opinion was that M.G.'s headaches were not consistent with the criteria for chronic migraine headaches. Dr. Mathoo's evidence that botox treatments are not recommended for myofascial headaches, as exhibited by M.G., is explained at paragraph 48. Further, Dr. Mathoo's reliance on the study, even if its conclusion did not extend to 100% of patients (an impossible standard in any event), in my view, does not mean that his evidence was inaccurate.
22In my view, the Tribunal's query to M.G. at paragraph 49 seems like an attempt to speak to there being no evidence to counter the evidence of Dr. Mathoo, Dr. Desai, Freisen and Ms. Tran that the treatment was not reasonable and necessary. Perhaps the decision could have offered more details in this regard. Regardless, I do not see the prejudice that M.G. argued. Accordingly, I have no basis to interfere with the decision.
The claim for psychological services
23M.G. submits that the Tribunal improperly dismissed this benefit when it incorrectly stated that M.G. had refused this service in the past, and did not consider Dr. Rosa's statements in support of treatment. On review of the transcripts, I find no conclusive support for M.G.'s arguments.
24Notably, at paragraph 52, the Tribunal relied on the opinion of Dr. Christopher Friesen, psychologist, who conducted an insurer's examination of M.G. and concluded that the psychological treatment was not reasonable and necessary. The Tribunal was entitled to rely on, or prefer, the evidence of Dr. Friesen as it did. Again, I have no basis to reconsider this decision.
Unusual circumstances giving rise to allegation of prejudice
25Here M.G. refers to an incident that happened after the hearing was completed, wherein one of the adjudicators lost her laptop bag containing notes from the hearing. M.G. believes this is procedurally unfair, and enough to warrant a reconsideration. I respectfully disagree.
26I see no evidence of procedural unfairness. This hearing had two Tribunal adjudicators, so one set of notes was certainly available. In addition, the adjudicators had the benefit of having heard the evidence firsthand, received written submissions, and reviewed volumes of documents.
27In conclusion, given the foregoing, I find that there are no grounds for this reconsideration request under Rule 18. I dismiss M.G.'s request for reconsideration.
Samia Makhamra Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: July 10, 2019
Footnotes
- S.O. 2009, c. 33, Sched. 5
- Heath v. Economical Mutual Insurance Company, 2009 ONCA 391