RECONSIDERATION DECISION
Before: Poeme Manigat
Tribunal File Number: 18-007187/AABS
Case Name: P.W. vs. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Jeton Memetii, Counsel
For the Respondent: James Schmidt, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, P.W. It arises out of a decision in which the Tribunal found that the applicant’s injuries fall within the Minor Injury Guideline (MIG).
2The applicant submits that the Tribunal erred in law by creating and applying an incorrect test to decide the issues in dispute. The applicant maintains her position that her injuries cannot be treated within the MIG. The applicant further argued that because she was diagnosed with a disorder under the DSM-5, she should be removed from the MIG. The applicant requests the Tribunal vary the decision stating that the applicant is not entitled to all the issues in dispute.
3Pursuant to Rule 18 of the Tribunal’s Common Rules of Practice and Procedure, I have been delegated the responsibility to reconsider this matter. Accordingly, and to ensure the efficient resolution of this dispute, the relief requested was addressed in this decision.
RESULT
4The applicant’s reconsideration is denied.
ANALYSIS
5The criteria for granting a reconsideration are stated at Rule 18.2 of the Tribunal’s Common Rules. 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 procedural fairness;
b) The Tribunal made an error of law or facts such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false 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 was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
5The applicant’s reconsideration request falls under Rule 18.2(a) and (b). Specifically, the applicant submits that the Tribunal applied an incorrect test to the issues in dispute. The applicant also argues that the Tribunal violated the rules of natural justice or procedural fairness.
6The applicant objected to the adjudicator’s analysis with respect to multiple paragraphs in the decision, which she included under the heading facts in her reconsideration submissions. I will address each of these objections below.
7The applicant referenced paragraph 11 of the decision and stated that she was not taken out of the MIG despite the presence of medical evidence. The applicant further argued that this is an error of law as supported by the case law provided at TAB 4 of her reconsideration submissions. I agree that medical evidence was provided by both parties, but the simple fact of providing medical evidence is not enough to take the applicant out of the MIG. The medical evidence must be compelling and support the position that the applicant’s injuries must be treated outside the MIG. After reviewing the medical evidence provided by both parties and particularly the applicant, who bears the onus of proof, I found the applicant’s injuries to be predominantly minor as defined by the schedule. Further, I found that despite her pre-existing injuries, they did not prevent her from achieving maximal medical recovery from her accident-related impairments if she were confined to the MIG.
8The applicant referenced paragraphs 15 and 16 of the decision and argued that I stated that Dr. Taromi does not provide a rationale for his opinion that the applicant can achieve maximal medical recovery within the MIG. In addition, the applicant argued that the presence of pre-existing injuries, the fact that all chiropractic treatment plans have been fully incurred, and the fact that the cost of examinations for psychological assessment have been incurred are indicative that the applicant’s injuries should not be confined within the MIG. More importantly, the onus is on the applicant to provide compelling evidence that the pre-existing injuries would prevent maximal recovery from her accident-related impairments if she were kept in the MIG. It’s not enough to have pre-existing injuries, the applicant must go one more step further. Notwithstanding the fact that I stated that Dr. Taromi did not provide a rationale for his opinion, I still found his report and conclusion persuasive. Dr. Taromi could have elaborated on his findings that the applicant could achieve maximal medical recovery within the MIG, which I agree he did not do. However, this fact alone does not invalidate his report which I found persuasive for the reasons stated at paragraphs 17, 18, 19 and 20 of the decision. Specifically, Dr. Taromi’s report, following a physical examination of the applicant, concluded that the applicant had a full range of motion in her hips, no fractures and no signs or compelling evidence of complicating factors. Dr. Taromi found that the injuries related to the applicant’s motor vehicle accident were soft tissue sprain and strain, which are consistent with the findings of the applicant’s family physician and treating chiropractor.
9As well, the onus of proof is on the applicant to demonstrate that the treatment plans are reasonable and necessary. Therefore, the fact that I note that Dr. Taromi did not provide a rationale for part of his opinion, with respect to the applicant’s likelihood of achieving maximum medical recovery within the MIG, is not determinative in assessing the reasonableness and necessity of the treatment plans in dispute. Ultimately, the applicant still has the responsibility of proving that the treatment plans she is seeking are reasonable and necessary.
10Furthermore, the applicant’s position is that her pre-existing injuries, and treatment costs incurred, means that she should be removed from the MIG. However, I do not find that these facts alone prove that the treatment plans are reasonable and necessary.
11The applicant referenced paragraph 22 of the decision quoting that I stated that the respondent reviewed new medical evidence presented by the applicant. However, the applicant argued that she presented evidence proving the contrary. The applicant failed to specify what evidence proved that the respondent did not review the new medical evidence presented. The point I was making at paragraph 22 of the decision is that a respondent does not have to request that their IE Assessors review new medical documentation provided by the applicant in order for their review of new evidence to be considered complete. A respondent can review new medical evidence provided by an applicant and make a discretionary decision not to have it reviewed by their IE Assessors. The Schedule does not state that the only way a respondent can review new medical evidence is to have it reviewed by their IE Assessors.
12The applicant referenced paragraph 26 of the decision and argued that I failed to consider the pre-existing injuries of the applicant. I disagree with this statement. I considered the applicant’s pre-existing injuries along with the remainder of the evidence available to conclude that the subject accident did not aggravate the applicant’s injuries to a point where she could not be properly treated within the MIG. Based on the medical evidence provided by the applicant, I accepted that she had pre-existing injuries. However, I did not find any compelling medical evidence to prove that the injuries resulting from the subject motor vehicle accident could not be treated within the MIG as a result of her pre-existing condition. The applicant was treated and examined by various health practitioners and none of them, including her family physician, opined that her injuries resulting from the subject motor vehicle accident cannot be treated within the MIG as a result of her pre-existing condition. Dr. Taromi opined that the applicant still has symptoms related to her pre-existing injuries, but not enough to prevent her from achieving maximum medical recovery within the MIG. Ultimately, the applicant failed to prove that the exception in s. 18(2) of the Schedule is applicable to her situation.
13The applicant referenced paragraphs 27, 28 and 29 of the decision arguing that I erred because I stated that the applicant’s return to work is clear evidence that the MIG limit should apply. The applicant further argued that it is an error, because I failed to realize that the applicant incurred $7,000.00 above the MIG limit to assist her in her return to work. The relevant consideration is the effect of additional treatments on the applicant’s injuries as opposed to the incurred expense above the MIG limit. The applicant did not provide any evidence to show how the additional $7,000.00 in treatments were necessary for the applicant to return to work.
14The applicant referenced paragraph 33 of the decision and argued that the applicant was referred to see a psychologist. The applicant argued that it would have been redundant for Dr. Teitalbaum to make the same referral and that there is no medical note indicating that a psychological referral is not required. Different treating physicians often make similar recommendations and referrals. Having more than one doctor refer a patient for similar treatment is compelling evidence that such treatment is necessary. In addition, the absence of a medical note indicating that a psychological referral is not required is not proof that such treatment is needed. When a treatment is not essential, the health physician assessing the patient would most likely omit it in their notes as opposed to stating that such treatment is not required.
15The applicant referenced paragraph 36 of the decision, however it seems that she meant paragraph 34, which is the paragraph pertaining to disclosure of notes. The applicant argued that I erred by stating that clinical notes and records were not provided, because such records were not available since psychotherapy was not conducted. The applicant further stated that Dr. Sagrati’s report is based on medical evidence submitted in Tab 5 of the applicant’s written submissions, which is a treatment and assessment plan (OCF-18) by Finch Health Centre Inc. dated December 13, 2017. Even though psychotherapy was not completed, the applicant still met with Dr. Sagrati to complete the assessment on March 9, 2018. On page 12 of 16 of Dr. Sagrati’s report, under the heading Clinical Impression, she states the following “At the time of her assessment, [P.W.] was casually attired and clean in appearance. Moreover, the patient did not display any signs of self-neglect. [P.W.] maintained intermittent eye contact, as she tended to look to the floor a lot of time, and spoke in a soft tone voice, while providing a clear and straightforward account in a pleasant and cooperative manner.” This detailed description of the applicant’s demeanor and attire confirmed that Dr. Sagrati met with the applicant in person to complete the assessment. I find it difficult to comprehend how a medical expert can complete such a detailed in-person assessment without collecting any notes, regardless of whether psychotherapy was completed or not.
16The applicant referenced paragraph 34 of the decision, however it seems that she meant paragraph 36, which is the paragraph pertaining to the applicant’s ability to resume her pre-accident employment. The applicant argued that I erred in stating that Dr. Sagrati’s definitive statement “that the applicant is unable to work” is inconsistent with the fact that the applicant resumed her pre-accident employment 5 months prior to completing the assessment with Dr. Sagrati. The applicant further argued that Dr. Sagrati’s statement is her medical opinion that the applicant is unable to work. I acknowledge that this statement is Dr. Sagrati’s medical opinion, which is inconsistent with the applicant’s ability to resume her pre-accident employment. Dr. Sagrati failed to address the discrepancy between her medical opinion and the ability of the applicant to resume her pre-accident work duties. While I respect Dr. Sagrati’s medical expertise, the applicant has successfully resumed her pre-accident employment and her regular work hours.
17The applicant referenced paragraph 37 of the decision and argued that I erred by stating that there is no prognosis. The applicant argued that Dr. Sagrati simply stated that the prognosis can be better addressed after treatment. At page 12 of 16 of Dr. Sagrati’s report under the heading Prognosis, she states the following “[P.W.]’s prognosis at this time is undetermined, as we need to evaluate her response to treatment.” Dr. Sagrati used the term “undetermined” to describe the applicant’s prognosis, which means undecided. It is accurate to state that Dr. Sagrati did not have a prognosis for the applicant at the time of her assessment. I accept that Dr. Sagrati is suggesting that a prognosis can be better addressed after treatment, however, this point alone is not enough to reverse the decision and prove that the treatment plans sought by the applicant are reasonable and necessary.
Incorrect Test
18The applicant requested a reconsideration pursuant to Rule 18.2(b). The applicant submits that I erred in law by applying a new test to determine whether the treatment plans are reasonable and necessary. The applicant submits that I turned the “reasonable and necessary” test from an objective analysis to a subjective one when assessing the applicant’s entitlement to medical benefits. The applicant also submits that I erred in law by not considering whether there was objective supportive evidence to justify further chiropractic treatment, and psychological treatment other than taking the respondent’s opinion. The applicant further submits that if I had considered whether there was objective supporting evidence to justify further chiropractic treatment based on a review of both parties’ materials at the hearing, I would likely have found that there was sufficient documentation.
19I see no indication that I failed to consider supporting evidence and find no error in law or fact. My reasons are as follows.
20In rendering my decision, I considered and weigh the totality of the evidence before me and ultimately preferred the respondent’s evidence. The applicant is asking me to re-weigh the evidence and arguments that failed at the initial hearing. That is not the purpose of the reconsideration process.
21I do not agree with the applicant’s submissions. The applicant’s injuries were found to be within the definition of “minor injury” and subject to the monetary limit of the MIG. There was no need to conduct a “reasonable and necessary” analysis on the treatment plans. As a result, I find that there was no error of law or fact that I likely would have reached a different result.
CONCLUSION
22For the reasons outlined above, I find the applicant has failed to establish any significant error of law or fact by the Tribunal and her request for reconsideration is dismissed.
Released: December 4, 2020
Poeme Manigat
Adjudicator