RECONSIDERATION DECISION
Before: Rupinder Hans
File: 18-001508/AABS
Case Name: H.Q. and Security National Insurance Company
Written Submissions By:
For the Applicant: M. Aftab Alam, Counsel
For the Respondent: Gina Nardella, Counsel
INTRODUCTION
1The respondent’s request for reconsideration, filed on June 28, 2019, arises from the Tribunal’s June 7, 2019 decision (the “Decision”).
2The Tribunal concluded from a review of the evidence that the applicant’s injuries fell outside the Minor Injury Guideline (the “Guideline”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The applicant was also found entitled to certain medical benefits and cost of examinations, specifically:
(i) $2,565.00 and $2,034.24 for physiotherapy services,
(ii) $1,345.95 for a functional abilities evaluation,
(iii) $1,988.80 for an impairment assessment,
(iv) $2,000.00 for an orthopaedic assessment,
(v) $2,000.00 for a chronic pain assessment, and
(vi) interest on the incurred medical benefits.
3The applicant was found not entitled to
(i) $2,252.00, $2,765.00 and $800.00 for physiotherapy services,
(ii) $1,651.00 for an in-home assessment, or
(iii) $2,000.15 for a psychological assessment.
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.
5As explained below, the respondent’s request for reconsideration is denied. I am not satisfied in this case that the Tribunal made significant errors of law such that the Tribunal likely would have reached a different decision if it had not made the errors.
DISCUSSION AND REASONS
6There are limited grounds upon which a person can request a reconsideration. In this case, the respondent asserts that the Tribunal made significant errors of law such that the Tribunal would likely have reached a different decision had the errors not been made. The respondent submits that the Tribunal failed to address the arguments made or evidence submitted by it and erred in law in removing the applicant from the Guideline. The respondent asserts its request for reconsideration meets the criteria of sections 18.2(a), 18.2(b) and/or 18.2(c) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
Error 1: Inadequacy of Reasons Provided
7The respondent asserts that the reasons provided by the Tribunal in its Decision are inadequate, which amounts to a violation of the rules of natural justice or procedural fairness under Rule 18.2(a). Alternatively, this amounts to a significant error of law such that the Tribunal would likely have reached a different decision under Rule 18.2(b).
8The respondent asserts that the Tribunal failed to provide adequate reasons for its decision and failed to set out findings of fact and evidence upon which those findings were based. The respondent asserts that the decision maker owes a losing party an explanation for rejecting the evidence of their key witnesses which in this case would be the IE assessors. The respondent asserts that it submitted the reports of two different physical injury assessors, Dr. Nesterenko, a physician, and Rasul Kassam, an occupational therapist, who found that the applicant’s injuries were manageable under the Guideline and that the proposed OCF-18s were not reasonable or necessary. The respondent submits that although the Decision did reiterate passages from these reports, it is not clear whether or how they were factored into the Tribunal’s analysis or what weight was given to the reports.
9I find that the Decision addressed the IE assessors’ reports and findings and discussed how they factored into the Tribunal’s analysis. At paragraphs 31 and 32 of the Decision, the Tribunal discusses Dr. Nesterenko’s report noting that the applicant reported ongoing complaints of pain, the results of her testing of the applicant, and her diagnoses. At paragraph 33, the Decision discussed the relevant portions of Mr. Kassam’s report, which advised that the applicant is independent with all self-care tasks, maintained independent housekeeping tasks (light), and presented with functional active range of motion in the upper and lower extremities and cervical spine.
10Nonetheless, the Tribunal found the medical evidence of the applicant’s medical experts to be more persuasive with regards to the applicant’s medical condition and functional impairments. In its analysis, the Decision lays out why the evidence of the applicant was preferred over the evidence of the insurer. At paragraph 28, the Decision noted that the applicant sought the ongoing care from her family physician, Dr. Nalia Furqan, for her pain symptoms over a period of years as supported by Dr. Furqan’s clinical notes and records—including reference to six different entries where treatment was sought for her pain symptoms. The Tribunal further found persuasive the functional/impairment report of Dr. J.A. Nathanson, chiropractor, who found that the applicant continued to experience pain symptoms and functional impairments two and a half years post accident. The Tribunal discusses Dr. Nathanson’s findings at paragraphs 23-24 of the Decision.
11The Tribunal also found persuasive the orthopaedic report of Dr. M.K. Joseph Kwok, orthopaedic surgeon, discussed at paragraphs 26-27 of the Decision. Dr. Kwok opined that the applicant’s accident related injuries are not predominantly minor and could not be treated within the Guideline.
12I find the Tribunal provided adequate reasons for its findings by analysing and assessing the medical evidence presented by both parties and provided findings of fact and evidence upon which its findings were based. I find that the Tribunal made no significant errors of law such that the Tribunal would likely have reached a different decision had the errors not been made.
13I also note that the respondent states that Dr. Nathanson did not have the benefit of reviewing a report from Dr. Doyle at Credit Valley Hospital, wherein it was reported that the applicant suffered from headaches, neck and shoulder pain with mood disturbances and bouts of anger since 2010. The respondent asserts that its arguments in this regard were not addressed and that this is a significant omission. I note that this assertion was referenced at paragraph 25 of the Decision, and not found persuasive. I find no error in the Tribunal’s analysis.
14Further, the respondent states that Dr. Nathanson is not qualified to make a chronic pain diagnosis. I note that the Decision states that a diagnosis of chronic pain is not required to remove the applicant from the Guideline. The Decision does not determine that the applicant suffers from chronic pain, and instead, the Tribunal states that evidence around the applicant’s functionality and pain limitation is persuasive evidence that her physical impairments are not a predominantly minor injury. In making this determination, the Tribunal considered the totality of the evidence presented and based on a balance of probabilities found the medical evidence of the applicant more persuasive with regards the applicant’s ongoing functional impairments. I found no error in this regard.
15The respondent also submits that it made arguments specific to the cost of the impairment assessment and orthopedic assessment, which were found to be reasonable and necessary, but the Tribunal did not mention these arguments. Specifically, the respondent had asserted that the goal of the impairment assessment was to identify barriers to recovery and another OCF-18 dated March 9, 2016, originating from the same facility, indicated at Part 9(c) that no other barriers to recovery are identified. Thus, the respondent asserted the goals of the proposed assessment were not reasonable and necessary. Based upon the totality of the evidence presented, the Tribunal found that the treatment plan was reasonable and necessary to address the applicant’s impairments, identify barriers to recovery, treatment options available, and investigate the ongoing pain symptoms the applicant was experiencing. The Tribunal notes that the assessment will provide an opinion on the applicant’s present needs and ability to perform home, personal care and caregiver tasks and recommendations for rehabilitation. I find no error, and in any case no significant error such that the Tribunal would likely have reached a different decision had the error not been made.
16With regards to the orthopaedic assessment, the respondent asserted that the applicant did not sustain an orthopedic injury in the subject accident and was observed to have functional range of motion all relevant extremities and she did not establish that she suffers from chronic pain. I find that the Tribunal weighed the evidence presented by the parties and found that the applicant reported difficulties with completing household tasks, including vacuuming, mopping, etc., and had ongoing pain complaints. The Tribunal found that the assessment was requested to fully understand the nature and extent of her physical complaints and to plan treatment so that she could return to her normal activities of life. It was open to the Tribunal to conclude whether the applicant suffered ongoing pain symptoms and functional limitation as a result of the accident, and it did just that. I find no significant error of law that would change the outcome of this determination.
Error 2: Error of Law in the MIG Removal
17The respondent submits that the Tribunal made an error of law by not addressing whether a chiropractor can make a chronic pain diagnosis, and by also relying upon the report of Dr. Nathanson, a chiropractor, for a diagnosis of chronic pain syndrome.
18I note that the Decision states that a diagnosis of chronic pain is not required to remove the applicant from the Guideline and does not state that the applicant suffers from chronic pain or chronic pain syndrome. Instead, the Tribunal states that medical evidence around the applicant’s functionality and pain limitation is persuasive evidence that her physical impairments are not a predominantly minor injury, thus, taking her outside the Guideline. The Tribunal notes that the applicant has consistently sought medical attention for her physical impairments and pain symptoms and has attended a pain management clinic, and undertaken as much physiotherapy as approved by the respondent. The Tribunal further notes that at almost five years post-accident the applicant continues to experience pain and physical impairments.
19In addition to relying upon Dr. Nathanson, the Tribunal also relied upon and found persuasive the evidence of Dr. Kwok, orthopaedic surgeon, who noted that there was evidence of ongoing musculoskeletal impairment and that the applicant’s injuries are severe and extensive and that she has musculoskeletal functional limitation that affect her social and personal life. Dr. Kwok’s report notes that the applicant experiences back pain when she sits, stands or drives for more than 10 to 20 minutes, when she bends, or rotates her back. Dr. Kwok notes that prior to the accident she independently completed house work and now is limited by pain and needs her husband to assist, she also can no longer coach soccer as she used to and can no longer attend mosque regularly as she experiences pain when she sits and kneels on the floor of the mosque.
20I note that even the respondent’s IE assessor, Rasul Kassan, occupational therapist, notes that the applicant reports difficulty making the bed, scrubbing the tub and washing her hair. I find that based upon the totality of the evidence presented by the parties, the Tribunal found that the applicant had established that she has ongoing pain accompanied by functional impairments that took her out of the Guideline.
21The respondent further asserts that the Adjudicator failed to consider the applicant’s reported independence with self-care, light housekeeping tasks, functional active range of motion in the upper and lower extremities and cervical spine and self-reported difficulty making the bed, scrubbing the tub and washing her hair. I do not agree. The Decision considered the totality of the evidence in this regard, including the respondent’s IE report of Dr. Nesterenko who opined that although there were ongoing complaints of pain the applicant’s injuries fell within the Guideline. In addition, the Decision discussed the relevant portions of Mr. Kassam’s report, including that the applicant is independent with all self-care tasks, maintained independent housekeeping tasks (light), and presented with functional active range of motion in the upper and lower extremities and cervical spine. Nonetheless, the Tribunal found more persuasive the applicant’s medical evidence which established ongoing pain and functional limitations and demonstrated that the applicant’s physical impairments are not a predominately minor injury. I find no significant error of law in this regard such that the Tribunal would likely have reached a different decision.
CONCLUSION
2I find no error of law that would have changed the outcome of the decision.
ORDER
3The respondent’s request for reconsideration is denied.
Released: March 12, 2020
___________________________
Rupinder Hans
Adjudicator