RECONSIDERATION DECISION
Before: Cezary Paluch
File: 18-011072/AABS
Case Name: A.H. and TD General Insurance Company
Written Submissions by:
For the Applicant: Kate Logushova, Paralegal and Attila Jantsek, Student at law
For the Respondent: Oliver Gorman-Asal, Counsel
OVERVIEW
1The applicant, A.H., requests reconsideration of a decision of the Licence Appeal Tribunal (the “Tribunal”) that she was not entitled to continued benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) because her injuries fell within the Minor Injury Guideline (the “Guideline”).
2The applicant submits that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision had the error(s) not occurred.
3The applicant seeks an order to vary the Tribunal order, a declaration that the applicant’s injuries are not minor and cannot be treated within the Guideline and a finding that the applicant is entitled to the disputed medical benefits/cost of examinations. Alternatively, the applicant seeks a rehearing be scheduled.
4I have been delegated the authority to decide this matter.
RESULT
5For the reasons that follow, the applicant’s request for reconsideration is dismissed.
ANALYSIS
Weighing of the evidence
6A.H.’s arguments relate primarily to the way in which the Tribunal weighed the medical evidence in making its findings. As this Tribunal has repeatedly stated, the reconsideration process is not an opportunity to ask the Tribunal to reweigh the evidence: See P.I. v Aviva Insurance Canada, 2018 CanLII 8091, at para. 7; J.M. v. Wawanesa Mutual Insurance Company, 2017 CanLII 144647, at para. 21; and M.T v TD Insurance Meloche Monnex, 2018 CanLII 141026, at para. 23.
7A.H.’s specific arguments are addressed below.
i) improperly gave little or no weight to Dr. Nathanson’s credentials and report
8The applicant submits that the Tribunal's decision to give little or no weight to Dr. Nathanson's report and his credentials was an error.
9The Tribunal considered Dr. Nathanson’s report and gave it some weight but in the end preferred the medical evidence of the respondent. At paragraph 20 of its decision, the Tribunal provided detailed reasons for giving limited weight to Dr. Nathanson's diagnosis of "chronic pain." This included concerns that the report did not set out a definition of chronic pain. Rather, Dr. Nathanson relied on definition of “chronic pain” by referencing web site link that does not lead to an active web site,1 and not actually stating the definition in his report. As well, Dr. Nathanson cited a FSCO decision of August 2 and 3, 2017 which set out another definition of chronic pain, without naming the case or providing a citation. This case was also never provided by the applicant with their submissions. The Schedule neither defines “chronic pain” nor includes “chronic pain” in the definition of “minor injury.” The applicant’s position is that she suffers from chronic pain and should be removed from the Guideline (amongst other reasons). Given these and the applicant having the burden of proving on a balance of probabilities that her injuries fall outside the Guideline, the starting point to satisfy her evidentiary burden should include a definition of chronic pain - something that was lacking in detail in Dr. Nathanson’s report. For all of these reasons, the Tribunal preferred the medical evidence of the respondent.
10The applicant submits that that Tribunal failed to reference the chronic pain diagnosis made by Dr. Nathanson. This is incorrect. Paragraph 20 of the Decision plainly recognizes this and states that “On January 23, 2018, the applicant underwent an assessment of function and impairment with J.A. Nathanson, chiropractor, who concluded that the applicant suffers from chronic pain…”
11I am also not satisfied that the Tribunal mischaracterized Dr. Nathanson’s credentials and somehow this effected the outcome. The Tribunal clearly recognized that Dr. Nathanson was a chiropractor and correctly noted that he was not a physician or a medical doctor. It is well accepted that chiropractors are not members of the College of Physicians and Surgeons of Ontario and do not have the same rights and responsibilities as medical doctors.
12The applicant submits that Dr. Nathanson is qualified to diagnose chronic pain. At the hearing, the Tribunal was not provided with any evidence as to the scope of a chiropractor’s practice in Ontario and what they can or can not diagnose. Simply, the Tribunal was not asked to make any determination on this issue. The Tribunal merely stated that Dr. Nathanson “was not a physician who can diagnose chronic pain or provide a psychological diagnosis.” The sentence must be read in its entirety as it applies to physicians only. Again, the Tribunal at para. 20 noted Dr. Nathanson’s conclusion that the applicant suffers from chronic pain and assessed that in light of all of the other evidence.
ii) incorrectly accepted Dr. Oshidari’s assessment
13The applicant submits that the Tribunal mischaracterized the credentials of Dr. Oshidari at paragraph 27 when it said that “Dr. Oshidari was a psychologist.” The Tribunal did make an error as Dr. Oshidari is a physiatrist and not a psychologist. However, the Tribunal reviewed and discussed Dr. Oshidari's Physiatry Assessment at paragraphs 27 and 29 of its decision. Also, at para. 21 the Tribunal explicitly describes Dr. Oshidari’s report as a “Physiatry Assessment.” It is clear that the Tribunal knew that Dr. Oshidari was a physiatrist because, in discussing his report at para. 27, the Tribunal described that “a physiatrist is a physician who specializes in physical medicine and rehabilitation and would be in a good position to comment on an insured’s accident-related injuries and functional abilities.” Moreover, this error was merely an inadvertent inconsequential typographical error that does not amount to a "significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made".
14The balance of the applicant’s submissions regarding Dr. Oshidari’s assessment focus on argument that the Tribunal should have given his evidence less weight and tries to relitigate the matter. She states that Dr. Oshidari does not include any reference as to whether his findings regarding the applicant’s range of motion are within normal functional limits; that Dr. Oshidari does not address the possibility of a chronic pain syndrome diagnosis at any point during his assessment; and Dr. Oshidari contradicts himself in his own report. In my view, a reconsideration request is not a vehicle by which a party can seek to have the evidence reweighed. The Tribunal at para. 21 succinctly summarized Dr. Oshidari's assessment and explained why as a whole the respondent’s rebuttal evidence persuaded it that the applicant did not have an accident-related chronic pain condition. The Tribunal was entitled to consider and weigh the evidence as it saw fit. I see no error in the Tribunal’s exercise of that discretion.
iii) improperly considered the applicant’s radiculopathy
15The applicant submits that the Tribunal incorrectly found that the applicant did not suffer from any radiculopathy and ignored Dr. Wilderman’s diagnosis of lumbar radiculopathy due to herniated disc and that Dr. Wilderman conducting a "Straight Leg Test" is sufficient to prove that his diagnoses are correct.
16The Tribunal at para. 21 preferred the evidence of the respondent based on a Multidisciplinary Assessment Report dated April 25, 2018, which contained a Physiatry Assessment by Dr. A. Oshidari. The Tribunal noted that Dr. Oshidari completed a physical examination and did not detect any radiculopathy or any signs of lumbar stenosis or joint dysfunction. In coming to its conclusion, the Tribunal was mindful that the applicant maintained that she suffers from back and spine pain over her entire back but there was an obvious lack of any diagnostic imaging results including any x-rays or MRIs of her back to support any accident-related pathology or symptoms or to connect the applicant’s pain complaints to the accident. Indeed, Dr. Wilderman in his report acknowledged that he had no diagnostic test results in preparing his assessment.
17While the Tribunal’s reasons do not specifically refer to a “Straight Leg Test”, the reasons are not required to refer specifically to each piece of testing mentioned in a medical report. Moreover, a review of Dr. Wilderman’s report, in a section entitled "Lower Back Examination”, Dr. Wilderman's report (pages 6-7) lists the test as a "Straight Leg Raise Test” (not a “Straight Leg Test” as in the applicant’s reconsideration submissions). The Straight Leg Raise Test is listed as “positive bilaterally" and the "Crossed Straight Raise Leg Test” is “negative bilaterally.” Notably, Dr. Wilderman does not explain what these two tests mean or how they differ nor does he opine in any way on their significance especially since one test was negative and other was positive. More importantly there is nothing in Dr. Wilderman’s report and any other medical evidence that supports the view that a positive “Straight Leg Test” (or a “Straight Leg Raise Test”) indicates that every patient suffers from radiculopathy. What does a negative bilaterally Crossed Straight Leg Test mean? This was simply not explained, and the applicant cannot now attempt to provide additional evidence that was available and should have been provided initially.
18At any rate, the Tribunal considered Dr. Wilderman’s report in its entirety and provided very detailed reasons in para. 17(i)-(viii) why Dr. Wilderman’s report was given less weight. Again, the Tribunal was entitled to consider and weigh the evidence as it saw fit.
iv) improperly criticized Dr. Wilderman’s Methodology
19The applicant submits that the Tribunal at paragraph 17(iii) wrongly described the Chronic Pain Syndrome diagnostic tool used in Dr. Wilderman’s report as a version. The Tribunal was clear that Dr. Wilderman’s report did not explain which version (or edition) of AMA Guides was relied on by Dr. Wilderman and why two editions were referenced in his report (the 4th edition as well as the more recent 6th edition). There was no reference to a specific Chapter or any citation in Dr. Wilderman’s report. The applicant's submissions do not deny this lack of clarity but simply state that Dr. Wilderman relied on the 6th edition of the American Medical Association Guides without providing any evidence on this point. I see no error here. The fact that the applicant at para. 29 of their reconsideration submissions concede that the tool used is found at pages 32-33 of the 6th edition of the version of the AMA Guides is proof that there was a lack of clarity on this issue.
20The applicant also submits that the Tribunal at paragraph 17(vi) incorrectly dismissed Dr. Wilderman’s use of the Pain Disability Index. The applicant explains that the she scored positive for pain 5/6 on the index, indicating a moderate to severe impairment to her daily functions caused by chronic pain. My review of the decision is that para. 17(vi) deals with a lack of in-depth analysis in conducting his testing. I do not read anywhere in that paragraph, or the entire decision for that matter, that the Tribunal dismissed the Pain Disability Index.
v) improperly rejected Dr. Wilderman’s psychological diagnosis
21The applicant submits that the Tribunal incorrectly rejected Dr. Wilderman’s ability to psychologically diagnose the applicant. The applicant submits that “family physicians, who are licensed to practise in the province of Ontario, not only have the education required to psychologically diagnose patients, but are in fact expected to evaluate, diagnose, and treat most mental health conditions.” At paragraph 36 the applicant submits that family doctors have the education required to diagnose and evaluate most mental health conditions and that only complex cases require referral to a psychologist or psychiatrist.
22The Tribunal recognized that Dr. Wilderman was a family physician and put limited weight on his diagnosis of “severe PTSD” but did not dismiss it outright. First, a review of Dr. Wilderman's qualifications as set out on page 2 of his report entitled "Training and Experience of Medical Evaluator" does not specify any expertise in psychological or psychiatric conditions. Second, the Tribunal noted that Dr. Wilderman diagnosed “severe PTSD” which indicated that this was more than a simple psychological diagnosis. Indeed, at page 9 of his report, in regards to utilizing a screening tool (PTSD Symptom Scale Interview for DSM 5) to support his finding, Dr. Wilderman acknowledged that “while this is a widely accepted screening tool for post traumatic stress disorder my diagnosis in this area would be best corroborated by a specialist in the field of psychology or psychiatry.” This was consistent with the applicant’s own reconsideration submission that complex cases require a referral to a psychologist.
23It seems that based on Dr. Wilderman’s own admission in his report coupled with his heightened diagnosis of “severe PTSD” was indication that Dr. Wilderman was acting outside his scope of expertise and needed corroboration by an expert in the psychological field. Yet, no such referral was ever made on the record before me (although Dr. Wilderman may have done one), and the evidence demonstrated that the applicant did not seek any psychological intervention since the accident. The Tribunal had obvious difficulty understanding how Dr. Wilderman reached his conclusion of a severe PTSD diagnosis in these circumstances.
24Again, the Tribunal was entitled to consider and weigh the evidence as it saw fit and provided detailed reasons for placing limited weight on Dr. Wilderman’s conclusions. In summary, the applicant’s argument here, as with her argument elsewhere, essentially asks me to reweigh the evidence. That is not my task on a request for reconsideration.
25Finally, the respondent cited at the hearing and in reconsideration submissions N.M. v Certas Home and Auto Insurance, 2018 CanLII 76408 (ON LAT) for the proposition that Dr. Wilderman's qualifications to diagnose PTSD was determined in that case where Dr. Wilderman also diagnosed the applicant with "severe PTSD". Adjudicator Goela found at para. 22 that “Dr. Wilderman is a physician and not a clinical psychologist. His opinion with respect to psychological impairments is outside his scope of expertise.” I am not bound by that decision but find it on point and persuasive as it also dealt with whether the applicant’s injuries fell within the Guideline finding that the applicant sustained predominantly minor injuries.
26Accordingly, I therefore reject the applicant’s submissions and find that no error was made by the Tribunal.
CONCLUSION
27For the reasons noted above, I deny the applicant’s Request for Reconsideration.
28Pursuant to the Tribunal’s rule 18.4(b) the decision of the Tribunal dated February 19, 2020, is confirmed.
Released: June 11, 2020
_____________________________________
Cezary Paluch, Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division