D. O. v. Primmum Insurance Company, 2020 CanLII 42737

Citation: D. O. vs. Primmum Insurance Company, 2020 ONLAT 18-001673/AABS

RECONSIDERATION DECISION

Before: Rupinder Hans

Date: June 15, 2020

File: 18-001673/AABS

Case Name: Primmum Insurance Company

Written Submissions By:

For the Applicant: Christina Campoli, Counsel

For the Respondent: Patrick M. Baker, Counsel

INTRODUCTION

1The respondent’s request for reconsideration, filed on May 17, 2019, arises from the Tribunal’s April 26, 2019 decision (the “Decision”).

2The Tribunal concluded from a review of the totality of the evidence that the applicant’s injuries fell outside the Minor Injury Guideline (the “MIG”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The applicant was found to have physical impairments that took him outside of the MIG. He was found entitled to certain medical benefits, specifically: $1,482.50 and $1,452.00 for physiotherapy services and interest on the incurred medical benefits as per the Schedule.

3Pursuant 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.

4As explained below, the respondent’s request for reconsideration is denied. I am not satisfied in this case that the Tribunal made significant errors of fact or errors of law such that the Tribunal likely would have reached a different decision if it had not made the errors.

DISCUSSION AND REASONS

5There 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 and misapprehended the facts such that the Tribunal would likely have reached a different decision had the errors not been made. In particular, the respondent asserts that:

(a) The Tribunal made a significant error of fact in accepting the opinion of Dr. Howard Jacobs, and specifically that there was any neurological damage sustained as a result of this accident in the absence of any objective testing to substantiate such a theory;

(b) The Tribunal made a serious error in law when it misapprehended and misapplied the MIG test, where it failed to make any finding that the applicant sustained injuries that fall outside of those described within the MIG.

Error 1: Error of Fact in Accepting Unsubstantiated Opinion Evidence

6The respondent submits that it was a significant error of fact for the Tribunal to accept as fact the findings of Dr. Howard Jacobs, the import of which becomes an error of law. The respondent asserts that the Tribunal made an error of fact in accepting the unsubstantiated opinion of Dr. Howard Jacobs that the applicant falls outside the MIG because his injuries are not musculoskeletal injuries, but rather injuries of the nerves supplying pain sensitive structures most likely causing neuropathic pain and central nervous system changes. Further, that Dr. Jacobs failed to identify any objective testing employed that assisted him in forming his opinion with respect to the development of chronic pain or nerve injuries. The respondent further asserts that Dr. Jacobs is an anaesthesiologist rather than a physical medicine and rehabilitation specialist and is trained to treat pain and not diagnosis it in contrast to its own assessor physiatrist, Dr. Yong-Kyong Michael Ko.

7I note that Dr. Jacobs’ report listed his qualifications as a physician who has practised in the evaluation and treatment of chronic pain for over 18 years. He is a diplomat of the American Academy of Pain Management, past president of the Canadian Academy of Pain Management, and chairman of the section of Chronic Pain Physicians of the Ontario Medical Association. He is on the advisory committee of the College of Physicians and Surgeons of Ontario on establishing Guidelines for Out of Hospital Interventional Pain Clinics in Ontario. He also operates The Jacobs Pain Centre in the Town of Markham.

8At paragraph 11 and 12 of the Decision, the Tribunal notes that Dr. Jacobs performed testing on the applicant and concluded that the applicant had developed chronic pain of the cervical and lumbar spine and likely developed chronic changes to the pain sensitive structures causing him to have pain. Dr. Jacobs opined that the applicant’s injuries are not musculoskeletal injuries, but injuries of the nerves supplying the pain sensitive structures most likely causing neuropathic pain and central nervous system changes thereby causing his ongoing complaints of pain. Dr. Jacobs opined that the applicant fell outside of the MIG and further set out the applicant’s functionality and pain limitations. I note that Dr. Jacobs performed objective testing including a cervical spine examination and a lumbar spine examination prior to preparing his report.

9I find that the Tribunal did not make a significant error of fact or error of law in relying upon the opinion of Dr. Jacobs. In making its 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 to the applicant’s ongoing functional and physical impairments. This would include any inconsistencies as alleged by the respondent. The Tribunal found that the evidence around the applicant’s functionality and pain limitation was persuasive evidence that his physical impairments are not a predominantly minor injury. The Tribunal found that the applicant had developed chronic pain of the cervical and lumbar spine. In this regard, I find no significant error of fact or law such that the Tribunal would likely have reached a different decision had the error not been made.

10The respondent also submits that the Tribunal made a serious error in focusing on Dr. Ko’s recitation of the applicant’s subjective pain complaints and subjective limitations, while ignoring Dr. Ko’s objective examination findings and actual objective evidence. I find that the Decision addressed Dr. Ko’s report and findings and discussed how it factored into the Tribunal’s analysis. At paragraphs 17, 20 and 21 of the Decision, the Tribunal discusses Dr. Ko’s report noting that the applicant reported ongoing complaints of pain, the results of testing of the applicant, and the diagnoses.

11Nonetheless, the Tribunal found the medical evidence relied upon by the applicant 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 13, the Decision noted that the applicant sought the ongoing care from his treating family physician, Dr. Robert Paulovic, for his pain symptoms over a period of years as supported by Dr. Paulovic’s clinical notes and records — including reference to four different entries where treatment was sought for his pain symptoms. Dr. Paulovic diagnosed the applicant’s condition as chronic and fibrositis and he continued to prescribe ongoing physiotherapy to improve his functional limitations. The Tribunal noted that the applicant consistently sought medical attention for his physical impairments and pain symptoms.

12The respondent asserts that the Tribunal failed to note or explain Dr. Paulovic’s December 17, 2017 note: “slowly better 90-95%”. I note that this was referenced at paragraph 13 of the Decision, and considered in the decision. The same note also stated “rhomboid ‘fullness’ tender, lumbar – episodic, sitting too long, driving; massage temp; PT temp reliev; chiro helping most; tender upper shoulder normal full ROM; shoulder fibrositis – chronic pain.” The evidence was considered in its totality and I find no error in the Tribunal’s analysis.

13It was open to the Tribunal to conclude that the applicant suffered chronic pain symptoms and functional limitations and that his physical impairments as a result of the accident took him outside of the MIG, and it did just that. 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.

Error 2: Error of Law in Misapplying the MIG Test

14The respondent notes that the Tribunal correctly identified the term “minor injury” as defined in subsection 3(1) of the Schedule and the MIG test, however, it failed to correctly apply the test or apply any burden of proof.

15The respondent submits that the Tribunal failed to identify any diagnosis or injury that would fall outside the scope of the MIG, and instead removed the applicant from the MIG on the basis of clinically associated sequelae to soft tissue injuries. I note that this assertion was referenced at paragraph 18 of the Decision, and not found persuasive. I find no error in the Tribunal’s analysis. A diagnosis of chronic pain syndrome or somatic symptom disorder is not required to remove the applicant from the MIG. It is notable that the applicant’s pain is severe enough to cause functional impairments and restrictions and cannot be said to be a clinically associated sequelae.

16The respondent asserts that the Tribunal erred in finding that a showing of impaired functionality and pain limitation is sufficient for the applicant to meet his burden of proof. The respondent states that the Tribunal accepted the unsubstantiated opinion of Dr. Jacobs and failed to point to the alleged neurological injuries posited by Dr. Jacobs.

17I find that the Tribunal correctly applied the burden of proof and the MIG test in finding that the medical evidence established that the applicant had physical impairments and pain symptoms that are not predominantly a minor injury and that took him outside of the MIG. At set forth earlier, in finding that the applicant had met his burden, the Tribunal found persuasive the report of Dr. Jacobs and the clinical notes and records of Dr. Paulovic who repeatedly notes the applicant’s pain symptoms over the years and prescribes ongoing treatment. Further, at paragraph 19 of the Decision, the Tribunal notes that it is persuaded by Dr. Jacobs’ conclusion that the applicant does not fall within the MIG and has developed chronic pain of the cervical and lumbar spine. In addition, paragraph 10 of the Decision, references the Disability Certificate dated November 24, 2014 which notes applicant’s impairments: chronic cervical spine strain/sprain, chronic shoulder sprain/strain, chronic thoracic sprain/strain, behaviour-symptoms and signs involving emotional state. I find no error in the Tribunal’s analysis and application of the MIG test.

18I find that based upon the totality of the evidence presented by the parties, the Tribunal correctly found that the applicant had established that he has ongoing pain accompanied by functional impairments and had physical impairments that took him out of the MIG. I find no error of law and certainly no error of law that would have changed the outcome of the decision.

Costs sought by the Applicant

19The applicant requests costs in the amount of $2,500.00 alleging that the reconsideration was brought frivolously and vexatiously, lacking any legal grounds.

20With regards to costs, Rule 19.1 of the Common Rules of Practice and Procedure is a provision for the parties to request costs if they believe that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.2 provides that a request for costs can be made any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

21The applicant provides no specificity with regards to the reasons or particulars other than to state that the reconsideration was brought frivolously, vexatiously, and it lacks any legal grounds.

22Having considered the submissions of the applicant, I do not find costs are warranted.

CONCLUSION

23I find no error of fact or error of law that would have changed the outcome of the decision.

ORDER

24The respondent’s request for reconsideration is denied. Costs are not awarded.