Tribunals Ontario Safety, Licensing Appeals and Standards Division 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 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: Sandeep Johal, Adjudicator
File: 19-001485/AABS
Case Name: X.I. v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: Michael Unea, Counsel
OVERVIEW
1The applicant filed a request for reconsideration from a decision dated March 17, 2020 in which I found the applicant to have sustained predominantly minor injuries as defined under the Minor Injury Guideline (the “MIG”) and pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). As a result of finding that the applicant sustained predominantly minor injuries and the monetary limit of the MIG being exhausted, there was no need to determine the reasonableness and necessity of the chiropractic treatment plan. Furthermore, the decision precluded the applicant from disputing the psychological assessment and treatment plan for non-attendance at a section 44 insurer examination (“IE”) request, pursuant to section 55(1)2 of the Schedule.
2The applicant submits that I erred in law and fact by failing to consider credible, reliable and un-contradicted evidence in determining that the applicant has met the burden of proof that she sustained physical and psychological impairments and is entitled to treatment. Furthermore, the applicant submits that I made an error in law by applying the incorrect test to the issues in dispute.
3The applicant requests the original decision be set aside and that the Tribunal make an order as follows:
a. Removing the applicant from the MIG
b. Entitling the applicant for chiropractic treatment in the amount of $2,615.24
c. Entitling the applicant to a psychological assessment
d. Entitling the applicant to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits; and
e. Entitling the applicant to receive interest on any overdue benefits.
4In the alternative, the applicant seeks an order that the original decision be set aside and a new hearing be ordered to proceed before a different adjudicator.
RESULT
5The applicant’s Request for Reconsideration is denied.
ANALYSIS
6The grounds for a Request for Reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure.2 A request for reconsideration will not be granted unless one or more 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 fact such that the Tribunal would likely have reached a different result 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 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.
No error of law or fact with respect to the MIG
7The applicant submits that Rule 18.2(b) applies as she met all the criteria to be removed from the MIG including the recommendation of ongoing treatment which, according to the applicant, is a requirement to be removed from the MIG as a result of a pre-existing condition.
8The applicant further submits that I erred in law by failing to identify the pre-existing psychological issues which would also remove the applicant from the MIG.
9The respondent takes the position that the applicant has failed to establish any basis for the reconsideration of the original decision. The respondent submits that I applied the correct test with respect to my findings and the correct tests were set out in paragraphs 8-14 of the decision.
10In paragraph 8 of the original decision, I outlined the definition of “minor injury” and went onto describe the applicant’s injuries in paragraph 11. If the applicant’s injuries fell within those as defined or any clinically associated sequelae to such an injury then her injuries are considered to be “minor” and subject to a $3500 monetary limit for medical and rehabilitation benefits. I went on to find that the evidence established that the applicant’s injuries fell within the definition of “minor injury”.
11As a result, I do not find there to be any error of law or fact in the original decision with respect to the MIG.
No error of law or fact with respect to the reasonable and necessary test
12The applicant submits that I erred in law by applying an incorrect test and turned the reasonable and necessary test from an objective analysis into a subjective analysis. The applicant submits that I formulated my own incorrect test to determine whether the treatment plans are reasonable and necessary. According to the applicant, the test that I created was that an applicant has discharged her onus of proving on a balance of probabilities that the medical benefits are reasonable and necessary by merely proving that she has soft-tissue injuries and by choosing to receive the medical benefits sought.3 It is the applicant’s position that there was enough supporting evidence to justify further chiropractic evidence and that my reasons and decision did not reflect the correct application of the legal principles to the facts.
13I do not agree with the applicant’s submission. The applicant’s injuries were found to be within the definition of “minor injury” and, with the monetary limit of the MIG having been exhausted, 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 likely have reached a different result.
No error in law or fact with respect to the psychological assessment and treatment
14The applicant submits she had psychological impairments which are not within the definition of “minor injury” and therefore she should be removed from the MIG. However, the respondent in its original submissions raised a preliminary issue that the applicant did not attend a section 44 insurer examination (“IE”) request with respect to her psychological assessment and treatment. Therefore, and as result of s. 55(1)2 of the Schedule, the respondent submits that the applicant should be precluded from disputing the psychological assessment and treatment denials.
15In the original decision I discussed the applicant’s non-attendance at the IE in paragraphs 22-28 and found that the respondent made multiple reasonable requests for an IE and the applicant did not attend. As a result, the applicant was precluded from disputing the psychological assessment and treatment plans in accordance with s. 55(1)2.
16The applicant’s claim with respect to the psychological assessment and treatment were not considered on its merits as the respondent raised the preliminary issue and it was denied an opportunity to assess the applicant in accordance with section 44. I do not find there to be an error of law or fact that I would likely have reached a different result.
No error of law or fact with respect to the applicant’s pre-existing injuries
17The applicant takes the position that an exacerbation of her pre-existing injuries is all that is required in order to satisfy the third part of s. 18(2) in order to be removed from the MIG as a result of a pre-existing condition.
18The respondent’s position is that the applicant is attempting to re-argue the Tribunal’s interpretation and preference of the evidence when it ought not to be interfered with. The respondent relies upon the reconsideration decisions of 16-000098 v. Aviva Insurance Canada4 and D.D.D. v RBC Insurance Company,5 in support of its position that it is the hearing adjudicator’s role to assess and weigh the evidence and a reconsideration of these findings should not be interfered with lightly.
19The respondent further submits that my original decision considered the totality of the evidence but ultimately found the applicant’s evidence deficient. According to the respondent the original decision carefully weighed the evidence in paragraphs 16-19 and did not find the evidence to be compelling which was within the Tribunal’s discretion.
20The respondent further submits that the original decision did consider the applicant’s pre-existing injuries and noted in paragraph 19 that “the applicant has not directed me to any evidence that her pre-existing injuries will prevent maximal recovery if she is treated within the MIG limits.”
21I agree with the respondent. The original decision laid out the test and the requirements to be removed from the MIG due to a pre-existing injury. In order to do so, the applicant’s health practitioner must determine and provide compelling evidence that the insured person has:
a. A pre-existing medical condition;
b. The pre-existing medical condition was documented by a health practitioner before the accident; and
c. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subjected to the $3,500 limit under the MIG.
22In paragraphs 16-19 I went through the evidence the applicant relied upon and found that the applicant did not meet the third part of s.18(2) to show that the pre-existing condition will prevent maximal recovery from her minor injury if she is subjected to the monetary limits of the MIG.
23The applicant pointed to Dr. Tansey, the respondent’s IE assessor in his report dated January 22, 2019 that the applicant had a history of back and neck pain which was temporarily exacerbated. It is the applicant’s position that an exacerbation of a pre-existing injury is evidence of the third part of section 18 (2) that the exacerbated injury will prevent maximal recovery if subjected to the MIG.
24In the original decision, in paragraph 18, I went on to state the reasons why I did not find this to be compelling evidence of a pre-existing injury. Furthermore, in the original decision, I noted that Dr. Tansey went onto to opine that the applicant recovered from her accident-related impairments and that there were no barriers to recovery.
25I do not see any error of law or in fact such that I would have reached a different conclusion. An exacerbation of a pre-existing injury is not on its own sufficient to be removed from the MIG. There must be compelling evidence that the pre-existing injury will prevent maximal recovery if the applicant is subject to the monetary MIG limits and in my view the applicant did not provide that evidence.
26I see no error of law or fact such that I would likely have reached a different result.
CONCLUSION
27For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Released: July 17, 2020
_________________________
Sandeep Johal, Adjudicator
Footnotes
- O. Reg 34/10.
- Effective February 7, 2019.
- Applicant’s Submissions for Reconsideration at paras. 15-17.
- 16-000098 v. Aviva Insurance Canada, 2017 CanLII 33657 (ON LAT) (Reconsideration Decision)
- 2017 CanLII 63631 (ON LAT) (Reconsideration Decision)```