RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 19-013096/AABS
Case Name: Alexandra Lim v. Jevco Insurance
Written Submissions by:
For the Applicant: Carlos Ortiz, Counsel
For the Respondent: Alexander Woo, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicant in this matter.
2It arises out of a decision released on March 1, 2021 in which the Tribunal found that A.L. suffered minor injuries as a result of the accident, that she was not entitled to the cost of a physiotherapy treatment plan, an award or interest.
3A.L. is seeking an order:
a. Varying the Tribunal’s decision
4A.L. makes the request for reconsideration pursuant to Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Common Rules”).
RESULT
5A.L.'s request for reconsideration is dismissed.
ANALYSIS
6The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules. 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 r 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 evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d. There is evidence that was not before the Tribunal when rendering its decision, that could not have been obtained previously by the party now seeking to introduce it and would have affected the result.
7A.L. relies on the grounds found in Rules 18.2 (a) and (b), submitting that the Tribunal violated the rules of procedural fairness and made several errors of fact and law in rendering its decision such that the Tribunal would likely have reached a different result had the error not been made.
8The respondent, Jevco Insurance (“Jevco”), provided responding submissions. In essence, Jevco submits that the Tribunal reviewed the evidence as a whole, focused on the specific reasons for its findings and that A.L. has failed to establish a reasonable basis for reconsideration.
9Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
Did the Tribunal violate the Rules of Procedural Fairness?
Chronic Pain
10A.L. submits that I violated the rules of procedural fairness by requiring her to prove, based on expert evidence, that she suffers from chronic pain despite her alleged ongoing pain, limitations, and recommendations for treatment. She further submits that the s. 44 assessor’s report supports that she suffers from chronic pain.
11A.L. refers to Saadati1 where it was held that, “ [t]he trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them.”
12I find Saadati distinguishable from the subject proceeding for several reasons. First, Saadati dealt with mental injury, whereby A.L. claimed she suffered physical injuries that progressed into chronic pain. Second, in Saadati, the applicant was in several accidents that contributed and/or exacerbated his chronic pain. The evidence before me was that A.L. was involved in a second accident after the subject accident. Lastly, there was clear medical evidence that in Saadati, the applicant suffered a mental injury as a result of the accident, A.L. did not provide compelling evidence that she suffered from chronic pain as a result of the accident.
13On the evidence, A.L. provided an OCF-3 that supported that her injuries were minor. The treatment records from Lifemark Physiotherapy were not indicative of chronic pain and the OCF-24 was also silent on whether A.L. suffered chronic pain as a result of her accident-related injuries. Further, A.L. had returned to work within two weeks of the accident and travelled for work four times a year. In addition, I found that she was able to regularly engage in her daily activities. Lastly, A.L.’s self-reporting to the s. 44 assessor, as noted at paragraph 9 of the decision, was that her pain had almost completely resolved by June 2015 and that she had minimal residual pain with no limitation regarding her activities until March/April 2016. It was on this evidence, that I found that A.L. had failed to establish that she suffered from accident-related chronic pain.
14A.L.’s evidence lacked any information as to whether she suffers any functional impairment. This was detrimental to her claim. For an applicant to be found suffering from chronic pain or chronic pain syndrome, whether through self-reporting or objective evidence, it must be clearly established that the alleged chronic condition has resulted in notable functional limitation. Complaints of pain, without supportive evidence, will not meet this test.
15A.L. has failed to establish that I have violated the rules of procedural fairness in my determination that she does not suffer from chronic pain. I uphold my decision at first instance on the issue and see no reason to vary my finding.
Did the Tribunal make a significant error of law or fact such that the Tribunal would likely have reached a different decision?
Predominantly Minor Injuries
16I find that no error of law or fact was made in the decision.
17A.L. submits that I erred in law or fact in finding that she suffered predominantly minor injuries as a result of the accident. Similarly, to her argument regarding the minor injury determination, A.L. argues that her ongoing pain beyond the typical 9-12-week recovery period for minor injuries, is indicative that she did not suffer predominantly minor injuries as a result of the accident.
18A.L. points to portions of the s. 44 assessor’s report where he noted that she has difficult checking her blind spot, that she can do some light meal preparation and typing but avoids vacuuming. Further, the s. 44 assessor notes that she relies on pain medication and exercise for relief. A.L.’s position is that I erred in law by concluding that she was still able to engage in her daily activities despite pain.
19I disagree. Not only does A.L.’s medical documentation make no mention of chronic pain, her post-accident injuries were indicative of those which are captured within the definition of minor injuries. Further, A.L. reported to the s. 44 assessor at both examinations that she returned to full-time work and still able to engage in her daily activities.
20A.L. relies on the Court of Appeal’s decision in Heath2, where the Court found at paragraph 50 that,
In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.
21The Heath case is distinguishable in that the issue before the Court was regarding the applicant’s entitlement to non-earner benefits. That issue is not in dispute in the subject proceeding. Further, in Heath, the test for non-earner benefits is a complete inability to carry on a normal life. This test is not applicable to determining whether A.L. suffered predominantly minor injuries or whether the physiotherapy treatment is reasonable and necessary. I am not persuaded by the case law that A.L. relies on as it has no relevance to the issues that were before me.
22On reconsideration, A.L. has not put forth any new evidence or argument that I find persuasive that I erred in fact or law in my decision at first instance. The question that remains is how can A.L. claim she suffers from a condition that there is no objective evidence that such a condition exists? The answer to this question is contained in my decision at paragraph 13 where I found that “A.L. has not met her onus to establish, on a balance of probabilities, that her injuries are not predominantly minor.” The analysis of this question is that such a condition has not been established to exist.
CONCLUSION
23Having considered the parties’ submissions, I uphold my decision at first instance. The basis for this request for reconsideration is simply that I found that A.L. suffered predominantly minor injuries. She has not pointed to any violation of procedural fairness or significant error of law or fact that might have affected my initial consideration of the evidence and the weight assigned thereto, and ultimately, my decision to deny her the disputed benefit. As such, she has failed to meet the test set out in Rule 18. For these reasons, I dismiss the request for reconsideration.
Derek Grant
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: October 13, 2021
Footnotes
- Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543 (“Saadati”) para. 6.
- Heath v. Economical Mutual Insurance Company, 2009 ONCA 391