Weir v. Unifund Assurance Company, 2021 CanLII 117359

Citation: Weir v. Unifund Assurance Company, 2021 ONLAT 19-009406/AABS-R

RECONSIDERATION DECISION

Before: Anita John, Adjudicator

Date of Order: November 19, 2021

Tribunal File Number: 19-009406/AABS

Case Name: Roger F. Weir and Unifund Assurance Company

Written Submissions by:

For the Applicant: Jeton Memeti, Paralegal

For the Respondent: Damien Van Vroenhoven, Counsel

OVERVIEW

1The applicant, R.W., files this Request for Reconsideration. It arises out of a decision in which the Tribunal found the applicant sustained a minor injury as defined by the Statutory Accident Benefits Schedule – Effective September 1, 2010,¹ (the Schedule) and was therefore not entitled to the disputed treatment and assessment plans because they proposed treatment outside the monetary limits provided by the Minor Injury Guideline.

2The applicant makes the request pursuant to Rules 18.2(a) and (b) of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (the “Rules”). The applicant submits that the adjudicator’s test is an application of the incorrect principles of justice because on the basis of this test, every single treatment plan would be found not to be reasonable and necessary. The Applicant submits that the Tribunal erred in law by creating and applying an incorrect test to the issues in dispute.

3The respondent submits that the adjudicator conducted the correct legal analysis and there is no basis for the applicant’s claim.

4The applicant is seeking an order to be set aside or, in the alternative, a rehearing with a different adjudicator.

RESULT

5The applicant's request for reconsideration is dismissed.

ANALYSIS

Reconsideration of a Tribunal Decision

6The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. 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 and 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 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

7The applicant requests reconsideration on the grounds set out in Rules 18.2 (a) and (b).

8Reconsideration 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.

Violation of the Rules of Natural Justice or Procedural Fairness

9The applicant alleges that the Tribunal violated the rules of natural justice and procedural fairness and yet offers no submissions to support his position. To be clear, natural justice and procedural fairness refer to, among other things, a party’s right to a fair hearing, the right to present one’s case and to respond, the right to have the adjudicator consider all the relevant evidence, and the right to receive reasons that justify the Tribunal’s decision. The applicant therefore has not established Rule 18.2(a) has been met. Rather, a plain and fair reading of the applicant’s submissions satisfy me that he relies on Rule 18.2(b), where the applicant alleges that the Tribunal committed errors of law or of fact. I turn to this ground next.

Errors of Law or Fact

10The applicant submits that the Tribunal erred by failing to consider hearing submissions regarding his pre-accident activities, including his employment, housekeeping, daily walks and family hockey games and the impact the accident allegedly had on them. At paragraph 29 of the decision, the Tribunal notes that there was no compelling evidence of “significant disruption or disablement of the applicant’s pre-accident activities of daily life.” The Tribunal noted at paragraph 31 of the decision that the applicant returned to his full-time employment following the accident. The applicant has not established he has any dependency on prescription medication, physician consults or facility-based treatment in order to function. The applicant has not provided compelling evidence that his injuries led him to being withdrawn from family and social activities. I find no factual error in this finding. There is no requirement for a decision-maker to exhaustively list every item in evidence when rendering its reasons for decision. As Rule 18 makes clear, reconsideration is not a venue for the re-weighing of evidence nor for renewing arguments that did not succeed at first instance nor for advancing new arguments that could have been raised at first instance. A party’s disagreement with the outcome of a decision is not a ground for granting reconsideration.

11The applicant submits that the Tribunal erred by failing to consider submissions regarding somatic complaints and symptoms of mild depression noted in the s. 44 assessment of Dr. Watson. The somatic complaints and symptoms of mild depression alone do not provide a critical diagnosis or prove functional impairment. Dr. Watson ultimately concluded that there was no psychological diagnosis in light of the validity testing, the lack of significant test results, and lack of any functional limitation. The Tribunal reviewed Dr. Watson’s report and the submissions of both parties in respect of that report at paragraphs 17-25 of the decision. The Tribunal’s reasoning was straightforward. Disagreeing with the weight the Tribunal attributed to the parties’ evidence is not a valid ground of reconsideration.

12The applicant submits that the Tribunal erred in not considering submissions regarding the chronicity listed in an OCF-18 for chiropractic treatment. The Tribunal closely considered the issues of chronic pain and headaches at paragraphs 26-37 of the decision. The Tribunal was entitled to follow the LAT decision of P.Y. and Aviva Insurance Company² where the adjudicator correctly found that notations of chronic pain from a family doctor on their own are not enough to take a claimant out of the MIG.

13The applicant submits that chronic headaches do not fall within the Minor Injury Guideline. The Tribunal considered the evidence and found that the applicant’s headaches were clinically associated sequelae of a minor injury and that no neurological basis for this complaint was found. This was supported by the IE assessor, Dr. Watson, who found the applicant’s complaints were not sufficient to remove the applicant from the MIG. Again, the Tribunal’s reasoning was straightforward and disagreeing with the weight attributed to evidence is not a valid ground for reconsideration.

14The applicant submits that the Tribunal failed to consider a diagnosis of adjustment disorder in rendering its decision. The respondent submits that this diagnosis has not been made and the applicant failed to reference any report or record supporting such a diagnosis in his hearing materials. The respondent also submits that the applicant then goes in the opposite direction, stating that a psychological diagnosis is not necessary to remove a claimant from the MIG.

15I agree with the respondent. The Tribunal considered very issue at paragraphs 24 and 25 of the decision, directly acknowledging the submission.

16The applicant submits that the Tribunal made an error in fact by not realizing Dr. Jacobs is the “MRI technician,” and not the family physician. The applicant’s submission is misplaced. The Tribunal’s decision never referred to Dr. Jacobs as the family physician. The respondent submits that Dr. Jacobs is a physician (M.D.), not a “technician”, and had sufficient medical expertise to comment on the study’s findings, which he did. I agree.

17The applicant takes issue with the Tribunal’s reliance on the decision of L.C. and Aviva³ as this decision does not deal with chronic pain. In that decision, an MRI was completed almost two years post-accident which showed multi-level degenerative disc disease of the lumbar spine, with signs of disc bulging with possible nerve root impingement. Nonetheless, the Tribunal found that this did not result in a MIG removal. The Tribunal noted that Dr. Jacobs does not link the applicant’s degenerative disc of the applicant’s spine to the accident. The applicant is attempting to re-argue the Tribunal’s interpretation and preference of the evidence when it ought not be interfered with.

18The applicant submits that his case is analogous to the S.F. and Aviva Insurance Canada⁴ decision. In that decision, the adjudicator accepted the diagnoses of chronic pain syndrome and specific phobia based on the particular reports provided. This case is distinguishable. The Tribunal provided detailed reasons for why the applicant’s psychological symptoms were not of sufficient severity to be removed from the MIG. There was no indication of a chronic pain syndrome. Every case turns on the particular facts and the medical evidence presented. The Tribunal had the responsibility to weigh the evidence before it and, on that basis, render a decision on whether the applicant sustained a psychological injury.

19The applicant submits that the Tribunal failed to note that a diagnosis of a psychological impairment is not necessary to remove an applicant from the MIG or in the alternative failed to consider the psychological symptoms reported by the treatment providers. The Tribunal directly acknowledged the point regarding the necessity of psychological diagnoses at paragraphs 24 and 25 of the decision.

20The applicant submits that the Tribunal erred by “questioning” the records of the family physician despite lack of direct refutation and suggests the Tribunal should “accept what is written.” In any adjudication, the Tribunal is to consider the totality of evidence presented and then make a determination. Here, the Tribunal’s decision refers to expert medical opinions tendered by both parties. As mentioned, disagreeing with the weight the Tribunal attributed to the evidence is not a basis for reconsideration.

21The applicant submits that the doctor’s notations of “chronic pain” are sufficient to take him out of the MIG and that the Tribunal was incorrect to find otherwise. Selected CNRs of Dr. Sameh Fikry contain the applicant’s self-reporting of chronic pain; however, Dr. Fikry did not diagnose the applicant with chronic pain. The Tribunal was entitled to rely on P.Y. and Aviva where it was held that notations of “chronic pain” are not sufficient as there must be compelling evidence of functional impairment in order for “chronic pain” to be something other than sequalae of a minor injury. I find no error was made.

22The applicant submits that the Tribunal should have considered the decision of T.S. and Aviva⁵ when considering the decision of P.Y. and Aviva. The applicant did not provide this decision as part of his initial hearing submissions. This is a new argument, which is not one of the grounds of reconsideration under Rule 18.2. The decision is not helpful to the applicant as the claimant’s injuries in T.S. and Aviva, were found to be in the MIG. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter.

23The applicant submits that his chronic pain symptoms are “continuous, and of severity that they cause suffering and distress accompanied by functional impairment or disability” as held in W.C.P. v. Certas Home and Auto Insurance Company,⁶. The Tribunal reviewed the totality of the evidence presented and found evidence of “continuous and severe” pain symptoms as well “functional impairment or disability” to be lacking.

24The applicant submits that in paragraph 32 of the decision, that the Tribunal confirms the diagnosis of chronic pain. This is incorrect. In paragraph 32 of the decision, the Tribunal reviewed symptoms of chronic pain that were ultimately found to be clinically associated sequelae of a minor injury. In paragraph 34 of the decision, the Tribunal did not acknowledge any chronic pain diagnosis or impairment. This conclusion is consistent with other LAT decisions that found that symptoms of chronic pain can still be clinically associated sequelae of a minor injury when there is insufficient evidence of functional impairment.

25The applicant submitted that the Tribunal erred by applying its own test to determine if the disputed treatment plans were reasonable and necessary by turning the analysis from an objective one into a subjective one. The test for entitlement to medical benefits is whether the expenses are reasonable and necessary. The question is whether the services in the plan are reasonable and necessary, not whether it is reasonable and necessary that the applicant chose his preferred modality of treatment outlined in the disputed treatment plan, contrary to paragraph 33 of the applicant’s submissions for reconsideration.

26The Tribunal found that the MIG treatment limits applied. At the time of the hearing, the pre-approved MIG limits had a remaining balance of $835.77. The Tribunal found that these remaining limits should be paid towards the disputed chiropractic treatment plan, based on the clinical examination of Dr. Taylor. The approval of the remaining limits does not mean that MIG is no longer in dispute. Nor should the payment of the remaining limits be interpreted to mean that psychological issues are related to the accident or supplement physical injuries.

27The applicant relies on the decision of N.K. v. Aviva Insurance Company of Canada, ⁷ to support his claim that chronic pain removes a claimant from the MIG. The N.K. decision can be clearly distinguished on the facts. In N.K., the claimant provided reports from two chronic pain specialists to suggest an impairment that went beyond clinically associated sequelae of a minor injury. There were no such specialists reports in the present case.

28The applicant submitted that the Tribunal erred by not considering an entitlement to an award under s. 10 of O. Reg. 664. As set out in paragraph 35 of the decision, calculation of an award is determined if the insurer has unreasonably withheld or delayed payments. In this matter, the Tribunal found that the respondent has not unreasonably withheld or delayed payments. As such, the Tribunal did not make an error when it found that there was no basis upon which to grant an award. The applicant relies on Tribunal decision, R.O.O. and Aviva Insurance Canada, 18-008653/AABS. In that decision, an award was justified as the respondent failed to make payment on the psychological services claim even though it has been provided with all requested documentation. This case should be distinguished as the applicant’s impairments failed to meet the test for psychological services.

29The applicant’s request for reconsideration is essentially a request for a re-hearing of the evidence and is based on her dissatisfaction with the outcome of the April 1, 2021 decision. The Tribunal’s Rules do not permit it to grant a reconsideration on this ground.

CONCLUSION

30For the reasons noted above, I deny the Applicant's request for reconsideration.

Anita John

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1O.Reg. 34/10
2. 2P.Y. v. Avia Insurance Company, 2020 CanLII 30372 (ON LAT), hereinafter P.Y.
3. 3L.C. v. Aviva Insurance Company of Canada, 2017 CanLII 12598.
4. 4S.F. v. Aviva Insurance Canada, 2020 CanLII 30407.
5. 5T.S. v. Aviva General Insurance Company, 2020 CanLII 51295.
6. 6W.C.P v. Certas Home and Auto Insurance Company, 2020 CanLII 19579.
7. 7N.K. v. Aviva Insurance Company, 2020 CanLII 30390 (ON LAT), hereinafter N.K.