RECONSIDERATION DECISION
Before:
Paul Gosio, Adjudicator
03/22/2021
File:
18-010471/AABS
Case Name:
[OP] v. Intact Insurance Company
Written Submissions by:
For the Applicant:
Aminder Hayer, Counsel
For the Respondent:
Simone A. Bilato, Counsel
OVERVIEW
1The applicant’s request for reconsideration arises out of a Decision dated April 6, 2020 in which the Tribunal found that the applicant had sustained predominately minor injuries as defined by the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”) and as a result, was not entitled to the remaining benefits in dispute.
2The applicant submits that the Tribunal made significant errors of fact and law and requests that the Tribunal vary its decision and find that the applicant’s injuries do not fall within the Minor Injury Guideline (“MIG”) and that she is entitled to the medical benefits in dispute.
RESULT
3After reviewing the submissions of the parties and for the reasons articulated below, I have dismissed the applicant’s request for reconsideration.
ANALYSIS
4The grounds for a request for reconsideration are contained in Rule 18.2 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 (“Common Rules”). A request for reconsideration will not be granted unless one or more of the following criteria are met:
I. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
II. 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;
III. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
IV. There is new 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.
5In this case, the applicant submits that the Tribunal made an error of law and fact in ruling that the applicant’s injuries fell within the MIG such that the Tribunal would likely have reached a different result had the error not been made.
The Applicant’s Request for Reconsideration
A. Error in Law
6The applicant submits that the adjudicator erred in law as he erroneously found that a diagnosis of chronic pain is required by the applicant to be removed from the MIG.
7The applicant’s submission relies on paragraph 16 of the Decision wherein the adjudicator noted the following: “…the applicant has failed to establish that she suffers from chronic pain or chronic pain syndrome. No doctor has explicitly opined as such.”
8After reviewing the Decision, it is clear that the adjudicator did not find that a diagnosis of chronic pain is required by the applicant in order to be removed from the MIG. This is a mischaracterization of the findings.
9In the Decision, the adjudicator correctly articulated the definition of a minor injury from section 3(1) of the Schedule and noted the applicant’s onus of establishing on a balance of probabilities that her injuries fall outside of the MIG.
10At paragraph 15 of the Decision, the adjudicator noted the following:
An applicant is not automatically removed from the MIG as a result of ongoing pain alone. Ongoing pain must also be accompanied by some functional impairment or disability and must be of a severity that causes an adverse effect on the individual’s well-being. A diagnosis of chronic pain without any discussion of the level of pain or its effect on the person’s functioning will not be sufficient to remove them from the MIG.
11This is consistent with TS v Aviva2, wherein the Executive Chair states, “chronic pain can be described as ongoing or recurrent pain…and which adversely affects the individual’s well-being.” (emphasis added).
12The adjudicator’s Decision does not stand for the principle that absent a physician’s diagnosis of chronic pain; an applicant cannot be removed from the MIG. Again, the adjudicator correctly identified that in order to be removed from the MIG, the applicant’s onus required her to establish that she suffers from chronic pain and that the pain causes some functional impairment or disability that has an adverse effect on the individual’s well being.
13The adjudicator applied the above noted requirements to the applicant’s case and found that the applicant had not met her onus in establishing that her injuries fall outside the confines of the MIG.
14I find that the adjudicator made no error in law in this regard.
B. Error in Fact
15The applicant submits that adjudicator did not consider the applicant’s evidence of functional impairment as highlighted in the records of her family doctor’s (Dr. Begum), the records and reports of the orthopedic specialist (Dr. Getahun) or the records from her treating clinic (Scarborough Health and Wellness Centre).
16The applicant’s submissions do not accurately reflect the contents of the decision. The functional impairment evidence that was persuasive and accepted by the adjudicator was noted. The Adjudicator is not required to identify all of the evidence submitted, weighed, and contemplated in making its decision. The adjudicator was required to identify the evidence he relied upon to come to his conclusions, to which he did. The Decision acknowledges the submissions of the parties with the supporting evidence and concludes with adjudicator findings and the evidence to support those findings. The adjudicator demonstrated that he considered all of the evidence submitted.
17I do not find an error of fact in this regard.
CONCLUSION AND ORDER
18For the reasons noted above, I find that the applicant has failed to establish that the Tribunal made any error in law or in fact such that its decision should be reconsidered. The applicants request for reconsideration is dismissed.
Paul Gosio,
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Date of Issue: March 22, 2021
Footnotes
- O.Reg. 34/10
- 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (Reconsideration Decision) at paragraph 23.