RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 19-009302/AABS
Case Name: Narendra Nirmal v. Certas Direct Insurance Company
Written Submissions by:
For the Applicant: Aurora Mancuso, Counsel
For the Respondent: Brittanny Tinslay, Counsel
OVERVIEW
1Narendra Nirmal, the applicant, seeks a reconsideration of my decision released on November 2, 2020 (the “decision”). My decision dismissed Narendra Nirmal’s claim for a chronic pain assessment, neurological assessment and interest, on the basis that the treatment plans were not reasonable and necessary.
2Narendra Nirmal 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) (the “Common Rules”).
RESULT
3Narendra Nirmal’s request for reconsideration is dismissed.
ANALYSIS
4The 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 of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or 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.
5Narendra Nirmal relies on the grounds found in Rules 18.2(b), submitting that the Tribunal 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.
6The respondent, Certas Direct Insurance Company (“Certas”), provided responding submissions. In essence, Certas submits that the Tribunal reviewed the evidence as a whole, focused on the specific reasons for its findings and that Narendra Nirmal is attempting to reargue the same position based on the same evidence put forth at the hearing.
7Narendra Nirmal refers to Taylor v. Aviva Canada Inc.1 with respect to the intention of the Tribunal Rules regarding reconsiderations based on errors of fact or law; specifically, where there is a significant error of fact or law, “a correctness standard of review is to apply.”2 Certas also relies on Taylor, which sets out at paragraph 70 that, “ [t]he Rule does not authorize a wholesale reweighing of the evidence”. Certas submits that Narendra Nirmal is attempting to have the Tribunal reweigh the evidence in her reconsideration submissions, and thus fails to establish sufficient grounds for reconsideration.
Errors of fact and law
OCF-18 for a chronic pain assessment
8Regarding the OCF-18, Narendra Nirmal submits that the Tribunal made the following errors:
a. Failed to consider that only three of the six criteria described in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) must be met for a chronic pain diagnosis;
b. Failed to fully consider the evidence Narendra Nirmal provided in support of thesecond to sixth criteria of the AMA Guides. Further, that the Tribunal failed to consider the Reconsideration Decision of T.S.3 in which the Tribunal accepted that “chronic pain is a condition that persists for three to six months after an initial trigger or injury” and that Narendra Nirmal has continuously complained of his continued pain and psychological sequelae to assessors and his family physician;
c. Failed to consider the opinion and recommendation of Cheryl Walker, psychologist in her February 12, 2016 report, that Narendra Nirmal was at risk for chronic pain syndrome and recommended participation in a pain management program and pain management counselling for chronic pain;
d. Failed to consider that Dr. Robertus in her chronic pain assessment report, dated May 21, 2020, diagnosed Narendra Nirmal as suffering from chronic pain disorder, neck, bilateral shoulder pain, middle and lower back pain, left knee pain, social withdrawal and agitation, and that Narendra Nirmal remained on modified duties since his return to work. In addition, that Narendra Nirmal incurred the costs of a chronic pain assessment;
e. Failed to consider that Narendra Nirmal has relied heavily on his wife to complete his activities of daily living and personal care tasks; and
f. Failed to consider further medical documentation noting other accident-related difficulties.
9I will not address each sub-issue raised by Narendra Nirmal but will consider the chronic pain assessment evidence as a whole in providing my reasons.
10Despite Narendra Nirmal’s claim that I failed to consider that only three of the six criteria in the AMA Guides must be met for a chronic pain diagnosis, at paragraphs 13 to16, I list the six criteria, and consider the evidence against each of the criterion. In applying Narendra Nirmal’s evidence to the appropriate criteria, I reached the following conclusions, set out in paragraph 15(i-v), rephrased here:
a. Narendra Nirmal did not direct me to evidence of abuse of prescription medication;
b. There was no evidence of excessive reliance on healthcare or treatment providers, spouse or family. There was no evidence of ongoing treatment after December 2016 with the family physician. There was no evidence of chronic pain or chronic pain syndrome from the family physician;
c. Narendra Nirmal reported to Dr. Robertus that after the accident, he continues to perform his personal care duties, with no impairment. Narendra Nirmal reported that he has assumed an increased role with family activities, he is still able to participate; and that he participates in his recreational activities, in a reduced capacity;
d. Narendra Nirmal returned to working regular hours with modified duties; and
e. There was no objective medical evidence of any psychological impairment as a result of the accident.
11On reconsideration, I am not persuaded by Narendra Nirmal’s argument that a chronic pain assessment is reasonable and necessary. Narendra Nirmal failed to consider the significant evidence that after December 2016, the family physician’s clinical notes and records are silent on accident-related pain complaints. Second, there is no evidence of any chronic pain presentations noted by the family physician. Although not specifically stated in the decision, I find the lack of medical documentation in support of chronic pain from his main treatment provider, the family physician, to be very telling. Third, the evidence shows that Narendra Nirmal had resumed participation in essentially all of his pre-accident activities, albeit in a modified or somewhat reduced capacity. This evidence does not support that Narendra Nirmal suffers from chronic pain or chronic pain syndrome. It is evidence that Narendra Nirmal may still have residual pain complaints post-accident, however, he has shown and reported to still be able to actively engage in many pre-accident activities.
12In addition, Narendra Nirmal claims that the Tribunal erred by not taking into consideration that the chronic pain assessment was incurred. First, whether or not the OCF-18 was incurred is not part of the test for considering whether the OCF-18 is reasonable and necessary. Second, I note that despite claiming to suffer from chronic pain within a few months after the accident, the OCF-18 was not incurred until the ‘eve’ of the arbitration. Although in his initial submissions and on reconsideration, Narendra Nirmal claims the medical evidence supports that he suffers from chronic pain, I find that the decision properly weighed the evidence put forth by the parties, and reasonably concluded that Narendra Nirmal had not met his onus to establish that the OCF-18 was reasonable and necessary, on a balance of probabilities.
13Further, I was persuaded by the case law relied on by Certas. At paragraphs 11 and 12 of my decision, I consider the Tribunal decision of V.R. v. Aviva Insurance4, where Vice Chair Flude discussed the onus of an insured to support that the assessment is reasonable and necessary. Essentially, Vice Chair Flude noted that “an insured must demonstrate that there are grounds to suspect the applicant has the condition for which he or she seeks the assessment”. I agreed with Vice Chair Flude that the onus remains on an insured to establish that an assessment is reasonable and necessary.
14Regarding Dr. Robertus’ report that diagnoses Narendra Nirmal with chronic pain, at paragraph 17 of my decision, I discuss Dr. Robertus’ objective findings which contradict a chronic pain diagnosis. I note that Dr. Robertus found that Narendra Nirmal had substantial whole-body range of motion, within normal functional limits. Dr. Robertus also noted that Narendra Nirmal had only moderate impairment regarding his family and home responsibilities, recreational functions, social activity and occupational functions. On reconsideration, I find that the decision did not err in fact or law, in my consideration of Dr. Robertus’ report and Narendra Nirmal’s self-reporting, that Narendra Nirmal failed to establish that the chronic pain assessment was reasonable and necessary.
15Consequently, I do not find that the decision regarding the OCF-18 erred in fact and law to any extent including that I would likely have reached a different result had the error not been made.
OCF-18 for a neurological assessment
16Narendra Nirmal submits that I failed to consider medical evidence which noted that he struck his head. Narendra Nirmal further submits that I failed to consider the findings of Dr. Robertus, and that I erred in not considering that there was no s. 44 insurer examination report that considered the disputed issues.
17Certas submits that my decision considered the relevant evidence and supported that the OCF-18 was not reasonable and necessary. First, as discussed above, the family physician records did not indicate ongoing accident related pain complaints beyond late 2016 or early 2017. Second, there were no referrals to any specialists by the family physician, specifically no referrals to any pain specialists. Certas further submits that it relied on the s. 44 report of Dr. Guerra, which addressed Narendra Nirmal’s accident-related injuries, treatment, prognosis and recovery. Certas’ position is that it has no obligation to “submit evidence or prove anything”.
18I agree with Certas. At paragraph 18, I note that the disability certificate contains no indication of a head injury or headache. At paragraph 19, I recognize that Narendra Nirmal relies on a report from Dr. Walker, a psychologist, and since he claims entitlement for a neurological assessment, I placed little weight on Dr. Walker’s report. I also acknowledged that Narendra Nirmal relied on a report from orthopaedic surgeon Dr. West. In paragraph 20 of the decision, I note that Dr. West’s report came two years prior to the OCF-18, supporting my decision to place little weight on Dr. West’s report. Further, at paragraph 21, I note that both Drs. Walker and West recommend psychological counselling. There was no recommendation for a neurological assessment from either assessor. I also noted that Dr. West, as an orthopaedic surgeon, diagnosed Narendra Nirmal with post-concussion syndrome, and that such a diagnosis was beyond Dr. West’s area of expertise. I concluded that these reports were not sufficient in supporting Narendra Nirmal’s claim of entitlement to the OCF-18.
19Regarding Dr. Robertus, Narendra Nirmal relied on this report in support of his claim of entitlement to the OCF-18 for chronic pain treatment. This was addressed in the decision in the section discussing the reasonableness and necessity of the OCF-18 for a chronic pain assessment. Further, a trier of fact is not required to address every submission, argument or piece of evidence, in the consideration of whether an insured has met their onus on a balance of probabilities. Even if I had addressed Dr. Robertus’ report in my determination of Narendra Nirmal’s entitlement to the neurological assessment, Dr. Robertus’ findings would not have changed the outcome, based on the totality of the relevant evidence before me.
20Having considered the submissions of the parties, I find that Narendra Nirmal has failed to establish that the Tribunal made an error of fact or law such that it would likely have reached a different decision.
DECISION
21Narendra Nirmal’s request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: April 15, 2021
Footnotes
- Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (“Taylor”).
- Taylor – paras. 70-71
- 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (reconsideration) (“T.S.”) para.19.
- 18-002880 v. Aviva Insurance Company, 2019 CanLII 40262 (ON LAT) para 37.