M.F. v. Belair Insurance Company
RECONSIDERATION DECISION
Before: Kate Grieves, Adjudicator
File: 18-003847/AABS
Case Name: M.F. v. Belair Insurance Company
For the Applicant: Frank McNally, Counsel; Sophia Dales, Counsel
For the Respondent: Tara Lemke, Counsel
OVERVIEW
1This applicant’s request for reconsideration arises from a decision dated November 29, 2019 in which the Tribunal found that the applicant was not entitled to medical benefits, costs of examinations, or income replacement after 104 weeks. The applicant has requested that the Tribunal reconsider its decision and determine that the applicant is entitled to the benefits, or a new hearing with a different adjudicator.
2Rule 18.2 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 (“Rules”) states that 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 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.
3The applicant relied on Rules 18.2 (a) and (b) as grounds for the request for reconsideration. Belair provided a response to the request for reconsideration, and the applicant provided a reply.
4The applicant subsequently filed a motion seeking leave to add a new medical report and to add a further ground for reconsideration, under Rule 18.2 (d). Belair filed submissions opposing the addition of the report and the new ground for reconsideration.
RESULT
5The Tribunal granted the applicant’s motion to admit the new medical report and consider the new ground for reconsideration.
6The applicant’s request for reconsideration is granted in part:
a. The applicant is entitled to receive weekly income replacement benefits after 104 weeks in the amount of $185.00 per week from July 8, 2018 to date and ongoing;
b. The applicant is entitled to a medical benefit in the amount of $1,689.84 for an in-home occupational therapy assessment recommended by Functionability Rehabilitation Services in a treatment plan submitted on October 12, 2017 and denied on November 21, 2017;
c. The applicant is entitled to a medical benefit in the amount of $3,116.86 for occupational therapy services recommended by Functionability Rehabilitation Services in a treatment plan submitted on October 12, 2017 and denied on November 21, 2017;
d. The applicant is entitled to the cost of a psychological assessment in the amount of $2,200.00 recommended by Ricci & Associates in a treatment plan submitted on December 19, 2017 and denied on December 20, 2017;
7The applicant’s request for reconsideration of a treatment plan for $2,922.39 for personal training services is dismissed.
ANALYSIS
8The applicant has the onus of proving on a balance of probabilities that the request for reconsideration should be granted based on one or more of the above criteria.
Fresh Evidence
9After the parties had already made their submissions on reconsideration, the applicant filed the motion requesting that the Tribunal consider a new medical report that wasn’t available at the hearing and consequently a new ground for reconsideration. The report in question was a psychiatry assessment report dated January 31, 2020 prepared for the respondent by Dr. Gnam. The assessment was not directly related to the issues in dispute at the hearing, but rather with respect to new treatment plans.
10As noted above, the Tribunal may reconsider its decision were 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 it would likely have affected the result.
11The applicant could not have made the argument regarding this report in their original reconsideration submissions, because the report was prepared after all the reconsideration submissions were already filed by both parties.
12I find that any prejudice to the respondent in considering the additional request was minimal, given that the delay between the initial reconsideration request and the new request was not significant, and they had an opportunity to respond and filed submissions on the new ground for reconsideration.
13The Tribunal admitted the report and considered the parties’ submissions on the applicability of Rule 18.2 (d) as part of the reconsideration.
14I accept that the January 31, 2020 report was not available at the hearing, and it could not have been obtained previously by the applicant given that the Tribunal’s decision was rendered three months prior to the applicant receiving the report.
15I find that the evidence would likely have affected the result at the hearing. The request for reconsideration is granted on that basis.
Causation
16Having considered the totality of the evidence before it, the Tribunal found that the applicant suffered physical impairments (back pain) as a result of the accident. However, the applicant failed to meet his burden of proof to establish that his psychological impairments were a result of the accident. Rather, the Tribunal noted that there were no documented psychological complaints until almost two-years post-accident, and after multiple “major life stressors” that occurred in the interim. The Tribunal determined that it was more likely that these post-accident occurrences were the cause of any psychological issues. The Tribunal did not accept the conclusions of the applicant’s expert, Dr. Ricci, that the applicant had psychological impairments as a result of the accident.
17After the close of the hearing, the respondent’s psychiatry expert, Dr. Gnam, assessed the applicant on September 27, 2019 in relation to treatment plans for supportive therapy with a social worker while he seeks treatment for his alcohol use, and a 42-day in-patient alcohol treatment program.
18Dr. Gnam diagnosed the applicant with a severe Alcohol Use Disorder, Major Depressive Disorder (in partial remission – with a differential diagnosis that it was an alcohol induced depressive disorder), Specific Phobia (passenger anxiety), and a Somatic Symptom Disorder with predominant pain. There is a lot of overlap between this report and the findings of Dr. Ricci, but the diagnosis of a severe Alcohol Use Disorder by Dr. Gnam is new. Previous assessors had noted an increase in the applicant’s alcohol usage but hadn’t previously risen to the level of a disorder.
19Dr. Gnam noted that there was a close temporal association between the accident and onset of chronic pain, and the known association and risk for developing alcohol abuse related to chronic pain as well as education/employment problems. Dr. Gnam reviewed extensive file documentation and concluded that the applicant would not have developed the current pain or alcohol but for the accident. He acknowledged that there was a delayed onset of the depressive disorder, but the doctor opined that it would not have developed if not for the other factors such as chronic pain. Dr. Gnam concluded that in addition to the proposed 42-day in-patient alcohol treatment program, the applicant would also require the support of the social worker, and he recommended that the applicant receive cognitive behavioural therapy with a psychologist.
20The Tribunal is required to apply the facts to the law and cannot defer to a medical assessor on its conclusion. However, I find it compelling that the respondent’s own assessor has now attributed the applicant’s current psychological issues to the accident. There is agreement between this expert for the respondent, and the applicant’s expert that the applicant has psychological impairments as a result of the accident.
21In the original decision, the Tribunal accepted the applicant had ongoing back pain as a result of the accident. Dr. Ricci had explained that depression and mood symptoms set in as his chronic pain developed. The applicant’s family physician, Dr. Leahy, had diagnosed chronic pain and depression, and opined that the applicant’s depression was related to his back pain and functional changes. The Tribunal was not satisfied that the applicant had met his onus of proof. Now Dr. Gnam opines that the applicant’s current alcohol disorder and depressive disorder flow from the chronic pain he experienced, as well as his educational and employment issues.
22In light of the new evidence, taken together with the evidence at the hearing, I accept that the applicant’s alcohol disorder and depression likely arose from the chronic pain he continued to experience, and not the intervening “major life stressors”. Considering the foregoing, I find that the applicant sustained both physical and psychological impairments as a result of the accident.
Post-104 Income Replacement Benefits
23The applicant bore the onus of establishing that he suffered a complete inability to perform any occupation for which he is reasonably suited as a result of the accident. The Tribunal held that the applicant’s physical impairments did not sustain a complete inability to perform any employment as a result of his physical injuries, and that he had not suffered a psychological impairment as a result of the accident.
24Having accepted on reconsideration that the applicant did suffer from both physical and psychological impairments as a result of the accident, I must now consider whether the applicant is completely unable to perform any occupation as a result of his psychological impairments.
25In the original decision, the Tribunal heard evidence from two vocational assessors. The applicant’s expert concluded that there were no suitable jobs the applicant could complete, while the respondent’s expert, Mr. Egarhos, identified six vocations. The Tribunal preferred the evidence of Mr. Egarhos and concluded that the vocation of food delivery driver remained open to the applicant from a physical perspective. The other occupations identified were marginally higher than the applicant’s tested aptitude levels. Mr. Egarhos testified that the jobs recommended were contingent on the applicant receiving psychological clearance.
26Dr. Leahy and Dr. Ricci opined that the applicant is unable to work due to his physical and psychological impairments. Dr. Leahy completed the application to ODSP in July 2018 confirming the applicant’s inability to work.
27Having accepted that the psychological impairment is attributable to the accident, I find that the applicant’s level of function results in a complete inability to perform any occupation for which he is reasonably suited. The applicant’s chronic pain, fatigue, depressed mood, and alcohol use are factors that must be considered in terms of his employability. I find that his current level of function renders him completely unemployable at this time.
28The driving occupation the Tribunal previously found suitable is not compatible with his current level of impairment. The applicant’s alcohol use disorder is severe enough to warrant a 42-day in-patient treatment program. Given the applicant’s level of emotional distress, I find that on a balance of probabilities, that the applicant is unable to perform any employment for which he is reasonably suited by education, training or experience.
ERROR OF LAW OR FACT
29In his original reconsideration submissions, the applicant submits that the Tribunal made substantial errors of law and fact and misapprehended the evidence in concluding that the applicant did not suffer a psychological impairment as a result of the accident, and that Tribunal failed to apply the test for causation to the facts.
30The applicant submits that the Tribunal:
a. Failed to address the evidence of the family doctor;
b. Failed to address the evidence of the applicant’s former girlfriend;
c. Failed to address the applicant’s alcohol use disorder;
d. Misapprehended the evidence of the applicant’s post-accident function, academic performance, level of physical exercise,
e. Failed to address the change in the applicant’s academic performance;
f. Misapprehended the evidence of the applicant’s level of physical exercise;
g. Failed to explain the evidence of the applicant’s difficulty working;
h. Failed to properly weigh the expert evidence;
i. Misapprehended the evidence of the physiatrist, Dr. Besemann;
j. Erred in relying on the wrong expert report;
k. Erred in failing to weigh and consider the expert evidence;
l. Provided inadequate reasons resulting in a breach of procedural fairness;
m. Violates the rules of natural justice;
31The Tribunal does not find it necessary to engage in a lengthy analysis on the foregoing with respect to the causation issue and income replacement benefits given that the request for reconsideration has been granted based on Rule 18.2 (d).
32In its original decision, the Tribunal found that the applicant was not entitled to the four treatment plans in dispute – an in-home occupational therapy assessment, occupational therapy services, personal training with transportation, and a psychological assessment. The applicant bore the burden of proof to establish that the treatment plans were reasonable and necessary at the time that they were requested to address the impairments caused by the accident.
33The applicant submits that the Tribunal “failed to consider the bulk of the applicant’s medical evidence supporting that these treatments are reasonable and necessary”. The applicant argues that the Tribunal failed to address medical evidence from the applicant’s experts, Dr. Ricci and Dr. Besemann, about why they are reasonable and necessary, that the Tribunal did not mention the actual occupational therapy report, and relied only on the evidence of Dr. Maser, the respondent’s expert. The applicant submitted that where the Tribunal did consider expert evidence, it misapprehended the findings.
Psychological Assessment
34The treatment plans are payable if they are reasonable and necessary at the time they are requested. There is no obligation on the Tribunal to cite each piece of evidence.
35The treatment plan was denied largely because the Tribunal did not causally relate the applicant’s psychological issues to the accident. Having reconsidered its decision and concluding that, in fact the applicant has sustained psychological impairments as a result of the accident, the proposed psychological assessment was reasonable and necessary.
36The family physician’s clinical notes and records identified low mood, depression, chronic pain, and sleep problems, and the disability certificate indicated that the applicant was prescribed anti-depressant medications. The pre-screening telephone interview indicates that the applicant presented with severe depression and anxiety, persistent pain and features of PTSD. I find that the proposed assessment was reasonable and necessary to determine the psychological diagnosis and impairments and make recommendations for treatment.
In-Home Occupational Therapy Assessment and Treatment Plans
37The purpose of the assessment was to evaluate the applicant’s safety and function and provide the applicant with strategies to improve his participation in self-care, productivity and leisure. The goals of the proposed treatment were to improve the applicant’s function, provide strategies for pain management and coping.
38The Tribunal determined that the applicant had not established that this assessment was reasonably required as a result of his injuries, noting that he had some ongoing back pain, but he had been provided with compensatory strategies from his physiotherapy. The Tribunal relied on the report of Dr. Maser in concluding that the applicant had reached maximum medical recovery from a physical perspective.
39The Tribunal’s analysis of the treatment plans was limited to the reasonableness and necessity considering physical impairments, given that the Tribunal initially found that the psychological impairments were not caused by the accident.
40Having reconsidered its conclusion, the Tribunal finds that, taking into consideration both the applicant’s physical and psychological impairments from the accident, the proposed occupational therapy assessment and treatment were reasonable and necessary.
41Dr. Ricci’s report of April 2018 recommended occupational therapy as an adjunct to the mental health intervention, to assist in increasing his functional levels both at home and in the community. He tended to isolate himself due to pain and depression. Although he was coaching basketball part-time, the applicant was no longer working and had dropped out of school. Per Ms. Beshay, the occupational therapist, his sleep problems, low mood, and reduced motivation led him to avoid participating in many tasks. Dr. Besemann testified at the hearing that the applicant would benefit from working with an occupational therapist for setting goals, and to assist with addressing the applicant’s alcohol problem. Considering both the physical and psychological impairments that were affecting the applicant’s function, I find that the treatment plans were reasonable and necessary.
In-Home Personal Training Services
42The Tribunal determined that the treatment plan for at-home personal training services was not reasonable or necessary as a result of his injuries. The applicant submits that the Tribunal failed to weigh the expert evidence regarding this treatment plan, pointing out that the respondent’s expert, Dr. Zhao, had opined that the applicant would benefit from work hardening.
43I find no reason to interfere the Tribunal’s ruling on this issue. The Tribunal noted that the applicant had already attended for physiotherapy at two clinics and it was not clear how this treatment differed from the treatment he received. The applicant testified that he was already educated about exercises to keep his body strong and fit, given his background in MMA. The Tribunal noted that the bulk of the expenses related to travel time. The Tribunal noted that the applicant continued to drive over 40 minutes each way everyday to attend school, treatment and to see his friends.
44Although I have now accepted on reconsideration that the applicant had psychological impairments as a result of the accident, I see no basis for reconsideration of the determination on this treatment plan. I find that the Tribunal provided sufficient reasons and explanation for weighing the evidence the way it did. The applicant has not established that the Tribunal made an error of law or fact such that this decision should be reconsidered. The applicant’s Request for Reconsideration of this treatment plan is dismissed.
CONCLUSION
45For the reasons noted above, I grant the applicant’s Request for Reconsideration in part.
46The applicant is entitled to post-104 income replacement benefits, the in-home occupational therapy assessment and treatment, and the psychological assessment, with interest payable in accordance with the Schedule.
47The applicant is not entitled to the medical benefit for personal training services.
Kate Grieves,
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 24, 2021