Citation: AJ v. Aviva Insurance Canada, 2021 ONLAT 18-001946/AABS - R

RECONSIDERATION DECISION

Before:

Deborah Neilson, Adjudicator

Date of Order:

04/26/2021

Tribunal File Number:

18-001946/AABS

Case Name:

AJ v. Aviva Insurance Canada

Written Submissions by:

For the Applicant:

Victoria Tchilikova, Paralegal

For the Respondent:

Michal Baura, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant in this matter. It arises out of my decision dated September 10, 2019, in which I found that the applicant sustained predominantly minor injuries in a January 6, 2016 automobile accident and was not entitled to the cost of a chronic pain assessment or non-earner benefits.

2The applicant has requested that the Tribunal reconsider the decision. He submits that I was biased, acted outside of my jurisdiction, violated the rules of natural justice and procedural fairness, and made significant errors of fact and law.¹

3The Applicant is seeking an order:

a. Cancelling my decision; and

b. For a rehearing on all the issues except entitlement to non-earner benefits

4I have been assigned the responsibility to decide this matter in accordance with Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017).²

RESULT

5The Applicant's request for reconsideration is dismissed.

BACKGROUND

6The grounds for a request for reconsideration are contained in LAT Rule 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) [the “LAT 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 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.

7Here, the basis for the applicant’s reconsideration request falls under LAT Rules 18 (a) and (b).

8The applicant submits that I violated the rules of natural justice and procedural fairness under LAT Rule 18(a) as follows:

a. The Tribunal raised issues not chosen by the parties:

i. A limitation period issue;

ii. The qualifications of Dr. Karmy;

iii. The applicant stopped working in May 2016 but did not advise anyone why;

iv. Prior psychological treatment;

v. Right hip pain and erred in fact in finding that by August 3, 2017, the applicant reported to his family doctor that he was much better and only had a little discomfort in his low right buttocks when he walks more than 9 kilometers; and

vi. Flight to Egypt and Jordan.

b. The Tribunal failed to address the following issues:

i. The weight to be given to Dr. Karmy’s report and failure to apply the but for test of causation;

ii. Failing to exclude parts of the respondent’s submissions for exceeding the page limit ordered; and

iii. By disregarding a Tribunal case conference order that excluded submissions that exceeded the page limit ordered; and

iv. Failing to consider that the OCF-18 treatment plan was never properly denied.

9The applicant submits that I made errors of law by applying the AMA Guides³ as follows:

a. By applying the AMA Guides and disregarding the applicant’s submission that the respondent is not a qualified expert in rating impairments under the AMA Guides;

b. By acting outside of its jurisdiction by providing a medical opinion; and

c. By accepting the criteria for assessing chronic pain syndrome in the AMA Guides as factors to consider when determining if an applicant has chronic pain that is so functionally disabling that it takes him out of the MIG.

10The applicant further submits that I made the following errors of law and/or fact:

a. By failing to apply the standard of proof when determining the applicant’s entitlement to a chronic pain assessment;

b. When addressing the applicant’s psychological impairments by misinterpreting the applicant’s argument and misinterpreting the purpose for which Dr. Maano’s notes were evidence before the Tribunal;

c. By failing to consider Dr. Karmy’s opinion on psychological impairment in conjunction with Dr. Maano’s opinion;

d. By preferring Dr. Mor’s report and failing to apply the Tribunal decision of 17-002907 v. Aviva Insurance Company, 2018 CanLII 13153 (ON LAT) without reason and failing to look at the psychometric tests of Dr. Mor;

e. For failing to exclude Dr. Mor’s and Dr. Loritz’s reports on the basis they do not address whether the applicant is suffering from chronic pain; and

f. In determining that chronic pain that is not functionally disabling is mere sequela of the accident.

11The applicant submits that by exceeding my jurisdiction and because of my errors of law and fact, that I showed bias towards him.

ANALYSIS

12Reconsideration is only warranted in cases where an adjudicator acted outside her jurisdiction, violated the rules of procedural fairness, or the outcome would have been different because she made a legal mistake, an evidentiary mistake, false evidence was admitted, or genuinely new and undiscoverable evidence came to light after a hearing.

A. Procedural Fairness

1. Raising New Issues

13The applicant submits that I violated the rules of natural justice⁴ and procedural fairness by raising various issues in favor of the respondent that were not raised by the parties.

14The respondent submits that the Tribunal is independent and is permitted to arrive at a decision on its own reasoning so long as there is evidence to support it. It submits that there was ample evidence to support my reasons and conclusions. I agree with the respondent for the following reasons.

15The applicant submits that I raised a limitation period issue that was not raised by the parties. In a footnote to my decision, I indicated that it seemed that some of the submissions addressed a limitation period issue. However, it was not addressed by me and no finding was made on the issue because it was not listed as an issue before me. Therefore, there was no requirement for the parties to file additional submissions or evidence on the issue and, therefore, no procedural unfairness.

16The applicant relies on the minority decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 SCR 157, who held that the Court of Appeal erred in ignoring procedural requirements negotiated by the parties and raised an issue not raised by the parties. This determination was rejected by the majority of the Supreme Court of Canada. The majority of the Supreme Court of Canada held that a tribunal’s decision will be patently unreasonable⁵ if the tribunal reaches a particular conclusion on account of its failure to take into account legal principles or statutory provisions that clearly are relevant to the issue that must be resolved, even though not raised by the parties. The majority of the Supreme Court of Canada held that the Court of Appeal would have erred if had not considered all the issues, including those that were not raised by the parties. For this reason alone, the applicant’s submission that I erred by addressing evidence or issues not specified in the submissions has no merit.

17The other issues and evidence that the applicant claims were not raised by either party pertained to evidence that was before me or flowed from issues raised by the parties in their submissions as follows:

a. The qualifications of Dr. Karmy: the applicant raised the issue of the qualifications of the assessors when he submitted at paragraph 32 of his submissions that little weight should be given to Dr. Walter’s report, at paragraph 33 that Dr. Walters was a general practitioner and not a specialist in chronic pain, and at paragraph 9 of his reply submissions, that Dr. Karmy’s report should receive more weight because he is a medical doctor with an expertise in chronic pain.

b. The applicant stopped working in May 2016 but did not advise anyone why: The respondent noted at paragraph 26 of its submissions that the applicant returned to work after the accident, yet told Dr. Loritz he could not work for a year after the accident at paragraph 42, and submitted that Dr. Karmy’s report is defective at paragraph 32 of its submissions. Dr. Karmy’s comments on how the pain affected the applicant’s ability to work raised the issue of whether the applicant stopped work in May 2016 because of his accident injuries. If so, one would have expected the medical records to disclose why the applicant stopped working if it was related to the accident. This is an inconsistency that goes to the weight to be given to Dr. Karmy’s report and addresses the respondent’s submission that Dr. Karmy’s report is fundamentally defective.

c. Prior psychological treatment: Dr. Karmy was the one who reported that the applicant suffered some mood issues and underwent some psychological treatment as a result of the 2014 accident at page 3 of his report under the heading “Past Medical History.” There was no mention of psychological treatment from the 2014 accident in any other records or reports, which goes to the weight I gave his report and flows from the respondent’s submission his report was defective.

d. Right hip pain: this was mentioned at page 4 of Dr. Karmy’s report under the heading “Current Symptoms” and flows from the respondent’s submission his report was defective.

e. The applicant flew to Egypt and Jordan in July 2016: this was listed in Dr. Collins-Williams’ clinical notes dated July 19, 2016 in the applicant’s submissions at Tab 4 page 12.

18The applicant submits that in raising the issue of right hip pain in paragraph 22 of the decision, I also erred in fact by determining that by August 3, 2017, the applicant reported to his family doctor that he was much better and only had a little discomfort in his low right buttocks when he walks more than 9 kilometers. The applicant submits that he made this comment to Dr. Collins -Williams on July 5, 2017, not August 3, 2017.

19The comment about the low right buttocks and walking 9 kilometers was made on July 5, 2017 and is the last note before the August 3, 2017 note. However, I find no error for the following reasons: I did not determine that the applicant reported the foregoing “on” August 3, 2017. My determination in paragraph 22 of the decision was that he had made the report “by” that date. Accordingly, I find there was no error of fact. If there was, it is insignificant and would not have changed my decision because the applicant reported on August 3, 2017 that he still had some intermittent low back discomfort, better than it was last visit.

20The applicant’s submissions that new issues were raised is essentially the submission that the Tribunal ought not to consider evidence that is before the Tribunal but not mentioned by a party. No binding authority for this proposition was provided by the applicant.

21The Tribunal has investigatory powers as set out in LAT Rule 9.1, which allows the Tribunal to order disclosure at any stage of a proceeding that the Tribunal considers it necessary for a full and satisfactory understanding of the issues in the proceeding. There is no procedural unfairness in my considering evidence that was before me but not mentioned in a submission. The applicant was aware of the evidence he produced and had an opportunity to reply to the evidence produced by the respondent.

22Based on the foregoing reasons, I find that there is no merit to the applicant’s claim that he was denied procedural fairness by me raising new issues or addressing evidence that that was not raised in the parties’ submissions.

2. Failure to Address Issues

a) The Weight Given to Dr. Karmy’s Report

23The applicant submits that I violated the rules of procedural fairness and made a significant error of law by failing to give a decision on one of the respondent’s submissions. The respondent had asked that little weight be given to Dr. Karmy’s report because he provided no analysis on how the applicant’s work-related injury affected the applicant’s chronic pain. The applicant submits that I failed to give a decision in this regard.

24The applicant submits that I failed to consider paragraphs 20 to 22 and 25 to 26 of his submissions. His submission was essentially that, because he had no pre-accident medical conditions at the time of the accident, his complaints of pain when he saw Dr. Karmy and a post-accident MRI, corroborate Dr. Karmy’s opinion. The applicant submits that I failed to apply the “but for” test of causation.

25There was no direct submission on the “but for” test of causation by the applicant or the respondent. The closest is the applicant’s submission that, because his health was good prior to the accident and an x-ray taken on May 13, 2016 of the applicant lumbar spine was normal, he had no pre-existing conditions. He submitted that this meant all his post-accident complaints as relayed to Dr. Karmy and Dr. Maano are attributable to the accident. However, this reasoning ignores the applicant’s complaints documented in the medical records following his work-related accident on May 18, 2017, which I found was an intervening event.

26The applicant had to prove that he had chronic pain syndrome or pain that was more than mere sequela from the soft tissue injuries he sustained in the accident. I am satisfied by my analysis that, despite not using the term “but for,” I applied the but for test and determined that the applicant failed to meet it.

27It is trite law that an adjudicator is not required to address every submission in her decision. However, in this case, I noted the respondent’s submission at paragraph 16 of the decision. At paragraph 20, I provided several other reasons why for giving little weight to Dr. Karmy’s report. The comments about Dr. Karmy’s failure to address the work-related injury at paragraph 22 of the decision clearly show that I considered both the respondent’s and the applicant’s submissions and the evidence in deciding to give Dr. Karmy’s opinion little weight.

28The applicant had ample opportunity to address the respondent’s submissions and all the evidence supporting the respondent’s submission, even if it was not mentioned by the respondent, in his reply submissions. Accordingly, I find there was no violation of procedural fairness in the weight I gave to Dr. Karmy’s report.

b) Failure to Exclude the Respondent’s Submissions

29The applicant submits that I erred in law in failing to exclude the respondent’s submissions on the basis they exceeded the page limits ordered by the case conference Adjudicator. He submits that I erred when interpreting the case conference order with respect to the spacing between lines and by not excluding the last two pages of the respondent’s submissions.

30A ten page limit for submissions, exclusive of evidence and case law, was imposed on consent by the order of the case conference Adjudicator. The order specified that the submissions would be double spaced, 12-point font and the page limits and submissions were exclusive of reports and other evidence referred to. The order is silent about margins and the penalty or relief a party may seek if the submissions exceeded 10 pages, used a smaller font or used 1.5 space versus double spacing. The applicant submitted that the respondent used single spacing and that, therefore, the last two pages of its submissions should be excluded. I denied the applicant’s request.

31The applicant relied on 17-003735 v Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT) (“17-003735 v. Certas”), where the respondent asked the Tribunal to exclude the last 3 pages of the applicant’s reply submissions and 39 pages of reply evidence and 39 pages of reply case law where a 7 page limit for reply submissions was ordered. The applicant submits that I erred in not considering that decision. I find there was no error as that case is distinguishable. In 17-003735 v. Certas, the Tribunal considered all of the reply evidence that directly addressed issues raised by the insurer but excluded the last three pages of the 10 pages of submissions, which included submissions that were not raised by the respondent. In that case, the Tribunal held that if the reply submissions were allowed, the applicant would have effectively been allowed to split her case. 17-003735 v. Certas has no bearing on this case because the applicant was not asking me to exclude his reply submissions on the basis that they raised new issues.

32The LAT Rules do not impose page limits on submissions or set out spacing requirements. LAT Rule 9.4 states that if a party fails to comply with an order with respect to disclosure or inspection of documents, that party may not rely on the document as evidence without the consent of the Tribunal. The Rule is silent on orders addressing the length of submissions. Submissions are not evidence and the order limiting the page length of submissions specifically excludes evidence. Even if LAT Rule 9.4 permits the Tribunal to allow or disallow submissions that exceed the page limit ordered by a case conference adjudicator, the use of the word “may” instead of “shall” in LAT Rule 9.4 means that the Tribunal has a discretion to exclude or include a party’s submissions if they were not in compliance with the case conference order. I am unable to find that I improperly exercised that discretion.

33The applicant submits that he was prejudiced by my failure to exclude the last two pages of the respondent’s ten-page submissions on the basis that the respondent was heard more than the applicant was. I disagree. The applicant had an opportunity to provide reasons and case law for why he was prejudiced in his reply submissions and failed to do so. In his request for reconsideration, he relies on a quote from a Court of Appeal motion order by the Ontario Court of Appeal in Michail v. Ontario English Catholic Teachers’ Association, 2018 ONCA 950 (“Michail v. OECTA”). In that case, a self represented plaintiff brought a motion for review of a Court of Appeal order denying her leave to file a factum longer than 30 pages. The quoted portion of the motion order in Michail v. OECTA noted that a 30-page limit for facta at the Court of Appeal is imposed in order to keep appeals manageable, efficient and cost-effective for the litigants and the court. The motion Judge held that it was burdensome and expensive for responding parties to have to cope with lengthy pleadings. Permitting the appellant to file an overlong factum would work unfairness to the respondents.

34The applicant’s reliance on Michail v. OECTA is an attempt to relitigate the issue. A reconsideration is not an opportunity to put case law before the Tribunal that a party failed to include in the first place. Further, Michail v. OECTA is distinguishable because the Court was dealing with a facta that was over 70 pages long. In the case before me, the respondent’s submissions were ten pages long.⁶ There was no extra cost to the applicant in reviewing the submissions and no evidence or submissions on how this prejudiced the applicant. Further, any unfairness to the applicant must be balanced with my obligation under LAT Rule 9.1 to ensure that I have the particulars necessary for a full and satisfactory understanding of the issues in the proceeding.

35I find no error in the exercise of my discretion in opting for disclosure instead of exclusion in denying the applicant’s request to exclude the last two pages of the respondent’s submissions. Accordingly, the request for reconsideration on these points is denied.

c) Disregarding the Case Conference Order

36The applicant submits that it was an error of fact for me to find that there was no requirement in the case conference Adjudicator’s order for the references to evidence and case law in the submissions to be double spaced. He submits that I erred in law in finding that single spaced references to evidence and case law is the norm.

37The order stated that the double spacing and page numbers applied to the submissions and not the evidence. However, the applicant’s references to evidence and case law as contained in his footnotes were clearly smaller than 12-point font and were not double spaced. This is evidence of the norms I referred to in the decision. If I was to interpret the order as requested by the applicant, the applicant’s footnotes and the evidence and case law referred to in those footnotes would also have to have been excluded because they were all less than 12 point font and were single, not double spaced. According to the applicant’s interpretation of the order, I would have to have excluded the last two pages and evidence of his submissions as well. The respondent had 23 lines that referenced evidence or case law that were not double spaced and instead were 1.5 or single spaced. The applicant had 38 lines of single-spaced footnotes. Accordingly, there was no error in law in my interpretation of the order or in finding that the norm for pinpoint references to evidence and case law is single spacing.

38The applicant submits that I made an error of fact by determining that he failed to file an index of documents. He is correct. The applicant’s index was attached at the end of his submissions. However, I find that the error in whether there was an index would not have affected how I exercised my discretion. The applicant’s request for reconsideration is, for these reasons, denied.

d) Failure to Consider the OCF-18 was Never Properly Denied

39The Tribunal is not required to address every argument presented by parties in its decisions. In this case, the applicant initially submitted that the OCF-18 in issue was not properly denied because the IE assessment was flawed. I did not address the submission in the decision, but I do not find that if I had, the result would have been different.

40The evidence is that the treatment plan was received on July 20, 2017 and denied on August 2, 2017 or within the 10 business days allowed under s.38(8) of the Schedule. The respondent complied with s.38(8) by providing medical reasons for the denial and by advising the applicant that the denial was because the applicant’s injuries met the definition of minor injury and the policy limits of $3,500.00 had been expended.

41The applicant had submitted that the reasons for denying the treatment plan were flawed because the respondent’s insurance examination (“IE”) assessor, Dr. Walter, is a general practitioner, and he failed to address the psychological component in Dr. Karmy’s treatment plan that recommended a chronic pain assessment. The applicant’s submission was that because the medical reasons given by the respondent in its denial were based on a flawed IE report, the denial itself was flawed and did not comply with notice provisions in s.38(8) of the Schedule. No authority supporting this submission was provided by the applicant.

42There is no requirement under s.38(8) of the Schedule that the reasons for denying a treatment plan be correct, only that medical reasons be provided. Nor will a denial that is based on a flawed IE assessment mean that s.38(11)1 of the Schedule applies.⁷

43The applicant also submits that I would have come to a different decision on the improper denial if his submissions on why little weight should be given to Dr. Walter’s report were considered by me. The applicant had submitted that little weight be given to Dr. Walter’s report because his family physician, Dr. Collins-Williams, detected muscle spasm upon examination on the same day after Dr. Walter’s assessment on September 14, 2017. The applicant further submitted that Dr. Walter did not comment on Dr. Collins-William’s clinical note of July 19, 2016, stating “chronic low back pain.”

44I find no error in failing to give no or little weight to Dr. Walter’s report. The onus was on the applicant to prove he sustained chronic pain that was severe enough to take him out of the MIG. I am satisfied that I reviewed all the evidence and provided cogent reasons for why the applicant failed to meet his onus.

45For these reasons I find there is no merit to the applicant’s claim that I erred in law in not considering the applicant’s submissions about a proper denial of the cost of a chronic pain assessment. If I did make any error in law, it would not have changed the outcome.

B. AMA Guides

1. Qualified Expert and Providing a Diagnosis

46The applicant submits that I erred in law by disregarding his initial submission that the respondent provided a medical opinion by applying the AMA Guides⁸ when not qualified as an expert for rating impairments under the AMA Guides. The respondent did not provide any medical opinions. It submitted that the factors listed in the AMA Guides for determining if a person has chronic pain syndrome be used by the Tribunal in determining if the applicant’s pain complaints were severe enough to take him out of the MIG. It provided case law of when the Tribunal has done so in the past. Whether or not the respondent made a diagnosis was not determinative of the applicant’s claims. Accordingly, I see no merit to this submission.

2. Providing a Medical Opinion

47The applicant submits that I erred in law and exceeded my jurisdiction by applying the AMA Guides criteria and giving a medical opinion. After accepting the criteria in the AMA Guides for determining chronic pain syndrome as factors to consider when determining if an applicant has chronic pain that takes him out of the MIG, I determined that the applicant did not meet the AMA Guides criteria for chronic pain. The applicant submits that by doing so, I was providing a medical opinion. He submits that I applied the AMA Guides when not qualified as an expert for rating impairments under the AMA Guides.

48The applicant relies on a quote from the Court in Desbiens v. Mordini, 2004 CanLII 41166 (ON SC) at para. 111 to submit that the AMA Guides can only be applied by an expert qualified in the AMA Guides. The quote was that the AMA Guides clearly anticipate that a physician's judgement and discretion will play an important role in assessment of a patient's impairment. The applicant submits that by applying the criteria in the AMA Guides as factors, that I diagnosed the applicant.

49The respondent submits that the allegation that I provided a medical opinion is misguided. The respondent submits that under the applicant's logic, a finding that he suffered from chronic pain would be a "medical opinion" as well and would be prohibited. I agree for the following reasons.

50Adjudicators must make legal determinations based on the evidence before them. The Tribunal was asked by the applicant to determine if he was out of the MIG because Dr. Karmy diagnosed him with chronic pain. In order to decide this issue, I had to determine if there was evidence of chronic pain and if it was of such a severity that it took him out of the MIG.

51The quote that the applicant relies on from Desbiens v. Mordini was a discussion of the AMA Guides, which have been incorporated into the Schedule for the purpose of determining whether a person sustained a catastrophic impairment. By incorporating the AMA Guides into the Schedule for the purpose of determining whether someone is catastrophically impaired, the Legislature has seen fit for the AMA Guides to be used for legal purposes. This requires no medical expertise in the use of the AMA Guides, but does require weighing evidence and making findings of fact. In other words, it is a legal test, not a medical test.

52By applying the criteria in the AMA Guides as factors for determining the severity of the applicant’s chronic pain, I made findings of fact in the same vein as an adjudicator who determines whether a person meets the test for catastrophic impairment under s.3.1(1)6 to s.3.1(1)8 of the Schedule.

53In this case, the only diagnoses of chronic pain were made by Dr. Karmy and by the applicant’s family doctor. The respondent had submitted that Dr. Karmy only relied on the definition of pain in the International Association Study of Pain and that he did not address the definition of chronic pain syndrome in the AMA Guides. My determination of whether the applicant has chronic pain that takes him out of the MIG was one of the main issues for the Tribunal to determine and could not be done without looking at the evidence both in support of and against the severity of the applicant’s chronic pain. I am satisfied that by doing this, I was not formulating a medical opinion but was making a finding of fact. Accordingly, this aspect of the applicant’s request for reconsideration is denied.

3. AMA Guides and the Test for Chronic Pain

54The applicant submits that I erred in adopting the AMA Guides as the test for determining whether a person has chronic pain that takes him or her out of the MIG.

55At paragraph 18 of the decision, I accepted the criteria for assessing chronic pain in the AMA Guides as factors to consider when determining if an applicant has chronic pain that takes him out of the MIG. The AMA Guides criteria for chronic pain syndrome have been used by other adjudicators as factors to consider when determining if an applicant has chronic pain that is severe enough that it takes him or her out of the MIG. This was noted at paragraph 17 of the decision where the Tribunal referred to 17-007825 v Aviva Insurance Canada.⁹

56The applicant did not provide any authority rejecting the application of the AMA Guides as factors to consider in determining the severity of chronic pain. He has not provided any reasons for why it is an error in law for an adjudicator to consider those factors when determining the severity of chronic pain. He submits that the Schedule does not require the Tribunal to follow the AMA Guides when an insured person is not catastrophically impaired. However, that does not mean there is any error in considering the criteria in the AMA Guides as factors. The AMA Guides assist in distinguishing chronic pain that lasts for 3 to 6 months but does not adversely affect an individual's well-being from chronic pain that is severe enough that it is, according to the criteria in the AMA Guides, functionally disabling or severe enough to take an insured person out of the MIG.

57The applicant submits that by applying the AMA Guides, the applicant was denied procedural fairness, but he has not indicated in what way. He submits that I applied the wrong standard of proof. He relies on the reconsideration decision of 17-000835 T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (T.S. v. Aviva), in which the Executive Chair held that the definition of minor injury in s. 3(1) of the Schedule does not include an impairment such as chronic pain.

58The applicant had the opportunity to present T.S. v. Aviva at the hearing in his reply submissions and by presenting the case now, he is trying to re-argue his case. T.S. v. Aviva is distinguishable because in that case the Tribunal found that the applicant had chronic pain syndrome, unlike this case where there has been no such diagnosis, only a diagnosis of chronic pain. In T.S. v. Aviva, the Executive Chair described chronic pain that takes one out of the MIG as ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being (my emphasis). My reference in the decision to chronic pain being functionally disabling is in keeping with the Executive Chair’s requirement that, for chronic pain to take a person out of the MIG, it must have an adverse affect on the person and not just be sequelae¹⁰ from the soft tissue injuries. Many people have pain that lasts longer than 3 to 6 months and are able to continue on normally with their lives regardless of the pain. Pain that is functionally disabling is pain that has an adverse affect.

59For these reasons, I find that I did not apply the wrong test in determining whether a person has chronic pain that takes him or her out of the MIG. I did not err by endorsing the AMA Guides criteria as factors to consider in that determination. I am unable to find that this resulted in any procedural unfairness to the applicant.

60If I did err in law in finding that chronic pain must be functionally disabling to be more than mere sequelae and, thus, take one out of the MIG, it would not change the outcome in this case. The evidence was that, before the applicant sustained his work-related back injury, his pain did not adversely affect him. He was able to return to work, to his leisure and sporting activities, his chores, and was cleared in the summer of 2016 to undergo the rigorous physical testing for the RCMP.¹¹ The fact that Dr. Collins-Williams recorded that by September 17, 2017 the applicant was “much better, still a little discomfort towards the right buttock but no weakness or paresthesia,” means any errors I may have made would not have changed the outcome. A little discomfort would not amount to adversely affecting the applicant’s well-being.

C. Errors of Law and/or Fact

1. Standard of Proof for Costs of Assessments

61The applicant submits that I applied the wrong standard of proof in determining whether he has chronic pain. He relies on the Tribunal decision of 16-001934 v Aviva Insurance Company of Canada, 2017 CanLII 69464 (ON LAT) (16-001934 v Aviva). In that case, the Tribunal, on reconsideration, had determined that the test for entitlement to a chronic pain assessment was whether, on a balance of probabilities, the assessment was reasonable and necessary to assess whether the insured suffered from chronic pain syndrome. In this case, if the applicant had proved that, on a balance of probabilities, he did not have predominantly minor injuries, then I would have been required to apply the test as enunciated in 16-001934 v Aviva, to determine whether he was entitled to the cost of the chronic pain assessment.

62Because the applicant was unable to show on a balance of probabilities that his injuries were not predominantly minor injuries, he is not entitled to any further medical benefits or cost of assessments as he exhausted his policy limits for those benefits. Accordingly, I did not need to consider or apply the test for entitlement to the cost of a chronic assessment. There could be no error of law in my not applying the standard of proof for whether the applicant had chronic pain for the purpose of determining entitlement to the cost of a chronic pain assessment because the applicant was barred by his policy limits from claiming that cost.

63For these reasons, I find no merit to the applicant’s submissions that I erred in law as alleged by the applicant.

2. The Purpose of Dr. Maano’s Clinical Notes

64A fundamental part of the role of the hearing adjudicator is to assess and weigh the evidence presented and make determinations of fact. The hearing adjudicator has the clear discretion to make such determinations. Any reconsideration of these findings should not be interfered with lightly.¹²

65The applicant submits that I made a significant error of fact in addressing whether he had psychological impairments that take him out of the MIG and misinterpreting the applicant’s argument and the purpose for which Dr. Maano’s notes were evidence before the Tribunal. He submits that Dr. Maano’s notes were used by him to argue for the reasonableness and necessity of the chronic pain assessment.

66There was no error of fact or law in considering Dr. Maano’s notes in relation to whether the applicant was out of the MIG as they were relevant to that issue. Under s.15(1)(b) of the Statutory Powers Procedure Act, RSO 1990, c S.22 ¹³, documents relevant to the issues in dispute are admissible as evidence.

67I did not need to consider submissions on the reasonableness and necessity of the chronic pain assessment because I made the determination that the applicant is not out of the MIG, he was not entitled to any further medical benefits or cost of examinations. There was no error of fact or law for me to not consider the notes in connection with the reasonableness or necessity of treatment plans in dispute because the applicant’s policy limits had been reached.

3. Dr. Karmy’s Opinion in Conjunction with Dr. Maano’s Opinion

68The applicant submits that I erred in fact in failing to consider that Dr. Maano’s notes corroborated Dr. Karmy’s opinion that the applicant had a mood disorder. It is evident the I was aware of Dr. Karmy’s diagnosis given my comment on the applicant’s submissions at paragraph 20 of the decision. However, I gave little weight to his opinion and provided reasons why at paragraphs 20 to 23 of the decision. Dr. Maano is a chiropractor. Given my comments about Dr. Maano’s clinical notes at paragraphs 26 to 29, I am satisfied that I considered and weighed all the evidence pertaining to the applicant’s psychological symptoms and complaints. Accordingly, I find no merit to this submission.

4. Dr. Mor’s Report

69The applicant submits that I made an error of fact in preferring Dr. Mor’s report, an error of law in failing to apply the Tribunal decision of 17-002907 v. Aviva Insurance Company, 2018 CanLII 13153 (ON LAT) (“17-002907 v. Aviva”) without reason to exclude his report, and failing to look at the psychometric tests of Dr. Mor.

70In his reply submissions, the applicant asked that Dr. Mor’s IE report be excluded because it addressed a treatment plan that was not in issue before the Tribunal. The applicant relied on 17-002907 v. Aviva ¹⁴ but did not indicate what part of the case he was relying on. He did not cite any page numbers or paragraphs. The decision dealt with whether an insured person was in the MIG and entitled to medical benefits. The insured person made submissions to the Tribunal in that case about new issues not listed on the application or the case conference order. The Tribunal refused to add the new issues because the insurer had no notice of the new issues. If that was what the applicant was relying on as authority to exclude Dr. Mor’s report, then it was not necessary for me to address the 17-002907 v. Aviva decision case because the respondent in this case did not seek to add new issues. Nor did I make any determination on the treatment plans that Dr. Mor addressed in his report. Accordingly, there was no error of fact in preferring Dr. Mor’s report as alleged by the applicant.

71The applicant submits that I erred in law and fact in failing to exclude Dr. Mor’s report on the basis that it does not address whether the applicant is suffering from chronic pain from a psychological perspective.

72The applicant provided no authority for excluding Dr. Mor’s report. His reasons for excluding the report went to the weight to be given to it. He has provided no authority supporting his submission that my failure to exclude the report is an error of law.

73The applicant also submitted that Dr. Mor’s failure to address whether the applicant suffered chronic pain from a psychological perspective meant that he did not contest the opinion that the applicant has chronic pain with a psychological component. The submission that the applicant has chronic pain with a psychological component relies on Dr. Karmy’s opinion and the notes of Dr. Maano. I am satisfied from the findings and the reasons in the decision that I weighed the evidence and made findings of fact supported by the evidence. I provided cogent reasons for why little weight was given to Dr. Karmy’s opinion and Dr. Maano’s notes. Accordingly, I am unable to find that I erred with respect to Dr. Mor’s evidence.

74The applicant submits that I failed to consider Dr. Mor’s psychosocial test results in determining whether the applicant had a psychological condition that takes him out of the MIG. Given my comments at paragraph 29 of the decision that Dr. Mor’s psychological testing was more comprehensive than Dr. Maano, it is clear that I reviewed and considered the psychometric testing reported by both Dr. Mor and Dr. Maano.

75The applicant submits that I failed to consider that a psychological diagnosis is not necessary for the Tribunal to decide that an insured person has signs and symptoms to warrant a psychological assessment. It was not necessary for me to make such a consideration given my determination that the applicant does not have injuries that fall outside of the MIG and his policy limits for cost of examinations is exhausted.

5. Dr. Loritz and Dr. Mor Did Not Contest the Opinion of Chronic Pain

76The applicant submits that when considering his submissions for excluding Dr. Loritz’s and Dr. Mor’s reports, I failed to consider that neither assessor contested nor affirmed that the applicant has chronic pain. I denied the applicant’s request that the reports be excluded at paragraph 38 of the decision and determined that they were relevant to the issues in dispute on the basis that they addressed chronic pain and were served in accordance with the LAT Rules and the case conference order. The applicant provided no authority or reasoning for his submissions that medical reports that do not address a treatment plan in dispute or do not support another physician’s diagnosis should be excluded from a hearing when they were properly served. I find that there is no merit to the applicant’s submission that the Tribunal erred in fact with respect to denying the applicant’s request to exclude the reports.

77It is trite law that an adjudicator is not required to list everything she considers in weighing evidence and reaching a decision. In this case, I weighed all the evidence and made clear findings based on a balance of probabilities. In assessing the evidence, I found some evidence more persuasive and provided cogent reasons why. For these reasons, I am unable to find any error of fact such that I would likely have found the applicant did not sustain predominantly minor injuries.

D. Bias

78The applicant submits that by raising new issues and relying on evidence not mentioned in the parties’ submissions, I displayed an apprehension of bias against the applicant. The Tribunal has investigatory powers as set out in LAT Rule 9.1, which allows it to order disclosure at any stage of a proceeding that the Tribunal considers it necessary for a full and satisfactory understanding of the issues in the proceeding. This is supported by LAT Rule 3.1, which states that the LAT Rules will be liberally interpreted and applied and may be waived, varied or applied on the Tribunal’s own initiative to facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative. The Tribunal is not required to mention all the evidence it considers. However, the Tribunal is required to consider all the evidence before it or risk abdicating its jurisdiction. In other words, it is not bias for me to reference evidence that was before me but not specifically referred to in a party’s submissions.

79The applicant submits that my acceptance of the recommendations in the AMA Guides for determining chronic pain syndrome as factors to consider when determining if an applicant has chronic pain that takes him or her out of the MIG is evidence of bias. The applicant provides no authority for his submissions nor references any tests for determining bias. Accordingly, I find no merit to this submission.

80For these reasons, I do not find that I was biased, nor was there any apprehension of bias against the applicant.

CONCLUSION

81For the reasons noted above, I deny the Applicant's request for reconsideration.

__________________

Deborah Neilson

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) applicable to the applicant’s request for reconsideration no longer refer to the rules of natural justice or “significant” errors.
2. 2The “LAT Rules”
3. 3American Medical Association Guides to the Evaluation of Permanent Impairment, 6th ed. (“AMA Guides”)
4. 4The rules of natural justice are no longer criteria under LAT Rule 18.2 for a reconsideration as they are now subsumed in procedural fairness.
5. 5The “patently unreasonable” test is no longer the standard of review.
6. 6The applicant submitted that the respondent’s use of single line spacing in its quotations and citations meant that the respondent’s submissions were 12 pages long and not the actual 10 pages that were submitted.
7. 7Stranges v. Allstate Insurance Company of Canada (2010) 2010 ONCA 457, 103 O.R. (3d) 73, ONCA 457
8. 8American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (the “AMA Guides”)
9. 917-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) at Respondent’s Tab 1, pg. 80, para 6-8; See also 18-001286 v Aviva Insurance Company of Canada, 2019 CanLII 43875 (ON LAT) at Respondent’s Tab 6, pg. 146-148, para 11-18; 18-003051 v RBC General Insurance Company, 2019 CanLII 72211 (ON LAT) at Respondent’s Tab 7, pg. 156-157, para 29-34; T.K. v. Aviva Insurance Company, dated July 26, 2019, at Respondent’s Tab 8, (18-004852/AABS) pg. 166-167, para 30-34.
10. 10See the MIG, page 5, heading no.4: Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline. (emphasis mine)
11. 11The applicant made submissions about the discrepancies at paragraphs 2 and 7 of his reply submissions but provided no evidence in support of what he did or did not say to an IE assessor or his family doctor. It is trite law that submissions are not evidence.
12. 1216-000098 v. Aviva Insurance Canada, 2017 CanLII 33657 (ON LAT) (Reconsideration), para. 10
13. 13The “SPPA”
14. 1417-002907 v Aviva Insurance Company, 2018 CanLII 13153 (ON LAT) (17-002907 v. Aviva)