RECONSIDERATION DECISION
Before: Brian Norris, Adjudicator
File: 19-000579/AABS
Case Name: M.S. v. Dominion of Canada General Insurance
Written Submissions by:
For the Applicant: Volha Vinahradava
For the Respondent: Alfred W. F. Cheng
OVERVIEW
1M. S., "the Applicant", filed this request for reconsideration of my decision in her matter. I found that she sustained a "minor injury" as defined in the Schedule, and that she was not entitled to the treatment and assessment plans claimed.
2The Applicant makes her request pursuant to Rule 18.2(b) of Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended ("the Rules"). She submits that I made errors of law and fact, such that the Tribunal would likely have reached a different decision.
RESULT
3The Applicant's request for reconsideration is denied.
BACKGROUND
4The Applicant was involved in an accident on July 23, 2016 and sustained predominantly sprain and strain injuries. During the initial hearing, she submitted that the $3,500.00 funding limit on treatment should not apply to her because her pre-existing medical condition precluded her recovery within the Minor Injury Guideline ("the MIG"), and because she developed chronic pain and psychological injuries as a result of the accident.
5I found no compelling evidence to show that the Applicant's pre-existing cholesterol, gastrointestinal, and blood sugar issues prevented her from reaching maximal recovery within the MIG. I also found that her ongoing intermittent pain was not a chronic pain condition which would remove her from the MIG and the $3,500.00 funding limit on treatment, and that the psychological symptoms she experienced were sequelae of her minor injury.
RECONSIDERATION SUBMISSIONS
6The Applicant submits that I erred as follows;
a. Her pre-existing medical conditions were wrongly limited to cholesterol, gastrointestinal, and blood sugar issues and I failed to appreciate the issues outlined in her decoded OHIP summary;
b. There is no appreciation that she was diagnosed with diabetes mellitus and hypoglycemia, which to her, pose a significant burden in recovery;
c. It was not considered that an OCF-18 was submitted instead of an OCF-23;
d. Her family physician was wrongly found to have showed little concern about her recovery from soft tissue injuries;
e. Her ongoing pain was wrongly disregarded, and, to her, it is evidence of a chronic pain condition which would remove her from the MIG; and
f. The Respondent's evidence was wrongly preferred over hers.
7The respondent submits that no error of law or fact occurred. In the alternative, it submits that if there were an error of law of fact, the Tribunal would not have likely reached a different decision.
ANALYSIS
8Pursuant to Rule 18.2 of the Rules, one or more of the following criteria must be met in order to grant a reconsideration;
a. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b. The Tribunal made an error of law of 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.
9The Applicant makes her request pursuant to criteria (b).
PRE-EXISTING CONDITIONS
10The Applicant's submissions for the initial hearing briefly highlighted her pre-existing medical conditions and how her family doctor's clinical notes and records ("CNRs") were provided to the Respondent. There is no compelling information on how or why these pre-existing conditions would preclude her recovery. Further, as submitted by the Respondent, the Applicant's OHIP summary is not compelling evidence of a pre-existing medical condition because it only includes generic billing codes. The OHIP summary lacks the requisite detail required to make a finding that the Applicant has a pre-existing medical condition which would preclude her recovery within the MIG.
11While I appreciate that conditions like diabetes mellitus and hypoglycemia may pose a burden to recovery, there is no compelling evidence to support this claim made by the Applicant. As noted in my initial decision, the Applicant's family physician anticipated a recovery period of 9-12 weeks. This duration is consistent with the recovery period for soft-tissue injuries and is not indicative of a prolonged recovery period due to pre-existing medical conditions. Thus, I concluded that the family physician showed little concern that the Applicant would have a prolonged recovery as a result of pre-existing medical conditions.
POST-ACCIDENT RECOVERY AND EVIDENCE
12The submission of an OCF-18 is not compelling evidence of a non-minor injury. The Applicant, in her claim, fails to appreciate that the MIG and OCF-23 permit the Applicant to seek pre-approved treatment for her predominantly minor injuries during the acute phase of the injury. The purpose of the MIG and OCF-23 is to reduce the barriers to funding, enabling the Applicant to engage in treatment without waiting for funding to be approved. The Respondent's refusal to accept the OCF-18 instead of an OCF-23 is compliant with section 38(5) of the Schedule.
13I see no error in finding that the Applicant's family physician showed no significant level of concern regarding the Applicant's recovery from her soft-tissue injuries. As noted above, the Applicant's anticipated recovery time is typical of soft-tissue injuries. As noted in the initial decision, the family physician took no other precautions other than to refer the Applicant to a physiatrist. As noted by the Respondent, the referral made no mention of any pre-existing medical conditions. In any event, the Applicant was assessed by the physiatrist and only simple exercises and stretching were recommended. This supports my finding that the Applicant sustained a minor injury as her OHIP funded physiatrist made no recommendation for further facility-based treatment.
14Ongoing or prolonged pain is not necessarily a chronic pain condition which would remove the Applicant from the MIG. First, I note that the Applicant led no evidence to show that a qualified medical professional diagnosed her with chronic pain as a result of the subject accident. More importantly, I found no evidence that the Applicant's ongoing pain impairs her functionality or is anything other than clinically associated sequalae of her soft-tissue injuries. As noted in my initial decision, the functionality exhibited in the Applicant's return to her pre-accident activities indicates that her pain does not predominate to the extent that her injuries are no longer considered minor.
15I can prefer one report over another. The Applicant submits that I erred when I stated my preference for the Respondent's psychological assessment report over the report she proffered. In her reconsideration submissions, the Applicant highlights the psychometric tests completed for each assessment and suggests that language barriers had an impact on the results. To me, this fails to appreciate the basis for my finding. The Respondent's report included a more fulsome review of the Applicant's medical record, used psychometric testing with validity measures, and had a conclusion which resembled the balance of the Applicant's medical record. Whereas the Applicant's report had no indication that any other medical records were reviewed and the conclusion, that she suffered from severe depression, was inconsistent with the balance of her medical record.
CONCLUSION AND ORDER
16I see no error of law or fact that would satisfy the requirements of Rule 18.2(b). Upon review of my decision and the Applicant's request, I find no error of law or fact that would have affected the outcome of my decision that the applicant sustained predominantly minor injuries, is subject to the $3,500.00 funding limit on treatment, and is not entitled to the disputed claims or interest.
17For the reasons above, the Applicant's request for reconsideration is dismissed.
Released: June 8, 2021
Brian Norris, Adjudicator