Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Lindsay Lake, Adjudicator
Tribunal File Number: 19-011365/AABS
Case Name: Sundos Butrus v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Jeton Memeti, Paralegal
For the Respondent: James Schmidt, Counsel
OVERVIEW
1The applicant, Sundos Butrus, filed a request for reconsideration of the February 4, 2021 decision1 of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).
2In the decision, I found that the applicant had not met her onus of proving that her accident-related impairments warrant removal from the Minor Injury Guideline (the “MIG”).2 As the MIG limits for medical benefits had been exhausted, I also found that it was unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. Finally, I found that the applicant was not entitled to an award or interest and dismissed the application.
3The applicant requested a reconsideration of the decision. The applicant submitted that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made.
4The respondent, Wawanesa Mutual Insurance Company, submitted that I should deny the applicant’s request for reconsideration. The respondent’s position was that the applicant was improperly attempting to relitigate the matter through the reconsideration process and that the decision contained no errors of fact and/or law.
RESULT
5The applicant's request for reconsideration is dismissed.
ANALYSIS
6The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “Rules”). The ground that applies in this matter is Rule 18.2(b), as the applicant submitted that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made.
7In order to interfere with a decision under Rule 18.2(b), however, I must not only have made an error of law or fact, but that error of law or fact must be significant enough that, if corrected, I likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.
8For the reasons that follow, I find that the applicant has failed to prove on a balance of probabilities that I made errors of fact and/or law in the decision. Therefore, a reconsideration of the decision under Rule 18.2(b) is not warranted.
Failing to Consider Certain Evidence
9The applicant submitted that I erred in fact and/or law such that I would have come to a different decision by failing to consider the following:
(i) Paragraph 3 of the applicant’s initial written hearing submissions;
(ii) The applicant’s diagnosis of an adjustment disorder; and/or
(iii) The applicant’s diagnosis of chronic pain by her family physician and her subsequent referral to a chronic pain clinic.
10Paragraph 3 of the applicant’s initial hearing submissions provided background details such as the applicant’s age, when she arrived in Canada, her family members, her financial means, her employment search and her pre-accident activities such as her enrollment in an English as a Second Language (“ESL”) program, socializing, cooking, cleaning and grocery shopping. This paragraph stated that post-accident, the applicant had returned to her pre-accident ESL program, but that she has been unable to participate in and enjoy her other pre-accident activities of daily living.
11I find that no error was made in the decision as a result of not expressly addressing the information provided in this paragraph. There was no evidence cited to support the applicant’s submissions in paragraph 3 and the applicant’s submissions are not evidence. Also, it is well settled that the Tribunal is not required to address every piece of evidence, argument, or case submitted by a party.
12The applicant also submitted that I erred by not considering her diagnosis of an adjustment disorder as a basis for her removal from the MIG.
13The applicant’s reference to an adjustment disorder is only set out on the May 16, 2019 treatment plan (OCF-18) completed by Dr. Judith Pilowsky, psychologist. I agree with the applicant that Part 6 of this OCF-18 under the “injury and sequelae information” section stated, “adjustment disorder,” but it is well settled that an OCF-18 in and of itself is not evidence of a diagnosis. Further, Dr. Pilowsky did not list an adjustment disorder in her Initial Brief Psychological Interview/Intake Screening Report which was included in the additional comments portion of the May 16, 2019 OCF-18. In her screening report, Dr. Pilowsky provided a diagnostic impression of depressive symptoms and post-traumatic anxiety as well as pain. I also considered and weighed Dr. Pilowsky’s screening report in the decision at paragraphs [26] to [32]. For these reasons, I find no error in failing to refer to the listing of an adjustment order in the May 16, 2019 OCF-18 and, even if I am incorrect, I find that such error would not lead to a different result given my weighing of the psychological evidence in the decision as cited above.
14The applicant further submitted that I erred by failing to consider her diagnosis of chronic pain by her family physician and her subsequent referral to a chronic pain clinic. The applicant’s submission is that this evidence on its own is sufficient to remove her from the MIG. I disagree.
15As I discussed in the decision,3 an applicant may be removed from the MIG where their pain is severe, constant and causes a functional impairment. After weighing the evidence, and noting that the applicant failed to address the causation issue raised by the respondent regarding her back pain, I found that the applicant had not demonstrated on a balance of probabilities that her back pain was caused by the accident. Even if I was incorrect in this finding, I also found that the applicant failed to prove that her chronic pain was constant and adversely affected her well-being and functionality. I find that no error was made in these determinations because simply reporting ongoing pain does not remove an injured person from the MIG as suggested by the applicant – the applicant must show that their constant pain causes functional impairment which was not proven on a balance of probabilities in this matter.
16I also disagree with the applicant’s submission that she was diagnosed with chronic pain by Dr. Antoinette Mikhail, her family physician. A review of Dr. Mikhail’s clinical notes and records show no diagnosis of chronic pain. Therefore, I find that no error was made because Dr. Mikhail did not diagnose the applicant with chronic pain. Additionally, as the applicant did not raise this argument in her initial hearing submissions, it constitutes a new argument which is not one of the grounds for reconsideration under Rule 18.2.
17I agree with the applicant that the March 10, 2020 Disability Certificate (OCF-3) completed by Dr. Mikhail mentioned a referral to a chronic pain centre. Further, the applicant was seen by Dr. Farhan Siddiqui of Releva Chronic Pain Centre, but I considered and weighed Dr. Siddiqui’s evidence in paragraphs [16] and [18] of the decision. Therefore, I disagree with the applicant that I made an error by disregarding the referral to a pain clinic, as I considered and appropriately weighed Dr. Siddiqui’s evidence.
18Finally, I find that the applicant’s submissions regarding chronic pain and the American Medical Association (“AMA”) Guides4 is also a new argument that was not made at first instance. As discussed above in paragraph [16], the Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter.5 As a result, I find that the applicant’s submissions regarding the AMA Guides are not properly before me and will not be considered.
Errors Regarding the Test for the Reasonableness and Necessity of the Disputed Treatment Plans and the applicant’s Entitlement to an Award
19The applicant submitted that I erred by applying my own test to determine if the disputed treatment plans were reasonable and necessary by turning the analysis from an objective one into a subjective one. The applicant also submitted that I erred by failing to consider whether there was objective supporting evidence to justify the applicant’s entitlement to further chiropractic treatment.
20I did not consider the reasonableness and necessity of the disputed treatment plans in the decision because the maximum amount of $3,500.00 for medical and rehabilitation benefits available under the MIG was exhausted.6 Therefore, I disagree with the applicant that I applied my own test in determining the reasonableness and necessity of the disputed OCF-18s because I did not find it necessary to undertake this analysis given that there were no funds left in the MIG limits for any additional treatment or assessments. Therefore, I find no error as alleged by the applicant.
21Similarly, the applicant submitted that I erred by not considering her entitlement to an award under s. 10 of O. Reg. 664. As set out in paragraphs [35] to [36] of the decision, calculation of an award is based upon the amount to which a person is entitled. In this matter, I found that the applicant was not entitled to any of the disputed treatment plans because she failed to prove that her injuries required treatment beyond the MIG limits. As such, I find no error in my statement in the decision that there was no basis upon which to consider an award because there were no benefits owing to the applicant.
The Clarity of the applicant’s Submissions
22The applicant also submitted that I made an error by characterizing her hearing submissions as a puzzle. The applicant maintained that her hearing submissions were clear, to the point and very easy to read and understand. I disagree.
23At paragraph [8] of the decision, I quoted directly from the applicant’s hearing submissions and noted that the applicant’s position was unclear as to why she should be entitled to coverage beyond the MIG. In fact, the submissions were not just unclear, they were silent on which of the three avenues (a pre-existing condition, a psychological impairment or chronic pain) that the applicant was relying upon to demonstrate that she was entitled to treatment beyond the $3,500.00 MIG cap. In this regard, I find no error in my statement that it is not acceptable for a party to point vaguely to a body of evidence or expect the Tribunal to puzzle through documents in order to decipher and assemble an evidentiary foundation for one’s case.
24In summary, I find that the applicant has failed to prove on a balance of probabilities that an error of fact and/or law was made in the decision on the basis that:
(i) I failed to consider certain evidence;
(ii) I applied an incorrect test when determining the reasonableness and necessity of the disputed treatment plans as I did not undertake any analysis in this regard as the MIG limits had been exhausted;
(iii) I failed to consider her entitlement to an award as I found there was no benefits owing; or
(iv) I found the applicant’s hearing submissions to be unclear.
CONCLUSION
25For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Lindsay Lake
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 22, 2021
Footnotes
- Butrus v. Wawanesa Mutual Insurance Company, 2021 CanLII 19421 (ON LAT) (the “decision”).
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- The decision, paras. [12] to [14].
- American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
- See I.K. v. Primmum Insurance Company, 2018 CanLII 13162 at para. 27.
- The decision, para. [34].