RECONSIDERATION DECISION
Before:
Derek Grant
Licence Appeal Tribunal File Number:
20-009933/AABS
Case Name:
Brandon Norton v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant:
Christina Martin, Counsel
For the Respondent:
Peter Durant, Counsel
BACKGROUND
1This request for reconsideration was filed by B.N. It arises out of a decision dated September 30, 2022, in which I found that B.N. did not establish that the medical and rehabilitation benefits he claimed were reasonable and necessary. I further found that B.N. was not entitled to an award.
2B.N. submits that it was an error of fact and law to find that he was not entitled to the disputed treatment and assessment plans based on the evidence that was before me.
RESULT
3B.N.’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are set out in Rule 18.2 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). B.N.’s request relies on the criteria set out in Rule 18.2(b): that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. It is not meant as an opportunity for a party to ask the Tribunal to reweigh evidence or to re-argue its position, where it disagrees with the outcome or where it failed to satisfy the onus at first instance.
6I find that B.N.’s request for reconsideration is captured under the premise of asking the Tribunal to reweigh evidence and re-argue his position. I find his arguments on reconsideration fail to demonstrate a clear error of fact or law that would have resulted in a different outcome had the error not been made. Rule 18.2(b) provides that this is the necessary requirement for reconsideration.
No error of law or fact
7B.N. submits that my decision regarding each of the disputed treatment plans contained an error of fact or law, and points to various evidence (the same evidence put before me at first instance) that he claims supports that the treatment was reasonable and necessary. Specifically,
a. In denying the treatment and assessment plan for vocational retraining:
i. I did not consider the retraining sought under s. 16(2) was intended to improve B.N.’s quality of work life (per s. 16(2)(b)), and not to facilitate his return to employment similar to his pre-accident job (per s. 16(2)(a));
ii. I gave disproportionate weight to the Functional Abilities Evaluation of Dr. Souter, which was not completed because of the Applicant’s ankle pain;
iii. I misunderstood Dr. Souter’s conclusion in his Functional Abilities Evaluation that the Applicant was physically incapable of frequently performing tasks requiring heavy strength, which his occupation requires;
iv. I accepted uncritically the Respondent's misrepresentation of the clinical notes and records (“CNRs”) of Dr. Al-Dhaner; and
v. I gave disproportionate weight to Dr. Sequeira’s alleged failure to consider imaging showing the Applicant’s anatomical predisposition to shoulder impingement when considering the accident’s causation of the Applicant’s impairments.
b. In denying the treatment and assessment plan for medical marijuana:
i. I ignored the Applicant’s consistent and persistent reported pain issues to all his treating and assessing health practitioners, which constitutes the only possible objective evidence of pain, absent neurological imaging;
ii. I gave disproportionate weight to the statements of Drs. Souter and Marchuk that the Applicant exhibited no physical manifestations of pain during their assessment even though:
Dr. Souter’s examination had to be stopped prematurely specifically because of the Applicant’s ankle pain; and
Pain is subjective and the Applicant’s ordinary gait or ability to stand and sit is in no way determinative of a lack of pain.
iii. I failed to give appropriate weight to the totality of the Applicant’s CNRs detailing consistent reports of pain issues;
iv. I ignored Dr. Marchuk’s expressed admission that the Applicant’s sleep issues are outside of his scope of expertise when I considered his evidence against that of Drs. Shiffman and Sequeira;
v. I ignored the Applicant explicit preference to avoid reliance on pharmacological pain management;
vi. I accepted uncritically the Respondent’s disingenuous and out-of-context reliance on a part of a clinical note of Dr. Al-Dhaner to assert that the Applicant claimed his pain was “manageable”; and
vii. I failed to consider that the treatment plan for medical marijuana is supported by corroborating evidence.
c. In denying the treatment and assessment plan for assistive devices:
i. I accepted the Respondent’s submission that the Applicant’s ability to punch a wall was commensurate with his ability to pull-start a gas-powered lawn mower.
d. In denying the treatment and assessment plan for a gym membership and a rehabilitation therapist:
i. I placed unreasonable emphasis on an anomalous clinic note of Dr. Al-Dhaner dated November 27, 2019; and
ii. I failed to apply the applicable law regarding whether treatment designed to manage pain was reasonable and necessary.
8I will address the alleged errors in the order as brought forth by B.N.
Vocational assessment
9Section 16(2)(b) sets out that measures to reintegrate an insured person into the labour market are considered reasonable and necessary if, upon considering the person’s characteristics, they enable the person to lead as normal a work life as possible.
10B.N. submits that the retraining was intended to improve his quality of work life, which is consistent with s. 16(2)(b), not to facilitate his return to employment similar to his pre-accident job.
11In response, Co-Operators submits that s. 16(2)(b) refers to leading a normal work life, not improving the quality of work life. Further, Co-Operators emphasizes that, when read as a whole, vocation retraining under s. 16(2)(b) is not available to an applicant who was, is, and has already reintegrated into the labour force. In this case, I was satisfied by the evidence at the hearing that B.N. returned to his pre-accident vocation in construction work, which I found indicative of a return to a “normal work life”.
12In his reconsideration submissions, B.N. points me to the September 25, 2020 report of Dr. Sequeira; however, this evidence was already considered at first instance. I find that B.N. is re-arguing the same position now as at first instance and directing me to the same evidence to which I already assigned weight. This is not a valid purpose for reconsideration, nor am I persuaded that this amounts to an error of law or fact.
Functional Ability Evaluation of Dr. Souter – not completed due to ankle pain
13B.N. submits that although Dr. Souter indicated that B.N. was unable to complete the functional ability evaluation (FAE) testing because of ankle pain and was unable to provide an opinion as to whether B.N. suffered a substantial inability to perform the essential tasks of his employment, I gave Dr. Souter’s opinion disproportionate weight.
14Co-operators submits that the evidence was appropriately weighed, and the determination contained no error of fact or law.
15In my decision, I preferred the FAE of Dr. Souter over that of Dr. Sequeira because Dr. Souter noted B.N.’s ability to complete actions similar to those required in his role as a construction worker.
16Additionally, I considered B.N.’s evidence that at the time of Dr. Sequeira’s report, B.N. was working as an HVAC technician. Further, B.N. had returned to his pre-accident employment in construction, which contradicted Dr. Sequeira’s opinion of his functional limitations. In addition, at paragraphs 11 and 12, I consider the CNRs of Dr. Al-Dhaner wherein B.N. reported no issues relating to performing his work duties, and right shoulder pain starting after working at the HVAC job.
17I find that B.N.’s position on this issue amounts to a request to have the evidence re-weighed. This is not a valid purpose for reconsideration, nor am I persuaded that my determination on this issue contained an error of fact or law.
FAE of Dr. Souter – Conclusion: B.N. physically incapable of performing heavy strength tasks
18B.N. submits that I failed to consider Dr. Souter’s conclusion on page 11 of his report that B.N. was only “occasionally” capable of performing tasks requiring medium to heavy lifting capabilities.
19I disagree with B.N.’s characterization. At paragraph 13 of my decision, I specifically note Dr. Souter’s conclusion that B.N. “demonstrated the ability to complete work duties occasionally to frequently at the medium to heavy strength level of work capacity.” Suggesting that B.N. is only “occasionally” capable of performing such tasks completely disregards the “frequently” capability that B.N. demonstrated.
20Further, B.N.’s request on this treatment plan is again a request to reweigh evidence that was considered at first instance. He has not established that the reasonable outcome that I came to in determining his entitlement to the treatment plan was the result of an error of fact or law.
Misrepresentation of Dr. Al-Dhaner’s CNRs
21B.N. submits that a November 27, 2019 note from Dr. Al-Dhaner was not considered in the right context. His position is that the note should have been narrowly interpreted as it relates to B.N.’s ability to safely operate a motor vehicle. He posits that the note is inconsistent with the medical documentation of other treatment providers and his own record since the accident, including before and after November 17, 2019.
22Co-Operators argues that the complete record was included and specifically noted that it was a Ministry of Transportation Medical Report Form. Further, it submits that B.N.’s position on reconsideration that the note be taken in “context” is indicative of a context that favours B.N.’s position.
23B.N.’s suggestion that the note only relates to his well-being as it relates to his ability to drive a car is a flawed argument for several reasons. First, this argument was not raised in his initial submissions or on reply. Second, Dr. Al-Dhaner did not specify that the report that B.N. “is absolutely healthy without any active issues or concerns” only relates to his ability to drive a car—B.N.’s suggestion now that this is what Dr. Al-Dhaner meant is putting words into Dr. Al-Dhaner’s mouth Lastly, B.N.’s suggestion that the alleged error was to give the note any meaningful weight also falls short of being an error of law or fact.
B.N.’s predisposition to right shoulder impingement is immaterial
24B.N.’s position is that his pre-existing right shoulder pain renders him a “thin skull” applicant and any predisposition does not change the causation analysis.
25Co-Operators argues that in the context of determining whether the treatment plan is reasonable and necessary, there is no separation from the pre-existing injury being material to causation.
26B.N.’s argument does not adequately address whether my determination was the result of any alleged error of fact or law. Further, B.N.’s submission that “the Respondent points to no evidence that the Applicant [B.N.] suffered from any injury or pre-existing pain in the right shoulder before the collision”, is not an onus that the Co-Operators has to meet.
27At paragraph 12 of my decision, I note that Dr. Sequeira’s opinion does not consider previous records of Dr. Al-Dhaner which note right shoulder pain subsequent to B.N. working at his HVAC job. On the evidence, I accepted that any predisposition to shoulder impingement had not been established to be an issue at the time of the accident, but during the HVAC employment.
28At paragraph 19, I commented on Dr. Sequeira’s report as it relates to medical marijuana, finding that it is not supported by persuasive objective evidence. On reconsideration, B.N. suggests that the evidence is persuasive, but has not established a clear error of fact or law. Further, B.N.’s position on the evidence would require a re-weighing of evidence, which is not permissible on reconsideration.
Cannabis for pain management and sleep
29B.N. submits that he has provided sufficient evidence of pain issues from the CNRs of his treating and assessing health practitioners. B.N. restates his position at first instance, that his “consistent and persistent reports of pain” support the objective nature of his ongoing pain.
30At paragraph 19 of my decision, I found the evidence of Dr. Souter and Dr. Marchuk to be persuasive. I considered B.N.’s self-reporting that he managed his pain with Aleve as needed. Further, I did not find that Dr. Sequeira’s endorsement of medical marijuana was supported by objective evidence that it was required. Lastly, and a key factor in my determination, was that B.N.’s self-reporting to Dr. Al-Dhaner about trying to go without medication, is not a reasonable ground to fund a treatment plan for additional medication.
31B.N.’s position on this treatment plan fails in that he has not directed me to any sound argument that shows there was an error of law or fact that would result in a different outcome.
Assistive Devices
32B.N. takes issue with my reliance on a Bluewater Hospital record dated July 9, 2019, in support of my determination that B.N.’s ability to punch a wall suggested he has the ability to start a lawn mower. B.N.’s position is that punching a wall (pushing motion) is an entirely different movement and does not constitute evidence of an ability to pull-start a lawn mower. With respect, counsel did not direct me to any medical evidence to refute that B.N. would not be able to pull-start a lawn mower with his left hand.
33In addition, Co-Operators’ denial was partly based on the fact that an electric mower did not address the issue of uneven terrain; a position that continues to be uncontested on reconsideration. My denial of the benefit was also based on the issue of the uneven terrain, with my reasons provided at paragraph 25 of the decision. In particular, “There is no evidence that the uneven terrain is somehow made less uneven through the use of electric yard equipment.”
34As there continues to be an absence of an objective opinion addressing how these ‘assistive devices’ deal with B.N.’s mobility issues as it pertains to navigating uneven terrain, B.N. has failed to establish an error of “logical fact”.
Gym membership and rehabilitation therapist
35B.N. relied on the same evidence for both the gym membership and the rehabilitation therapy treatment plans. B.N. submits that my determination on this issue constitutes an error of law and fact that would have resulted in a different decision had the error not been made. His position is that a full review of the CNRs of Dr. Al-Dhaner would have led me to a different conclusion.
36I disagree.
37Co-Operators argues that my consideration of the report of its assessor, Dr. Marchuk, as well as B.N.’s self-reporting to both Dr. Marchuk and Dr. Al-Dhaner, was a sufficient enough analysis of relevant evidence to come to my determination.
38Regarding the gym membership, at paragraph 32, I consider Dr. Marchuk’s report and the records of Dr. Al-Dhaner. Noting that I found Dr. Marchuk’s report to be contradictory, however, Dr. Al-Dhaner’s records contain a report that B.N. has no active issues or concerns. This was a contradiction to what B.N. reported to Dr. Marchuk. I went on to state that it would seem that similar reporting to Dr. Marchuk would have been presented to Dr. Al-Dhaner, who saw B.N. two months later. Lastly, I placed more weight on the records of B.N.’s treating practitioner, Dr. Al-Dhaner. I concluded that B.N.’s previous post-accident reporting to Dr. Al-Dhaner about his work-related pain from his HVAC job, was not consistent, contrary to B.N.’s claim on reconsideration; finding that the disparity in B.N.’s reporting did not establish that the recommended treatment plans were reasonable and necessary.
39In terms of the rehabilitation therapist, Co-Operators relied on an April 17, 2019 report of occupational therapist, Matt Sutherland, who reported that B.N. demonstrated full range of movement with moderate resistance in all extremities, and mild restriction in the right shoulder.
40I found B.N.’s evidence to be unpersuasive, in that there was “little corroborative evidence” (par. 38) in support of the treatment plan. Further, there was no recommendation from Dr. Al-Dhaner. Lastly, having found that the gym membership (recommended together with the rehabilitation therapist) was not reasonable and necessary, the treatment plan for a rehabilitation therapist was also not reasonable and necessary.
41On reconsideration, B.N. has not identified an error of law or fact on either of these issues. Accordingly, I find my determinations on these treatment plans contain no error of fact or law.
Award
42Having determined that B.N. has not satisfied his onus on reconsideration, an award is not payable.
CONCLUSION
43On the whole, B.N.’s reconsideration submissions do not provide any evidentiary support for his position that my decision contained any errors of fact or law. The evidence put forth by the parties was considered, weight was assigned accordingly on relevant evidence that I found persuasive, with reasons, meeting the requirements as a trier of fact.
44B.N.’s disagreement with the decision at first instance is not a justifiable ground for the decision at first instance to be reconsidered. A finding that is within a realm of reasonable outcomes, while not the desired outcome of a party, must meet the test for reconsideration, where a true error of law or fact exists.
45B.N. has failed to satisfy the requirement set out in Rule 18.2(b). Accordingly, I find no grounds on which to interfere with my initial decision.
46For the reasons noted above, the request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 19, 2022```