RECONSIDERATION DECISION
Before: Theresa McGee, Vice-Chair
Tribunal File Number: 20-006161/AABS
Case Name: Balakarnan Rasaratnam v. Allstate Insurance
Written Submissions by:
For the Applicant: Davide Cortinovis, Counsel
For the Respondent: Evan A. Argentino, Counsel
BACKGROUND
1The applicant requests reconsideration of a decision dated October 29, 2021 (the “decision”). In the decision, the Licence Appeal Tribunal (“Tribunal”) found that the applicant had failed to discharge his onus in establishing entitlement to treatment outside the Minor Injury Guideline. The application was accordingly dismissed.
RESULT
2The request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration are contained in 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), as amended (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:
i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
ii. 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;
iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
iv. 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.
4The applicant submits that the Tribunal erred in fact and law by:
i. incorrectly applying the test for pre-existing conditions;
ii. finding that his degenerative changes did not exceed the minor injury definition;
iii. discounting the chronic pain assessment of Dr. Dima Rozen; and
iv. choosing not to analyze the reasonableness and necessity of the treatment plans in dispute.
5The applicant further submits that the Tribunal violated the rules of procedural fairness and erred in law by failing to mention the clinical notes and records of Trillium Rehab Physiotherapy in the decision.
The applicant has identified no error of law
No error in the Tribunal’s s. 18(2) analysis
6The Tribunal correctly applied the test in s. 18(2) of the Schedule, a provision that requires insurers to remove insured persons from the Minor Injury Guideline in certain narrow circumstances where there is evidence of a pre-existing medical condition. Although the applicant presented diagnostic imaging from before the accident showing osteophytes on his thoracic spine, degenerative disc disease of the cervical spine, mild osteoarthritis, scoliosis, and mild degenerative changes to the cervical spine, he did not satisfy each element of the test under s. 18(2). The provision requires more than just evidence of a pre-existing medical condition. It requires evidence from a health practitioner that the pre-existing condition will prevent the insured person from achieving maximal recovery from a minor injury if subject to the Minor Injury Guideline limit.
7As the Tribunal noted at paragraph 14 of the decision, the applicant directed no submissions to this latter part of the test at the hearing. He tendered no medical evidence to establish his inability to maximally recover from his minor injuries if held to the Minor Injury Guideline.
8In his reconsideration submissions, the applicant argues that the clinical notes and records of his family physician clearly show an opinion that the applicant had not yet achieved maximum medical recovery from his injuries.
9First, a reconsideration is not an opportunity to advance new argument that could have been led at the hearing. Second, the opinion the applicant seeks to establish (that the applicant had not reached maximum medical recovery from his injuries in 2019) bears no clear rational link to the issue of his pre-existing medical conditions. The Tribunal would have to infer that the applicant’s pre-existing conditions were the cause of his inability to reach maximum medical recovery, a critical linkage that lacks evidentiary support. The clinical notes fall short of the “compelling” evidence the Schedule requires. Third, the clinical notes the applicant references in his reconsideration submissions do not contain a medical opinion on the absence of maximum medical recovery. The records are from two visits in January 2019 consisting of brief notations as to low back and neck pain complaints. The suggestion of an absence of maximum medical recovery comes from the applicant’s submissions, and submissions are not evidence. There is simply no compelling evidence in the record before me that the applicant’s pre-existing conditions will prevent him from recovering within the Minor Injury Guideline limit.
10The decision clearly sets out the test under s. 18(1) of the Schedule and analyzes the medical evidence tendered by the applicant in a manner consistent with the clear language of the provision. There is no error of law in the Tribunal’s analysis.
No error in findings as to the applicant’s degenerative conditions
11The Tribunal correctly found that the applicant’s accident-related injuries were minor injuries. The medical records establish accident-related diagnoses including soft tissue sprains and strains, whiplash, and headaches, all of which fall within the definition of a minor injury under s. 3(1) of the Schedule.
12In his request for reconsideration, the applicant submits that there was evidence in this case that he suffered from degenerative spurring and posterior lipping in the cervical spine causing spinal stenosis, minor degenerative changes in the aacromioclavicular joint and glenohumeral joint with mild osteophyte formation, and joint space narrowing, which he submits are not minor injuries.
13First, this wrongly conflates the applicant’s pre-existing conditions with his accident-related injuries. The degenerative changes to which he refers are documented in an x-ray report dated March 24, 2018, eight months before the accident. The accident could not have caused these injuries because they existed before it. Second, degenerative changes tend to occur over time and are usually age-related. The applicant tendered no evidence of accident-related spinal pathology. There are no records to suggest that the conditions affecting the discs of his cervical spine are traumatic in origin. The March 2018 x-ray report is not evidence of accident-related injury. The Tribunal properly considered its findings in its s. 18(2) analysis. The reports adds no value to an assessment of whether the applicant’s accident-related injuries were minor.
14Finally, the applicant asserts that the Tribunal erred in law by not following the reconsideration decision of Vice-Chair Trojek in 17-002907 v. Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT) [17-002907]. That decision, the applicant submits, upheld a determination to remove an applicant from the Minor Injury Guideline on account of injuries it considered to be non-minor, including disc bulging and degenerative changes of the spine.
15This is new case law advanced for the first time in the applicant’s reconsideration request and I am not required to consider it. However, I note that there would be no error in departing from 17-002907 because prior Tribunal case law has only persuasive authority and is not legally binding in subsequent cases. That aside, the applicant is incorrect as to what 17-002907 stands for. In that case, the applicant was removed from the Minor Injury Guideline because of several conditions including a chronic pain disorder. The Tribunal found that the applicant’s degenerative conditions, documented in a CT scan, were objective evidence supporting the applicant’s pain complaints and his diagnosis of chronic pain. Further, it is well-established in the Tribunal’s Minor Injury Guideline jurisprudence that degenerative changes are not a basis for removal from the $3,500.00 funding limit in the Schedule, unless they satisfy the pre-existing condition exception in s. 18(2): see, for example, SSZ v. Certas Direct Insurance Company, 2019 CanLII 119746 (ON LAT); 17-006159 v Aviva Insurance Canada, 2018 CanLII 110935 (ON LAT); and M.J.L. v Aviva General Insurance, 2020 CanLII 42651 (ON LAT). To reiterate, the applicant has not satisfied the test in s. 18(2).
16The Tribunal did not err in law in finding the applicant suffered from minor, soft tissue injuries as a result of the accident.
No error in the manner the Tribunal weighed the evidence
17The Tribunal carefully considered the chronic pain assessment of Dr. Dima Rozen. Dissatisfaction with the manner in which the Tribunal weighed evidence is not a basis for reconsideration. The Tribunal gave thoughtful consideration to Dr. Rozen’s report. It clearly set out its reasons for finding the report unreliable. Again, the applicant asserts that the Tribunal erred for failing to follow prior Tribunal case law. As a matter of principle, there is no error in departing from prior decisions which have no binding authority. That said, the Tribunal’s decision in this case is not inconsistent with the case upon which the applicant relies: Sidiura v Aviva General Insurance, 2021 CanLII 64243 (ON LAT) [Sidiura]. Sidiura makes no statement as to the validity of virtual chronic pain assessments. The Tribunal found the chronic pain assessment in that case to be unpersuasive for reasons unrelated to the virtual format in which it occurred.
18The applicant submits that had the Tribunal not found that Dr. Rozen’s virtual assessment compromised the quality of his report, it would have reached a different conclusion. The applicant’s submissions on this point lack coherence, as they acknowledge that the Tribunal provided more than one reason for its treatment of Dr. Rozen’s evidence. The applicant submits that another of the Tribunal’s reasons for discounting Dr. Rozen’s assessment, the fact that he “presumed to be truthful” the applicant’s statements. This finding is drawn directly from Dr. Rozen’s report, under the section headed “Diagnostic Summary” where he states:
“Mr. Rasaratnam’s responses on the questionnaires are consistent with his presentation in the clinical interview and the following is based on his presentation, verbal information (which is presumed to be truthful), and on the information derived from the documentation reviewed (as noted above).”
19The Tribunal did not overlook the medical document review Dr. Rozen identifies as a source of information in his report. Rather, it found that Dr. Rozen’s review of the objective medical evidence was flawed because the records he cites in his report are at odds with his conclusions. The Tribunal considered both the objective and subjective sources of information relied upon by Dr. Rozen. As for the latter, the Tribunal determined that Dr. Rozen’s reliance on the “presumed truthfulness” of the applicant’s subjective “verbal information” undermined the weight of his conclusions.
20It is open to the Tribunal to weigh the evidence before it in the manner it considers reasonable and appropriate. The applicant has identified no factual or legal error in the Tribunal’s assessment of Dr. Rozen’s report, let alone an error that would have led the Tribunal to a different outcome had it not been made.
No error in the Tribunal’s conclusions on the disputed treatment plans
21The Tribunal correctly concluded that an analysis of the reasonableness and necessity of the disputed treatment plans was unnecessary in this case. As the Tribunal observed at paragraph 6 of the decision, “[w]here the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident.”
22Because the Tribunal determined that the applicant’s injuries are subject to treatment within the Minor Injury Guideline, and because the applicant has exhausted the funds available to him under. s. 18(1) of the Schedule, he is entitled to no further treatment. The physiotherapy treatment he seeks is not payable on this basis. The analysis ends there.
The applicant has identified no violation of procedural fairness
23The Tribunal did not violate the rules of procedural fairness by not referring to the clinical notes and records of Trillium Rehab Physiotherapy in the decision. It is well-established that administrative decision-makers are not expected to respond to every argument or make explicit findings on each constituent element leading to a final conclusion. As the Supreme Court of Canada held in Canada (Minister of Citizenship and Immigration) v. Vavilov, such an expectation “would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice.” 1 Instead, decision-makers must meaningfully grapple with key issues and central arguments presented by the parties.
24The Tribunal did not address the clinical notes and records of Trillium Rehab in its analysis of the applicant’s accident-related injuries because these records are not probative of injuries he sustained in the accident. The records, which consist of sign-in sheets and treatment notes, establish the applicant’s participation in and positive response to physical treatment, but they do not provide an evidentiary basis for determining the applicant’s injuries. As an example, the notes identify the applicant’s “areas of injury” as “MVA”. These records are omitted from the Tribunal’s analysis of the applicant’s medical diagnoses because they are not material to that analysis.
25Moreover, at common law, a breach of procedural fairness will generally only arise when an administrative decision-maker fails to provide any reasons when reasons are required: see Baker v. Canada (Minister of Citizenship and Immigration).2 The applicant improperly characterizes the error he asserts as a violation of the rules of procedural fairness. The error he submits the Tribunal made by failing to reference certain records in the decision is neither a breach of procedural fairness nor a substantive legal error.
26While the Tribunal did not reference the Trillium Rehab treatment records in its discussion of the applicant’s medical diagnoses, it did address other records prepared by the applicant’s treating chiropractor at Trillium Health, Dr. Alechina. At paragraphs 10 and 11 of the decision, the Tribunal discussed Dr. Alechina’s November 29, 2020 disability certificate, which documented accident-related injuries that fall within the Schedule’s definition of a minor injury. The Tribunal properly considered the evidence of the applicant’s treating practitioners at Trillium Rehab in its Minor Injury Guideline analysis.
CONCLUSION
27The applicant has not established any of the grounds for reconsideration set out in Rule 18.1 of the Common Rules. The request is accordingly dismissed, and the decision stands.
Theresa McGee
Vice-Chair
Licence Appeal Tribunal
Tribunals Ontario
Released: March 3, 2022
Footnotes
- 2019 SCC 65 [Vavilov] at para. 128.
- 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para. 43.