RECONSIDERATION DECISION
Before:
Jesse A. Boyce, Vice-Chair
Licence Appeal Tribunal File Number:
20-008189/AABS
Case Name:
Domenico Beollomo and Allstate Insurance Company
Written Submissions by:
For the Applicant:
Carlos Ortiz, Paralegal
For the Respondent:
Jessica Meyerovich, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a preliminary issue decision dated January 25, 2022, in which I found the applicant had failed to demonstrate that his accident-related impairments warranted removal from the Minor Injury Guideline (the “MIG”) or that the treatment plans in dispute were reasonable and necessary.
2The applicant submits that it was an error of fact to find that he did not offer objective medical evidence to support removal from the MIG and that he has never been diagnosed with chronic pain or chronic pain syndrome and that it was an error of law to rely on the AMA Guides for assessing his claim. He seeks a determination that his injuries are not subject to the MIG and that he is entitled to the benefits in dispute.
RESULT
3The applicant's request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are contained 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”). The applicant’s request relies on criteria 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 and 18.2(d): that there is evidence that was previously not before the Tribunal that would likely affect the outcome of the decision.
5The test for reconsideration under Rule 18.2(b) or Rule 18.2 (d) involves a high threshold. Reconsideration 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.
No error of law or fact
6First, in the absence of an express diagnosis of chronic pain or chronic pain syndrome and with limited objective medical evidence to support his claim, it was not an error of law to refer to the six criteria in the AMA Guides. While the applicant is correct that the AMA Guides are not incorporated into the Schedule to specifically address an applicant’s standing within the MIG, the Tribunal has adopted the six criteria as an interpretative tool for evaluating claims of chronic pain in the absence of a diagnosis.1 The Tribunal has adopted these criteria for the very reason the applicant cites—because there is no authoritative definition of chronic pain.2 Put another way, the Tribunal has adopted the six criteria as a lifeline for applicants to demonstrate that they suffer from chronic pain as a result of an accident when they do not have a diagnosis.
7Second, in any event, it is the applicant’s burden to prove that he has a chronic pain condition that justifies removal from the MIG. Paragraph 9 of my decision did not state that the applicant was required to meet the criteria under the AMA Guides or that the Guides are binding. My decision did not engage with any of the six criteria. Rather, I cited to the AMA Guides as one reason among many why the applicant had failed to meet his burden:
9The Tribunal has determined that chronic pain syndrome or chronic pain with functional impairment may warrant removal from the MIG. However, other than his contention that he has “chronic, persistent pain,” the applicant offered no objective medical opinion or evidence to support removal from the MIG under this ground and there are no contemporaneous clinical notes to support ongoing functional impairment. Indeed, the applicant has never been diagnosed with chronic pain or chronic pain syndrome and did not offer submissions on the six criteria under the AMA Guides that the Tribunal has adopted as an interpretive tool for evaluating chronic pain claims in the absence of a diagnosis.
8Where the applicant was not diagnosed with chronic pain, provided limited evidence to support his claim, did not demonstrate functional impairment and, as I articulated at various points in my decision, failed to establish causation regarding his pain, I see no error of law that would have affected the outcome of the decision. Where the applicant also failed to address any of the non-binding AMA Guides criteria to meet his burden, it was not an error to find that the applicant had failed to demonstrate that he should be removed from the MIG on the basis of accident-related chronic pain.
Evidence was available prior to the hearing and does not establish causation
9Next, the applicant asserts—contrary to my finding that there was no objective evidence to support removal from the MIG—that “there is objective evidence” in the form of an April 17, 2021 CT scan that noted a stress fracture at T12 through the left pars interarticularis. This CT scan report from Trillium Health Partners was not submitted with the applicant’s evidence at first instance and his submissions did not refer to its results to support his removal from the MIG. While not specifically plead, the report is presumably being offered to satisfy criteria 18.2(d) on reconsideration.
10However, to be successful on this ground, rule 18.2(d) requires that “[t]here 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.” The applicant’s submissions do not explain why this two-page report from April 17, 2021 was not available to file with his submissions and evidence that were due over two months later on June 25, 2021, why the report could not have been obtained previously or, if the report was received past the submission deadline, why a motion to add this new, relevant evidence was never filed prior to the Tribunal rendering its decision.
11In any case, even if the applicant had provided this context, the applicant has again failed to demonstrate whether this impairment—only documented for the first time three years post-accident—was caused by the accident that occurred on April 19, 2018, the second accident that occurred sometime after, from his employment in construction or from some other cause. While the April 17, 2021 CT scan clearly indicates a stress fracture, the report does not reference the accident. Notably, the applicant’s own submissions again fail to tie the results of the April 2021 CT scan to the April 2018 accident, which is his burden. Accordingly, I cannot find that this new evidence was both previously unavailable to the applicant or that it would have affected the result of my decision.
CONCLUSION
12The applicant’s request for reconsideration is dismissed.
Jesse A. Boyce
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 1, 2022