RECONSIDERATION DECISION
Before:
D. Gregory Flude
Licence Appeal Tribunal File Number:
19-005227/AABS
Case Name:
Jason Selby v. Security National Insurance Company
Written Submissions by:
For the Applicant:
Adrian Lomaga, Counsel
For the Respondent:
Andrez D. Belloso, Counsel
BACKGROUND
1The applicant seeks reconsideration of the Tribunal’s decision released on May 27, 2021. The applicant had claimed entitlement to two chiropractic treatment plans and interest. The Tribunal found that the applicant had failed to satisfy his onus to show that his condition was caused by his February 11, 2016 accident.
2The applicant submits that the Tribunal
a. made a significant error of fact such that the Tribunal would likely have reached a different decision; and
b. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
3The applicant is seeking one of two alternative outcomes:
a. The Tribunal approve funding for the two denied chiropractic treatment plans.
b. In the alternative, an order for a rehearing on all issues before a new adjudicator, allowing the parties to make further submissions on the new evidence tendered, if requested by Security National.
RESULT
4The applicant's request for reconsideration is dismissed. It is clear that the Tribunal considered the submissions of the parties and weighed the evidence in coming to its conclusion. The applicant’s submissions are no more than an attempt to reargue the case and assign weight to the evidence in manner that differs from the Tribunal’s decision.
5I disallow the admission of new evidence. I will deal with the new evidence first.
NEW EVIDENCE
6The applicant seeks to introduce “new” evidence in two areas. He had relied on the report of a chronic pain specialist, Dr. Kevin Rod. In the section of Dr. Rod’s report entitled “Documentation Review,” Dr. Rod had listed the documents he reviewed as part of the medical history. None predates 2018, that is, approximately 2 years post-accident. The Tribunal noted the lack of review of any earlier medical records in its decision and determined that less weight should be assigned to Dr. Rod’s report because of its failure to address the applicant’s full medical history. The applicant now wants to introduce the retainer letter sent from his counsel to Dr. Rod to prove that Dr. Rod had, and considered, his full medical history.
7This letter clearly does not meet the test for new evidence set out in the Rules. It not only pre-existed the hearing date; it was readily available from counsel’s file. In addition, Dr. Rod’s report was prepared in the spring of 2019. The retainer letter is dated about two weeks earlier, April 19, 2019. The documentary disclosure date for the hearing was in December 2020. The proposed evidence is not new, it was readily available, and it is unlikely to have impacted the result since Dr. Rod did not consider pre-2018 records important enough to review.
8The applicant seeks to rely on the report of a pain specialist, Dr. John Gillis. His interaction with Dr. Gillis begins on December 23, 2020. There are also an MRI and a CT scan showing disc bulging and degenerative changes. While these medical records meet the test of not being reasonably available prior to the production date, they must fail on the second part of the test: impact on the ultimate decision. The Tribunal did not find that the applicant did not suffer from chronic back pain. It found that the cause of that back pain could not be attributed to the 2016 accident. While the Dr. Gillis report mentions the 2016 accident, he is recording the applicant’s self-report. These documents also record spinal degeneration and nothing in them ties that degeneration to the accident.
ANALYSIS
9Having considered the new evidence, I will now look at the other ground for reconsideration, a significant error of fact or law that may have impacted the decision. The applicant does not submit that the Tribunal made any errors of law. He confines his submissions to errors of fact.
10The Tribunal had before it medical records from a 2012 accident through to 2019. The applicant submits that the Nova Scotia Health Summary showed the applicant only sought treatment for back pain for approximately 6 months after the 2012 accident. In the applicant’s submission, the Summary shows all the post-2012 treatment. Missing from those records were the clinical notes and records from the applicant’s family physician. The Tribunal did not assign blame for the missing medical records or draw an adverse inference, but it did enquire into other sources of information to indicate that the applicant was receiving treatment for back pain until at least November 2015, corroborated by invoices paid by the applicant’s collateral benefits provider. This finding was clearly open to the Tribunal on the evidence and is not an error. The applicant’s submission in this regard is simply a request that I reweigh that evidence.
11The Tribunal had before it imaging studies that showed fractures. In 2017, almost two years post-accident, Dr. Yu requisitioned an x-ray, because of “history MVA.” That x-ray showed a fracture of the L1 vertebra of indeterminate age. The applicant submits that, because the x-ray was triggered by symptoms allegedly arising from the accident, then the fracture must be a result of the accident. The Tribunal rejected this submission, referring to the lack of evidence of a direct linkage. This finding was open to the Tribunal on the evidence and does not represent an error of fact such that the Tribunal would likely have reached a difference decision.
12Imaging studies also found an age-indeterminate fracture of the odontoid process (C2 Dens). Dr. Gawel, a neurologist who examined the applicant on April 23, 2018, stated his opinion that the C2 Dens fracture “probably happened during the accident.” The Tribunal correctly recognized Dr. Gawel’s musings in this regard are pure conjecture. It also points out that in making that conjecture, Dr. Gawel ignores the possibility the C2 Dens fracture could be congenital, a possible cause that had been identified in the imaging report. Far from being proof on a balance of probabilities as urged on me by the applicant, Dr. Gawel’s musings have little evidentiary value on the causation issue.
13Finally, the applicant submits that the Tribunal did not accord Dr. Rod’s report the consideration it warranted. Dr. Rod limited the scope of his report to events post-2016 when he chose to review only documents from 2018 onwards. The Tribunal recognized the limited scope and assigned the report less weight as a result. This analysis was open to the Tribunal on the evidence and does not represent an error of fact such that the Tribunal would likely have reached a difference decision.
CONCLUSION
14For the reasons noted above, I deny the Applicant's request for reconsideration.
D. Gregory Flude
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 30, 2022