Koufis v. Intact Insurance Company, 2022 CanLII 4555

Citation: Koufis v. Intact Insurance Company, 2022 ONLAT 20-002237/AABS-R

RECONSIDERATION DECISION

Before: Claudette Leslie

Licence Appeal Tribunal File Number: 20-002237/AABS

Case Name: Irene Koufis v. Intact Insurance Company

Written Submissions by:

For the Applicant: Agal Lankeswaran, Paralegal

For the Respondent: Yann Grand-Clement, Counsel

BACKGROUND

1This request for reconsideration was filed by the respondent, Intact Insurance Company. It arises from a September 9, 2021 decision, in which I found that because of her pre-accident medical history and the physical injuries sustained in the accident by the applicant prevented maximum recovery, and therefore fell outside of the Minor Injuries Guideline (“MIG”) treatment limit. I also found that the applicant was entitled to 4 of the 6 disputed treatment plans, plus interest on any overdue payments of those treatment plans.

2In its request, the respondent claims that I made a significant error of law and/or fact that would likely have led to a different determination had the error not been made. The respondent argues that there was no evidence provided of a medical condition that warranted my decision that the applicant’s injuries do not fall within the MIG definition, and the treatment limit.

3The applicant opposed the request for reconsideration largely on the basis that the MIG test was accurately applied and that contrary to the respondent’s claim, the medical evidence provided is in keeping with the finding that the applicant requires treatment that exceeds the MIG treatment limit in order to achieve maximum medical recovery.

RESULT

4The request for reconsideration is dismissed.

ANALYSIS

5The 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 (“Rules”). The Rule provides that Reconsiderations are 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

6The ground that applies in this case is Rule 18.2(b), as the respondent submitted that I made a serious error in law, by misapplying the MIG test. Specifically, the respondent argues that my decision to remove the applicant from the MIG treatment limit was erroneously based on non-existent evidence of a pre-existing condition alone; and further, that the applicant’s evidence does not lead to a finding that her accident related injuries fall outside of the MIG definition or treatment limit. In particular, the respondent submitted that I misapplied the MIG test, because:

a. there is non-existent/insufficient evidence to support a finding of a pre-existing medical condition; nor was there any supporting evidence that a pre-existing condition “…would exacerbate her accident-related injuries”.

b. a pre-existing condition on its own does not exclude the applicant from the MIG treatment limit; and

c. there is no evidence that a pre-existing condition prevented her from achieving full recovery; and

d. the evidence does not indicate that her pain complaints/functional limitations fell outside of the definition of “minor injuries” under the Schedule.

7For the following reason, I find that the respondent failed to prove, on a balance of probabilities, that I made a serious error of law/fact in the decision, or that a reconsideration, as per the provisions of Rule 18.2(b), is warranted.

The MIG as it relates to maximum medical recovery

8The respondent seeks to have me re-weigh/re-assess the evidence as it relates to interpretation of the MIG and or as it relates to pre-accident medical condition/maximum medical recovery. As indicated at paragraph 10 of my decision, one of the criteria to qualify for treatment outside of the MIG limit (set out under section 18.(2) of the Schedule) is that there must be compelling evidence that a pre-existing condition exists, that prevents the individual from achieving maximum medical recovery, if limited to the $3,500 limit.

9The Schedule does not define the term “maximum medical recovery”, however, the term is reasonably understood to mean that, no further medical improvement is required, or can be achieved.

The decision reflects sufficient evidence of a pre-existing condition

10As I noted in paragraph 12 of the decision, pre-accident Clinical Notes and Records of the applicant’s family physician, Dr. Truscott, indicate that during the period of May 2013, 2014, 2015, 2016, to December 2017, the applicant consulted with Dr. Truscott on numerous occasions regarding pain in her back, clavicle, and right shoulder; and a February 2015 ultra sound of the applicant’s right shoulder revealed a sub clavicular impairment. Paragraph 12 of the decision further points to medical diagnosis (April 2016) regarding bone density in both her lumbar spine and left hip; on October 21, 2015 her family doctor completed a Short-Term Disability ("STD") form for work, in which he also referred the applicant for physiotherapy treatment. The accident in this case occurred on April 21, 2017.

11Contrary to the respondent’s reconsideration submissions that evidence of a pre-accident medical condition was non-existent, I find, the applicant provided relevant evidence, including the above, establishing that prior to the accident she had on-going medical/pain complaints in several areas of her body, including her back and shoulder areas. The evidence also indicated she was actively using prescription medication to manage her pain.

The findings in the decision are not based solely on the existence of a pre-existing medical condition

12I agree with the respondent that the existence of a pre-accident medical condition alone, does not warrant removal from the MIG. Consequently, in making my decision, I not only turned my mind to evidence regarding the applicant’s medical condition pre-accident condition and the impairments sustained as a result of the accident, but also whether her pre-existing pain issues were impacted and/or whether post-accident injuries adversely affected her well-being and prevented maximum medical recovery. I found this to be case on all fronts; and that treatment was warranted outside of the MIG limit, primarily because her pre-existing condition prevented maximal recovery.

13The evidence refutes the respondent’s reconsideration submissions that the applicant had merely sustained back pain/injuries that fall within the MIG definition/treatment limit. Post accident evidence including the disability certificate provided (see paragraph 15 of the decision) indicates: the applicant’s WAD2 injuries included back pain (similar area of complaint pre-accident) were projected to be resolved in 9 -12 weeks; that the applicant continued to regularly complain of pain in among other areas, “the bottom of her back”, well beyond 2 years post-accident, to the point that as indicated in paragraph 17 of the decision, on November 2019 due to back pain , her doctor provided her with a note that she was unable to work for the remainder of that week. The evidence indicates that during this period the applicant continued to regularly receive physical treatment (massage, physiotherapy) and used prescription medication for pain relief.

14On the evidence, the applicant’s pre-accident back pain complaints persisted, as did similar injuries and complaint post-accident which lasted well beyond the 12-week period estimated by the medical practitioner and/or recommended for resolving minor injuries. I found that the applicant’s pre-accident complaints, specifically in her back, were compounded by accident-related injuries sustained, as evidenced by the lengthy and extended recovery period that ensued, well beyond the 6-12 weeks estimated by the treating chiropractor who completed the disability certificate provided.

The MIG test is neither narrowly applied nor misapplied in the decision

15As is the case here, section 18.2 provisions contemplate that maximum medical recovery may take longer than the duration projected by a medical practitioner (12 weeks in this case), especially in cases where a pre-existing medical condition may be impacted by new injures. The exception from the MIG treatment limit is intended to accommodate recovery that may extend well beyond the estimated period, as in this case.

16At the same time, while not explicitly stated, I gathered from the evidence provided that the persistence to seek relief/treatment demonstrated by the applicant, extended years post-accident, supported not only the finding that she had not achieved maximum medical recovery, despite having received on-going treatment beyond the MIG limit, but that, on a balance of probabilities, her pursuit, on a balance of probabilities, represented a means of relief from the disabling and the adverse effect of the pain on her well being. Having considered all of the relevant evidence provided, I found that the applicant met the provisions for exemption from the MIG treatment limits; and specifically, because her documented pre-existing condition prevented maximum recovery.

17The respondent seeks to have me reassess the evidence considered, including its insurer’s assessors’ reports, that would result in a different order. This does not constitute a ground for reconsideration under the Rules. For the reasons indicated above, I find no error of law/facts that would affect the outcome of my decision.

CONCLUSION

18The Respondent's request for reconsideration is dismissed.

Claudette Leslie

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal