RECONSIDERATION DECISION
Before:
Harry Adamidis, Adjudicator
Licence Appeal Tribunal File Number:
21-005486/AABS
Case Name:
Souad Najem-Youssef v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant:
Hamish Mills-McEwan, Counsel
For the Respondent:
Alexander Dos Reis, Counsel
BACKGROUND
1This request for reconsideration was filed by the Applicant in this matter.
2It arises out of a decision dated June 14, 2023 in which I found, among other things, that the applicant is not entitled to an attendant care benefit, nor the treatment plans in dispute. The applicant argues that I made errors of law, fact, and mixed fact and law, such that I would likely have reached a different result had the error not been made.
RESULT
3The Applicant's request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) 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;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) 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.
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.
6The applicant submits that:
I. I incorrectly applied the “but for” test for causation.
II. I failed to compare the applicant’s present and pre-accident level of impairment and functioning.
III. I failed to consider the applicant’s worsening symptomology and new impairments.
IV. I made findings on the applicant’s pre-accident medication intake that disagreed with the evidence and failed to consider that pre-accident the applicant’s back pain was under control.
V. I exceeded my jurisdiction by ordering the applicant to pay witness fees.
Application of the causation test and the assessment of present and pre-accident level of impairment
7According to the applicant, my decision implies that an accident must be the sole cause of the applicant’s impairments in order to establish causation. To establish this point, the applicant cites paragraph 45 of the decision which states:
The applicant was diagnosed with a pain disorder and major depression in 2010. She continued to be treated for a pain disorder and depression up to the time of the MVA. The dosage of Oxycocet and Fluoxetine prescribed to her in 2010, when she was unable to complete her tasks of daily living, was virtually unchanged at the time of the MVA. This evidence is more persuasive than the testimony of the applicant and her son that portrayed her as highly active and unimpeded by a pre-existing pain disorder or major depression. For these reasons, I find that the applicant has not established, on a balance of probabilities, that the impairments necessitating attendant care were caused by the accident.
8The applicant submits that this approach is inconsistent with Sabadash v. State Farm et al., 2019 ONSC 1121, where the Divisional Court found that an accident does not need to be “the cause” of the injuries but needs to be at least “a necessary cause.” Instead, the applicant alleges that I attributed the entirety of the applicant’s impairments to pre-existing conditions and did not consider the effect of the accident on the applicant.
9The Respondent submits that the applicant is conflating the “but for” test with negative credibility findings. It argues that these are two different types of analysis and deciding causation based on a credibility assessment does not constitute an inappropriate application of the “but for” test.
10I find that I did not misapply the “but for” test.
11The burden of proof rests with the applicant to establish causation. To do this, the applicant and her son testified that she was in good health and very active prior to the motor vehicle accident (MVA) which took place on February 7, 2019. Paragraph 29 of the decision notes the following:
The applicant testified that her health was very good, and she was quite active prior to the MVA. She cleaned the bedrooms, washrooms, kitchen, and all three floors of her house. She did the cooking and the laundry. She looked after her grandchildren. She also exercised and went on three hour walks every day.
12I found that this testimony is inconsistent with the medical evidence that shows the applicant had an opioid dependency, was diagnosed with a somatic pain disorder, and was being treated for chronic pain and mental health issues in the decade preceding the accident. As noted in paragraphs 44 and 45 of the decision, the evidence of the applicant and her son on her pre-MVA functioning was found to be unreliable and could not be used to establish causation.
13The applicant also relied on two reports by Dr. Suddaby, psychiatrist, to show that her pre-existing conditions had little impact prior to the accident. As noted in paragraph 40 of the decision, no weight was given to Dr. Suddaby’s first report as he relied on the factually incorrect and unreliable information provided by the applicant and her son.
14Little weight was also given to Dr. Suddaby’s second report. As noted in paragraphs 41 and 42 of the decision, the applicant now acknowledges she was not pain free before the MVA. She also acknowledges, for the first time to Dr. Suddaby, that she had a prescription for opioids pre-MVA. She routinely filled her monthly prescription for opioids but states that she but did not consume much of the medication. Instead, she threw her pills away.
15Dr. Suddaby is an independent medical examiner and it is open for him to accept the applicant’s explanation. I see the evidence differently. In paragraph 44 of the decision, I found that the inconsistencies in the information provided by the applicant “cannot be explained in the manner suggested by Dr. Suddaby.”
16The applicant further submits that I relied on this dated evidence and did not consider evidence from the year before the accident.
17This submission is factually incorrect. My decision relies on Dr. Plotnick’s 2010 report which diagnosed the applicant with a pain disorder and a severe to extreme major depressive disorder. This report also documents the applicant’s inability to complete her activities of daily living and her extensive need for assistance. For example, she was unable to put on her clothes or take a shower. However, the decision also relies on the clinical notes and records of Dr. Eliosoff, the applicant’s family doctor from May 6, 2016 to February 23, 2019. These notes cover a two-and-a-half-year period immediately prior to the accident. During this period, Dr. Eliosoff was treating the applicant’s chronic pain by prescribing 100 tablets of Oxycocet per month up to the time of the accident. He also prescribed 20mg per day of the anti-depressant Fluoxetine. The notes clearly state that the applicant suffers from chronic pain and depression.
18The decision thoroughly reviews and references the applicant’s evidence on causation in paragraphs 28 to 46. The decision clearly articulates why her evidence was given little weight and why I prefer the clinical notes of Dr. Eliosoff which show that the applicant had chronic pain and depression before the accident at paragraph 45. Under these circumstances, the applicant was unable to satisfy her evidentiary burden, on a balance of probabilities, to establish a causal link between the accident and her post-MVA impairments, which I also articulate at paragraph 45. This approach is consistent with Sabadash and I see no error of law that would have changed the outcome of my decision.
New Impairments
19The applicant submits that I did not consider, acknowledge, or make factual findings on the applicant’s undisputed accident-related injuries.
20I disagree. The decision did consider, acknowledge, and make factual findings on the applicant’s accident-related injuries.
21For example, the following is from paragraph 51:
The applicant sustained a left ankle fracture in the MVA. An x-ray from October 9, 2019 shows a “Complete bony union has occurred...” As such, the fracture has healed. Despite this, the applicant continues to report pain in this area. Dr. Finestone opines that the applicant likely has pain syndrome.
22In paragraph 38 of her submissions, the applicant lists six injuries which are alleged to have not been considered in the decision. I note that the decision addresses her left ankle fracture, depression, somatic pain, and the use of opioids.
23The remaining two items, the WAD II whiplash and the sprain and stain injuries to her spine and shoulders, are not mentioned in the decision. This does not mean that these injuries were not considered or that it was an error of law to not specifically state them in my reasons. It is well-settled that an adjudicator is not required to refer to every piece of evidence or every submission put before them when providing reasons.
24More importantly, addressing these injuries would not have caused me to reach a different result. As noted below, these injuries are minor and did not cause the applicant’s pain disorder. Her pain disorder is a well-documented condition that pre-dates the accident, as noted at paragraph 53 of the decision.
Worsening Symptomology
25The applicant submits that I did not consider how the applicant’s pre-exiting impairments were worsened by the accident and that this too constitutes an inappropriate application of the “but for” test.
26The decision made numerous references to the post-MVA medical evidence. This includes the evidence of Lisa Manninen, an occupational therapist who testified for the applicant. As noted at paragraph 31 of the decision, “Ms. Manninen confirmed that the applicant’s physical injuries are minor and do not prevent her from completing her activities of daily living.” Instead, the applicant’s psychological impairment “prevents her from initiating and completing personal care tasks.”
27At paragraph 38, I found that her psychological condition was an ongoing impairment that pre-dates the accident. The applicant may disagree with this finding, but this does not constitute an error of law. In any event, it is incorrect to say that I did not consider whether her pre-accident symptomology was affected by the MVA.
Pre-accident Medication Intake and Pain
28The applicant submits I made factual errors in regard to the applicant’s use of Fluoxetine. Contrary to what is noted in my decision, the applicant asserts there are no prescriptions for Fluoxetine in the year before the accident. Moreover, the applicant’s prescription histories do not show that she filled any prescriptions for Fluoxetine from February, 2016 to the time of the accident. Therefore, the applicant submits I erred when I concluded that the applicant’s use of Fluoxetine is an indication of her ongoing depression.
29The applicant disputes that Dr. Eliosoff prescribed Fluoxetine or that he was treating the applicant for depression. I note that the clinical notes and records of Dr. Eliosoff are in the respondent’s brief and show that the applicant was prescribed Fluoxetine from May 6, 2016 to January 14, 2019. As indicated in paragraph 37, the notes clearly state that he prescribed Fluoxetine to treat the applicant’s depression.
30In paragraph 37, I gave weight to the fact that the applicant was treated for depression by being continuously prescribed a daily dose of an anti-depressant in the two and a half years preceding the accident. The applicant disagrees with my assessment, but again, this is not an error of fact because the evidence supports my analysis.
31The applicant further submits that I made an error of mixed fact and law when I found that the applicant was being treated for a pain disorder up to the time of the accident and that her prescription for Oxycocet was virtually unchanged from 2010 up to the time of the accident.
32The applicant also submits that I made an error in stating that the applicant was prescribed 112 tablets per month in 2010. The correct number is 120 tablets per month.
33I agree that the decision misstates the amount of Oxycocet tablets that the applicant was prescribed in 2010. Indeed, the correct amount is 120 tablets per month, not 112 tablets per month as noted in the decision. However, this is not an error that would have resulted in a different outcome. In my view, the pre-accident dosage of Oxycocet did not substantially change over the course of time.
34Moreover, I disagree with the applicant’s position regarding her not being treated for a pain disorder before the accident. Again, her family doctor explicitly states that she has chronic pain. He prescribed 100 tablets of Oxycocet to her each month. Given this evidence, it is reasonable to conclude that she was being treated for a pain disorder and I see no reason to interfere with my determination.
35Finally, the applicant submits that I did not consider the post-MVA increase in her Oxycocet prescription to 150 tablets per month. The applicant submits that this is an error of law and mixed fact and law that would have led to a different outcome if this had been considered.
36Dr. Maan Saad’s increase in the prescribed amount of Oxycocet is mentioned in the decision at paragraph 65. His reasoning and his motivation, as set out in his clinical notes and records, is not analyzed. I do not consider this to be an error that would have changed the outcome of the decision.
37There are thousands of pages in evidence that cover numerous facets of the applicant’s case. Decision makers are not required to address every detail of the evidence put before them but must address decisive points to resolve the material issues in dispute. In my view, the applicant’s long-term use of opioids, her history of pain related mental health issues and depression, and her post accident functional impairments are sufficiently covered to support the conclusions in the decision. I agree that exploring the reasons for the increased opioid prescription may have made the decision more complete, but this would not change the outcome.
Exceeding Jurisdiction
38The applicant called the respondent’s experts to testify at the hearing. After the hearing, she decided not to pay the witness fees. The respondent subsequently filed a post hearing motion seeking an order for the applicant to pay the witness fees. In the decision, at paragraphs 21-24, I determined these are expert witnesses and ordered the applicant to pay the fee under Section 28 of Tariff A of the Rules of Civil Procedure.
39The applicant submits that I have no authority to make such an order.
40I find that I do have this jurisdiction.
41The applicant argues that there is no statutory provision giving LAT Members the authority to order the applicant to pay fees to a third party. The applicant cites two LAT decisions to support her position. I note that LAT decisions are not binding on me. Even so, neither case cited by the applicant is persuasive.
42In Applicant vs. State Farm Mutual Automobile Insurance Company, 2020 CanLII 57374 (ON LAT), the respondent served a summons on a witness. The wording is somewhat cryptic; however, it seems that the witness refused to attend because there was no order in place compelling the respondent to pay the witness fee. The Tribunal Member found that he lacked the jurisdiction to order the respondent to pay for her attendance. This case is not persuasive as there is no analysis explaining how this determination was made.
43In Applicant v Northbridge Personal Insurance Corporation, 2020 CanLII 14425 (ON LAT), the Tribunal found that it lacked jurisdiction to order the applicant to pay accounting fees associated with the re-adjusting of a file. In my view, this decision does not speak to this issue before me. The respondent bore the cost of accounting fees which they tried to recoup by way of a motion to the LAT. The Tribunal correctly decided that this request was beyond the scope of the Tribunal’s authority. The issue before me is different. The issue relates to witness fees which are dealt with in the Tribunal’s Common Rules.
44Rule 8.3 of the Common Rules states:
Service of a summons and payment of attendance money is the responsibility of the party that requested the summons. A party summonsing a person to attend before the Tribunal is required to pay that person the same fees or allowances as the person would be paid if attending before the Superior Court of Justice (Ontario). Fees and allowances are to be calculated in accordance with Tariff A of the Rules of Civil Procedure. (emphasis added)
45There is no dispute that the applicant served a summons on the witnesses and that the witnesses testified. Under Rule 8.3, the applicant “is required” to pay the witness fee. As the applicant has failed to comply with Rule 8.3, the Tribunal has the jurisdiction to remedy the situation by way of issuing an order. For these reasons, I find that I have the jurisdiction to order the applicant to pay the witness fees.
The Respondent’s Request for Additional Pages
46Vice-Chair Logan ordered the respondent to make 12 pages of submissions. The respondent provided 19 pages. The respondent submits that the applicant’s initial submissions are 25 pages in length and the applicant is also given an additional five pages in reply to the respondent. As such, the respondent is requesting additional pages in order to be heard.
47I am denying this request. In my view, 12 pages are sufficient enough to address the issues raised by this request for reconsideration.
ORDER
48For the reasons noted above, I deny the Applicant's request for reconsideration.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 19, 2023