Thu Thi Le Tran v. Aviva Insurance Company of Canada, 2023 CanLII 107275

Citation: Tran v. Aviva Insurance Company of Canada, 2023 ONLAT 21-002581/AABS - R

RECONSIDERATION DECISION

Before: Derek Grant

Licence Appeal Tribunal File Number: 21-002581/AABS

Case Name: Thu Thi Le Tran v. Aviva Insurance Company of Canada

Written Submissions by:

For the Applicant: Bambi Santiago, Paralegal

For the Respondent: Kristofer Angle, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant, Thu Thi Le Tran (“TTLT”) in this matter. It arises out of a Tribunal decision dated May 11, 2023, in which I found that TTLT was not entitled to a psychological or chronic pain assessment or interest.

2TTLT is seeking a reconsideration of my decision. The remedy she seeks is for the initial decision to be varied or cancelled regarding the chronic pain and psychological assessments.

3Aviva disagrees and asks the Tribunal to dismiss TTLT’s request.

RESULT

4TTLT’s request for reconsideration is dismissed.

RECONSIDERATION CRITERIA

5The grounds for a request for reconsideration to be allowed are contained in Rule 18 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 (“Rules”). 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.

6The following remedies are available to the Tribunal on a request for reconsideration:

a. dismiss the request;

b. confirm, vary or cancel the decision or order; or

c. order a rehearing on all or part of the matter.

7TTLT relies on Rule 18.2(a) and (b), arguing that the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness. She further submits that I made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

8Aviva submits that the Tribunal did not act outside its jurisdiction or violate the rules of procedural fairness, and no error of law was made.

ANALYSIS

Chronic pain assessment – no error of law or fact

9TTLT submits that I made significant errors of law or fact when I determined that the OCF-18 for the chronic pain assessment was not reasonable and necessary because Dr. Ta is not qualified to diagnose chronic pain. Her position is that because Dr. Ta has a specialty in family medicine, with a special interest in chronic pain, Dr. Ta “is more than qualified to diagnose and render an opinion with respect to chronic pain.”

10On reconsideration, I find that no error of law or fact was made in my finding.

11At paragraph 15 of my decision, I specifically address the issue of Dr. Ta’s area of expertise (anesthesiology) and refer to the definition provided by the Royal College of Physicians and Surgeons of Canada (“RPCP”), which states in part that, “anesthesiologists can also diagnose conditions and manage patients suffering from chronic or acute pain.”

12At paragraph 16, I further discuss that the definition provided by the RCPC notes that anesthesiologists can “apply their expertise…in the provision of chronic pain management.” I note that throughout the provisions regarding anesthesiologist’s competencies in the RCPC, it specifically refers to the ability to provide “chronic pain management.” There is no provision that clearly states that an anesthesiologist can diagnose chronic pain.

13On a plain reading of the anesthesiologist competencies in the RCPC, I find it is clear that the role is one of managing chronic pain, that has already been diagnosed. There is a clear distinction that the anesthesiologist is not the expert diagnosing the chronic pain, but the one treating it.

14Although TTLT argues that there is no requirement to be a “chronic pain specialist”, it is well-established that the Tribunal places significant weight on experts who have a designated specialty in the area of chronic pain. This is not a qualification that I am pointed to as it pertains to Dr. Ta. TTLT’s position is that Dr. Ta can diagnose chronic pain “by virtue of being a family physician specialist alone”. I placed little weight on her report, because she is not a chronic pain specialist, which, as stated earlier, I find to be persuasive, when a report from such an expert is put before me.

15To clarify, I placed less weight on Dr. Ta’s report because I found that Dr. Ta is not formally qualified to diagnose chronic pain, based on my interpretation of the competencies in the RCPC. Even if I had made an error in my interpretation of the qualifications under the RCPC regarding anesthesiologists, based on the overall evidence, I do not find that my interpretation of Dr. Ta’s qualifications as an anesthesiologist would likely have changed the outcome of my decision.

16On reconsideration, I am not persuaded that TTLT has satisfied her burden that my consideration of her evidence led to a significant error of law or fact. Accordingly, I find that I did not make an error of law or fact in my analysis of Dr. Ta’s qualifications as it pertains to whether the chronic pain assessment was reasonable and necessary.

Psychological assessment – error of fact

17TTLT submits that I made an error of fact when at paragraph 22 I stated, “I do not find any of TTLT’s psychological complaints are as a result of the accident based on the lack of medical evidence to support same.” I agree with TTLT that this was an error.

18In the December 30, 2019 s. 44 report, Dr. Lawson, psychologist, opined that TTLT met the criteria for a DSM-V diagnosis of major depressive disorder with anxious distress. Dr. Lawson went on to state that based on self-reporting, it did not appear that TTLT was experiencing her current degree of emotional distress, or present level of pain and associated symptomatology in the year prior to the subject accident. Dr. Lawson concluded that her current clinical presentation remained materially related to the accident in question.

19As a result of Dr. Lawson’s findings, Aviva removed TTLT from the Minor Injury Guideline and approved several sessions of mental health therapy.

20However, despite this error of fact, I find that TTLT has not demonstrated on reconsideration that the any alleged error of law or fact was of such significance, that it would have led to a different outcome had the error not been made.

21At paragraphs 20-21 of my decision, I consider the evidence of Dr. Trinh, family physician, and the records of psychological complaints that TTLT presented with. Despite her complaints, and chronic depression noted, there is no mention of the accident, or that the accident was a cause of her psychological symptomatology. Notably, Dr. Trinh made referrals to a psychiatrist. Dr. Trinh does “advise of private counselling with psychologist prn”, however, he suggests psychiatrist consultations on more than one occasion, which TTLT refuses.

22On reconsideration, TTLT submits that for cultural reasons, she is not comfortable with seeing a psychiatrist due to stigmas around mental health, and a fear that she “may” be prescribed medication. I do not find these to be valid grounds to reconsider my determination that the psychological assessment was not reasonable and necessary. On reconsideration, I find much of TTLT’s argument essentially amounts to a request to re-weigh evidence that was before me at first instance. This is not allowed on reconsideration, nor is it the purpose of reconsideration. The evidence was considered, weighed, and a determination was made based on same. Disagreeing with the determination is also not a ground for reconsideration. Further, having already been found to have suffered psychological impairments as a result of the accident by s. 44 assessor, Dr. Lawson, I do not find an additional psychological assessment is reasonable and necessary.

23For the reasons above, I agree that there was an error of fact, however, TTLT has not demonstrated that the error of fact was significant enough to lead to a different outcome had the error not been made. Accordingly, I see no reason to alter my decision at first instance.

CONCLUSION

24For the reasons noted above, I deny TTLT’s request for reconsideration.

Derek Grant

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal