Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 20-014401/AABS
Case Name: Teresita Prillo v. Coseco Insurance Company
Written Submissions by:
For the Applicant: Darcie Sherman, Counsel
For the Respondent: Amanda Lennox, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of the October 14, 2022 decision (“decision”) in which I found that the applicant sustained a minor injury and was subject to the monetary limit provided for in the Minor Injury Guideline (“MIG”). As the MIG limits for medical benefits had been exhausted, I also found that it was unnecessary for me to consider the reasonableness or necessity of the proposed treatment plans. Finally, I found that the applicant was not entitled to interest or an award and dismissed the application.
2The applicant requested a reconsideration of the decision on the basis that I made an error of law and fact such that I would likely have reached a different result had the errors not been made. The applicant is seeking an Order varying my decision and an Order determining that the applicant’s injuries are not subject to the MIG and that the denied medical benefits be paid, with interest.
3The respondent opposes the request for reconsideration and submits that my decision does not contain a reversible error. It submits that the applicant’s reconsideration request is an attempt to re-litigate her case, as any evidence submitted in the applicant’s reconsideration submissions was already available at the time of the hearing.
RESULT
4The applicant's request for reconsideration is denied.
ANALYSIS
5The grounds for a request for reconsideration 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”).
6Under Rule 18.2, a request for reconsideration will not be granted unless one 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.
7Reconsideration 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.
8The applicant advances her request for reconsideration under Rule 18.2(b).
ERROR OF LAW OR FACT
9I find I did not make an error in law or fact in my determination that the applicant’s accident-related impairments fall within the MIG. I agree with the respondent’s submissions that the applicant’s reconsideration request is an attempt to re-litigate arguments made at the hearing.
10As noted in my decision at para 8, the onus was on the applicant to prove, on a balance of probabilities, that her accident-related impairments warranted removal from the MIG. Based on the evidence before me, I determined that the applicant’s onus was not met and that her accident-related impairments were minor in nature and fell within the MIG.
Did I Err in Fact and Law in my Determination that the Applicant did not Sustain Chronic Pain as a Result of the Accident?
11The applicant submits that I erred in fact and law in determining that her injuries were predominantly minor and subject to the treatment limits of the MIG. She argues that the totality of the medical evidence submitted at the hearing established that she suffers from accident-related chronic pain disorder. The applicant submits that I erred in that I did not apply the appropriate weight to Dr. Inese Robertus’ Chronic Pain Assessment Report. I agree with the respondent’s submissions that the applicant is asking that I reweigh the evidence already submitted for the initial hearing. In paras.16-17, 21-24 and 26-29 of my decision, I provide very detailed reasons as to why I did not accept Dr. Robertus’ finding that the applicant suffers from a number of diagnoses, including chronic pain syndrome, as a result of the accident.
12As I discussed in the decision at para 25, to establish chronic pain warranting removal from the MIG, the onus is on the applicant to establish pain that is severe, of a constant duration and functionally disabling. At paras 26-27, I considered Dr. Robertus’ Chronic Pain Assessment Report and weighed it against the objective medical record. Namely, the clinical notes and records (“CNRs”) of the applicant’s family physician, which indicated nominal pain complaints in the year and a half leading up to the Chronic Pain Assessment Report, despite the applicant having attended at the doctor’s office numerous times for unrelated issues.
13I agree with the respondent’s submissions that in weighing the evidence, my analysis was in keeping with jurisprudence which holds that where there are conflicting opinions, an adjudicator must look for corroboration in the medical record. I see no error in my finding that the medical record did not establish that the applicant’s pain was constant, severe and adversely affected her functionality.
14The applicant also submits that I erred in fact by stating that it “appears that [Dr. Robertus’] diagnosis is based solely on the self-reports of the Applicant and is not corroborated by the medical record”. I find that I did not. While I agree with the applicant that chronic pain is often diagnosed on the basis of subjective reporting, I find I did not err when I placed significant weight on the CNRs of the applicant’s family physician and found that they did not corroborate a finding of chronic pain.
15It is settled law that an adjudicator is entitled to weigh and favour evidence. The applicant has not established an error of law in assessing the value of Dr. Robertus’ report.
16The applicant further states that I erred by failing to properly consider precedent caselaw and failing to apply the tests set out in the Statutory Accident Benefits Schedule, Effective September 1, 2010 (including amendments effective June 1, 2016)1 (“Schedule”) in determining that the applicant fell within the MIG. I agree with the respondent’s submissions that the applicant does not provide specific allegations regarding an error of law, other than submitting that I failed to consider the Tribunal decision, 17-003735 v Certas Direct Insurance Company2. While I did not expressly note this case in my decision, I did consider the caselaw submitted, but did not find 17-003735 to be persuasive.
17In 17-003735 the adjudicator accepted the applicant’s expert’s diagnosis of chronic pain syndrome. In the case before me, I did not. I find no error of law in my treatment of the caselaw identified by the applicant.
Did I Err in Fact in not Considering Certain Evidence?
18The applicant submits that I erred in not considering her OCF-3, dated September 20, 2018, in my decision. I agree with the respondent’s submissions that I did list the applicant’s OCF-3 in para. 10 of my decision as evidence that was reviewed. While I did not subsequently expressly refer to the OCF-3 in rendering my decision, I am not required to identify all of the evidence submitted, weighed, and contemplated in making my decision.
19I did consider the applicable OCF-3 when rendering my decision, but similarly did not find it persuasive in establishing chronic pain. The OCF-3 did not reference chronic pain, but rather, listed strain and sprain type injuries, pain and stiffness “in the joint” and generalized anxiety disorder. It listed the anticipated duration of the disability to be 9-12 weeks. Further, I note that an OCF-3 is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident. Finally, the OCF-3 was prepared by Dr. Preety Somal, chiropractor. As a chiropractor, a chronic pain diagnosis would be outside Dr. Somal’s scope of practice. As such, I find that I appropriately considered and weighed the OCF-3 and find no error in my treatment of the OCF-3.
20The applicant also submits that I failed to properly consider the pre-accident clinical notes and records (“CNRs”) of her family physician, which confirm that prior to the accident, the applicant suffered from mechanical back pain and osteoporosis, in addition to diabetes. As such the applicant argues that these pre-existing impairments prevented her from achieving maximal recovery under the MIG limits.
21I find that this is a new argument that was not made at first instance. In the applicant’s initial and reply submissions for the written hearing, the applicant did not make any reference to pre-accident mechanical back pain or osteoporosis. Rather when describing her medical history, the applicant had only listed her pre-accident conditions of prostate hypertension, diabetes, and high cholesterol. Although the applicant submits that the historic references to back pain and osteoporosis were contained in the family physician’s CNRs, the applicant cannot point to a body of evidence and expect the Tribunal to consider the documents and assemble an evidentiary foundation for her case. If the applicant did not highlight mechanical back pain and osteoporosis as significant pre-accident conditions in her written hearing submissions, she cannot expect the Tribunal to have considered these conditions in rendering its decision, or argue that it constitutes an error when it does not.
22Further, when providing the grounds for her position that her injuries warranted removal from the MIG, the applicant’s hearing submissions only referenced her chronic pain diagnosis and did not reference the additional ground of pre-accident impairment preventing maximal recovery under MIG limits.
23The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter. As a result, I find that the applicant’s submissions regarding her pre-accident mechanical back pain, osteoporosis and maximal medical recovery under MIG limits, are not properly before me and will not be considered as part of this reconsideration.
Did I Err in not Considering the Reasonableness and Necessity of the Treatment Plans?
24The applicant further submits that I erred by finding that the applicant was not entitled to further medical benefits due to the fact that she had reached the limit under the MIG. She cites sections 15 and 16 of the Schedule, as authority for the fact that an insurer is liable to pay for all reasonable and necessary expenses.
25I find that I did not make an error. As noted in my decision at para 7, the Schedule is clear that recovery for medical and rehabilitation benefits pursuant to sections 15 and 16, are subject to the monetary limits of section 18(1), namely, the $3,500.00 treatment limit for injuries found to be within the MIG. As I found that the applicant’s accident-related injuries were subject to the MIG, it was not necessary to undertake the analysis of the reasonableness and necessity of the disputed treatment plans, given that there were no funds left in the MIG limits for any additional treatment.
26In summary, I find no error of law or fact in my decision. The applicant’s request for reconsideration is an attempt to re-argue issues that were addressed in my decision and to raise new arguments that could have been raised at first instance. I find that the applicant has not established grounds for reconsideration under rule 18.2(b).
CONCLUSION
27The applicant’s request for reconsideration is denied.
Ulana Pahuta Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: January 18, 2023
Footnotes
- O. Reg. 34/10 as amended.
- 2018 CanLII 39445 (ON LAT)