St-Onge v. Economical Mutual Insurance Company, 2023 CanLII 52425

Citation: St-Onge v. Economical Mutual Insurance Company, 2023 ONLAT 21-001879/AABS - R

RECONSIDERATION DECISION

Before: Taivi Lobu, Adjudicator

Licence Appeal Tribunal File Number: 21-001879/AABS

Case Name: Jean-Charles St-Onge v. Economical Mutual Insurance Company

Written Submissions by:

For the Applicant: Jean-Charles St-Onge, Applicant

For the Respondent: Martin Forget, Counsel Nivedita Misra, Counsel

INTRODUCTION

1This request for reconsideration was filed by the applicant in this matter.

[2] It arises out of a decision dated February 21, 2023 in which the Tribunal found that: a. the applicant’s injuries were predominantly minor as defined by section 3 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) and subject to treatment within the $3,500 limit of the Minor Injury Guideline and b. the physiotherapy treatment plan dated August 28, 2019 was reasonable and necessary, payable subject to it being incurred and within the remaining portion of the $3,500 funding limit.

[3] The applicant is seeking an order: a. Cancelling the Tribunal’s order / decision b. A rehearing of up to two days in length or in the alternative a finding that the applicant has a major injury with access to indefinite physiotherapy treatment for accident-related pain.

4The respondent submitted that there was no basis for granting the reconsideration.

RESULT

5The applicant's request for reconsideration is dismissed.

ANALYSIS

[6] The applicant’s request for reconsideration is on three of the four grounds set out under Rules 18.2 (a), (b) and (d) of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission. The applicant submits that: (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 it would likely have reached a different result had the error not been made; and, (c) there was evidence not before the Tribunal that could not have been obtained previously and would likely have affected the result.

[7] The respondent replied that: (a) the Tribunal acted within its jurisdiction and complied with rules of procedural fairness and the applicant was given ample opportunity to present his case; (b) The applicant in his request for reconsideration is attempting to re-litigate the issues that have already been properly decided. (c) there is no evidence not before the Tribunal that could not have been obtained previously and would likely have affected the result.

8The threshold for a reconsideration is high, and the onus is on the requestor to establish how or why the decision falls within Rule 18.2 grounds for reconsideration.

Rule 18.2 (a) - Natural Justice & Procedural Fairness

9I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a) for the following reasons.

10The applicant brought procedural motions leading up to, at, and after the videoconference hearing of his application, including: a motion for removal of the adjudicator at the case conference for bias; a motion for an adjournment of the hearing date to allow time to review and address evidence; a motion converting a one day video-conference hearing to an in-person hearing; a motion for an additional hearing day; a motion to extend time for filing closing submissions; a motion for the removal of the hearing panel for bias; and a motion to reopen the hearing to add an issue and address new evidence. Each of these motions has been addressed by the Tribunal.

11The applicant submits that he was denied procedural fairness for reasons including that: he was not given adequate notice of the proceedings; he did not have an adequate opportunity to present his case; his request for a second hearing day was denied; his post-hearing motion requesting the panel’s recusal should not have been addressed by the panel but by another adjudicator; the panel did not consider all relevant evidence; and the panel was biased.

[12] With regard to the submission that the applicant did not have adequate notice of the nature of the proceedings or of the issues to be decided, applicants who apply to the Tribunal about an accident benefits dispute are responsible for presenting their case within the parameters of the Schedule. In this case the applicant’s videoconference hearing of August 22, 2022 was scheduled at a case conference of September 15, 2021, nearly one year in advance. According to the case conference report and order dated September 17, 2021, the issues in dispute for the hearing were defined as:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline? Note: The parties agree the MIG limits have not been exhausted and at the case conference the respondent stated $959.30 has been paid to date within the Minor Injury Guideline.
2. Is the applicant entitled to a medical benefit $917.88 for physiotherapy, proposed by Lifemark Santé Montfort in a treatment plan/OCF-18 (“plan”) dated October August 28, 2019?
3. Is the applicant entitled to interest on any overdue payment of benefits?

[13] Following this case conference, the applicant brought a motion requesting that the case conference adjudicator be removed for apprehension of bias and that the issues in dispute in the application be corrected. The motion was heard on October 21, 2021. In a motion order dated November 24, 2021, the motion adjudicator affirmed the case conference order, writing as follows: [1] Following a brief discussion, the applicant agreed that his concerns were addressed, and required no further action. In summary: the case conference adjudicator has no further role in the file (no discussion around bias was necessary); and, no amendment to the [case conference] report and order is warranted. The applicant’s submissions related to an MRI and the medical records will be discussed at the hearing as part of his arguments.

14If following this motion order, the applicant required additional changes or clarification, it was open to him to raise this in one of the subsequent pre-hearing motions which the applicant brought. I also note that the case conference report and order dated September 16, 2021, stated that the applicant indicated he may retain legal counsel for the hearing. The case conference report also stated that “If the applicant would like to obtain legal advice, the Law Society of Ontario provides information and a directory of legal professionals. The Law Society website is: https://lso.ca/public-resources/finding-a-lawyer-or-paralegal”

[15] As shown in the Tribunal’s decision, the Tribunal has relied on the issues in dispute as defined in the case conference order which were affirmed in the aforementioned motion order – namely: a. Are the applicant’s injuries predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and the [Minor Injury Guideline]? b. Is the applicant entitled to a medical benefit in the amount of $917.88 for physiotherapy, proposed by Lifemark Sante Montfort in a treatment plan/OCF-18 dated August 28, 2019? c. Is the applicant entitled to interest on any overdue payment of benefits?

16I find that the applicant had adequate notice of the nature of proceedings and the issues to be decided.

17In terms of the applicant’s ability to present his case, he was permitted to file evidence for a one-day videoconference hearing, including his own affidavit evidence and evidence produced after production deadlines. The Tribunal did not exclude any documents which the applicant sought to introduce into evidence.

18The applicant was allowed to call witnesses for the hearing but chose to restrict witness evidence to his own testimony. The respondent did not call any witnesses. The one-day videoconference hearing time which was allotted for witness testimony was dedicated to the applicant’s testimony. The parties were permitted to file closing submissions in writing after the hearing, with the applicant also being permitted to file a reply submission. I am satisfied that the Tribunal provided the applicant with an adequate opportunity to present his case.

19After the videoconference hearing had concluded, the applicant brought a motion for recusal of the panel for bias. The panel addressed the applicant’s bias motion in its decision at paragraphs 17 – 22 and found that the test for bias had not been met. In requesting this reconsideration, the applicant submits that his post-hearing motion seeking recusal of the panel for bias should have been referred to another adjudicator. This is not a ground for reconsideration. Under the section 25.0.1 of the Statutory Powers Procedure Act, it is the Tribunal controls its own process.

20A panel is not required to address every piece of evidence in its decision (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paragraph 91). The fact that the applicant may have weighed or considered evidence differently or had different expectations about Tribunal procedures or about the law which applied, does not mean there was an absence of procedural fairness; nor is it indicative of bias.

21The applicant has also raised other concerns in his reconsideration request, submitting for example that the panel erred in considering his case in relation to the Minor Injury Guideline rather than accepting his case as a major injury. He submitted that the panel should have addressed the issues so that a lump sum payment could be arrived at either by Tribunal order or arrived at between the parties so that he could receive treatment he was seeking. While the applicant is of the view that a different approach and outcome is warranted, this is not grounds for reconsideration. An application for accident benefits is restricted to the provisions of the Schedule. The applicant’s entitlement to accident benefits is determined by the Schedule and the Tribunal is bound to consider his application within the framework of the Schedule (see: sections 280 (2) and 280 (4) of the Insurance Act).

22I find that the panel proceeded under the correct legal framework when addressing the issues in the application. I do not find that the Tribunal made any procedural errors to invalidate the proceedings, that it overlooked material evidence that could be reasonably expected to have affected the result, or otherwise made an error so as to warrant varying the Tribunal’s decision on reconsideration.

Rule 18.2(b) - Error of Law or Fact

Factual Errors

23The applicant has pointed to factual issues in the panel’s decision. In order for the applicant to establish grounds for reconsideration, the errors must materially affect the result. In addition, the Tribunal is not expected to address every piece of evidence in the course of arriving at its decision. I do not find that the factual concerns raised by the applicant would change the result regarding the application of the Minor Injury Guideline.

24The applicant has identified an issue in the background section of the decision which I will address here. At paragraph 29, the decision states that at the time of the 2016 accident, the applicant was receiving treatment for “neck and back pain” for injuries from the 2014 accident, and that the 2016 injuries were “similar to” those from the earlier 2014 accident. The applicant is correct in that the pre-2016 accident physiotherapy documentation showed treatment was for his cervical spine and left shoulder/forearm/elbow and did not include the lower spine. After the 2016 accident the applicant received treatment for his lumbar spine. I note that the December 7, 2016 initial assessment report by the applicant’s physiotherapist did not make the distinction about the neck and back treatment, stating that the applicant was being treated for “the same injuries” as for his previous injury.

25I am satisfied, however, that this error in the background section of the decision does not change the result, as the issue remains whether the 2016 injury, including the injury to the lumbar spine, went beyond the minor injury definition of “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation” or clinically associated sequelae. That the applicant’s treatment from his 2014 accident did not include the lumbar spine, does not change the analysis or result about the application of the Minor Injury Guideline.

26In his request for reconsideration the applicant stated that he had not been able to locate a report by physiotherapist Stephanie Battistin dated February 23, 2017 which is referenced in paragraph 37 of the Tribunal’s decision. The report signed on February 23, 2017 by Ms. Battistin appears on pages 548 to 549 of the respondent’s hearing brief. While the report was signed on February 23, 2017, the previous page notes the date of the report as February 22, 2017 and as being based on an assessment of December 7, 2016. There is a factual error in the Tribunal’s decision in that it assumes that the February report documents an assessment of the applicant when treatment was already underway; when in fact the assessment was performed three weeks after the accident and before treatment had commenced. However, while recognizing this error, I do not find that it is material to the decision. Whether this physiotherapy assessment was three weeks or three months post-accident does not affect the nature of the injury and whether it falls within the Minor Injury Guideline.

MRI Results & Medical Opinion

27In his request for reconsideration the applicant submits that a 2020 MRI of the lumbar spine, and a comparison of a 2015 and 2020 cervical MRI should be accepted as demonstrating that the 2016 injury is causing osteoarthritis and degeneration and that therefore he should be removed from the Minor Injury Guideline.

28The respondent submits that the applicant is attempting to reargue the issues that have already been decided. I agree with the respondent. In paragraph 40 of its decision, the Tribunal considered the MRI evidence but found that accident-based causation had not been established.

29As noted in the decision at paragraph 45 the only medical opinion directly addressing the impact of the 2016 accident on the applicant’s spinal condition, was from the insurer examiner, Dr. M. Khan, a physiatrist. He considered the available medical documentation at the time and examined the applicant in February 2020, prior to the applicant obtaining a referral for the 2020 MRI. He stated that “The medical documentation reviewed and the assessment undertaken did not indicate that the claimant suffered bony injuries such as fractures or dislocations. Furthermore, there are no clinical findings of neurological impairment such as radiculopathy or myelopathy.” He was of the opinion that the applicant had sustained soft tissue injury, with maximal recovery available within the Minor Injury Guideline.

Chronic Pain

30In his request for reconsideration the applicant states that he is not in the Minor Injury Guideline because of chronic pain. At the hearing the applicant took the position that his accident caused degenerative/osteoarthritic changes seen on the MRI and spoke of pain related to this. As noted above, the Tribunal found that the applicant had not established accident-based causation of the condition shown on the MRIs.

31At the hearing, the applicant did not take the position that his accident-related injury had resulted in a non-organic pain condition, he did not present a medical diagnosis of chronic pain syndrome, nor did he otherwise argue that his pain extended beyond the degenerative/osteoarthritic changes shown in the MRI evidence.

32Reconsideration is not an opportunity to raise issues that could have been raised at the hearing or to reargue a case.

33The applicant has not shown there to be an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made under Rule 18(2)(b).

Physiotherapy Treatment

34In his request for reconsideration the applicant submitted that the panel erred in finding the August 28, 2019 physiotherapy treatment plan to be reasonable and necessary. This treatment plan was meant to transition the applicant away from hands-on treatment. The applicant submitted in his request for reconsideration that because he required continued treatment, this treatment plan was not reasonable.

35I note that this was the only treatment plan at issue in the application before the Tribunal. It was not withdrawn by the applicant, and the panel in weighing the evidence before it, determined that this treatment plan was reasonable and necessary. The Tribunal has no authority under the Schedule to amend a treatment plan or order a new plan; rather, the Tribunal’s authority is limited to determining whether a treatment plan which has been refused by the insurer is reasonable and necessary. I see no error. The applicant has not established grounds for reconsideration with respect to the August 28, 2019 treatment plan.

36In his reconsideration request, the applicant asks that the Tribunal order that the applicant be covered indefinitely for accident-related physiotherapy treatment. This is not a ground for reconsideration, and furthermore, the Tribunal cannot do this. As stated above, the Tribunal has no authority to make a decision about treatment, apart from a treatment plan which has first been refused by the insurer.

Rule 18.2(d) – New Evidence

37In his request for reconsideration, the applicant asked that new evidence be considered related to upcoming changes to his collateral health benefits plan. Prior to the issuance of the decision, the applicant had brought a post-hearing motion pertaining to such changes to his collateral health benefits. The Tribunal addressed the post-hearing motion in its decision, stating that there was no suggestion that changes to the applicant’s benefit plan had any bearing on the issues in the application and denied the applicant’s motion to re-open the hearing.

38The applicant raises the issue again on reconsideration. While at the time of hearing the applicant was not aware of upcoming changes to his collateral benefits plan, there is no suggestion that evidence of such changes would likely have affected the result as required under Rule 18.2(d). In addition, I find that the Tribunal did not err in law under Rule 18.2(b) in refusing to re-open on the hearing on the basis requested. Under the Schedule changes to collateral benefits do not affect whether an applicant is bound by the Minor Injury Guideline and whether a treatment plan is reasonable and necessary.

RESULT

39The request for reconsideration is dismissed.

Taivi Lobu Adjudicator Tribunals Ontario – Licence Appeal Tribunal