Mariam Adam v. Certas Home and Auto Insurance Company, 2023 CanLII 91427

Reconsideration Decision

Citation: Mariam Adam v. Certas Home and Auto Insurance Company, 2023 CanLII 91427

Before: Adjudicator Deborah Neilson

Licence Appeal Tribunal File Number: 20-005139/AABS

Case Name: Mariam Adam v. Certas Home and Auto Insurance Company

Written Submissions by:

For the Applicant: Frank McNally, Counsel Rebecca Duplantie, Counsel

For the Respondent: Bruce Chambers, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant. It arises out of my decision dated June 19, 2023 (“decision”) in which I dismissed the applicant’s claims for benefits. The decision followed a seven day hearing conducted via videoconference. At the hearing the applicant and eleven other witnesses testified.

2The issues before the Tribunal were whether the applicant sustained a catastrophic impairment and whether she was entitled to non-earner benefits, massage therapy, a Regulation 664 award and interest as a result of her involvement in an automobile accident on December 22, 2013. I determined that she failed to prove on a balance of probabilities that she was catastrophically impaired as a result of the accident or that she was entitled to the benefits claimed.

3The applicant submits that I made substantial errors of law and fact by misapprehending and mischaracterizing evidence, disregarding important evidence, and making bald conclusions unsupported by the evidence. She submits that I breached the rules of procedural fairness by relying on certain evidence and failing to provide sufficient reasons for my conclusions.

4The applicant is seeking an order:

a. Cancelling the Tribunal’s order;

b. Varying the Tribunal’s order granting the relief requested in the applicant’s application; and

c. In the alternative, for a rehearing on all of the matter.

RESULT

5The applicant's request for reconsideration is dismissed. I erred in omitting a finding of fact, but the error does not affect the determination.

ANALYSIS

6The 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.

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 grounds that the applicant argues apply to this case are as follows:

a. The Tribunal violated the rules of procedural fairness; and

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.

9More specifically, the applicant submits that:

a. I made errors of law or misapprehended the evidence as follows:

i. Misinterpreted the medical evidence and inferred that the applicant’s pre-existing fibroids were a significant issue that was ongoing and affecting her function;

ii. Misinterpreted the medical evidence and inferred the applicant’s pre-accident complaints of lower extremity pain were indicative of ongoing mobility issues and pre-existing chronic pain;

iii. Misinterpreted the medical evidence and inferred that the applicant's diagnosis of plantar fasciitis in March 2014 and July 2016 caused her complaints of mobility issues;

iv. Misinterpreted the medical evidence and inferred that the applicant's complaints of knee pain in 2017 proved that her issues from 2008 had not resolved and were the cause of her ongoing impairments/limitations despite the lack of medical records supporting such a conclusion;

v. Disregarded the evidence of Zuhur Adam, who testified about the changes in the applicant's function post-accident, and the care that the applicant provided for their mother pre- and post-accident;

vi. Misinterpreted the evidence by concluding that the applicant was off work since 2010 due to her own medical conditions, and not to care for her mother;

vii. Inferred that the applicant was suffering from psychological impairments pre-accident based on entries in the OHIP decoded summary without any supporting medical records;

viii. Misinterpreted the medical evidence and inferred that the applicant's lower back pain was not related to the subject accident by:

1. Erroneously concluding that the applicant did not complain of lower back pain for six weeks post-accident; and

2. Ignoring the evidence of the experts regarding the applicant's lower back pain;

ix. Disregarded the evidence of Dr. Ricci to the effect that the accident was a "definite factor to her pain experience" when the Tribunal came to the conclusion that the applicant’s chronic pain was not accident-related;

x. Misinterpreted the applicant's evidence regarding the care that she provided to her mother post-accident;

xi. Concluded that the applicant suffered from chronic pain, mobility issues and psychological issues due to causes unrelated to the accident, despite the absence of evidence to support such conclusion; and

xii. Misinterpreted the evidence of Zuhur Adam regarding when she started noticing that the applicant was experiencing mood problems.

b. I violated the rules of procedural fairness as follows:

i. Failed to provide adequate reasons for how the applicant’s records were inconsistent with her testimony;

ii. Ignored / failed to consider the evidence of S. Ferland, occupational therapist, who spoke to the applicant’s function post-accident;

iii. Ignored / failed to consider the evidence of J. MacKinnon, occupational therapist, who conducted an assessment of the applicant's function in 2021;

iv. Disregarded the evidence of Naima Arale, who testified about the changes in the applicant's function post-accident;

v. Disregarded the testimony of all experts to the effect that there was no evidence in the medical records that the applicant had functional problems pre-accident; and

vi. Relied on Dr. Ofanski's medical note to attack the applicant's credibility despite not having given the applicant the opportunity to explain alleged inconsistencies that it contained.

10As set out in A.P. v. Coachman Insurance Company, 2019 CanLII 51317 (ON LAT), the onus is on the applicant to establish grounds for reconsideration.

11The applicant relies on the Tribunal’s reconsideration decision of D.P. v Chieftan Insurance, 2019 CanLII 83888 (ON LAT) which sent a matter back to the hearing panel for redetermination. The Tribunal held on reconsideration that the hearing Panel erred by abdicating its role as the expert in the application of the Schedule to the medical experts, and failed to provide fulsome reasons for why it preferred the insurer’s evidence over the claimant’s. The Tribunal held that an adjudicator does not have to provide all the reasons for their decision. However, a claimant has a right to understand why and how the decision maker came to their determination. I agree with all of this reasoning. See also: R.K.K. v. Cooperators General Insurance Co., 2021 CanLII 18934 (ON LAT) (R.K.K. v. Cooperators).

12The applicant submits that I failed to provide reasons for my determination that allow her to understand why I made my determination. I find that her submission is unfounded for the reasons that follow. I correctly considered the evidence and, based on the facts as I found them, applied the correct legal analysis to reach the conclusions stated in the decision. As set out in R.K.K. v. Cooperators, an adjudicator is not required in a decision to refer to every piece of evidence, every submission or every legal authority put forward at the hearing. Nor is dissatisfaction with the result a ground of reconsideration. A reconsideration is not an opportunity for the parties to relitigate the issues in dispute.

There are no grounds for reconsideration under Rule 18.2(b)

13The applicant relies on 17-005168 v. TD Insurance Meloche Monnex, 2019 CanLII 58142 (ON LAT) as setting out the test for granting a reconsideration for an error of law or fact. That case is distinguishable on the basis it was decided under a previous version of Rule 18 and dealt with a motion decision. Under the applicable Rule 18, where there is an error of fact or law, a reconsideration will be granted only if the Tribunal likely would have reached a different result had the error not been made.

14For the reasons that follow, the applicant has not fulfilled her onus to establish that I made any errors of fact or law such that I would likely have reached a different result had the error not been made.

i. My error in not providing more fulsome reasons for rejecting the applicant’s testimony on the affect of fibroids on her function does not change the result

15The applicant submits that I misinterpreted the medical evidence and inferred that the applicant’s pre-existing fibroids were a significant issue that was ongoing and affecting her function. The applicant submits that I provided no evidence that any fibroid symptoms were affecting her function, that surgery was required or explained how the fibroids were inconsistent with her statement.

16I did not state surgery was required in my decision. However, the Ottawa Hospital MRI report dated April 6, 2009 recommended surgery for the removal of the fibroid.

17The presence of fibroids for which surgery was recommended, which required diagnostic testing, and which caused complaints of abdominal pain such that the applicant had to attend the emergency department at the hospital, is inconsistent with the applicant’s testimony that she was in excellent health prior to the accident. The reasoning behind this is set out in paragraph 9 of my decision.

18The applicant could not have been in excellent health if she had chronic abdominal pain for three months pre-accident as set out in Dr. Khan’s referral letter of March 12, 2014. Further, the applicant admitted that she tried to portray her pre-accident health as better than it really was to various assessors. I agree that there was no direct evidence that the fibroids affected the applicant’s pre-accident function. However, where the diagnostic testing, hospital and physician attendances, and pain complaints were because the applicant’s fibroids were only a minor irritant and did not cause any functional impairment, then I see no error in my inability to accept that any of the complaints of pain from the accident were also any more than minor irritants. This is an example of one of the inconsistencies mentioned in paragraph 9 of my decision. Although I did not refer to it in my decision, it is not an error that would have affected the outcome, as I am not required to refer to every inconsistency.

19I could have provided the foregoing as more rounded reasons for why I did not accept the applicant’s testimony that the fibroids did not functionally impair her. However, the error does not alter the result of my decision given that I found the applicant’s testimony and the information she provided to the experts and the post-accident health practitioners was not reliable.

ii. I erred in my findings of fact about the applicant’s mobility issues but the error does not change the result

20The applicant submits that I misinterpreted the medical evidence and inferred that her pre-accident complaints of lower extremity pain were indicative of ongoing mobility issues and pre-existing chronic pain. She submits that I erred in finding that her mobility issue was related to her pre-accident medical conditions as there was no evidence to support the assertion.

21My determination at paragraph 13 of the decision was that the applicant’s pre-existing conditions are the cause of her present mobility issues. I agree this is an error as I should have stated that the applicant has mobility issues that are not caused by chronic pain from the accident, but are related to pre-existing or post-accident conditions that are unrelated to the accident. However, I would not have reached a different result had the error not been made for the following reasons.

22The evidence was that the applicant had ples planus and arthritis in her knees prior to the accident. There was no evidence that these conditions are curable. The addition of “post accident conditions” that I erroneously omitted was in reference to the post-accident diagnoses of plantar fasciitis, hyperpronated ankles and neuropathic pain listed in paragraph 13 of my decision. However, my error does not change my decision given there was no compelling evidence that the applicant’s mobility issues are related to the accident. There was no evidence that the possible diabetic peripheral neuropathy or the plantar fasciitis are related to the accident, and no evidence that the applicant injured her lower extremities in the accident.

23The applicant testified that her ankle and foot started bothering her right after the accident. However, this was not consistent with her medical records as there are no contemporaneous foot, ankle or knee complaints. Nor was it consistent with the opinion of the applicant’s own expert, Dr. Sangha. Accordingly, I agree that I erred on the basis that I omitted stating that the evidence of the applicant’s post-accident non-accident related health issues could also be what has caused her mobility issues. However, as there was no reliable evidence that the applicant’s accident injuries are the cause of her mobility issues, the error does not change my decision.

24The applicant was asked about her pre-accident knee pain at the hearing. Her testimony was that she could not recall her complaints in 2010 and 2012 and she did not recall being discharged from physiotherapy. She admitted to going to physiotherapy in 2008 but testified that it was for a twitch and she wanted to use the medical benefits she had available through her employment. She submitted that her ankle complaints were short-term events that resolved. The reasons for my rejection of the applicant’s testimony that her pre-accident lower extremity complaints and diagnosis were a one-time event was given in paragraphs 12 and 13 of my decision.

25I made it clear in my decision that I did not list all the inconsistencies between the medical records and what the applicant told various assessors and what she testified to. The applicant has not provided case law that states I must do so. However, the explanation that the applicant’s testimony of being in excellent health pre-accident was inconsistent with the records of her pre-accident lower extremity complaints was dealt with in paragraphs 9, 12, 13 and 16 of my decision.

26The applicant submits that I erred in determining that her mobility issues were caused by her pre-accident lower extremity issues because there was no evidence that she had functional or mobility problems before the accident. I disagree. There was evidence in Exhibit 23 that the applicant’s lower extremity issues did cause functional and mobility problems consisting of the lower extremity functional scale dated January 6, 2012 that the applicant filled out while attending Mr. Cuenco’s clinic. In it, the applicant clearly stated she had quite a bit of difficulty with her usual housework, getting in and out of the bath, walking between rooms, performing light activities around her home, walking two blocks and sitting for an hour.

27My determination that the lower extremity issues were not one-time events was made in reference to my rejection of the applicant’s submission that I should give little weight to Dr. Ricci’s opinion. I referred to the evidence supporting this, which included Mr. Cuenco’s clinical note dated October 31, 2008. I did not repeat that the note stated the applicant had one year of chronic knee problems. Nor did I repeat Mr. Cuenco’s testimony that the applicant came to him with one year of chronic knee problems. However, the applicant has provided no authority for the proposition that I must list all of the evidence that supports my reasons.

28It was open to me to reject or accept the applicant’s testimony. For the reasons set out in my decision, I rejected her testimony. The applicant has not demonstrated that I erred in doing so. Accordingly, while I find I erred in not adding that the cause of the applicant’s mobility issues are her pre-existing or unrelated post-accident issues, the error does not change my determination that the applicant’s mobility issues are not accident related. I do not find I erred in misinterpreting the applicant’s lower extremity issues set out in the pre-accident clinical notes and records.

iii. There was no error in relying on the exhibits disclosing plantar fasciitis when the applicant was not questioned about it

29The applicant submits that I erred by trying to infer that the diagnosis of plantar fasciitis in March 2014 and July 2016 was related to the applicant’s pre-accident lower extremity issues. The applicant submits I erred in relying on the exhibits that contain evidence of the applicant’s diagnosis of plantar fasciitis because she was not questioned about it.

30With respect to the submission that it was an error of law to rely on exhibit evidence that the applicant was not questioned about, I find it is not clear that the applicant made any prior inconsistent statement with respect to her diagnosis of plantar fasciitis and the cause of her mobility issues that would trigger the Rule in Browne v Dunn. Dr. Sangha, the applicant’s expert physiatrist, determined the applicant’s lower extremity issues, which would include plantar fasciitis, were not accident related. This was corroborated by Mr. Ferland’s May 23, 2018 report that the applicant’s mobility was worse due to her inability to weight bear due to severe foot pain. The only evidence of any foot pain was the ples planus, the plantar fasciitis, neuropathic pain or the arthritis in her toe. There was no suggestion that these diagnoses were accident related. No alternative theory for the applicant’s lower extremity pain or her mobility issues was put forth by the applicant that would suggest either cross-examination or clarification was required from the applicant. Given that the clinical records with the diagnosis of plantar fasciitis, Dr. Sangha’s reports and Mr. Ferland’s reports were all filed as exhibits by the applicant, she cannot now claim that they should be ignored by me.

31Further, the applicant has provided no authority to show that it is procedurally unfair for me to rely on exhibits filed by her when she was not questioned on the content of those exhibits, especially when I am unable to review documents until they are made exhibits. My determination was made on the evidence. Accordingly, I am unable to find that there was any error in law or in my finding of facts as submitted by the applicant.

iv. There was no error on my assessment of the right knee pain in 2017 in relation to the 2008 right knee pain

32The applicant submits that I erred by seeming to infer that her complaints of knee pain in 2017 proved that her issues from 2008 had not resolved and were the cause of her ongoing impairments/limitations despite the lack of medical records supporting such a conclusion.

33I have already determined that I made an error in failing to include that the applicant’s mobility issues are as a result of pre-accident or post-accident issues unrelated to the accident, which also applies to this submission.

34The applicant initially would not answer questions about when her ankle and foot started to bother her and then finally testified that it started right after the accident, and it got worse and worse over time. The evidence was that on October 31, 2008 the applicant had chronic bilateral knee pain, the left greater than the right, for which she went to Pro Physio and was diagnosed with osteoarthritis of the left foot and arthritis of the right foot. Although she did not have any functional limitations at the time and she was discharged from physiotherapy, she did have functional limitations due to her lower extremities in 2012, which was when she was diagnosed with ples planus. I was provided with no evidence that osteoarthritis, arthritis or ples planus are curable.

35Accordingly, in the absence of any medical evidence that the lower extremity issues were caused by the accident, I am unable to find that there was any error in drawing an inference that the pre-accident diagnoses are partially responsible for the applicant’s post-accident extremity issues. This is especially so given Dr. Sangha’s opinion that the lower extremity issues are not accident related.

v. There was no error in the weight I gave to the testimony of Zuhur Adam

36The applicant submits that I erred in my finding of fact she continued to provide care for her mother and continued with her housekeeping on the basis that I disregarded the evidence of Zuhur Adam, who testified in length about the changes in the applicant's function post-accident and the care that the applicant provided for their mother pre- and post-accident. The applicant submits that I misinterpreted her evidence regarding the care that she provided to her mother post-accident.

37It is clear that I considered Zuhur Adam’s testimony as I referred to it in paragraphs 24 and 25 of my decision, and provided cogent reasons for why I gave it little weight. The testimony of Zuhur Adam was inconsistent with the documentary evidence. I provided my reasons for why I did not find it corroborated the applicant’s testimony in paragraphs 24 and 25 of my decision. The applicant has failed to show how that was an error of fact or an error of law.

38The applicant also submits that I erred in determining that she continued to provide physical care for her mother after the accident because Zuhur Adam and Naima Adam testified that there was a marked change in the applicant's self-care after the accident. Naima Adam did not testify. Nor was her name mentioned by anyone at the hearing. I presume the applicant’s submission was with respect to the testimony of Naima Arale. Zuhur testified that the applicant’s reduction in self-care after the accident was because of pain in the applicant’s hands and her inability to negotiate stairs, neither of which was established by the applicant as accident related. However, there was evidence that the applicant was diagnosed with arthritis of her hands prior to the accident.

39I find I there is no error in fact or law in giving less weight to the inconsistent testimony of the lay witnesses than the weight given to the medical records. Accordingly, the applicant’s request for a reconsideration based on an error of fact or law on the care the applicant provided to her mother after the accident is dismissed.

vi. I did not err in finding that the applicant stopped working 2.5 years before she took compassionate leave

40The applicant submits that I misinterpreted the evidence by concluding that she was off work since 2010 due to her own medical conditions, and not to care for her mother. The applicant submits that the evidence was that she took time off work in 2011 and this was corroborated by her sister’s testimony.

41I disagree. The applicant testified that she was caring for her mother in the two years before the accident. However, the applicant told Dr. Seatter, psychologist, that she took compassionate leave off work six months before the accident to care for her mother, which she confirmed on cross-examination. She told Mr. Ferland, her occupational therapist, that she took four months leave from her employment with Health Canada to care for her mother. This is supported by her testimony on cross-examination that her mother was diagnosed with lung disease in 2014. When asked if she did not need to provide care for her mother before 2014, the applicant testified it was not an issue. She testified that her mother became worse in 2014. That is when she had to provide care for her 24/7.

42On redirect, the applicant testified that her mother started to get sick by 2011 to 2012 and that was just the start of her sickness. Her mother started using oxygen in 2013 and by 2014 she was in and out of the hospital.

43Zuhur Adam testified that their mother became ill in 2010, and that the applicant stopped work then to care for their mother. However, Zuhur was asked if there were long periods before their mother became ill when the applicant did not work. She testified that she did not remember exactly how long it was, but there were. She also testified that the applicant provided physical care to their mother after she became very ill at page 178 lines 4 to 23 of the transcript of her testimony taken on September 14, 2022, as set out at paragraph 64 and 65 of my decision. Zuhur did not testify as to when her mother became very ill.

44The evidence of what activities the applicant was engaged in during the year before the accident, including the applicant’s own testimony, was inconsistent. The applicant was asked about her social activities in the year before the accident. She testified that she went out once or twice per week for coffee or dinner after her activities of Zumba and Salsa dancing in the year before the accident, but this diminished after her mother became ill. After her mother became ill, she could not continue salsa dancing, only went to Zumba once per week or once every two weeks and, according to Zuhur Adam, she was unable to go out with friends. If the applicant was still going for dinner or coffee once per week in the year before the accident, this is inconsistent with applicant’s mother becoming ill two years prior to the accident.

45The applicant has not pointed me to any error of fact or law in my analysis and the evidence supporting my reasons at paragraphs 23 to 25 of my decision. Accordingly, I am unable to find that I made any error of fact or law with respect to when the applicant took compassionate leave.

vii. I did not err in finding the applicant had pre-accident psychological issues despite her testimony she had none

46The applicant submits that I inferred that she was suffering from psychological impairments pre-accident based on entries in the OHIP decoded summary without any supporting medical records. The inference I drew was in relation to the weight I gave Dr. Ricci’s opinion as is explained in paragraphs 32 and 33 of the decision. Dr. Ricci was the psychologist who conducted one of the applicant’s catastrophic impairment insurer’s examination (“IE”) assessments.

47The applicant submits that she testified that she did not have any significant emotional problems before the accident and that her testimony was corroborated by her sister. The applicant testified that she did not have any psychological problems pre-accident, let alone any significant emotional problems.

48When asked in examination-in-chief when her psychological issues started after the accident, the applicant did not provide a straight answer. She testified that she had sleep issues right after the accident, but they did not develop right away. This is an internally inconsistent answer. She also testified that she had anxiety about being able to work again and about her mother’s illness and she had anxiety issues from the beginning. She did not explain what she meant by the beginning, and I interpreted it mean prior to the accident as she was testifying about the emotional affect of her mother’s illness. Her testimony was inconsistent as to when she first started caring for her mother and, if it was prior to the accident, then, according to her testimony, she had anxiety prior to the accident contrary to her denial of any psychological issues. Accordingly, the OHIP summary was not the only support for my determination. Nor were pre-existing psychological issues the only reason I preferred Dr. Ricci’s opinion over Dr. Reesor’s. I disclosed my other reasons in paragraphs 27 to 31 and 35 to 36 of my decision.

49The applicant submits that I erred by making it seem that the OHIP summary disclosed that the applicant received psychological treatment more than two times pre-accident. The applicant submits that I erred because there were only two billings for anxiety neurosis prior to the accident. However, the OHIP summary show that billings were made for psychological issues, specifically anxiety neurosis, on November 11, 2008, April 6, 2009 and November 11, 2013. I differentiated those billings from the December 16, 2013 billing for counselling for problems with aged parents and the July 16, 2013 billing for counselling for family disruption in paragraph 33 and 34 of the decision. As there were more than two billings for anxiety neurosis pre-accident, there is no error of fact.

50The applicant also submits that I erred because Dr. Suddaby confirmed that he reviewed the OHIP summary and the applicant’s pre-accident medical records and concluded that there was no evidence to contradict the applicant’s statement that she did not have a pre-existing psychiatric diagnosis or symptoms. This does not assist the applicant as I did not make any finding of fact pertaining to a pre-accident psychiatric diagnosis. I determined that her testimony that she had no psychological issues pre-accident were not born out by the OHIP summary for the reasons set out at paragraph 33 of the decision. Nor was it borne out by her admission of anxiety about her mother’s health, if her mother became ill prior to the accident. Further, Dr. Suddaby was not the trier of fact. Nor has the applicant provided any reason why I should abdicate my role as the trier of fact to a physician.

51Given that any inference I may have drawn about the applicant’s pre-existing psychological health is supported by the applicant’s own testimony, I find that there was no error in either fact or law.

viii. I did not err in finding the applicant did not have low back pain until January 31, 2014

52The applicant submits that I misinterpreted the medical evidence and inferred that her lower back pain was not related to the subject accident by:

a. Erroneously concluding that the applicant did not complain of lower back pain for 6 weeks post-accident; and

b. Ignored the evidence of the experts regarding the applicant's lower back pain.

a. I did not erroneously conclude that the applicant did not complain of lower back pain for 6 weeks post-accident.

53The applicant submits that I misapprehended the January 31, 2014 note of Dr. Khan which stated “MVA 3 weeks back, low back pain x 3 days weeks, exacerbated x 3 days.” I found that the note referred to back pain for three days. The applicant submits this is an error and that the back pain was present from one week post-accident, which was corroborated by the Ottawa Hospital Emergency records.

54The applicant submits that the February 7, 2014 report from the Ottawa Hospital emergency department says the applicant had an accident “one month ago, since then low back pain,” and that I erred in failing to acknowledge that note. However, the Ottawa Hospital triage note also dated February 7, 2014 states “back pain x 7 days worst with movement, decreased back, awaiting MRI, MVA 1 mo ago.”

55I do not agree that that I erred in interpreting the Ottawa Hospital records and Dr. Khan’s note in the manner suggested by the applicant. Neither note was made within six weeks of the accident. As I stated in paragraph 40 of the decision, the first note of any low back pain was made on January 31, 2014. To make a finding of fact that the applicant had low back pain any earlier than January 28, 2014 would mean I would have had to ignore Mr. Cuenco’s records and their absence of any record of low back issues prior to February 3, 2014. Mr. Cuenco saw the applicant and provided a script dated January 16, 2014 stating that the applicant required physiotherapy treatment to her neck and upper back as a result of the motor vehicle accident. If the applicant was experiencing low back pain at that time, I would have expected Mr. Cuenco to make a note of it. However, there is no such note in his records of any low back pain before February 3, 2014. For the reasons stated in my decision, I found the medical records more reliable than the testimony of Ms. Arale and Zuhur, including when the applicant’s low back pain started. Accordingly, I find no error in my analysis or my finding of fact.

b. There was no error of law in the weight I gave to the experts’ opinions regarding the applicant's lower back pain

56The applicant submits that I ignored both Dr. Aiello and Dr. Sangha’s opinions that the applicant sustained lumbar strain in the accident that evolved into chronic pain. The applicant submits that the evidence from both experts, the family doctor and Dr. Nahas all are that the motor vehicle accident is the cause of her lumbar pain. She submits that, furthermore, she had no complaints of back pain prior to the accident.

57I provided reasons for why I did not accept Dr. Sangha’s opinion on the cause of the applicant’s lumbar pain in paragraphs 37 to 39 of the decision. Although not stated in my decision, my reasoning and the supporting evidence for my reasoning applies as well to the opinions of any other assessor who relied on the applicant’s testimony to diagnose lumbar strain from the accident. I was provided with no authority for the proposition that I am required to ignore exhibits and give preference to the testimony of witnesses as to what those exhibits say. The Tribunal allows hearsay evidence, but the more direct the evidence and the fewer levels of hearsay, the more reliable that evidence is.

58The applicant also submits that it is a breach of procedural fairness to give little weight to Dr. Sangha’s opinion on the basis he did not comment on the applicant’s lumbar scoliosis and spina bifida occulta when he was not cross-examined about it nor questioned by me on it. Dr. Sangha was qualified at the hearing as an expert in physiatry with a focus in pain management.

59The applicant has not provided any authority that I am prohibited from weighing expert evidence unless an expert is first questioned on the reasons for why little weight is given to that report. To do so would require calling back the expert witness for clarification on exhibits filed after the expert testifies. This is unwieldy and inefficient. Dr. Sangha was accepted as an expert, and the applicant was certainly able to ask him about his opinion on this question and chose not to do so. Accordingly, I am unable to find that there was any procedural unfairness to the applicant.

ix. I did not disregard Dr. Ricci’s evidence that the accident pain was a factor in the applicant’s experience

60The applicant submits that I disregarded the evidence of Dr. Ricci to the effect that the accident was a "definite factor to her pain experience" when I came to the conclusion that her chronic pain was not accident related. The applicant submits that Dr. Ricci testified that the accident was a definite factor to the applicant’s pain experience and she likely would not have developed somatic symptom disorder had the accident not occurred.

61I disagree. I never made such a determination and, therefore, I could not have disregarded Dr. Ricci’s testimony in doing so. I could not make a determination that the applicant’s pain complaints that arose as a result of the accident have caused any functional impairment for the reasons set out in paragraphs 9, 13, 53, 28, 29, and 66 of the decision. Nor was I able to determine that the accident injuries caused the applicant’s chronic pain syndrome for the reasons set out in paragraph 42 of my decision. Chronic pain is not the same as chronic pain syndrome and a person may have chronic pain without any functional impairments. Accordingly, as I did not disregard Dr. Ricci’s testimony and evidence, I am unable to find that there was any error in my determination.

x. I did not misinterpret the applicant’s testimony about the care she provided her mother post-accident

62The applicant submits that I erred in finding that she testified that she provided a higher level of physical care to her mother after the accident. She submits that in cross-examination, no information was gathered from her on what "more care" meant. In re-direct, the applicant clarified that "more care" meant that her mother necessitated hospital care because of her worsened condition. The applicant submits that she never said on cross-examination that "she took over all the housework for her mother" after her mother became very ill in 2014.

63Despite the applicant’s submission, I find she did testify as stated in paragraph 63 of my decision. Her testimony is set out at page 72 line 8 to 25; p.73 line 1 to 12; and page 150 line 8 to 10 of the transcript from her examination-in-chief on September 12, 2022. It is also set out on page 8 line 11 to 16 and page 9 line 2 to 20 of the transcript of her cross-examination on September 13, 2022 and her answers to my questions at page 80 line 14 to 25 and page 81 line 1 to 2 of the transcript dated September 13, 2022. I tried to clarify what care the applicant’s sisters provided to her mother after the accident with respect to questions about her sister Fozia and whether she helped her mother go to the bathroom, dress or clean. The applicant testified that after the accident, Fozia would do those things when she was at the applicant’s house if the applicant was not doing it, but most of the time the applicant was the one doing it. She also testified that Zuhur helped bathe her mother when the applicant could not help her.

64The applicant’s testimony was corroborated by Mr. Cuenco’s May 2014 treatment plan in which he reported that the applicant did not lose time from her caregiver activities or her housekeeping activities, his clinical notes and his testimony that the applicant was doing the best that she could to try and achieve the things that needed to be done around the house. The applicant was asked about what Mr. Cuenco meant and testified that it does not mean “laundry, cooking and the other thing.” She answered that she did not know why he said she did not have an inability to engage in her housekeeping. She testified that she has not cooked since the accident but does warm food in the microwave. Her testimony was that caring for her mother meant providing emotional support and going to medical appointments with her mother. Her testimony conflicts with the evidence of Mr. Cuenco. I provided cogent reasons for why I preferred the medical records over the applicant’s testimony. Accordingly, I am unable to find any error that I misinterpreted the applicant’s testimony.

xi. There was evidence to support the conclusion the applicant’s chronic pain, mobility issues and psychological issues are due to non-accident causes

65The applicant submits that I concluded that she suffered from chronic pain, mobility issues and psychological issues due to causes unrelated to the accident despite the absence of evidence to support such conclusion.

66Contrary to the applicant’s submission, I provided reasons for my conclusions and referred to the evidence that supported my reasons in paragraphs 12, 13,14, 15, 18, 19, 20, 21, 22, 23, 25, 27, 28, 30, 31, 32, 35, 36, 39, 40, 41, and 42 of the decision.

67The applicant submits that all assessors confirmed that the accident caused her persistent pain. The applicant’s submission presumes that the assessors were able to make an objective determination that the accident caused persistent pain. However, I heard no evidence that any assessor was able to do so. Rather, the opinions of the experts who testified were based on what the applicant told them and their evaluation of her veracity in conjunction with her medical records or her consistency or validity on objective testing. This is set out in paragraph 9 and 25 of my decision. The applicant’s submission also presumes that her testimony as to the amount of pain she experienced is reliable. For the reasons stated in my decision, it is not. Further, if I were to blindly accept the opinions of all the assessors and health practitioners on the applicant’s veracity without any analysis, I would be abdicating my role as the trier of fact.

68The applicant’s submission ignores the concerns that a number of the experts had on the validity of the applicant’s pain complaints. For example, Dr. Aiello admitted on cross-examination that the applicant consistently had neck and back pain from the date of the accident to the date of his examination on December 14, 2015. He agreed she met the definition of chronic pain as she had pain for more than six months after the accident. He was aware that chronic pain affecting function can take someone out of the MIG and that chronic pain would have been relevant if he put it in his December 2015 report, the purpose of which was to determine if the applicant was out of the MIG. However, Dr. Aeillo did not mention chronic pain in his report. Further, Dr. Aiello testified that as far as he was aware, the applicant did not have any functional problems before the accident and there was no documentation of emotional problems. He agreed that, since the accident, she developed pain and emotional problems and that she has functional problems as a result of the pain and emotional problems. However, as is clear from the transcript of his testimony taken on December 15, 2022 on page 151 lines 13 to 26 and page 152, he did not think nor testify that it was because of the accident. He did not think the accident injuries were her issue. He testified that because of the applicant’s inconsistencies on formal and informal examination, the validity of his whole report was in question.

69Dr. Suddaby did not testify that the accident caused the applicant persistent pain. The validity and reliability of the applicant’s answers to Dr. Suddaby’s questions was a concern for him as well. Dr. Suddaby also stated that he did not have confidence that the applicant’s report of how she did before the accident was accurate. Dr. Suddaby disagreed with the statement that, upon review of the medical records, the applicant consistently reported pain to various medical professionals since the date of the accident. He testified that there were multiple complaints with varying times of onset. Accordingly, the applicant is mistaken that all assessors confirmed that the accident caused her persistent pain.

70The applicant referred to my rejection of her submission that Dr. Sangha' s experience that it is common for individuals with chronic pain syndrome to develop pain in other areas applied to her and submits that I erred by rejecting that the applicant has chronic pain syndrome. As set out in paragraph 42 of the decision, there was no persuasive evidence that the applicant’s pain complaints in the parts of her body that were not injured in the accident developed because of chronic pain syndrome that was caused by the accident. Dr. Sangha did not testify that is what happened to the applicant. Accordingly, it was open to me to draw an inference that the development of the applicant’s chronic pain syndrome was caused by something other than the accident, such has her other pre-accident and post-accident health issues. Especially as I had no reliable evidence from the applicant or her lay witnesses as to the affect of the accident on her function. Accordingly, there was no error as alleged by the applicant in my reaching the conclusion that the applicant failed to meet her onus of proof.

71The applicant submits that I provided no supporting medical evidence from any medical experts or professionals to establish that there is an alternate cause for the chronic pain which led to a marked change of function which temporarily occurred shortly after the accident. The applicant’s submission is illogical. It makes no sense that chronic pain would be the cause of any change in function shortly after the accident if it was accident related. This is because a diagnosis of chronic pain would not be made as a result of accident injuries any sooner than three months post-accident. Therefore, if there were any marked changes due to chronic pain shortly after the accident, it would have to be from pre-accident pain conditions.

72If the applicant meant to say that there is no evidence of pre-existing chronic pain conditions, I referenced the evidence in paragraphs 11 to 15 of my decision. I did not specifically refer to all of the evidence and repeat what all of the evidence stated in support of my reasons. Nor has the applicant provided any authority that says I am required to. However, the evidence of chronic health issues is set out in Mr. Cuenco’s clinical note dated October 31, 2008, which noted chronic knee pain for one year, Dr. Khan’s March 12, 2014 note which reported chronic abdominal pain that the applicant had for at least three months predating the accident, and Dr. Elrafi’s note of March 8, 2010 of chronic otitis set out in the Appletree Clinic records.

73The applicant’s submission appears to imply that I have a burden of proof, which is erroneous. No authority has been provided by the applicant that an alternate reason for chronic pain must be established by an adjudicator based on evidence from a medical expert or professional in order to determine whether an insured person has met their burden of proof. The burden of proof lay with the applicant to prove on a balance of probabilities that, but for the accident, she would not have her present pain complaints. She failed to do so because there are other factors that explain her present condition, her evidence was not reliable, and little weight could be given to her experts’ opinions as set out in my decision. Accordingly, I am unable to find that I made any error of fact or law on the basis that a trier of fact is required to provide evidence from medical experts or professionals to prove there was an alternate cause for the applicant’s chronic pain, when the issue was whether the applicant was able to prove on a balance of probabilities that chronic pain from the accident was the cause of her present impairments.

xii. I did not misinterpret the evidence of Zuhur Adam as to when the applicant’s mood issues started

74The applicant submits that I misinterpreted the evidence of Zuhur Adam regarding when she started noticing that the applicant was experiencing mood problems. I stated at paragraph 36 of the decision that I found Zuhur’s testimony regarding the timing of the applicant’s mood issues becoming evident in and around 2018 corroborated Dr. Ricci’s testimony. The applicant submits this is an error because Zuhur testified that she noticed mood problems within six months after the accident.

75What Zuhur testified to was that she saw a slow change in the applicant’s mood while her mother was still alive. She may have noticed it six months after the accident, but she did not know. The applicant was good at hiding it. Zuhur did not testify that the change in mood caused any problems or that the applicant had mood problems within six months after the accident.

76Nor did I make any determination that Zuhur testified that the applicant’s mood changes were not apparent until 2018. If I had meant to do so, I would have said so. However, as set out at paragraph 35, my comments were with respect to when issues arose because of the applicant’s mood changes, such as cognitive issues. Zuhur testified that she first noticed her sister had cognitive problems four years prior to the hearing, which equated to 2018. Accordingly, I find that there was no misinterpretation of the evidence of Zuhur Adam as alleged.

There are no grounds for reconsideration under Rule 18.2(a)

i. I did not fail to explain how the applicant’s records were inconsistent with her testimony

77The applicant submits that I failed to explain how her records were inconsistent with her testimony. However, I provided my reasoning in paragraph 9 of my decision. The applicant testified that she was in excellent health, had no health issues before the accident and no psychological issues, and that she never spoke to her family physician about psychological problems. She then admitted, when asked in examination-in-chief about her OHIP summary, that she may have discussed the anxiety over her mother’s problem with Dr. Lambert and that she underwent a short course of physiotherapy for a twitch in her ankle. I listed the clinical notes and records that do not support the applicant’s testimony that she had no health issues in paragraphs 12 to 15 of my decision and explained how they were inconsistent with her testimony in paragraphs 16. In paragraphs 19 to 21 I explained how the applicant’s testimony was inconsistent with the ambulance call report and the Ottawa Hospital records. I also explained the inconsistency with respect to the applicant’s testimony that she did not drive for three years post-accident in paragraph 22 of my decision.

78The applicant testified that the inconsistencies between her records and her testimony were because of misunderstandings between the physicians and what she told them. I asked her if it was because of memory problems and she testified that, although she had memory problems, her memory was working fine when she was seen by the physicians who made mistakes about her in their reports. She testified in cross-examination that she wanted to present herself as being better than she was to the assessors. In redirect she testified she did not understand the question. She testified in redirect that that she did not disclose her pre-diabetes because it was not full blown and was not serious, and she denied having any pre-accident psychological issues. She did not recall her pre-accident lower extremity issues, which conflicts with her testimony that her memory was not the reason for why she did not disclose those issues to the various assessors. In other words, her testimony was conflicting and conflicted with the medical records as was explained in the paragraphs noted above.

ii. I did not ignore the evidence of Sebastien Ferland

79The applicant submits that I ignored and/or failed to consider the evidence of Sebastien Ferland, occupational therapist, who spoke to the applicant's function post-accident.

80It is trite law that adjudicators are not required to detail every bit of evidence or testimony presented at a hearing. Despite the applicant’s submissions that I did not make any reference to his opinion or testimony, I did not ignore Mr. Ferland’s evidence. This is clear with respect to my reference to Mr. Ferland’s reports dated January 7, 2016, January 19, 2017, September 18, 2019, October 30, 2019, and February 12, 2021 at paragraph 40 of my decision. I accepted that the applicant has several limitations, but a central issue was causation as set out in paragraph 66 of my decision, something that Mr. Ferland is not qualified to speak to. I also provided reasoning for why little weight could be given to those opinions of assessors who relied on the applicant’s history and subjective report in paragraph 9 and 25 of the decision. Mr. Ferland reported that the applicant last worked for Health Canada and was on leave from her work four months prior to the accident to care for her mother. I referred to this evidence in paragraph 16 of my decision. Accordingly, there was no procedural unfairness as I did not ignore or fail to consider Mr. Ferland’s evidence.

81Mr. Ferland did not start treating the applicant until late 2015 or after the applicant’s mother died, which is the period of time that I determined the applicant’s health started to deteriorate. He could not have observed the applicant’s care for her mother after the accident in the two years before he started treating the applicant. Accordingly, as his evidence was considered, there was no procedural unfairness to the applicant nor any error in fact or law despite the applicant’s submission.

iii. There is no procedural unfairness in not mentioning the evidence of Janelle MacKinnon

82The applicant submits that I ignored and or failed to consider the evidence of Janelle MacKinnon, an occupational therapist who conducted an assessment of the applicant as part of a multidisciplinary insurer’s examination under s.45 of the Schedule (“IE”) on June 1, 2021. The applicant submits that Ms. MacKinnon’s evidence corroborates her evidence of her marked functional changes since the accident.

83As stated earlier, I am not required to cite all of the evidence before me. In any event, I accepted that the applicant has limitations as noted at paragraph 66 of my decision. Ms. MacKinnon is an occupational therapist and as such, she is not qualified to speak to causation, which was a central issue. Accordingly, it was not necessary to review Ms. Mackinnon’s evidence of what the applicant’s restrictions are given that I acknowledged she had them and the issue was the cause of her restrictions. Accordingly, there was no procedural unfairness to the applicant, nor any error of fact or law, in not specifically discussing her evidence.

iv. The weight given to the evidence of Naima Arale was not procedurally unfair

84The applicant submits that I disregarded the evidence of Naima Arale, who testified in length about the changes in the applicant's function post-accident. It is clear from my decision that I considered Ms. Arale’s evidence. However, it appears that the gist of the applicant’s submission is that she takes issue with the weight that I gave to Ms. Arale’s testimony.

85I provided reasons for why I could give little weight to Naima Arale’s testimony at paragraphs 23 to 25 of my decision. For me to have given more weight to Ms. Arale’s evidence, I would have to have ignored the inconsistencies between her testimony and the other evidence. I have been provided with no evidence or cogent reason as to why I should ignore the inconsistencies, not all of which are listed in the decision. Nor has the applicant provided any authority that it is procedurally unfair to weigh the evidence and give little weight to evidence that is inconsistent. Accordingly, I am unable to find that there is any basis to the applicant’s submission.

v. There is no procedural unfairness in giving more weigh to the pre-accident medical records than the evidence of what the assessors found in the pre-accident medical records

86The applicant submits that I erred by disregarding the testimony of all experts to the effect that there was no evidence in the medical records to the effect that the applicant had functional problems pre-accident. The applicant’s submission is essentially that I erred by reviewing the exhibits that disclosed pre-accident functional issues and by not accepting the experts as the triers of fact. No authority for this proposition was provided by the applicant. As the hearing adjudicator, I am the finder of fact. If I had left it to the experts to be the finders of fact, I would have abdicated my function as the hearing adjudicator.

87The admissibility of expert evidence is, among other things, dependent upon the necessity of that expertise in assisting the Tribunal. None of the experts treated the applicant prior to the accident and therefore could not offer any firsthand evidence of the applicant’s pre-accident condition. I was provided with no evidence that their expertise included an ability to read what the applicant’s complaints and diagnoses were in her pre-accident medical records. Nor was there any evidence or submission that neither I or nor any other adjudicator could read those medical records without the expert witnesses’ assistance.

88The applicant submits that all of the assessors agreed that there was no medical evidence of pre-accident functional issues. However, there was no such agreement from Dr. Ricci. She agreed she did not know exactly how the applicant was functioning pre-accident at page 193 line 24 and 25 of the transcript of her testimony. That did not mean that she agreed that there was no evidence the applicant had pre-accident functional issues.

89The reports of the IE assessors were tendered as evidence and the only questions they were asked in examination-in-chief was about their expertise. The applicant asked Dr. Suddaby, for example, a number of times to confirm that there were no records that she had functional problems pre-accident when there were such records. Dr. Suddaby reported on December 13, 2016 having Mr. Cuenco’s clinical notes and records, but the only dates listed for those records are post-accident. Accordingly, Dr. Suddaby did not have all the pre-accident records at the time of his report. The fact that these records were not brought to the attention of the experts during their testimony does not make the records any less reliable or of any less weight. Accordingly, I find that there is no error in making findings of fact based on the exhibit evidence rather than the testimony of what the experts believed the exhibit evidence disclosed.

vi. There was no error because of any reliance on Dr. Ofanski's medical note

90The applicant submits I violated procedural fairness by relying on Dr. Ofanski's medical note to attack the applicant's credibility despite not having given the applicant the opportunity to explain alleged inconsistencies that it contained. Dr. Ofanski’s clinical note said the applicant had seen psychologists on and off since 2012. The applicant submitted that the note was not put to her contrary to the rule in Browne v. Dunn.

91In fact, the respondent put it to the applicant that she did not tell her assessors and the IE assessors of her pre-accident psychological counselling. The applicant objected to the respondent’s cross-examination on the basis there was no evidence of any pre-accident psychological counselling. I allowed the questioning and the applicant denied that she underwent any psychological counselling prior to the accident, despite the OHIP summary that indicated she received half an hour of counselling. I determined that Dr. Ofanski’s note would be given little weight as it was relied on only to the extent that it was some support for my not accepting the applicant’s reasons for giving less weight to Dr. Ricci’s opinion. In my decision at paragraph 27, 28, 29, 30, 35, and 36, I list a number of other reasons for why I preferred Dr. Ricci’s opinion over that of Dr. Reesor’s. I am unable to find that there is any procedural unfairness to the applicant in doing so.

CONCLUSION

92As set out in R.K.K. v. Cooperators, a reconsideration is not an opportunity to relitigate a matter because of dissatisfaction with the result. Not accepting the applicant’s submissions, evidence or case law at the hearing is not an error of law. With the exception of one omission that I find does not change the result, the applicant’s submissions are essentially a re-argument of her case.

93The applicant has not established her grounds for reconsideration. For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Deborah Neilson Adjudicator Tribunals Ontario – Licence Appeal Tribunal