Tina Larose v. Intact Insurance Company, 2024 CanLII 102108

Larose v. Intact Insurance Company, 2024 ONLAT 22-004305/AABS-R

Citation: Larose v. Intact Insurance Company, 2024 ONLAT 22-004305/AABS-R

RECONSIDERATION DECISION

Before: Michael Beauchesne

Licence Appeal Tribunal File Number: 22-004305/AABS

Case Name: Tina Larose v. Intact Insurance Company

Written Submissions by:

For the Applicant: Mikolaj Grodzki, Counsel

For the Respondent: Shivani Mehta, Counsel

OVERVIEW

1On May 9, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 3, 2024 (“decision”).

2The Tribunal decided the applicant had not sustained a catastrophic impairment and that the respondent was not liable to pay an award. The Tribunal awarded costs to the respondent in the amount of $250.00 and dismissed the application.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or

c) 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.

4In this case, the applicant is arguing criteria (a) and (b) as outlined in Rule 18.2. For context, the applicant’s specific claims on 18.2(a) are as follows:

a) I failed to review the qualifications of Dr. Bobbie Ross (psychiatrist) and restricted her expert qualifications to psychiatry (i.e., I did not qualify her as an expert on chronic pain);

b) I placed little weight on reports where the respondent did not present opinions to the contrary;

c) I preferred old and dated reports over more recent evidence;

d) I favoured the respondent’s evidence by incorrectly interpreting the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”); and

e) I raised causation as an issue on my own initiative without it being addressed by the parties.

5The applicant’s specific claims on 18.2(b) are as follows:

a) I failed to consider pain-based limitations in the applicant’s impairment level;

b) I failed to interpret that pain and neurological function may complicate any condition to constitute a mental or behavioural disorder;

c) I incorrectly applied Pastore v. Aviva, 2012 ONCA 642 (“Pastore”); and

d) I failed to interpret that the applicant’s pain-based functional limitations meet the definition of marked impairment.

6At the outset of her reconsideration request submissions, the applicant asks that the decision be varied to find that the medical evidence presented by her assessor, Dr. Ross, is compliant with the Schedule. At the conclusion of her reconsideration request submissions and reply, the applicant asks that the Tribunal cancel the original decision and order a new hearing on this matter before a different adjudicator with written submissions based on the existing evidentiary record. The applicant also requests that her reconsideration request be decided by a different adjudicator.

RESULT

7The applicant’s request for reconsideration is dismissed.

PROCEDURAL ISSUES

Lateness of the respondent’s reconsideration request response submissions.

8I find the respondent may rely on its submissions.

9Rule 6.5 establishes that documents received by the Tribunal after 5:00 PM will be deemed to have been received on the next day that is not a holiday.

10The respondent filed a motion on June 13, 2024, that requested a one-day extension for filing its responding submissions to the applicant’s reconsideration request submissions. The respondent indicated its submissions were due by June 12, 2024, and that technological issues caused the filing email to not be delivered when sent. The respondent indicated this transmission error was detected and resolved the evening of June 12, 2024, but not before 5 PM. The respondent maintains that the lateness of its submissions does not prejudice the applicant, and that it does not object to the applicant being given an extra day to reply should she require.

11The applicant did not address the respondent’s motion in its reconsideration request reply.

12I accept that the respondent filed its submissions after 5:00 PM on the day they were due. Per the Rules, this means the respondent’s submissions are deemed to be one day late. However, in practical terms, the submissions were just several hours late. Given that the applicant is not arguing this short delay interfered with her ability to file her reply, I find the respondent’s late submissions did not prejudice the applicant and therefore decline to afford any less weight to those submissions.

Page length of the applicant’s reconsideration request submissions.

13I find weight should be given to the portion of the applicant’s reconsideration request submissions that exceed the page limit as set out in the Rules.

14Rule 18 addresses reconsideration requests. Rule 18.1(c)(i) provides that reconsideration request submissions must not exceed 10 double-spaced pages in length, exclusive of evidence and authorities.

15The respondent submits that the applicant’s reconsideration request submissions exceed the 10-page limit specified in the Rules. The respondent explains that the applicant did not double-space her submissions as required by the Rules, and produced a reformatted version to show that when this spacing convention is applied, the applicant’s submissions total 18 pages. The respondent asks that the Tribunal not consider any submissions made after page 10 of the reformatted version it filed with its response and relies on Franche v. Wawanesa Mutual Insurance Company, 2023 CanLII 9220 ON LAT (“Franche”) to support its position that no weight should be given to pages outside the limit.

16In her reply, the applicant argues that the case conference report and order for this matter—and not the Rules—impose page limits on submissions. The applicant also asserts that Rule 9.4 provides discretion to the Tribunal to exclude or include a party’s submissions based on compliance with the case conference report and order. The applicant says her reconsideration request submissions are only one paragraph (i.e., four lines) too long, and agrees with striking this part of her submissions if the respondent’s entire submissions are struck for lateness.

17I find the applicant is incorrect in saying the Rules do not impose a page limit on submissions. Rule 18 does, in fact, impose a 10-page limit on reconsideration requests. I accept that the reformatted version of the applicant’s reconsideration request submissions shows the applicant did not double-space submissions as required by Rule 18.1(c)(i). This resulted in submissions that were almost double the page limit. While I agree the applicant‘s reconsideration request submissions did not comply with the Rules—and find she greatly minimized the extent of her non-compliance—I find the respondent did not voice any claims of prejudice owing to the applicant’s non-compliance. Further, the respondent’s submissions addressed the applicant’s entire submissions—not just the portion within the page limit. Given these circumstances, I find the respondent’s request to be a disproportionate and harsh remedy. I therefore decline the respondent’s request to quash the applicant’s reconsideration request submissions past the 10-page limit, and accept the entirety of her submissions for consideration.

ANALYSIS OF SUBSTANTIVE ISSUES

18The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(a): The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness.

Failure to review Dr. Ross’ qualifications and restricting her expert qualifications to psychiatry.

19I find no material breach of procedural fairness in how I qualified Dr. Ross’ expertise.

20The applicant submits I refused to review Dr. Ross’ qualifications and work experience. The applicant also submits I decided Dr. Ross should not be qualified as a psychiatrist with experience in diagnosing and treating chronic pain at the outset of her testimony. The applicant adds that Dr. Ross’ experience in treatment and diagnosis was key to supporting her findings on how chronic pain impaired the applicant’s function under criterion 8. For context, during the hearing, Dr. Ross offered medical opinions on the physiology of the brain and testified that the applicant’s chronic pain was an outcome of her brain getting sick (i.e., a persistent inflammatory neuroimmune process) because of the body’s response to whiplash injury in the accident. She credited the applicant’s chronic pain to an adverse reaction of the nervous system and the immune system.

21In her reply, the applicant reiterates aspects of Dr. Ross’ experience, credentials, and qualifications. The applicant indicates that I excluded Dr. Ross’ evidence on chronic pain, and says it was unfair to assign more weight to the opinion of the respondent’s expert, Dr. Chandrasena, because he is not a chronic pain expert and because Dr. Ross’ opinion was corroborated by Dr. Boucher, who diagnosed the applicant with chronic pain syndrome per the Guides.

22The respondent argues that I properly qualified Dr. Ross as a psychiatrist, which is her area of expertise.

23I do not agree with the applicant’s position that I committed a material breach of procedural fairness by disqualifying Dr. Ross as a chronic pain expert. I do not accept that the applicant presented Dr. Ross as a psychiatric expert with experience in diagnosing and treating chronic pain. Rather, the applicant sought to qualify Dr. Ross as an expert witness in both psychiatry and chronic pain. I addressed Dr. Ross’ standing as an expert in the proceeding at paragraph 54 of the decision. I note that while the applicant attempted to qualify Dr. Ross as a chronic pain expert at the outset of her testimony, I found that Dr. Ross’ expert duty form qualifies her only as a psychiatric expert. I go on to say the applicant did not file a motion to amend this expert duty form (i.e., to include chronic pain) prior to the hearing, and that I was not pointed to evidence that indicates the College of Physicians and Surgeons of Ontario (“CPSO”) recognizes neurology or immunology as areas of specialization for Dr. Ross, or pain management as within her scope of practice. I acknowledged that while standing with CPSO is not a strict requirement when qualifying an expert witness, I found it to be a persuasive factor where a party attempts to qualify an expert witness in a different area of practice or specialization than indicated on the duty form. Later in the decision at paragraph 85, I refer to Dr. Ross agreeing that she does not specialize in the field of neuropsychology.

24I do not accept the applicant’s claim that I was procedurally unfair because I excluded Dr. Ross’ evidence. I accepted Dr. Ross as an expert in psychiatry. I considered her reports and testimony accordingly at paragraphs 50, 52, 53, 54, 55, 60, 62, 63, 67, 71, 72, 75, 79, 80, 84, 85, 86, 88, 89, and 90 of the decision.

25I did not consider the arguments advanced in the applicant’s reply about Drs. Chandrasena and Boucher because I find this is an attempt to re-litigate weight, which falls outside the criteria for reconsideration requests per Rule 18.

26In my view, I reviewed and considered the experience and qualifications of Dr. Ross, and I properly qualified her as a psychiatric expert in accordance with the expert duty form as filed with the Tribunal. I am also satisfied that I thoughtfully and thoroughly considered her evidence. I therefore see no material breach of procedural fairness.

Placing little weight on reports where the respondent did not present opinions to the contrary.

27I find the applicant seeks to re-litigate its case, which is not a valid reason for requesting a reconsideration of my decision.

28The applicant submits it was procedurally unfair for me to put no weight on the findings of Drs. Boucher (general practitioner) and Cindi Goodfield (psychologist)—and specifically the psychological diagnoses offered by the latter—when the respondent had not produced any medical opinions or reports to the contrary. The applicant relies on Traders General Insurance Company v. Rumball, 2022 ONSC 7215 (“Rumball”), Liu v. Certas Direct Insurance Company, 2023 CanLII 1452 (“Liu”); Burke v. Economical Mutual Insurance Company 2022 CanLII 81528 (“Burke”); and L.D. v. Certas Home and Auto Insurance Company, 2020 CanLII 43088 (“L.D.”), to show the Tribunal is not “qualified” to overturn medical opinions without an opinion to the contrary. The applicant also relies on testimony provided by Mr. Brian Darling (adjuster) to show the respondent did not obtain any contradictory reports.

29The respondent argues that the applicant has not pointed to any breach of procedural fairness and is reformulating arguments that were before the Tribunal during the hearing. The respondent describes this as a blatant attempt to try and relitigate the evidence and have weight reassigned.

30I agree with the respondent. The applicant is arguing the weight I afforded to the evidence of Drs. Boucher and Goodfield. As mentioned earlier, the reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. It is the applicant’s onus to show how or why the decision is outside the Tribunal’s jurisdiction or is procedurally unfair. The applicant has not done that here.

31Even if I were to consider the applicant’s arguments, I would find them unpersuasive. I disagree with the applicant’s position that her evidence merits full weight on the basis that the respondent did not present contradictory opinions. The onus is on the applicant to make her case and there is no requirement for the respondent to prove otherwise. The absence of evidence from the respondent to contradict the applicant’s evidence cannot inescapably mean that the only possible outcome is to accept the applicant’s evidence as persuasive; doing so misunderstands the burden of proof. The reasons for why the applicant’s evidence fell short of her onus are clearly articulated throughout the decision. For example, at paragraph 44, I acknowledge the respondent does not contest the applicant’s chronic pain syndrome as diagnosed by Dr. Boucher, and then go on in paragraph 51 to explain that I placed less weight on Dr. Boucher’s analysis of the applicant’s psychological difficulties (i.e., depression, anxiety, and insomnia) because the applicant did not inform Dr. Boucher about her pre-accident psychological symptomology. I address the weight of Dr. Goodfield’s report at paragraphs 69, 70, 86, and 90 of the decision.

32The authorities cited by the applicant are, in my view, not helpful because the applicant did not point to where in these authorities her argument (i.e., that the Tribunal is not “qualified” to overturn medical opinions without an opinion to the contrary) is made out.

33To conclude here, I find the applicant has advanced an argument on the weight I afforded to evidence, which is not compatible with Rule 18. I therefore do not agree that the applicant has shown I acted outside the Tribunal’s jurisdiction or committed a material breach of procedural fairness.

Preferring old and dated reports over more recent evidence.

34I find the applicant seeks to re-litigate its case, which is not a valid reason for requesting a reconsideration of my decision.

35The applicant submits that preferring Dr. Chandrasena’s evidence over the updated reports of Dr. Ross, and the evidence of Drs. Boucher and Goodfield, was improper and contrary to procedural fairness because Dr Chandrasena’s reports were outdated (i.e., completed three years before the hearing) and were not an accurate representation of the applicant’s functional impairments. The applicant explains that Dr. Chandrasena does not have the same credentials and experience on chronic pain as Drs. Ross, Boucher, and Goodfield. The applicant contends that the respondent refused to consider new medical information and specifically Dr. Ross’ updated report, Dr. Boucher’s report, and Dr. Goodfield’s report. The applicant relies on Roy vs. Primm, 2020 ONSC 3886 (“Roy”) and on AG v Allstate Insurance 2019 CanLII 125858 (“AG”) to show that material changes require further investigation and adds that despite having the means and opportunity to obtain its own updates, the respondent chose to do nothing. The applicant also relies on Van Galder v. Economical, 2016 ONSC 804 (“Van Galder”), to show that the respondent must live with the consequences of its decision to not use its available means to obtain information about the applicant’s condition.

36The respondent argues that the applicant is seeking to re-litigate her case by having the Tribunal re-weigh the evidence. The respondent says Dr. Chandrasena accepted Dr. Boucher’s chronic pain diagnosis and is more qualified than Dr. Goodfield, who is not a medical doctor like Dr. Chandrasena and has no experience in chronic pain.

37I find the bulk of the applicant’s submissions seek to re-litigate the issue of weight given to Dr. Chandrasena’s evidence, which, as earlier indicated, falls outside the grounds for reconsideration. However, I find the applicant’s arguments would fail regardless. Starting at paragraph 23 and up to paragraph 28 of the decision, I address the applicant’s motion to exclude the report and testimony of Dr. Chandrasena. That motion advanced the same issues raised in the applicant’s reconsideration request submissions (i.e., his experience and the age of his reports). While I agree I did not specifically address the age of Dr. Chandrasena’s report, I find I considered the weight I should afford Dr. Chandrasena’s evidence in paragraphs 45 to 48 and 51 of the decision. The thrust of my reasoning for placing weight on Dr. Chandrasena’s evidence is that he presented a more cogent analysis of functional impairment arising from a mental or behavioural disorder than Dr. Ross; that he applied the correct version of the Guides and did not rely on testing that was incompatible with that version (i.e., the 4th edition) of the Guides; that he did not delegate the scoring of test results; and that his findings were consistent with the occupational therapy report he reviewed as part of his analysis.

38I did not find Van Galder to be of much assistance to the applicant’s case because the section of that authority referenced in the applicant’s reconsideration request submissions does not address weight in the context of dated and recent evidence. Rather, it conveys that an insurer must accept the risks and consequences if it chooses to not obtain information about an insured’s condition. I do not see a clear nexus between this and the applicant’s position that I was procedurally unfair by preferring older evidence to newer evidence. I did not consider Roy or AG because the applicant did not pinpoint the aspects of those authorities it relied upon.

39To conclude here, I find the applicant is contesting the weight I afforded Dr. Chandrasena’s evidence, which is not a reason for reconsideration per the Rules. Therefore, the applicant has not shown a material breach of procedural fairness.

Favouring the respondent’s evidence by incorrectly interpreting the Guides.

40I find the applicant has not shown my interpretation of the Guides to be incorrect or amounting to procedural unfairness.

41The applicant submits that Dr. Chandrasena admitted to using the wrong version for the Guides to perform his analysis of the applicant’s catastrophic impairment determination under criterion 8, in that he acknowledged using psychometric tests mandated for criterion 7 analysis in the 6th edition of the Guides. The applicant says it was completely improper for me to conclude that the 4th edition of the Guides does not say the tests performed by Dr. Chandrasena are incompatible with criterion 8 analysis or discourage them from being used in this context. The applicant asserts I overlooked a clear error in methodology by Dr. Chandrasena, while at the same time, being very critical of the methodology used by Dr. Ross in her catastrophic determination reports. The applicant contends that a larger and liberal interpretation of the Guides can be justified in Ontario because the Schedule is meant to be consumer protection legislation.

42The respondent argues that the applicant’s reconsideration request submissions mischaracterize Dr. Chandrasena’s evidence and attempt to mislead the Tribunal. The respondent agrees that Dr. Chandrasena confirmed using several psychometric tests (i.e., BPRS, PIRS, and GAF) that are mandated for criterion 7 assessments in the 6th edition of the Guides. The respondent maintains that Dr. Chandrasena confirmed using the 4th edition of the Guides for his criterion 8 analysis, and that this edition encourages the use of objective testing measures and does not preclude him from using BPRS, PIRS, and GAF for criterion 8 evaluations.

43I agree with the respondent. While the applicant maintains that Dr. Chandrasena used the incorrect version of the Guides—and goes further in her reconsideration request submissions to indicate he conceded such—I find I rejected the applicant’s position at paragraph 46 of the decision. I note there, that Dr. Chandrasena acknowledged he used psychometric testing mandated for criterion 7 analysis in the 6th edition of the Guides, which, in my view, is distinguished from the applicant’s position that Dr. Chandrasena admitted to using the wrong version of the Guides. I therefore see no procedural fairness issues arising from my interpretation of the Guides. It follows that I do not agree the applicant’s evidence was favoured owing to incorrectly interpreting the Guides.

Raising causation as an issue on my own initiative without it being addressed by the parties.

44I find the applicant has not established that I was procedurally unfair by raising causation as an issue on my own initiative.

45The applicant submits the respondent never raised causation as an issue prior to the hearing or during its opening arguments. The applicant asserts this was a new issue at the hearing, and that the issue was therefore improperly before the Tribunal. The applicant also maintains that the testimony of Dr. Chandrasena and Mr. Darling established that the respondent’s experts were not asked to address causation, and that I acted outside my jurisdiction and violated the “rules of procedural fairness” by basing all my criterion 8 findings on causation. The applicant adds that she was deprived of an opportunity to know and prepare her case with the necessary experts to prove a causal connection between her impairment and the accident. The applicant relies on Shahin v. Intact Insurance Company, 2024 ONSC 2059 (“Shahin”) to show it is a breach of procedural fairness to decide causation without notice to the parties.

46In her reply submissions, the applicant references my finding on adaptability (i.e., “I am not satisfied this impairment rises to the catastrophic threshold because of mental or behavioural disorders resulting from the accident”) to show I addressed causation.

47The respondent argues that in Shahin, both parties agreed that causation was not an issue at the outset of the hearing—and reiterated this throughout the hearing—which is distinguishable from this case because the respondent raised causation as part of its opening arguments and closing submissions. The respondent goes on to say the applicant is misstating evidence and that it disagrees that Mr. Darling admitted causation was not an issue; rather, he indicated that the section 44 assessors were not asked to address causation. The respondent adds that the applicant has not pointed to anything in the decision that shows I embarked on a causation analysis, and that my reasoning makes no reference to causation.

48The applicant’s reconsideration request submissions did not point to any examples of me raising causation on my own initiative in the decision. I did not consider the reference the applicant provided in her reply because the respondent was not permitted a sur reply. Even if I were to consider this example, which is found at paragraph 89 of the decision, I would disagree this constitutes a causation analysis because I indicate at paragraphs 89, 90, and 91 that the bulk of the evidence attributes the applicant’s adaptability impairments to physical pain and not to a mental of behavioural disorder. In my view, this has little to do with whether the accident was a necessary cause of the applicant’s disability as it relates to a mental and behavioural disorder. Further, in her reply, the applicant concedes the respondent raised causation in its opening arguments, which I find further weakens her position. Shahin does not support the applicant’s position as I agree it is distinguished from this matter. In Shahin, the applicant had identified causation was not at issue at the outset of the hearing and the respondent did not provide any argument or authorities addressing causation. I accept that for this matter, the respondent did raise causation as an issue in both its opening arguments and in its closing submissions.

49In any event, the applicant has not pointed to examples of causation analysis in the decision to support her argument, and I therefore find no basis for her claim of procedural unfairness in this context.

Rule 18.2(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.

50The applicant did not clearly distinguish the errors of law he claims in his reconsideration request submissions, so I have addressed them together. This includes the applicant’s submissions pertaining to a multi-disciplinary approach to criterion 8 analysis, which I find are properly applied to the applicant’s arguments on Pastore.

51I find no errors of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

52The applicant submits I decided that pain is the dominant factor for the applicant’s impairments and that it was not related to the accident. The applicant says I failed to properly review and understand chapter 14.5 of the Guides, and that I did not consider pain-based limitation as required by Pastore. Further to Pastore, the applicant argues I falsely and incorrectly determined that the applicant failed to present her case from a multidisciplinary approach. The applicant goes on to assert that I disregarded the Guides and made a legal error by accepting the applicant was unable to work on one hand, and on the other hand, finding she was not markedly impaired in adaptation. The applicant contends this is an error of law such that the Tribunal would have likely reached a different decision “if the case was heard in front of a different adjudicator.” Aside from Pastore, the applicant relies on Islamovic v Co-operators General Insurance Company, 2023 CanLII 67922 ON LAT (“Islamovic”).

53The respondent argues that I did not make the errors in law claimed by the applicant. The respondent explains that I considered the interplay between pain and criterion 8 analysis, and that I analyzed pain-based limitations as they apply to mental and behavioural disorders. The respondent indicates that finding an applicant is unable to work due to physical and psychological impairments does not require the Tribunal to find the applicant has a marked impairment in adaptation due to a mental or behavioural disorder.

54While I agree I found that physical pain was the primary contributing factor to the applicant’s functional impairments, I reject the applicant’s position that I determined this pain was not related to the accident. Paragraphs 44, 48, and 49 as referenced by the applicant do not provide any causation analysis. The but-for test is not mentioned and there is no contemplation of whether the accident was a necessary cause of the applicant’s impairments.

55The applicant does not point to any aspect of “sub-chapter” 14.5 of the Guides I failed to review or understand. In my view, I considered pain in the context of criterion 8 analysis throughout the decision, but notably at paragraph 45 where I consider how Dr. Chandrasena addressed pain in his criterion 8 analysis, and at paragraphs 52, 53, 63, 72, 79, 80, and 86 where I consider how Dr. Ross addressed pain in her criterion 8 analysis.

56I also correctly considered pain-based limitations as required by Pastore. At paragraph 52 of the decision, I note that Dr. Ross’ analysis blends the applicant’s pain and psychological condition without removing from consideration, to any extent possible, any physical causes of her impairment as recommended in the Guides and reinforced in Pastore. In my view, this is consistent with paragraph 65 of Pastore as referenced by the applicant, which notes “…the proper approach was to focus on ‘how the mental part of an overall condition or impairment impacts the various spheres of function’.”

57The applicant also points to paragraph 66 of Pastore, which indicates pain could be viewed cumulatively with psychological difficulties because the assessors concluded it was not possible to factor out the impact of discrete physical impairments and associated pain limitations. This is a feature that distinguishes Pastore from this matter. As I note in paragraph 52 of my decision, Dr. Ross’ analysis did not consider what aspects of the applicant’s pain, if any, could be removed from consideration before cumulatively blending her pain and psychological symptomology to determine a criterion 8 impairment rating.

58While I accept Dr. Ross diagnosed the applicant with chronic pain resulting from central sensitization, I disagree this diagnosis would trigger the principle expressed at paragraph 31 of Islamovic as referenced by the applicant. Islamovic relies on a finding in Pastore, which indicates that where an individual’s diagnosed mental disorder includes pain associated with a general medical condition, then it is reasonable to include such pain when determining impairment under criterion 8. However, the diagnosed mental disorder in Pastore was "Pain Disorder Associated with Psychological Factors and a General Medical Condition". Pastore reasons that because the mental disorder itself involves pain and includes pain associated with a general medical condition, it is certainly reasonable to include pain from the general medical condition to the extent that such pain is connected with the diagnosed mental disorder.

59For this matter, however, the pain-related diagnosis is chronic pain resulting from central sensitization. In my view, this diagnosis is distinguished from Pastore because I found Dr. Ross was not an expert in chronic pain or neurological function, and because the applicant failed to convince me it is a mental disorder. I address this at paragraph 54 of the decision. I explain I attributed less weight to Dr. Ross’ evidence because she offered opinions on chronic pain resulting from central sensitization that were outside her expertise. Further, I express that Dr. Ross did not convince me this diagnosis—which relates to the applicant’s altered pathophysiological brain function and not a psychological process—constitutes a mental or behavioural disorder at paragraphs 53, 72 and 85 of the decision.

60I address multi-disciplinary approach in the context of Pastore at paragraph 55 of the decision. I do not agree with the applicant’s position that Dr. Ross’ reliance on the findings of Drs. Boucher and Goodfield is consistent with the multi-disciplinary approach adopted in Pastore, which was team-based and focused on a shared objective. In this case, Dr. Ross’ 2021 and 2023 reports are separated from those completed by Drs. Boucher and Goodfield by four and six years, respectively. Their reports did not share the same objectives (i.e., Criterion 8 catastrophic determination).

61While I agree I found the applicant was not markedly impaired owing to a mental or behavioural disorder although she was unable to work, I disagree this constitutes a legal error. I provide a clear rationale for this finding that starts at paragraph 89 of the decision and carries through to paragraph 94. In particular, I note at paragraph 89 that the applicant’s impairment in adaptability is not attributable to a mental or behavioural disorder, and then at paragraph 94, conclude that I was pointed to little evidence that convinces me the applicant repeatedly failed to adapt to stressful situations or decompensated for reasons other than physical pain. In my view, the applicant has failed to show how this reasoning constitutes a legal error.

CONCLUSION & ORDER

62The applicant’s request for reconsideration is dismissed.

Michael Beauchesne

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal