Justin Kowalczyk v. Intact Insurance Company, 2024 CanLII 43459

Citation: Kowalzyk v. Intact Insurance Company, 2024 LAT 21-012691/AABS- R

RECONSIDERATION DECISION

Before: Bonnie Oakes Charron

Licence Appeal Tribunal File Number: 21-012691/AABS

Case Name: Justin Kowalczyk v. Intact Insurance Company

Written Submissions by:

For the Applicant: Sherilyn Pickering, Counsel

For the Respondent: Theomarcus Giannou, Counsel

OVERVIEW

1On February 15, 2024, the applicant requested reconsideration of the Tribunal’s decision dated January 25, 2024 (“decision”).

2In the decision, the Tribunal found that the applicant’s injuries were minor as defined in s. 3 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), rendering the applicant subject to the Minor Injury Guideline (“MIG”). As a result, the Tribunal found that he was only entitled to the benefits in the disputed treatment plans up to the remaining amounts of the MIG limits. The Tribunal also found that the applicant was entitled to interest pursuant to s. 51, and that the respondent was not liable to pay an award.

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.

4The applicant is seeking a reconsideration pursuant to Rule 18.2(a) and (b). He seeks a determination that his injuries fall outside the MIG on account of a traumatic brain injury (“TBI”), chronic pain syndrome (“CPS”), and psychological impairment.

5The respondent seeks to have the reconsideration request dismissed and the decision upheld.

RESULT

6The applicant’s request for reconsideration is dismissed.

ANALYSIS

7The 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.

No grounds for reconsideration pursuant to Rule 18.2(a)

8Although the applicant indicated on his Request for Reconsideration form that he was seeking reconsideration pursuant to Rule 18.2(a), he did not file any supporting submissions. As the onus is on the requestor, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a).

No errors of fact and law pursuant to Rule 18.2(b)

9I also find the applicant has not established grounds for reconsideration under Rule 18.2(b).

10As set out above, Rule 18.2(b) sets out a two-part test. The Tribunal must be satisfied that it made an error of fact or law. It must also be satisfied that the error is such that it would likely have reached a different result if the error had not been made.

11The applicant submits multiple arguments pursuant to Rule 18.2(b). He submits that the Tribunal erred in fact and law because it:

i. required a medical opinion to support a Traumatic Brain Injury diagnosis;

ii. added a functional impairment requirement to CPS;

iii. relied on Dr. Khaled’s opinion that contained a misstatement of a test;

iv. added a requirement that a psychological impairment be significant and require treatment in order to find the applicant’s injuries outside the MIG; and

v. mistook and misinterpreted the evidence with regard to some of the clinical notes and records(“CNRs”) and psychological testing results.

i. Traumatic Brain Injury (“TBI”)

12The applicant submits that I erred in requiring a medical diagnosis of a TBI. The applicant argues that there is nothing in the Schedule or Rules that states a physician must make a diagnosis for a TBI to be considered. The applicant submits that the correct legal test is whether the impairment exists on a balance of probabilities, and there is ample evidence he suffered a TBI.

13I disagree with the applicant’s argument that I made an error. I did not require a physician’s diagnosis to make a finding that he suffered a TBI as a result of the accident. The absence of a physician’s diagnosis was only one factor I considered.

14I considered the MIG at paragraphs 9 to 34 of my decision. In that analysis I considered the applicant's arguments that he should be removed from the MIG on the basis of pre-existing conditions, chronic pain syndrome and a psychological impairment. In the course of my analysis, I set out the legal test and then considered the position of the parties and the evidence before me, including, at paragraph 14, the applicant's submission that he suffered a TBI. I found, based on the totality of the evidence before me, that I was not convinced he had suffered a TBI. The lack of diagnosis was only one factor that I considered.

15In paragraph 15 of my decision, the other factors considered are described, including the applicant’s hospital emergency room (“ER”) record and the notations in the CNRs of his physiotherapist.

16In paragraph 20 of my decision, I acknowledge the applicant’s initial symptoms after the accident, referencing the CNRs from both the hospital and the clinic. However, merely displaying some symptoms that could be consistent with a TBI is not enough to establish the existence of same.

17I find that the applicant’s argument that I required a physician’s diagnosis has no merit and I see no error in my analysis of the claim of a TBI. My finding was made on the basis there was no compelling medical documentation to substantiate the claim of a TBI.

ii. Chronic Pain

18The applicant submits that I erred in finding that chronic pain requires a functional impairment that warrants treatment outside the MIG, and that the applicant failed to establish he has a substantive functional impairment. He argues that the case law requires either a diagnosis of chronic pain syndrome or continuous pain that is of a severity that it causes suffering caused by functional impairment, but not both. He further argues that I erred when I required the functional impairment to be substantive.

19The applicant argues that having been diagnosed with Chronic Pain Syndrome (“CPS”) by Dr. Zahavi, he does not need to meet any other criteria such as those found in the American Medical Association Guides (“AMA Guides”) for the Evaluation of Permanent Impairment (4th and 6th ed.). He refers to case law that indicates chronic pain falls outside the MIG once diagnosed and does not require demonstration of a functional impairment. Further, he asserts that even if he did, I failed to apply the criteria correctly.

20I disagree with the applicant that I erred in applying the test for being removed from the MIG due to chronic pain.

21I find that I set out the correct legal test itself at paragraph 11 of my decision. I agree with the respondent that to be removed from the MIG on the basis of chronic pain, it must be accompanied by a functional impairment.

22I also disagree that I erred in applying the criteria in the AMA Guides. In paragraphs 22–25 of the decision, I surveyed the applicant’s functionality against the six criteria and found that he continued to function in all aspects of his life including work, recreation, personal care, driving, and the activities of daily living. The applicant takes issue with my commentary on the criteria, arguing I erred by not applying them correctly. I disagree. I not only commented on various aspects of the criteria including the applicant’s work, home, and social life, but also referenced the positions of both the s. 25 and s. 44 assessors.

23The applicant also submits that I failed to identify that he suffered psychological sequelae from his chronic pain condition. I find, however that I did consider the applicant’s psychological symptoms. At paragraph 30, I highlighted the finding of s. 44 assessor Dr. Direnfeld, who found that the applicant did not endorse any features of Somatic Symptom Disorder.

24I disagree with the applicant’s characterization of what must be demonstrated in order to escape the MIG on the basis of chronic pain. With respect to the reference to a “functional substantive impairment” in paragraph 26 of my decision, my intent was to emphasize that the pain symptoms must not be just sequelae of minor injuries from the accident but should demonstrate how the applicant’s functionality was affected in a significant way. I do not find I erred, given impact on functionality is often framed by applying the criteria from the AMA Guides – with three of six being the threshold – a high bar to meet.

25I find that the applicant has not established grounds for reconsideration with regard to chronic pain as a basis for removal from the MIG.

iii. Dr. Khaled’s opinion

26The applicant submits that I erred when I relied on Dr. Khaled’s opinion as it contained a misstatement of the test for chronic pain, and but for my reliance on it, his injuries would be found outside the MIG.

27In answer to Dr. Khaled’s finding that there were no musculoskeletal, neurological, or orthopedic complications identified during the examination, the applicant argues that Dr. Khaled failed to investigate chronic pain during the assessment. He notes that Dr. Khaled considered chronic pain syndrome but did not go through the AMA Guide criteria to determine if he met the criteria or not. As a result, he concludes that the report lacks credibility, and I should not have relied on it. This is an attempt to reargue the case with regard to my weighing of the evidence. I see no error in my consideration of Dr. Khaled’s report.

28In paragraph 23 and 24 of my decision, I discuss the s. 44 report and findings of Dr. Khaled and note how they differ from those of s. 25 assessor Dr. Zahavi. On page nine of Dr. Khaled’s report dated October 14, 2021, he states that the applicant did not display any evidence of chronic pain syndrome or chronic pain disorder and based on the AMA Guides 6th edition, the claimant had not developed the diagnostic criteria for chronic pain syndrome. He listed the six criteria and opined there was no evidence that the applicant displays three of the six criteria necessary to make a diagnosis of chronic pain, nor any evidence that he has chronic pain syndrome as a result of the accident.

29I disagree that I made an error. It is the role of the Tribunal to assess and weigh the evidence before it. That the applicant does not agree with my assessment is not grounds for reconsideration. Furthermore, I disagree with the applicant’s assessment of the credibility of Dr. Khaled’s report. Dr. Khaled has extensive credentials including membership in the Pain Society, is a certified independent medical examiner (CIME), and wrote certification exams for the AMA Guides for the Evaluation of Permanent Impairment (4th and 6th ed.) as per the professional designation section of his s. 44 report. There is no evidence that Dr. Khaled misstated a test in his report, or that I did not apply the AMA Guide criteria appropriately in my consideration of the issue in dispute.

iv. Psychological Impairment

30The applicant submits that I erred in finding that he was coping well and did not need treatment. However, I find no error because these were simply factors considered in my analysis. I also considered the other medical evidence.

31At paragraph 29 of my decision, I note that Dr. Miller found the applicant was coping well and was not in need of ongoing treatment but instead, could benefit from having access to therapy on an as-needed basis. While the applicant argues there is nothing in law that requires an applicant to require treatment in order to have an impairment, I find this argument without merit given the applicant is claiming psychological services in his application for benefits. Clearly, there are two elements to his claim, he seeks to establish that he has an impairment that lies outside the MIG, and that the treatment plans for psychological services claimed are reasonable and necessary.

32He also questions my statement that I gave less weight to Dr. Miller’s assessment as it was conducted by telephone, but at paragraph 29 of my decision, I elaborate on the reasons for my finding that the telephone assessment had less value than the s. 44 in-person assessment of Dr. Direnfeld. Dr. Miller did not include a document review component, and in the resulting s. 25 report, the testing results, diagnoses, and recommended treatment plan were not aligned in a convincing way.

33My decision that the applicant did not suffer the type of psychological impairment that would require treatment outside the MIG was made after considering the totality of the medical evidence. In paragraph 33 of my decision, I indicated that apart from Dr. Direnfeld’s report, I also considered the evidence of Drs. Zahavi, Miller, and GPs Drs. Best and Hamel.

34The applicant further submits that I erred by requiring that a psychological impairment should be significant. I did not instill such a requirement, but instead, I paraphrased from Dr. Direnfeld’s report in paragraph 33 of my decision. The assessor had found insufficient evidence of an accident-related psychological impairment or associated rise in the applicant’s level of distress post-accident that was “clinically significant”. While I made reference to this aspect of the s. 44 report in my discussion of the evidence, it is not mentioned in paragraphs 34 and 35 of the decision where I outline my conclusions.

35I find that the applicant has not established that I required him to be coping poorly and require psychological treatment, or have a significant psychological impairment, in order to be found outside the MIG.

36For the reasons set out above, I find the applicant has not established grounds for reconsideration.

v. Interpretation of CNRs and Psychological Testing

37The applicant makes a series of arguments related to the CNR for May 27, 2019. He argues that I mistook the CNR as pertaining only to his wife, did not acknowledge a diagnosis of Post-Traumatic Stress Disorder (“PTSD”), and mistook the physician involved.

38First, I disagree that there is any evidence the CNR pertains to both the applicant and his wife. While the applicant may argue both he and his spouse were present at the appointment, this scenario is not clear from the note.

39Second, at paragraph 21 of my decision, I stated that the doctor referenced in the note is Dr. Raikhlin, whose name appears at the top of the page. While the applicant argues that the acronym “KEBE” present on the right-hand side of the page refers to Dr. Best, this is not made clear anywhere in the note.

40Third, the CNR itself does not include a diagnosis of PTSD but only the notation “PTSD sx”.

41Thus, the CNR for this date offers no conclusive evidence that both spouses were present, which doctor was present, nor does it document a diagnosis of PTSD. I see no error or grounds for reconsideration pertaining to my consideration of the CNR for May 27, 2019.

42Next, the applicant identifies that I erred when I misinterpreted his score on Dr. Miller’s Patient Pain Profile (“PPP”). He submits that but for this error, his injuries would be found outside the MIG.

43The applicant argues that the results of his PPP reference a pool of people who are in pain, as opposed to the regular population, and though his results were below average on depression, they were average for anxiety and somatization. He argues that this is evidence of an impairment.

44In paragraph 29 of my decision, I documented his scores on the PPP as below average. I agree with the applicant that this was an error. I find, however, that this is not an error such that the Tribunal would likely have reached a different result. In the same paragraph, I elaborated on why I gave the report of Dr. Miller, his test results, and diagnoses, less weight than those of Dr. Direnfeld. Dr. Direnfeld’s testing found that the applicant fell short of a psychological impairment, with any symptoms being psycho-social sequelae of minor injuries from the accident. I found that Dr. Miller’s testing results, diagnoses and recommended treatment plan were less persuasive because they lacked coherence. Thus, even though I erred in documenting the PPP scores, this error would not likely have changed the result, and therefore it does not establish grounds for reconsideration.

45Lastly, the applicant submits that I erred when I focused on one of Dr. Hamel’s CNRs that recorded his anxiety as well-controlled, indicating there were no other relevant CNRs from his GPs. I agree that this was a factual error. On review of the relevant CNRs, I agree there are other references to the applicant’s symptoms of anxiety.

46I find, however, that this error would not likely change the outcome of the decision. At paragraph 32, I discuss how the CNRs also document that the applicant was coping well with his worries related to work and family.

CONCLUSION AND ORDER

47The applicant’s request for reconsideration is dismissed.

Bonnie Oakes Charron

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal