Volume. 3 Issue. 4 – February 25, 2019
Ability to Remedy Serious Breaches of Procedural Fairness Forever Compromised
In light of the recent Rule 18 amendment, we are examining the vital role of reconsideration that would be lost by precluding interlocutory matters. Of the 7 Reconsiderations recently released, there are 5 examples where reconsideration would no longer be available, including two where the Applicant was successful in overturning the original decision. Given this change, the curative role of reconsideration is lost.
To put this in context, the Vice-Chair in 17-006956 v Guarantee and 17-004109 v Intact quotes Associate Chair Batty, who had previously indicated that Reconsideration “affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. Thus, the reconsideration process serves a curative role.” Specifically, “for interlocutory decisions, it gives the Tribunal the tools to get a matter back on track for a just and timely resolution.”
Here are two case where the curative role of reconsideration would be lost:
Adversarial Relationship – The Vice-Chair agreed with the Applicant, determining that the Tribunal had “erred in its characterization of the priority dispute as a proceeding that does not create an adversarial relationship between [the Respondent] and the applicants”. Accordingly, it was decided that “the Tribunal made a significant error in law by failing to exclude counsel for [the Respondent] and the EUO from the proceedings at LAT”.
Overturning the original decision in 17-004636 & 17-004701 v The Personal , the Vice-Chair reasoned that “in the priority dispute, [the Respondent] is seeking to prevent potential liability for paying any benefits to the applicants. This is in clear opposition to the duty of utmost good faith that [the Respondent] owes to the applicants in the accident benefits context. ln this way, the priority dispute creates a similar adversarial relationship between the insurer and the applicants as in a tort proceeding.”
Unforeseen Uncontrollable Circumstances – Denying a request by the Applicant for an adjournment, to which the Respondent consented, the Vice-Chair found that “the Tribunal did not properly consider the unique circumstances of the case before it and also failed to balance compliance with its Rules with the principles of natural justice and procedural fairness”. In 18-003753 v Guarantee , the request had been made “due to unforeseen and uncontrollable circumstances which were reasonable and supported by documentary evidence”. This “strict and narrow application of its Rules” ought to have “considered the unique circumstances of the case before it and balanced its Rules with the principals[sic] of natural justice and procedural fairness”.
These two decisions demonstrate that it is vital to understand whether the consequences are intended or otherwise. What would be the remedy under the new Rule now – attempt to access the Court or determine another way to bring your dispute? In either event, the opportunity of a just and timely resolution would be lost.
MIG $$ remaining, but Chronic Pain Confirmed
Reading through the chronic pain cases in this release, there is a clear sense as to how chronic pain cases are adjudicated. There isn’t a pattern, a one size fits all application of the SABS. It’s life and fact situations, more simply put, context.
In 17-007909 v Chieftain, the Respondent contended that the lack of post accident visits to her doctor was “inconsistent with the number of visits that one would expect of an individual with [the Applicant]’s level of self-reported pain”. In addition, the Applicant had not exhausted the treatment limits available under the MIG.
However, the Tribunal found that the Respondent’s position “completely ignores [the Applicant]’s reality of daily living, which includes arranging supervision and care for her severely autistic son”. The Applicant was found to have been “consistent with her pain complaints and that they remained ongoing, even at the hearing, which is well beyond six months of the accident”.
The Applicant also “testified in a credible and trustworthy manner and was forthright about her use of non-medically prescribed Percocet for the pain in her left shoulder”. The Respondent characterized such use as “street drugs”, however the Tribunal instead, found “this evidence very persuasive in proving that [the Applicant] suffers from significant levels of chronic pain as she was misusing medication that was not prescribed for her up until at least two months prior to the hearing”.
The Tribunal also did “not find that any on-going pain, at any level, automatically takes an applicant out of the MIG. Typically, ongoing pain also must be of a significant level or accompanied by some functional impairment or disability.” Additionally, however, “a diagnosis of chronic pain syndrome is not necessary to remove an applicant from the MIG”.
Driving home the point that there is not a one size fits all application of the SABS, the following cases demonstrate that context remains determinative when dealing with chronicity.
Not a Duplicate – Awarding the Applicant a chronic pain program, the Tribunal in 17-008304 v Aviva confirmed regular attendances with the family doctor, ongoing involvement in a chronic pain treatment, and medication including morphine.
The Respondent argued duplication given treatment already being received from various healthcare providers. The Tribunal however did not agree, finding that the proposed chronic pain treatment program was designed “with knowledge that the applicant is currently involved in a number of modalities. The applicant has continued pain complaints and the treatment she has been receiving has only minimally assisted in her recovery.”
Chronic Pain Assessment is a Duplicate – In a largely similar fact situation from the same accident, the Applicant in 17-008268 v Aviva however was not awarded a chronic pain assessment. The Tribunal confirmed again regular attendances with the same family doctor, whose records confirm “persistent pain with minimal improvement, pain-associated limitations on activity, prescriptions for a variety of analgesics, referral to a pain clinic, and using the terminology ‘chronic pain’ to describe [the applicant]’s condition”. However, the records do not “offer any opinion on the need for further assessments by a chronic pain expert beyond those already obtained by [the applicant]”. The absence of chronic pain discussions from “disinterested physicians” was found to be “persuasive”.
Further, the Treatment Plan “fails to explain why an assessment – as opposed to more treatment — at this time is reasonable and necessary given his access to physiotherapy and psychological services”. Additionally, the Treatment Plan does not address “how its goals are distinct from or add value to the treatments already being undergone by [the applicant]. It also fails to indicate what medical information is used or relied on to conclude that a chronic pain assessment is necessary.”
Changes to Normal Lifestyle – In another matter awarding a chronic pain program, the Applicant in 18-000456 v Aviva was found to have “consistently complained of the same issues, has seen multiple medical practitioners, and has been diagnosed at least twice with chronic pain…”. Further, there were “dramatic changes to his normal lifestyle and the effect on his job and career”, including the loss of a job due to physical limitations and having to assume a lighter duty job. Little weight was afforded the Respondent’s expert, as the “report was mostly a copy and paste of an earlier report…was light on details and not well developed”.
Reasonable for a Medical Professional to Explore – Awarding a chronic pain assessment, the Tribunal in 17-006909 v Allstate reasoned that the Applicant “continues to experience pain post-accident (self-reporting at 9/10 on the pain scale), his pain is continuous (he has been taking pain medication consistently since the accident) and that it is reasonable for a medical professional to explore whether his pain has become chronic in nature…”. In addition, there was reference to the opinion of the IE assessor who noted that the Applicant “appears to be highly pain-focused and pain oriented in a way that likely results in self-limiting behaviours”. The Tribunal noted that “this quotation is compelling, as during the hearing, I found that [the Applicant]’s responses and general attitude towards his condition and life-state reflected this remark.”
There are 7 more cases where chronic pain was a central issue in determining entitlement. To read more, visit the Newly Added Decisions sidebar.
Degrees of LATitude
Un-Chartered Territory – Counsel for the Applicant argued that substandard interpretation services in numerous instances violated the client’s s.14 Charter rights.
In 18-002962 v Guarantee , finding that “there was no air of reality to [the Applicant]’s claim that the Somali interpretation she received at the hearing was a breach of her Charter right”, it was further confirmed that counsel had in fact “printed off the case law on the issue of interpretation in advance of the testimony which gave rise to his objection on the issue of interpretation”.
I Thought I Was Getting Better? – Despite the accident occurring in June 2014, the Applicant did not submit the OCF-1 until one year later in June 2015.
In 17-003686 v Gore Mutual, the Applicant was “not statute-barred from proceeding with her application as she has provided a reasonable explanation for the delay” where she submitted that the delay was due to her expectation that her accident-related injuries would resolve without further treatment until she experienced exacerbated pain in May 2015. In addition, the Tribunal found that the Applicant had never received the initial notice pertaining to the “30 day rule” concerning submission, as she no longer resided at the residence where notice was sent. Further, the Tribunal found “the respondent’s position in rejecting the applicant’s explanation for the delay without investigating the matter further is unreasonable. Instead, I find that the respondent dismissed the application on a technicality, reasoning that the ‘applicant made a conscious, informed decision based on the advice of a paralegal not to apply for accident benefits in order not to jeopardize her WSIB claim’. The respondent has not adduced any evidence in support of this claim.”