In C.R. v. Scottish York Insurance Company, Associate Chair Jonathan Batty at the Safety, Licensing Appeals and Standards Division of Tribunals Ontario granted a reconsideration of a decision of the License Appeal Tribunal (“LAT”) file 16-002077/AABS that had accepted the applicant was outside of the Minor Injury Guidelines (“MIG”) and denied a chiropractic treatment plan.
The insurer filed the request for a reconsideration. Its position was that the applicant was within the MIG on the basis of several factors. The insurer alleged the Adjudicator had made a number of errors in his decision:
a) improperly shifted the burden of proof to the insurer
b) failed to draw an adverse inference on the applicant’s failure to produce relevant evidence in her possession and in particular, the failure to produce timely evidence of her chronic pain syndrome
c) misapplied the test that the pre-existing condition is an exception to MIG determination as the applicant had failed to provide documentation of the pre-existing condition
d) erred in application of the material contribution test
Associate Chair Batty held that a significant legal mistake had, in fact, prevented a just outcome and warranted a reconsideration of the LAT’s decision in this case. He held that as per section 18(2) of the Statutory Accident Benefits Schedule (the “Schedule”), there was not “compelling evidence” that the pre-existing condition would prevent maximal recovery if the insured person was to be treated under the MIG. Associate Chair Batty also noted that he agreed with the insurer on the point that reliance on the applicant’s assessors and expert reports post-accident is insufficient evidence for the applicant to meet her burden of proof.
On the point of failing to draw an adverse inference from the applicant’s failure to produce relevant evidence in her possession, Associate Chair Batty held that the LAT adjudicator’s reasoning in stating such an adverse inference should not be drawn was problematic and called into question whether the LAT adjudicator had properly applied the legal test.
On the remainder of the reasons for reconsideration, Associate Chair Batty declined to comment further, stating that the fundamental problem regarding the evidentiary findings and the adjudicator’s application of the test for pre-existing injuries was such a significant error it warranted setting aside the LAT’s decision, as the insurer requested. It was held that the applicant could be treated within the MIG, and had not demonstrated that she was exempt from the MIG on the basis of a pre-existing condition.
This decision raises important issues on section 18(2) of the Schedule and what constitutes “compelling evidence” of a pre-existing condition that would prevent maximal recovery under the MIG. While the LAT was correct in finding that pre-existing conditions can warrant coverage beyond the MIG, Associate Chair Batty makes it clear that an applicant’s post-accident claims of such a pre-existing condition alone will not warrant an exception to treatment under the MIG. There must be documentation and compelling evidence of the condition prior. In addition to this, this decision has clarified that the onus is on the applicant to provide such compelling evidence. The LAT improperly shifted this onus to the insurer in this case. It is not the duty of the insurer to raise evidence to dismiss their claims if no compelling evidence or documentation of the pre-existing condition has been led by the applicant.