Hope Johannson Appellant (Appellant) v. Saskatchewan Government Insurance, 2019 SKCA 52

Court of Appeal for Saskatchewan D ocket: CACV3007 Citation: Johannson v Saskatchewan Government Insurance , 2019 SKCA 52 Date: 2019-06-13 Between: Hope Johannson Appellant (Appellant) And Saskatchewan Government Insurance Respondent (Respondent) Before: Whitmore, Ryan-Froslie and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr.

Justice Leurer On Appeal From: 2016 SKAIA 51 , Regina Appeal Heard: April 1, 2019 Counsel: Eric Miller for the Appellant Steven Haichert for the Respondent Whitmore J.A. I. Introduction [ 1 ] T his is an appeal from a decision of the Automobile Injury Appeal Commission [Commission] concerning a dispute over the appellant’s entitlement to certain benefits pursuant to her insurance with Saskatchewan Government Insurance [SGI] following a motor vehicle accident: see A.P. v Saskatchewan Government Insurance , 2016 SKAIA 51 [ Commission Decision ]. II.

Background [ 2 ] O n February 2, 2007, the appellant, who worked full-time in the education sector, was driving her car at approximately 20 km/h and was struck from behind. The damage to her car was assessed at approximately $900. Until June of 2008, she continued to work full-time. In September of 2008, she reduced her work hours to 80% of full-time and, in August of 2009, she reduced her work hours to 70% of full-time. In September of 2010, she further reduced her hours to 50% of full-time.

She testified that, at the time of the Commission hearing on August 17, 2016, she was working 40% of full-time hours. [ 3 ] O n February 5, 2007, the appellant visited her family physician, who provided a diagnosis of neck/trapezius sprain that was classified as a WAD II (whiplash associated disorder, classification II). The diagnosis did not include reduced range of motion. Her family physician opined that the injuries would resolve in three to six weeks. Massage therapy was recommended. [ 4 ] O n March 6, 2007, the appellant applied to SGI for injury benefits.

On the application, the appellant advised that, prior to the motor vehicle accident [MVA], she had suffered from connective tissue arthritis in her neck and shoulders and depression and had been prescribed an antidepressant. She reported that, after the MVA and as a result of it, she suffered new injuries including muscle pain, stiffness and tenderness in her neck and shoulders, and frequent headaches and muscle spasms in her neck. Following her application, the appellant was examined by a chiropractor, who confirmed the earlier diagnosis of WAD II.

The chiropractor recommended chiropractic and massage therapy treatments, and indicated the appellant should return to her usual activities. [ 5 ] O n June 29, 2007, the appellant was again examined by the chiropractor. He reported that he had attempted to reduce the frequency of chiropractic treatments from twice per week to once per week, but that this had worsened the appellant’s condition. The chiropractor maintained the diagnosis of WAD II, but added to this a diagnosis of low back pain II.

The chiropractor indicated there was no medical reason the appellant could not participate in normal activity, including work. [ 6 ] O n August 8, 2007, a team of physicians, including a physical therapist, a family physician, a chiropractor, and an occupational therapist issued a secondary assessment

summary report. This report concurred with the diagnosis of WAD II. It also identified “thoracic pain/dysfunction, grade II” and recommended a treatment regimen of physiotherapy, chiropractic therapy, and massage therapy, with an emphasis on physical conditioning. This report also recommended the appellant return to work as a resource teacher when school resumed and continue with her other regular activities. [ 7 ] O n October 22, 2007, a physiotherapist provided a follow-up report concerning the recommended treatment.

This report indicated that there were objective gains in range of motion, that the appellant reported no change in symptoms, that she had plateaued in her progress, and could return to work with full duties. [ 8 ] O n October 30, 2007, the appellant was discharged from treatment. Her chiropractor advised SGI that the appellant had not returned to her pre-MVA condition and would require further treatment. The chiropractor did not agree the appellant had plateaued. SGI

agreed to extend treatment while the file was reviewed by a consultant. The consultant referred the appellant back to a team of physicians for another assessment. [ 9 ] O n January 10, 2008, a new assessment report was issued. As before, it diagnosed the appellant with WAD II and recommended physiotherapy, chiropractic therapy, and massage therapy, with an emphasis on physical conditioning.

The assessment concluded by recommending a return to ordinary living and work activities. [ 10 ] I n May of 2008, the appellant sent a letter to SGI indicating she wanted to close her file and continue with massage and chiropractic treatments on her own. However by September 1, 2010, the appellant contacted SGI by letter to seek further assistance in dealing with injuries that she said resulted from the MVA.

She said her condition had steadily worsened and she required treatment. [ 11 ] F ollowing her request for additional assistance from SGI, a number of specialists were engaged over the course of several years to determine the nature of the appellant’s injuries and entitlement to benefits. The various opinions found in this tertiary assessment led SGI to issue several decision letters: (

a) a decision letter dated May 27, 2011, awarding an income replacement benefit [IRB] of $43,395.05 to the appellant, covering the period of time beginning after the MVA through to the end of June 2011; (

b) a decision letter dated September 1, 2011, advising that SGI would make no further IRB payments, but would continue to fund treatments in connection with the rehabilitation benefit, as recommended by physicians after the tertiary assessment of the appellant’s condition and required treatment going forward; (

c) a decision letter dated February 9, 2015, advising that SGI was of the view the appellant’s ailments were not caused by the MVA and it would cease funding rehabilitative treatments; and (

d) a decision letter dated April 6, 2015, advising that SGI would reimburse the appellant for massage and chiropractic treatments administered up to January 27, 2015. The appellant was not to be reimbursed for physiotherapy treatments. [ 12 ] On November 19, 2014, the appellant appealed the decision letter dated September 1, 2011, to the Commission. III. The Decision of the Commission [ 13 ] T he appellant appealed the decision letter of September 1, 2011, to the Commission on the basis that SGI had erred in interpreting evidence, which led it to prefer the wrong accounts of her condition.

SGI submitted there had been no error and further argued that the Commission lacked the jurisdiction to hear an appeal of its decision to cease payment of rehabilitation benefits due to the fact that, while the appellant had appealed the September 1, 2011, decision ending payment of the IRB within the required time, she had failed to appeal the decision letter of February 9, 2015 – the decision ending payment of rehabilitation benefits. SGI further argued that, in any event, there was no evidence that ongoing treatment was necessary. A.

The Majority Decision [ 14 ] The majority of the Commission was satisfied it had the jurisdiction to hear argument on the appellant’s entitlement to rehabilitation benefits because the decision letter of September 1, 2011, stated SGI’s payment of rehabilitation benefits would be limited in accordance with the recommendations of its physicians following the tertiary assessment.

Since those recommendations were in SGI’s possession and in the possession of the appellant at the time the September 1, 2011, letter was written and received, the Commission was satisfied this amounted to a ruling on rehabilitation benefits that was subject to appeal. (The dissenting opinion concurred with this view of the Commission’s jurisdiction.) [ 15 ] T he majority of the Commission dismissed the appeal noting that, while there were differences between the medical opinions SGI had before it, most of the practitioners agreed the appellant was capable of returning to work full-time as of June 2011.

The majority addressed a key disagreement between the first SGI medical consultant, who found on January 24, 2011, that the appellant’s reduction in work hours was attributable to the MVA and the second SGI medical consultant, who disagreed with that conclusion in his report of August 18, 2011. A report prepared by the rehabilitation specialist, dated June 18, 2014, concurred with the second SGI medical consultant’s assessment and was also cited in support of the decision to dismiss the appeal.

The majority preferred the reports of the second SGI medical consultant and the rehabilitation specialist in part because they provided written reasons in support of their conclusions whereas the first SGI medical consultant did not. The majority gave significant weight to the evidence of the rehabilitation specialist who was, in its view, the most qualified medical practitioner to give an opinion. [ 16 ] T he majority accepted that the MVA caused a WAD II injury but observed such injuries were typically short-lived and that the appellant had full range of motion as soon as three days after the accident.

The majority agreed with the rehabilitation specialist’s assessment that physiotherapy, chiropractic therapy, and massage therapy were beneficial in the months following the MVA, but ceased to be effective years later and did not provide the appellant with any benefit during that later period. The majority referred to the appellant’s own claim that her symptoms had worsened over time and expressed concern that the appellant had become dependent on the treatments. It concluded that in view of all of this, the appellant’s symptoms were attributable to a pre-existing chronic pain condition and not to the MVA. B.

The Dissent [ 17 ] T he dissenting opinion, written by one panel member, criticized the majority’s reliance on reports provided by the rehabilitation specialist. He found the rehabilitation specialist’s report to be flawed because it referred to the appellant’s previous diagnosis of major depression for which there was no evidence, it referred to fibromyalgia as a pre-existing condition for which there was limited

and contradicting evidence and it did not explain how the appellant’s symptoms were a natural progression of pre-existing conditions. Healso found the majority failed to give adequate weight to the impact of pain on the appellant’s ability to work and found the majoritydecision flawed in finding the appellant capable of transporting herself to work in the face of contradictory evidence.

He saw no evidenceto support the majority’s contention that the rehabilitation specialist was more qualified than the SGI medical consultant and concludedthat the SGI medical consultant had based his opinion on the tertiary assessment ordered by SGI, which was the most thoroughexamination of the appellant and had drawn from the expertise of seven different medical practitioners.

The dissenting member was of theview that the SGI medical consultant correctly endorsed the tertiary assessment conclusion that the MVA exacerbated the appellant’s pre-existing chronic pain condition. [18] After accepting that the appellant’s existing chronic pain condition was exacerbated by the MVA, the dissenting memberengaged in a brief causation analysis, recounting the thin skull and crumbling skull principles as enunciated by this Court in SaskatchewanGovernment Insurance v Steinhauer, 2006 SKCA 1, 275 Sask R 59.

He concluded the appellant’s case was of the thin skull variety. [19] He then discussed entitlement to IRB and concluded that, following tertiary assessment, the appellant would need to attend anintensive rehabilitation program before returning to work. He noted the wait time for the recommended program was at least one year, andthat the program lasted six weeks. Therefore, he found the appellant was entitled to IRB for at least one year and six weeks, being theamount of time it would take her to access and complete the rehabilitation program.

He noted this Court’s decision in Ballantyne vSaskatchewan Government Insurance, 2015 SKCA 38, 457 Sask R 254, which holds that when the insured meets the onus of showingentitlement to benefits and the insurer begins benefits, the onus shifts to the insurer to later establish benefits are no longer required.Because he found the appellant was entitled to IRB benefits after she was cut off in September of 2011, the dissenting member concludedthat entitlement should have continued until SGI proved otherwise, which it had not done. [20] On the final issue of rehabilitation benefits, the dissenting member was not satisfied the appellant required more massagetherapy treatments than she did prior to the MVA.

He also found the appellant was no longer benefiting from physiotherapy treatments.On that basis, he held SGI was no longer required to pay for those treatments. He accepted the chiropractor’s opinion that chiropractictreatments were important for maintaining the appellant’s physical well-being following the accident and, accordingly, he found SGI wasrequired to continue covering those treatments. IV. Jurisdiction and Standard of Review [21] the parties agree this Court has jurisdiction to hear this appeal pursuant to s. 7(2)(

b) of The Court of Appeal Act, 2000, SS 2000,c C-42.1, and s. 194(1) of The Automobile Accident Insurance Act, RSS 1978, c A-35 [AAIA]. This latter

section of the AAIA provides asfollows: Appeal to the Court of Appeal 194(1) The insurer or the claimant may appeal a decision of the Court of Queen’s Bench or appeal commission to the Court of Appeal on aquestion of law only. [22] The standard of review is correctness: see Montgrand v Saskatchewan Government Insurance, 2017 SKCA 2, 406 DLR (4th)546. [23] since appeals from the Commission are available only on questions of law, findings of fact are not, of themselves, appealable tothis Court. In P.S.S.

Professional Salon Services Inc. v Saskatchewan (Human Rights Commission), 2007 SKCA 149, [2008] 5 WWR 440[Hitchings] (leave to appeal to the SCC denied, ), Cameron J.A. explained the basis for an argument that an error offact can, in rare instances, be grounded in an error of law: [62] This ties in with the notion that “an unreasonable finding of fact” falls to be categorized as an error of law for the purposes of judicialreview in the classical sense, and with the associated notion that when errors of law are open to judicial review unhindered by a privativeclause then “unreasonable errors of fact”, though no others, are subject to review: Blanchard v.

Control Data Canada Ltd., (SCC), [1984] 2 S.C.R. 476 at 494–95. It also ties in with the further notion that a tribunal “errs in law” if it ignores relevant evidenceor evidence it is required to consider: Woolaston v. Minister of Manpower and Immigration, (SCC), [1973] S.C.R. 102;Canada (Director of Investigation and Research, Competition Act) v.

Southam, (SCC), [1997] 1 S.C.R. 748 at para. 41:“If the Tribunal did ignore items of evidence that the law requires it to consider, then the Tribunal erred in law”. [24] Justice Cameron distinguished between a challenge to the sufficiency or weight of evidence supporting a finding of fact (whichdoes not give rise to a question of law) and an error in principle made in the course of the fact-finding exercise (which can give rise to aquestion of law), stating as follows: [70] Having regard for all of this, it becomes apparent that even though the right of appeal is confined to a question of law, and eventhough the appeal comes down to the tribunal’s findings of fact, the appellant’s case gives rise to a question of law and rests, therefore, ona tenable ground.

It is not as though the question is whether the tribunal’s findings of fact are unreasonable or unsupported by the evidencein the sense of the sufficiency and weight of the evidence. Rather, the question is whether the findings of fact are unreasonable in thesense the tribunal erred in principle by disregarding, overlooking, or mischaracterizing evidence material to its findings of fact.

That thenleads me to the issue regarding the standard of review. [25] shortly after Hitchings, in Murphy v Saskatchewan Government Insurance, 2008 SKCA 57, [2008] 7 WWR 401 [Murphy],Klebuc C.J.S. summarized examples of when an error of law may be made in the course of the finding of a fact:

[5] Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to a finding of fact. However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (

a) is based on no evidence; (

b) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (

c) is based on an irrational inference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al ., 2007 SKCA 149 , (2007), 302 Sask. R. 161 at paras. 60–65 (application for leave to appeal to S.C.C. filed February 13, 2008). The right of appeal, of course, extends to such errors of law. V. Issues [ 26 ] t he appellant raises a number of grounds of appeal, which can be summarized as follows: (

a) Did the Commission err in law by accepting the evidence of the second SGI medical consultant and the rehabilitation specialist over the first SGI medical consultant and the chiropractor? (

b) Did the Commission err in law by relying on expert opinion evidence as being determinative of causation? (

c) Did the Commission err in law by failing to consider and apply the correct legal test for causation? (

d) Did the Commission err in law by misinterpreting s. 112 of the AAIA and thereby deprive the appellant of benefits she was entitled to? VI. Analysis A. Did the Commission err in law by accepting the evidence of the second SGI medical consultant and the rehabilitation specialist over the first SGI medical consultant and the chiropractor? [ 27 ] T he appellant adopts the dissenting opinion, arguing in substance that the majority erred by preferring the evidence it did to support its conclusions. [ 28 ] T he Commission has wide discretion to accept evidence as set out in s. 196.3 of the AAIA .

The ordinary rules of evidence do not apply in a Commission hearing.

Therefore, the appellant is not correct in stating that expert opinion evidence can only be based on evidence admitted pursuant to the normal rules of admissibility and cannot be based on reports. [ 29 ] I n essence, the appellant is attacking the reasonableness of the Commission’s findings of fact, but otherwise does not identify a question of law. [ 30 ] The most important finding of fact made by the majority of the Commission was that the appellant’s symptoms could not be attributed to the MVA and that any disability was not related to the MVA. [ 31 ] The appellant challenges the majority’s finding of no causation by questioning the evidentiary basis on which certain doctors formed their opinions that she had a pre-existing injury.

The real complaint made by the appellant is that the Commission should not have relied upon the reports it did. With respect, this does not rise to being a question of law, but instead amounts to a challenge to the sufficiency or weight of the evidence relied upon by the majority to support its conclusions. [ 32 ] I see no merit to the appellant’s argument that there was no evidence to support the opinions of the second SGI medical consultant and the rehabilitation specialist that pre-existing fibromyalgia could account for her pain.

Both doctors indicated they had reviewed the entire record and found there was no way to distinguish between the symptoms reported before and after the MVA. [ 33 ] The appellant makes a similar argument with respect to depression. She says that she did not suffer major depression prior to the MVA and it was unreasonable for the majority to find her depression was not caused by the MVA. It is true that the second SGI medical consultant and the rehabilitation specialist referred to the appellant as suffering major depression.

The issue, as I said, is not whether the doctors’ views were in error but whether the Commission committed an error of law in relying upon those reports. There was plenty of evidence on the record that tended to show the appellant suffered significant bouts of depression prior to the MVA, and the appellant identifies no error in principle in the reliance by the Commission on this evidence. [ 34 ] The appellant also attacks the finding of fact that she was capable of returning to work on June 21, 2011.

Although she says that there was no evidence to that effect, the fact is that there was such evidence and there was no error in law on the part of the majority in accepting the evidence of the rehabilitation specialist to that effect. [ 35 ] T he appellant has pointed to no error that gives rise to a question of law by the majority in the course of its fact-finding. This ground of appeal must fail. B.

Did the Commission err in law by relying on expert opinion evidence as being determinative of causation? [ 36 ] T he appellant argues the majority erred by failing to consider the Supreme Court’s decision in British Columbia (Workers’ Compensation Appeal Tribunal) v Fraser Health Authority , 2016 SCC 25 , [2016] 1 SCR 587 [ Fraser ]. She implies that relying on expert opinion evidence to determine causation is an error. However, Fraser does not suggest expert opinion evidence cannot support a finding

of causation. Rather, it says the presence or absence of expert opinion evidence is not necessarily determinative one way or the other. [ 37 ] It was not an error in law for the majority to rely on the expert evidence as it did, nor was it an error in law for the Commission not to mention Fraser . C.

Did the Commission err in law by failing to consider and apply the correct legal test for causation? [ 38 ] The appellant argues the majority erred in describing her as a crumbling skull claimant when it should have considered her to be a thin skull claimant. [ 39 ] The appellant’s argument on this point is answered by her own submission: “Whether the appellant is deemed to be a ‘thin skull’ or a ‘crumbling skull’ reduces to a finding of fact” (appellant factum at para 108).

In this case, the clear finding of fact made by the majority was as follows: “We are satisfied the appellant would have experienced her present neck and shoulder girdle pain condition regardless of the MVA. The appellant had a chronic pain condition that was symptomatic prior to the MVA.

The evidence does not establish the MVA changed or altered the course of this chronic pain condition” ( Commission Decision at para 138). [ 40 ] The appellant relies on Saskatchewan Government Insurance v Steinhauer , 2006 SKCA 1 , 275 Sask R 59, and Murphy as support for the proposition that the principles of causation as generally applied in relation to the tort of negligence should be applied by the Commission in solving issues of causation in relation to claims made under

Part VIII of the AAIA . She proceeds to argue in her factum that the “Commission erred in law by failing to apply the reasoning of these decisions to the present case” (at para 108). However, nowhere in her argument does she point to an error in principle of the kind discussed in Hitchings , which might translate into a possible error in law. [ 41 ] This ground of appeal must fail. D.

Did the Commission err in law by misinterpreting s. 112 of the AAIA and thereby deprive the appellant of benefits she was entitled to? [ 42 ] The appellant argues that s. 112 of the AAIA confers on SGI a broad discretion to pay out benefits where “logic” dictates benefits should be paid. She invites this Court to find that the Commission erred in law by not exercising this discretion and paying benefits out to her. In so saying, she relies on Saskatchewan Government Insurance v Becker , 2011 SKCA 24 , 366 Sask R 254 [ Becker ].

There is no merit to this ground of appeal as, in my respectful view, Becker is readily distinguishable. [ 43 ] In Becker , the underlying dispute was a mother’s entitlement to benefits where her daughter required care following a car accident. Doctors had recommended the girl attend school for half days and, thereafter, return home for supervised rest and activities. To facilitate this, the mother had to take time off work and lost wages as a result. SGI decided to pay the mother for her lost wages, even though the mother was not the injured person.

When SGI terminated those payments, the mother appealed to the Commission. SGI advanced several arguments before the Commission, including that the payments were made ex gratia and were not not provided for by the AAIA . On that basis, SGI argued the Commission lacked jurisdiction to order the payments continue. The Commission held that SGI had statutory jurisdiction to make the payments and, thus, the Commission had jurisdiction to order their continuation. SGI appealed to this Court, arguing the Commission erred in law in its

interpretation of the AAIA . So far as it concerns this appeal, the issue in Becker was whether SGI and the Commission had the statutory authority to make payments to the mother, who was not the claimant. That was not an issue before the Commission in this case.

Nothing in Becker suggests, absent an error of law, that this Court substitute its view of the facts, as found by the Commission, as to whether the qualifying criteria for making payments have been met. [ 44 ] S he next argues that SGI erred in exercising its discretion but points to no additional errors of principle. [ 45 ] Finally, the appellant says the Commission erred in exercising its discretion because it did not accept the opinion of the tertiary assessors.

This, again, is answered simply by observing that the appellant’s challenge is to the Commission’s findings of fact and does not raise a question of law. VII. Conclusion [ 46 ] I would dismiss the appeal in its entirety. [ 47 ] As SGI has not sought costs, I would make no order as to costs. “Whitmore J.A.” Whitmore J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Leurer J.A.” Leurer J.A.