Dubois v. Manitoba Public Date:, 2012 MBCA 10

Citation: Dubois v. Manitoba Public Date: 20120202 Insurance Corp. et al., 2012 MBCA 10 Docket: AI 11-30-07653 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) N. J. Dubois NORMA JEAN DUBOIS ) on her own behalf ) (Appellant) Applicant ) D. M. Robinson ) for the Respondent Manitoba - and - ) Public Insurance Corporation ) ) D. G.

Guénette MANITOBA PUBLIC INSURANCE ) for the Respondent CORPORATION ) Automobile Injury Compensation ) Appeal Commission (Respondent) Respondent ) ) Chambers motion heard: - and - ) January 26, 2012 ) THE AUTOMOBILE INJURY ) Decision pronounced: COMPENSATION APPEAL ) February 2, 2012 COMMISSION ) ) Respondent ) MARC M. MONNIN J.A. 1 The applicant seeks to appeal a decision of the Automobile Injury Compensation Appeal Commission (the Commission) pursuant to s. 187 of The Manitoba Public Insurance Corporation Act , C.C.S.M., c. P215 (the MPIC Act ).

Leave can be granted only on questions of jurisdiction or of law. 2 In Pelchat v. Manitoba Public Insurance Corp. , 2006 MBCA 90 at para. 2 , 40 C.C.L.I. (4th) 46 , Justice Freedman set out the three principles which should guide a judge exercising a discretion to grant leave: 1) the question must be truly one of jurisdiction or of law; 2) the case must be one that warrants the attention of the court; and 3) there must be an arguable case of substance; i.e., one with a reasonable prospect of success. 3 The applicant was injured in a motor vehicle accident on September 16, 2006.

She was diagnosed with neck and upper back strain and bilateral shoulder strain. She worked as a health care worker after the accident, but continued to seek treatment for her injuries. In June 2008, she sought the help of a physician, who recommended a certain type of injections. She sought coverage for this treatment from Manitoba Public Insurance Corporation (MPIC), which was denied in January 2009. She filed an application for internal review of that denial in May 2009, outside of the time limit set out in the MPIC Act .

The internal review officer found that she did not have a reasonable excuse for failing to file her application for review within the required time period, but then went on to review the merits and concluded that the injections were not medically required. 4 She appealed that decision to the Commission.

Before the Commission she raised various reasons for not filing within the time limit, including her recent move to Manitoba, her requirement to look for work and her inability to obtain a lawyer to help her with the motor vehicle accident claim. 5 The panel of the Commission which rendered a decision on the appeal stated as follows (at paras. 44-47): The panel does not find the Appellant’ s evidence on the issues to be credible. The panel finds that the Appellant has failed to provide a reasonable and credible excuse for the late filing of her Application for Review.

She referred to issues of stress and change in her life, which pre-dated the motor vehicle accident by a year or more. We note that she was able to respond to the Internal Review Officer’s queries, which were dated May 25, 2009 by May 27, 2009. We do not

accept the explanation of the Appellant that it was these issues and the need to consult a lawyer that prevented her from filing the Application for Review which shows a date of March 6, 2009 (within the legislated time frame) until May 2009. The panel finds that the Appellant has not provided a reasonable excuse for the late filing of the Application for Review and that the time limits will not be extended by the Commission.

The panel also finds that the Appellant has failed to meet the onus upon her of establishing that the treatment benefits she requests are medically required as a result of injury sustained in the motor vehicle accident. …. 6 The decision was rendered on September 12, 2011. On October 7, 2011, Ms Dubois filed a notice of motion raising as a ground of appeal that the Commission erred by considering an old medical report of her injuries which was on the file as opposed to a new one, which was apparently not in the material before the Commission.

No mention is made in her notice of motion for leave of the Commission’s decision finding no error with the review officer’s conclusion that there was no reasonable excuse for the delay in filing the application for internal review. 7 The applicant’s motion for leave to appeal was adjourned from the original date set of November 3, 2011, to December 8, 2011, at which time the parties appeared before Chief Justice Scott in chambers. It was further adjourned at the applicant’s request to January 26, 2012, but made peremptory by the Chief Justice. 8 On January 26, 2012, the matter appeared before me.

Ms Dubois sought a further extension of time on the ground that she had applied for assistance from Legal Aid, but had not yet received a response. Counsel for MPIC advised the court that a similar concern had been raised before Chief Justice Scott and that at that time the applicant had indicated that she had received a refusal by Legal Aid, but was appealing it. Ms Dubois confirmed that was correct.

I have no indication as to when she would receive final determination from Legal Aid as to representation. 9 In light of the Chief Justice’s direction that the matter be made peremptory, and in light of the lack of evidence from the applicant as to the likelihood of being able to obtain representation at a later date, I directed that the matter proceed. 10 After review of the material before me and in particular the decision of the Commission, I am satisfied that leave to appeal this matter should be denied. 11 While the applicant’s notice of motion does not raise it, as noted by both the respondents, the first decision of the Commission was that the applicant had not provided a reasonable excuse for the late filing of her application for review such that the Commission would extend the time limit for doing so.

They found her evidence on the issues not to be credible. A review of that determination by this court would require it to consider issues of credibility and appropriate exercise of discretion.

The Commission’s conclusion that issues of stress and changes in the applicant’s life, which she claimed prevented her from abiding by the time limitation, pre-dated the motor vehicle accident by a year or more gives a plausible explanation of why they did not find that they were of such nature as to prevent the applicant from meeting the 60-day deadline. 12 I agree with the position taken by counsel for MPIC and for the Commission that if the applicant is unable to successfully appeal that aspect of the Commission’s decision, then the appeal will fail.

As a result, the applicant fails to meet the third principle listed above. 13 As to the alleged failure by the Commission to consider a more recent medical report, I am unaware of what the more up-to- date medical report will say. The Commission concluded that (at para. 47): …. … [M]edical reports in the Appellant’s index file do not establish a basis for the Appellant’s symptoms arising out of the motor vehicle accident. The Appellant has failed to provide credible evidence establishing a connection between the symptoms she complains of and the motor vehicle accident.

We find that the treatment requested is not medically required in connection with injuries sustained in the motor vehicle accident. 14 While failure to consider a relevant piece of evidence may be an error of law, I am unable, from the material provided to me by the applicant, to conclude that this may have occurred. More recent medical evidence may in certain circumstances be relevant, but the applicant has failed to provide evidence that such is the case.

She has therefore not satisfied me that her appeal on the merits has a reasonable chance of success. 15 I leave for another day a discussion as to whether, once the Commission had reached a conclusion that it would not extend the time limit, thereby disposing of the appeal, any further comments on the merits need be considered. 16 The application is dismissed without costs. J.A.