Brown v Manitoba Public Date:, 2017 MBCA 21

Citation: Brown v Manitoba Public Date: 20170209 Insurance Corporation et al, 2017 MBCA 21 Docket: AI16-30-08724 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ERLINDA BROWN ) E. Brown ) on her own behalf (Appellant) Applicant ) ) A. J. Robertson - and - ) for the Respondent ) Manitoba Public Insurance MANITOBA PUBLIC INSURANCE ) Corporation CORPORATION ) ) D. G.

Guénette (Respondent) Respondent ) for the Respondent ) The Automobile Injury - and - ) Compensation Appeal ) Commission THE AUTOMOBILE INJURY ) COMPENSATION APPEAL ) Chambers motion heard: COMMISSION ) January 26, 2017 ) Respondent ) Decision pronounced: ) February 9, 2017 MARC M. MONNIN JA [ 1 ] Erlinda Brown (the applicant) seeks leave to appeal the decision rendered by the Automobile Injury Compensation Appeal Commission (the Commission) on November 15, 2016.

By that decision, the Commission dismissed her request for Income Replacement Indemnity benefits (IRI benefits), as well as entitlement to certain treatment benefits that she was seeking. It did allow an award of a five per cent permanent-impairment benefit for a “subarachnoid hemorrhage”. [ 2 ] The applicant was involved in a motor-vehicle accident on August 8, 1994 in the Province of Alberta and sustained significant injuries, including: (

a) comminuted fractured right femur with IM rod implanted; (

b) frontal contusion and evidence of a subarachnoid bleed; (

c) multiple contusions/abrasions right forehead/cheek and left and right elbows/knees with residual scarring to the left knee; and (

d) right eye visual defect–very small inferior right “quadrantic homonymous” (harmonious) field loss. [ 3 ] Fifteen years after the motor-vehicle accident, in October of 2009, the applicant sought to reopen her Personal Injury Protection Plan file, seeking, amongst other matters, permanent impairment, treatment and IRI benefits as a result of vision problems and pain in her right leg.

By an earlier decision, the Commission found that she failed to establish, on a balance of probabilities, that she was absent from work between certain periods due to the injuries sustained in the motor-vehicle accident. [ 4 ] While pursing that matter with the Commission, she also sought further benefits from the Respondent, the Manitoba Public Insurance Corporation (MPIC), relying on medical information from Dr. Janine Johnston, a neuro-ophthalmologist.

That evidence was considered in three Internal Review decisions which denied entitlement to IRI benefits, further permanent impairment, and the cranial sacral and vestibular therapies that the applicant was seeking. She filed notices of appeal to the Commission with regard to those decisions. [ 5 ] When the matter proceeded before the Commission, it was agreed that findings of fact made by the Commission in its earlier decision would be binding on the parties and they would not be permitted to give testimony in the current appeal contrary to testimony which was reflected in the earlier decision.

The only new medical evidence present were the reports of Dr. Johnston and Dr. MacKay.

[ 6 ] Dr. Johnston was called as a witness and testified that the applicant suffered from a visual-field defect which, in her opinion, would have been caused by the motor-vehicle accident. She also testified that the applicant had problems with dizziness which she believed could be as a result of benign paroxysmal positional vertigo (BPPV) which, in sixty per cent of cases in her practice, was caused by head trauma. In her assessment, vestibular physiotherapy treatment would be beneficial. Her diagnosis was based on the history provided to her by the applicant. [ 7 ] In response, MPIC called Dr.

MacKay, a physiatrist, who had conducted a forensic review of the medical information, including Dr. Johnston’s reports. In his testimony, he opined that, notwithstanding Dr.

Johnston’s evidence, there was no objective evidence of a physical or visual impairment which would prevent the applicant from working or that the dizziness that she claimed to suffer was caused by the motor-vehicle accident. [ 8 ] The Commission reached the conclusion that, while the applicant did suffer from visual disturbances, these were not connected to and did not contribute to her symptoms of dizziness, nor would they have prevented her from working at cleaning houses or providing long-term care which was her employment at the time of the accident.

As to the dizziness, the panel was concerned as to the applicant’s credibility. They concluded that there were a large number of contradictory statements and explanations from both the applicant and her husband which affected Dr. Johnston’s evidence given that she relied upon the information provided to her by them to reach her opinion. The Commission accepted Dr.

MacKay’s evidence that there was no medical evidence of dizziness symptoms being reported until more than 15 years after the accident. [ 9 ] The Commission was unable to conclude, on a balance of probabilities, that the applicant had established that she was unable to work due to a condition caused by the motor-vehicle accident. It therefore denied entitlement to IRI or treatment benefits although it did recognize an additional permanent-impairment benefit.

The Test for Leave to Appeal [ 10 ] With this background, the applicant must satisfy the test set out in section 187(2) of The Manitoba Public Insurance Corporation Act , CCSM c P215, which provides as follows: Appeal with leave 187(2) An appeal under subsection (1) may be taken only on a question of jurisdiction or of law and only with leave obtained from a judge of The Court of Appeal. [ 11 ] As well, this Court, on a number of occasions, has set out considerations which apply in its determination whether to grant leave on these appeals, namely, that it must not involve the Court in an assessment or analysis of conflicting factual issues (see Shersty v Manitoba Public Insurance Corp , 2002 MBCA 10 8 , 33 MVR (4th) 202 ; and Pelchat v Man itoba Public Insurance Corp , 2006 MBCA 90 , 40 CCLI (4th) 46 ). [ 12 ] While not articulated as such, my view of the only possible ground of appeal for the applicant would be whether the Commission erred in discounting the opinion and medical evidence presented by Dr.

Johnston by reason of its view of the applicant’s credibility. In other words, was the fact that the expert based her opinion upon facts given to her by the applicant, which the Commission did not find to be accurate, allow it to disregard her conclusions that the additional visual impairment and BPPV were likely caused by the motor-vehicle accident? [ 13 ] This is an issue of mixed fact and law as it can only be resolved by this Court becoming involved in a reassessment of the tribunal’s view of the weight to be given to Dr. Johnston’s evidence, a factual determination.

While I sympathize with the applicant, I am unable to conclude that there is a true issue of jurisdiction or law which is raised by the applicant as required by section 187(2) and its jurisprudence. [ 14 ] For these reasons, I would dismiss the application for leave to appeal without costs. JA