Saskatchewan Government Insurance Appellant (Respondent) v. Ron Petrisor, 2015 SKCA 109

Court of Appeal for Saskatchewan Docket: CACV2496 Citation: Saskatchewan Government Insurance vPetrisor, 2015 SKCA 109Date: 2015-10-16Between:Saskatchewan Government InsuranceAppellant (Respondent)AndRon PetrisorRespondent (Appellant)Before: Richards C.J.S., Caldwell and Ryan-Froslie JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Ryan-FroslieOn Appeal From: 2013 SKAIA 36 , 2013 SKAIA 036Heard: September 11, 2015Counsel: Steven Haichert for the Appellant Jason Clayards for the Respondent Richards C.J.S. I. Introduction [1] The respondent, Ron Petrisor, was involved in a motor vehicle accident in 2008. He complained of injury to his neck andlow back and began receiving benefits from the appellant, Saskatchewan Government Insurance [SGI], pursuant to The AutomobileAccident Insurance Act, RSS 1978, c A-35 [AAIA]. [2] In 2010, SGI issued a decision letter to the effect that Mr.

Petrisor’s motor vehicle accident-related injuries did not preventhim from working. As a result, it terminated his benefits. [3] Mr. Petrisor then took his case to the Automobile Injury Appeal Commission [the Commission]. The Commission allowedhis appeal on the basis that SGI had failed to follow recommendations that he should undergo a so-called “work hardening” program. [4] SGI now appeals the Commission’s ruling.

It argues that the Commission committed errors of law both in failing to properlyapply provisions of the AAIA and in overlooking relevant evidence. [5] I conclude, for the reasons set out below, that SGI’s appeal must be dismissed. Although its reasons might have been moreclear, the Commission did not commit any error of law. II. the facts [6] The Commission’s decision contains a detailed recitation of Mr. Petrisor’s medical history and, as a result, I need notdocument all of that history here (2013 SKAIA 36 , 2013 SKAIA 036).

Rather, I propose to flag only some of its most importantfeatures. [7] On December 21, 2008, Mr. Petrisor was a backseat passenger in a car. It was struck from behind by another vehicle. Thiscaused Mr. Petrisor’s head to hit the roof of the car. He was 50 years old at the time. [8] Mr. Petrisor visited his family physician, Dr. Eagar, on December 23, 2008. Dr. Eagar ordered cervical and lumbar x-rays. Ina later report dated January 23, 2009, Dr. Eagar diagnosed Mr. Petrisor as suffering from whiplash associated disorder II [WAD II]. [9] On January 22, 2009, Mr.

Petrisor visited Raeleen Kirkpatrick, a physiotherapist. She diagnosed him as having both WAD IIand low back pain II [LBP II]. [10] The same day, January 22, 2009, Mr. Petrisor applied for “no fault” benefits from SGI pursuant to the terms of the AAIA. Hedid so on the basis that he had injured his neck, mid back and low back in the accident. SGI began to pay benefits. [11] Mr. Petrisor continued to consult with his family physician and his physiotherapist. [12] Dr. Eagar’s report of March 13, 2009 to SGI described degenerative changes in Mr. Petrisor’s back as well as WAD II andLBP I. He noted Mr.

Petrisor’s complaints of ongoing back and neck pain. [13] On April 30, 2009, a secondary assessment was completed by Courtside Sports Medicine & Rehabilitation. The report noted

“cervical spine” and “lumbar spine” as the “body areas affected by the accident” and found that Mr. Petrisor suffered from: 1. Cervical spine WAD grade II (pre-existing degenerative changes) 2. Thoracic spine strain / biomechanical dysfunction grade II 3. Lumbar spine biomechanical dysfunction grade II [ 14 ] The assessment team recommended an x-ray evaluation of the lumbar spine to rule out instability and a CT evaluation of the lower thoracic and upper lumbar spine regions to rule out disc involvement. The team also recommended that, if he received medical clearance to do so, Mr.

Petrisor should proceed to a ten-week secondary level functional rehabilitation program. On the conclusion of that program, the team recommended that Mr. Petrisor then undertake a four to six-week graduated return to work program. [ 15 ] Mr. Petrisor underwent the recommended x-ray on July 8, 2009. It showed “mild degenerative disc disease present at L5-S1” and “facet osteoarthropathy developing at the lower lumbar levels”. Mr. Petrisor had the suggested CT scan on July 29, 2009.

It showed multi-level degenerative changes, but did not preclude his participation in the recommended work hardening program. [ 16 ] On August 20, 2009, SGI’s medical director wrote to the SGI personal injury representative assigned to Mr. Petrisor’s file. He indicated that, in his view, it was “highly unlikely that [Mr. Petrisor] continues to suffer a direct effect of any injuries sustained in the motor vehicle collision.” He recommended a follow-up with Ms. Kirkpatrick, the physiotherapist, to see whether she held the opinion that Mr. Petrisor’s injuries had been caused by the accident. [ 17 ] Ms.

Kirkpatrick’s response was provided on September 1, 2009. She stated that Mr. Petrisor “may have exacerbated the upper lumbar spine with sudden spinal compressions as he reports that his head hit the roof of the car at the time of impact.” She went on to recommend that Mr. Petrisor participate in a period of secondary treatment for the purpose of general and functional conditioning prior to returning to work. [ 18 ] SGI’s medical director wrote to the personal injury representative again on June 2, 2010. He reiterated his position that Mr.

Petrisor’s complaints of pain in his lower back were not caused by the accident and referred to the fact that Dr. Eagar’s records made no note of Mr. Petrisor suffering from low back pain until March 13, 2009. [ 19 ] SGI issued a decision letter on June 10, 2010. It advised Mr. Petrisor that the accident was not the cause of his back pain and that, therefore, he was no longer entitled to benefits under the AAIA . III. the commission’s decision [ 20 ] The Commission began its decision with a review of Mr. Petrisor’s medical history. This included detailed references to relevant reports and assessments.

The Commission concluded that the evidence supported Mr. Petrisor’s testimony to the effect he had reported an injury to his lumbar spine on his first visit to Dr. Eagar on December 23, 2008. [ 21 ] However, at the same time, the Commission made a number of observations and comments which suggested doubt on its part as to the ongoing cause of Mr. Petrisor’s low back problems, i.e. , whether they were caused by the accident or by a degenerative condition. The Commission also observed that, if Mr.

Petrisor’s recommended course of treatment had been followed as per the assessment report, he might have recovered fully from his initial injury. It added that, in light of the fact Mr. Petrisor had reported a problem with his lumbar spine, SGI had a responsibility to follow through with the treatment recommendations. [ 22 ] In the end, the Commission set aside SGI’s decision of June 10, 2010 by writing as follows: [45] We are uncertain whether the Appellant’s ongoing low back symptoms are related to injuries sustained in the motor vehicle accident of December 21, 2008.

However, we do find that the Appellant reported a low back injury following the accident that was not treated completely in accordance with recommendations and advice of his medical providers. SGI’s decision dated June 10, 2010 is overturned on the basis that the recommendations of the secondary assessment team to have the Appellant complete a four to six week work hardening program were not followed. Treatment that was necessary and advisable to return the Appellant to his pre-injury status was not completed.

IV. analysis [ 23 ] Section 194(1) of the AAIA authorizes an appeal from a decision of the Commission to this Court. However, any such appeal is limited to questions of law. Section 194(1) reads as follows: 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 a question of law only. [ 24 ] SGI takes issue with the decision of the Commission and advances two inter-related arguments as to why it should be set aside.

First, it submits the Commission failed to properly apply s. 101(1.1) of the AAIA . (That provision says the benefit scheme under the AAIA extends only to any person who “sustained bodily injury caused by a motor vehicle arising out of an accident”.) Second, SGI contends the Commission ignored relevant evidence in coming to its conclusions. [ 25 ] I am not convinced by the first of these submissions. The reason is simple. The essence of SGI’s argument is that the Commission misapplied s. 101(1.1) because it made benefits available to Mr.

Petrisor even though his lumbar problems were caused by spinal degeneration rather than by the accident. This submission assumes that degeneration was the source of the low back pain. But, the

cause of Mr. Petrisor’s back problems (accident or degeneration) is a question of fact and not a question of law. As a result, there is noappeal from the Commission’s decision on that point.

In other words, SGI’s disagreement with the Commission’s assessment of theevidence cannot be transformed into a question of law by attempting to frame the issue as being whether s. 101(1.1) was misapplied.SGI’s true complaint is about a straightforward finding of fact or, perhaps more precisely, about a straightforward failure by theCommission to make the finding of fact SGI wanted. [26] Further, and in any event, a careful reading of the Commission’s decision reveals that it did not ground its conclusion on thequestion of whether Mr. Petrisor’s low back problems were caused by the accident.

Rather, and as noted above, it expressly said that itwas overturning SGI’s June 10, 2010 decision “… on the basis that the recommendations of the secondary assessment team to have [Mr.Petrisor] complete a four to six week work hardening program were not followed.” SGI has not attempted to argue that there wassomething legally improper with the Commission’s approach in this regard. [27] The second line of argument pursued by SGI is that the Commission’s finding of fact concerning the cause of Mr. Petrisor’slow back problems was so defective that it amounted to an error of law.

It submits the Commission overlooked evidence and had nobasis for failing to accept the medical director’s view that Mr. Petrisor’s problems were not caused by the accident. In this regard, itrelies on Hitchings v P.S.S. Professional Salon Services Inc., 2007 SKCA 149, [2008] 5 WWR 440.

There, discussing the extent towhich problems with fact finding can amount to questions of law in circumstances of the present kind, Cameron J.A. wrote as follows: [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 ofjudicial review in the classical sense, and with the associated notion that when errors of law are open to judicial review unhindered by aprivative clause 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 (S.C.C.) at 494-95.

It also ties in with the further notion that a tribunal “errs in law” if it ignoresrelevant evidence or evidence it is required to consider: Woolaston v. Canada (Minister of Manpower & Immigration) (1972), (SCC), [1973] S.C.R. 102 (S.C.C.); Canada (Director of Investigation & Research) v. Southam Inc., (SCC),[1997] 1 S.C.R. 748 (S.C.C.) at para. 41: “If the Tribunal did ignore items of evidence that the law requires it to consider, then theTribunal erred in law.” [28] I am not persuaded by this line of argument either.

In my view, the Commission did not overlook or ignore relevant evidence.It summarized all of the evidence with some care at the beginning of its decision. Then, as I read what it wrote, the Commission weighedand evaluated the evidence and declined to endorse the medical director’s conclusion that it was clear Mr. Petrisor’s lumbar problemswere not caused by the accident. In doing so, the Commission said it was “uncertain” about the cause of those problems. [29] A position of this sort was open to the Commission on the basis of the record as a whole.

More particularly, the Commissionwas entitled to take a different view of the situation than the medical director for several reasons. First, in his June 2, 2010 letter, themedical director emphasized there was no indication in Dr. Eagar’s notes from December 23, 2008 that Mr. Petrisor had complained oflumbar pain on his first visit. However, Dr. Eagar had ordered a lumbar x-ray and, as the Commission found, it is difficult to see whysuch an x-ray would be requisitioned absent a complaint about lumbar injury.

Second, in that same letter, the medical director failed tonote that, on January 22, 2009, the physiotherapist Raeleen Kirkpatrick had diagnosed Mr. Petrisor as suffering from LBP II. Third, inhis letter the medical director also failed to refer to Ms. Kirkpatrick’s September 1, 2009 correspondence in which she offered theopinion that “although Mr.

Petrisor has degenerative changes in his spine that were certainly pre-existing, he may have exacerbated theupper lumbar spine with sudden spinal compression as he reports that his head hit the roof of the car at the time of impact.” In light of allof this, I cannot conclude that the Commission made an unreasonable finding of fact by declining to accept the medical director’sassessment of the ongoing cause of Mr. Petrisor’s low back difficulties.

There are other ways to see the evidence than the one adopted bythe Commission, but that in itself does not mean the Commission’s view was unreasonable. [30] Perhaps more importantly, and as noted above, the Commission’s decision did not ultimately turn on a determination of thecause of Mr. Petrisor’s current back problems. It turned on SGI’s failure to follow the recommendations made in relation to a workhardening program. Thus, SGI’s argument about the reasonableness of the Commission’s fact finding is beside the point. V. conclusion [31] I conclude that SGI’s appeal must be dismissed.

The Commission’s decision cannot be overturned on the basis of thearguments advanced by SGI. Mr. Petrisor is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.