Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
File: 17-007052/AABS
Case Name: [The Applicant] v. Unica Insurance Company
Written Submissions by:
For the Applicant: Sergio Grillone, Grillone Law Firm
For the Respondent: Angela Comella, Unica Legal Department
OVERVIEW
1This request for reconsideration arises from a decision of the Licence Appeal Tribunal (the “Tribunal”) denying that the applicant is catastrophically impaired, statute barring the attendant care benefits from proceeding to a hearing and finding that the applicant was not entitled to medical benefits and assessments. The applicant now asks that I reconsider the Tribunal’s order and order a new hearing with regards to the decision on catastrophic determination and the chronic pain assessment.
2Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this matter.
3As explained below, I deny this request for reconsideration.
DECISION AND REASONS
4Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under Rule 18.2.
5Under Rule 18.2, one or more of the following four grounds needs to be established and specifically the applicant claims 18.2(a) and 18.2(b) meets that test. Those are:
a) the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
6The rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions.
7Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
8The applicant argues that the Tribunal’s decision failed to consider the following submissions or evidence:
important medical facts regarding whether the applicant is catastrophically impaired;
the applicant’s intention was to raise the argument that the applicant was catastrophically impaired based on the opinion of different doctors and documented evidence (as provided in the response and case conference summary);
medical evidence;
the purpose of the legislation being consumer protectionism;
the opinion of the family doctor when making its conclusion regarding whether the applicant was catastrophically impaired; and
the opinions of all the applicant’s treating practitioners and giving less weight to the applicant’s treating psychiatrist catastrophic report.
9The respondent argues and disagrees with the applicant that their reconsideration meets any of the criteria under Rule 18.2. The respondent argues the Tribunal’s decision takes into consideration the applicant’s medical evidence in paragraph 31, the weighing of the two psychological reports and the reasons why the adjudicator preferred one over the other in paragraph 28-31. The respondent also argues that the applicant did not specifically render submissions on how the intent of the legislation, or the chronic pain assessment was not properly taken into consideration in the decision for the decision to be reconsidered.
10In reviewing the original submissions, the applicant went on for 44 pages, despite being limited to 25 pages in the case conference order, to summarize and quote parts of the medical evidence. The submissions contained very little arguments regarding why the applicant is catastrophically impaired and entitled to a chronic pain assessment and how she meets those tests. The applicant refers to three decisions but provides no analysis on how they support her arguments. In the applicant’s reconsideration submissions, the applicant gives very little analysis on how the Tribunal’s decision meets the criteria under Rule 18 in order to be entitled to a reconsideration. The applicant’s submissions are summarized in paragraph 8. The first 4 bullet points are extremely vague and do not explain how the Tribunal’s decision violates the rules of procedural fairness or how the decision contains errors of facts or law in relation to the submissions and evidence presented at the hearing.
11The only two concrete submissions submitted by the applicant pertain to the failure of the Tribunal’s decision to take into consideration the family doctor’s opinion and giving less weight to the applicant’s psychiatric doctor in deciding whether the applicant was catastrophically impaired.
12The Tribunal’s decision considers the applicant submissions, compares it to the medical evidence, provides reasons why the adjudicator agrees with the respondent and why he gives little weight to the applicant’s reports. Those reasons are noted in paragraph 29-31 of the Tribunal’s decision. Clinical notes and records on their own are not enough support that someone is catastrophically impaired, but they do help to support an expert’s medical opinion. In this case, the applicant’s family doctor gives very little information regarding how the applicant is catastrophically impaired. The family doctor filled out the OCF-19 which is an application for determining catastrophic impairment and checked off the box that they “believed” the applicant was catastrophically impaired under criterion 8. This form alone is not enough to prove catastrophic impairment. The applicant’s psychiatric assessment report details in 6 pages the applicant’s symptoms and lifestyle and then in less than 1 page explains that the applicant meets criteria 7 and 8 for being catastrophically impaired. The Tribunal’s decision explains why the adjudicator agreed with the respondent’s arguments regarding the failures of that assessment and details them in paragraph 29 and 31 of the decision. The applicant’s report does not outline how or why the applicant meets the criteria for catastrophic impairment. The adjudicator had good reasons to give more weight the respondent’s assessment and provides adequate explanation for this decision.
13The reconsideration submissions contain no arguments regarding why the decision on the chronic pain assessment should be reconsidered and therefore I will not weigh in on this matter.
14Overall, the Tribunal’s decision does not violate any rules of procedural fairness or makes an error of fact or law. I see no reason to reconsider the Tribunal’s decision. The decision stands. The request for reconsideration is dismissed.
Chloe Lester Vice-Chair
Licence Appeal Tribunal
Released: October 15, 2019