RECONSIDERATION DECISION
Before: Dawn J. Kershaw, Vice-Chair
File: 17-006932/AABS
Case Name: M.K. v. Certas Direct
Written Submissions By:
For the Applicant: Loreto Scarola, Counsel
For the Respondent: Shelby Chung, Counsel
INTRODUCTION
1This request for reconsideration arises from a decision of the Licence Appeal Tribunal (“the Tribunal”) in which the Tribunal found that the appellant sustained predominantly minor injuries as defined in section 3(1) of the Schedule, such that his entitlement to accident benefits is governed by the Minor Injury Guideline (“MIG”). Following from this decision, the Tribunal also found that although the applicant’s treatment plan for a psychological assessment was reasonable and necessary, it was only payable up to the remainder of the MIG limit.
2The Tribunal also found that even though the applicant’s psychological symptoms were not accident-related, the treatment plan for a psychological assessment, dated June 15, 2017, was reasonable and necessary at the time because the applicant was exhibiting psychological symptoms that warranted exploration. The Tribunal found that although psychological treatment was not reasonable and necessary, the treatment plan for a psychological assessment was reasonable and necessary because of the fact that the applicant was displaying psychological symptoms at the time the assessment was proposed, which warranted investigation.
3Pursuant 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 reconsideration request.
4For the reasons, below, I deny the applicant’s reconsideration request.
PRELIMINARY ISSUE
5The applicant initially requested a reconsideration of the Tribunal’s decision on November 7, 2018 on the reconsideration request form, without providing specific submissions. The Tribunal acknowledged the applicant’s request and in a letter, dated December 6, 2018 requested submissions from the respondent by December 20, 2018, but not specifically from the applicant. In the meantime, the applicant contacted the Tribunal and the case management officer advised the applicant to send in his submissions immediately. The applicant provided his more fulsome submissions on December 11, 2018. The respondent asked that these not be considered by the Tribunal because the applicant provided them past the limitation date for requesting a reconsideration. However, the initial form was provided in time, and given that both parties have provided fulsome submissions on all the issues before the Tribunal, there is no reason to exclude any of the parties’ submissions, and there is no prejudice to the respondent, and I decline to exclude the applicant’s submissions. I do not find it necessary to extend the time for the applicant to file his reconsideration request because he filed the form in time.
THE LAW - RECONSIDERATION
6There are limited grounds upon which a person can request a reconsideration. In this case, the applicant asserts that the Tribunal made a significant error of law and of fact such that the Tribunal would likely have reached a different decision had the error(s) not been made. The applicant asserts that it therefore is entitled to a reconsideration pursuant to section 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
DECISION AND REASONS
7I am not satisfied in this case that the Tribunal made a significant error of law or facts such that the Tribunal likely would have reached a different decision if it had not made the error.
No Errors of Fact
8The applicant alleges an error of fact because the Tribunal preferred Dr. Schwartz’s psychological report over Dr. Sagrati’s in reaching its decision, despite acknowledging that there appeared to be a disconnect between Dr. Schwartz’s interview and testing and his conclusions.
9However, the Tribunal actually determined that despite the disconnect, Dr. Schwartz’s and Dr. Sagrati’s conclusions were quite similar, but in any event the applicant had to prove that what Dr. Schwartz called “somatic functioning concerns” and what Dr. Sagrati called “somatic symptom disorder” were actually accident-related injuries. After reviewing all of the evidence in detail, including both Dr. Sagrati’s and Dr. Schwartz’s reports, and assessing the fact that both doctors reported vastly different reasons for the applicant’s somatic symptoms, the Tribunal concluded that the applicant had provided insufficient information to prove that the somatic issues or concerns were accident-related. Therefore, those concerns did not remove him from the MIG. The Tribunal explained that the applicant’s psychological stressors, on his assessment of the evidence, resulted from the health issues of his mother, the burden of caring for her, the breakdown of his marriage and the pressure of owning and operating two small businesses. I find no error in the Tribunal’s finding. While the Tribunal may have misapplied the concept of “insufficient” information given the medical evidence available, I find that the Tribunal correctly and appropriately assessed the medical information, made a choice as to which it preferred and made an appropriate finding. It is clear that the Tribunal reviewed all of the evidence and reached an outcome that was possible based on that evidence.
10The applicant also argues that the Tribunal said in its decision that it would appear that seeking psychological help was not something the applicant was ever inclined to do and states that the applicant in fact had a psychological assessment and that he was not sure if psychological treatment would benefit him. I find no error by the Tribunal. Not only did the Tribunal include all of this information in the same paragraph of its decision, the Tribunal’s conclusion that it appeared that seeking psychological help was not something he was inclined to do is not contradictory to the applicant having had a psychological assessment or stating that he was not sure that psychological treatment would help him. It does not detract from the accuracy of the Tribunal’s statement that it appears that seeking psychological help was not something the applicant was inclined to do, given he has sought none. The Tribunal did not make any error of fact in this regard.
No Error of Law
11The applicant further argues that the Tribunal erred by concluding that the treatment plan for a psychological assessment was reasonable and necessary when it was done, but then failing to conclude that this would take the applicant out of the MIG.
12The Tribunal determined that although a treatment plan for psychological treatment was not reasonable and necessary, the treatment plan for a psychological assessment was. The Tribunal stated that the applicant was having “some somatic issues” even according to the insurer’s examination.
13The fact that the Tribunal determined there were some “somatic issues” that warranted assessment does not mean the applicant automatically should be removed from the MIG. I find that it was not an error for the Tribunal to decide to approve the psychological treatment assessment but also not remove the applicant from the MIG because of the existence of psychological issues.
14First, the approval for the psychological assessment was to the extent of any funds remaining of the $3500 MIG limit. The MIG provides funding up to a $3500 limit and in this case there may still have been funds available for an assessment.
15Second, the fact that a psychological assessment was found to be reasonable and necessary is not determinative of whether there were psychological issues, nor if there were, that they were caused by the accident and would mean the applicant would be removed from the MIG. Therefore, it was not an error for the Tribunal to find in this case that the applicant was not automatically removed from the MIG solely because the Tribunal approved funding for a psychological assessment. A psychological assessment serves more than one purpose, which in this case could include deciding whether any treatment is necessary, or whether the psychological issues are related to the accident such that the respondent should pay for psychological treatment. It is not incongruent, nor an error of law, to determine that the assessment was reasonable and necessary but at the same time not remove the applicant from the MIG.
16I also find no error of law in the Tribunal’s determination that the cost of the assessment is payable only up to the remainder of the MIG limit. That finding follows logically from the Tribunal’s finding that the applicant’s injuries come within the MIG.
ORDER
17The applicant’s request for reconsideration is denied.
Dawn J. Kershaw
Vice-Chair
Released: June 28, 2019