RECONSIDERATION DECISION
Before: Rebecca Hines, Adjudicator
File: 17-005791/AABS
Case Name: E.J.Z v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Ardi Deti, Paralegal
For the Respondent: Monica Pathak, Counsel
OVERVIEW
1On September 5, 2018, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter finding that the applicant’s accident related impairments fell outside of the Minor Injury Guideline (the MIG”) as a result of a psychological impairment pursuant to section 3 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The Tribunal also determined that the four treatment plans in dispute were reasonable and necessary as a result of the applicant’s accident related impairments.
2On September 21, 2018, Aviva Canada Insurance (“Aviva”) requested a reconsideration of the Tribunal’s decision.
3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
4For the reasons that follow, I deny the respondent’s request.
THE FACTS
The parties’ dispute
5The applicant was injured in a motor vehicle accident on November 28, 2015 and sought benefits pursuant to the Schedule. The applicant applied for medical benefits and a cost of examination which were denied by Aviva on the basis that her impairments were predominantly minor and subject to treatment within the MIG. The applicant applied to the Tribunal. A case conference was held and the parties were unable to resolve the issues in dispute and the matter proceeded to a written hearing.
6Offering careful and detailed reasons, the Tribunal held that the applicant established on balance of probabilities that her injuries fell outside of the MIG as a result of her psychological symptoms and impairment. Further, the Tribunal determined that the disputed treatment plans for a psychological assessment, and psychological and chiropractic treatment were reasonable and necessary.
7The Tribunal’s decision rested, in large part, on the contrast between the psychological assessment of Dr. Pilowsky (the applicant’s report) and the psychological insurer examination (IE) of Dr. Syed (the respondent’s report). The Tribunal determined that both reports were similar in terms of the applicant’s self-reporting as well as in the assessor’s clinical analysis from the testing that was done. Dr. Pilowsky diagnosed the applicant with Adjustment Disorder with Depressed Mood and Symptoms of Post-Traumatic Stress Disorder and Vehicular Anxiety/Avoidance. Dr. Pilowsky opined that the applicant’s psychological impairment fell outside of the MIG. Dr. Syed determined that the applicant has only subtle indications of current active depressive and anxiety experience. Dr. Syed opined that the applicant’s symptoms were sub-clinical and that she had no psychological impairment because of the accident. Ultimately, the Tribunal preferred the report and opinion of Dr. Pilowsky over Dr. Syed’s assessment and addendum reports.
Grounds for Reconsideration Request:
8The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (Rule). The ground that the respondent argues applies to this case is Rule 18. 2(b) which provides as follows:
(i) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
9Specifically, the respondent argues that the Tribunal:
(i) Made a significant error in fact and law because it did not properly assess and weigh the evidence of the applicant and respondent’s psychological assessors. In particular, the Tribunal erred in placing undue weight on the psychological report of Dr. Pilowsky and discounted the probative value of Dr. Syed’s psychological IE and addendums.
10The respondent maintains that Dr. Pilowsky’s assessment utilized self-reporting measures consisting of the Beck Depression Inventory–II (BDI-II); the Beck Anxiety Inventory (BAI) and the Pain Catastrophizing Scale. The respondent asserts that these psychometric tests have been rejected by the Tribunal as tests which rely on self-reports with no major validity indexes. By contrast, Dr. Syed employed a battery of seven other psychometric tests beyond those used by Dr. Pilowsky. Therefore, more weight should have been placed on the opinions and conclusions reached by Dr. Syed. The respondent contends that had this error not been made the Tribunal would have reached a different decision.
ORDER SOUGHT
11The respondent seeks an order:
(i) Cancelling the Tribunal’s decision dated September 8, 2018 on the basis that the Tribunal made a significant error of fact and law such that the Tribunal would have likely reached a different decision had it fully and properly compared and contrasted the battery of psychometric testing and validity measures referenced in the Pilowsky report and that of Dr. Syed respectively;
(ii) Reversing the Tribunal’s decision and making a finding that the applicant’s injuries are predominantly minor and governed by the MIG; and
(iii) Dismissing the application.
ANALYSIS & CONCLUSION
12Contrary to the submissions made by the respondent, I find that the Tribunal’s decision was factually correct and legally sound for the following reasons:
13First, the Tribunal was entitled to consider and weigh the evidence as it saw fit. I see no error in the Tribunal’s exercise of that discretion. As highlighted in 16-002782/AABS v. Aviva Canada Insurance 2018 CanLII 39370 (ON LAT), 2018 CanLII39370 (ON LAT) submitted by the applicant, the threshold for reconsideration is a high one and is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome. The respondent has failed to persuade me that this has been done in this case.
14Second, I find the case law relied upon by the respondent distinguishable from the present case. The respondent relied on Tribunal decisions: 17-005285/AABS C.S. and RBC General Insurance Company 2018 (ONLAT) and 17- 005189/AABS v. Allstate Canada 2018 CanLII 83517(ON LAT) in support of its position that the tests employed by Dr. Pilowsky have been rejected by this Tribunal. I find the facts in these cases different from the matter before me. Further, the Tribunal is not bound by its own precedents.
15For example, in 17-005285, the adjudicator preferred the psychological report of the IE assessor over the applicant’s psychologist because the IE assessor found validity issues on two of the three psychometric tests employed. This led the IE assessor to conclude that the insured was potentially “over-reporting” symptoms. In addition, the adjudicator found that there was a lack of complaints made to the family doctor with respect to the insured’s psychological complaints. As a result, the adjudicator placed more weight on the IE assessment based on the validity indices and lack of supporting records. In the matter before the Tribunal Dr. Syed did not determine that there were any validity issues with respect to the applicant’s test results. Dr. Syed concluded that the applicant presented in an honest manner and found symptoms of depression and anxiety. Moreover, the Tribunal had evidence from the applicant’s family doctor of psychological complaints which was not before the adjudicator in 17-005285.
16Similarly, I did not find 17-005189 helpful in supporting the respondent’s argument that a significant error of fact and law was made. In this case, the insurer’s IE assessor also found inconsistencies and credibility issues with the insured as a result of the psychometric test results. The adjudicator also determined that there was a lack of corroborating evidence in the family doctor’s CNRs to support the insured’s psychological complaints. Finally, the adjudicator preferred the IE psychological report over the applicant’s report due to the qualifications of the experts (the respondent’s assessor was a psychologist and the applicant’s assessor was a social worker). As already noted the facts before the Tribunal in this case were different. Consequently, I did not find these decisions relevant to the present analysis or supported the respondent’s request for reconsideration.
17Finally, the purpose of a request for reconsideration is not to reargue positions which failed at the hearing. In my view, this is what the respondent has attempted to do. The respondent has failed to establish any grounds upon which the Tribunal’s decision should be overturned. The respondent’s Request for Reconsideration is therefore dismissed.
18In her reply submissions the applicant requested costs in response to the respondent’s request for reconsideration. Rule 19 provides that the Tribunal may make an award of costs, where a party has proven that the other has acted unreasonably, frivolously, vexatiously or in bad faith during the course of the hearing. I found the applicant’s submissions with respect to costs insufficient as she did not explain how the respondent’s behavior during this proceeding met the threshold for unreasonable conduct in this process. In my view, just because the respondent was unsuccessful on this reconsideration request does not meet the high threshold to award costs. The applicant’s request for costs is dismissed.
CONCLUSION
19For the reasons noted above, I dismiss the respondent’s Request for Reconsideration.
Rebecca Hines
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 20, 2019