Safety, Licensing Appeals and Standards Tribunals Ontario Automobile Accident Benefits Service Licence Appeal Tribunal Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 Tel.: 416-327-6500 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto-tsapno.gov.on.ca
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Service d'aide relative aux indemnités d'accident automobile Tribunal d'appel en matière de permis Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Tél.: 416-327-6500 Sans frais Tél: 1-844-242-0608 TTY: 416-916-0162 1-844-650-2819 Téléc: 416-325-1060 Sans frais Téléc: 1-844-618-2566 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Jonathan Batty, Associate Chair
File: 17-001265/AABS
Case Name: M.K. v. Waterloo Insurance
Written Submissions By:
For the Applicant: Clifford Singh
For the Respondent: N/A
Overview
This request for reconsideration arises from a decision of the Licence Appeal Tribunal (the “Tribunal”) regarding the application of M.K., which the Tribunal found was governed by the Minor Injury Guideline (the “MIG”).
The Tribunal found M.K. did not present sufficient evidence to support removal from the MIG. M.K. has challenged the Tribunal’s decision on the basis that the Tribunal failed to give sufficient weight to his evidence.
Pursuant 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.
Having reviewed M.K.’s submissions, it was unnecessary for me to request submissions from the respondent as M.K.’s submissions did not raise sufficient question that the decision warranted reconsideration.
As explained below, I deny this request for reconsideration.
The Facts
M.K. was involved in a motor-vehicle accident on February 21, 2016 and sought benefits from Waterloo Insurance pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O.Reg. 34/10 (the “Schedule”). M.K. applied to the Tribunal when Waterloo Insurance denied certain benefits he sought.
The issues before the Tribunal were whether M.K. was subject to the MIG, and if he was not, whether he was entitled to specific benefits for claimed treatment plans and assessment costs, as well as interest on overdue benefits.
M.K. argued he should be removed from the MIG because he has psychological conditions arising from the accident, because he suffers from chronic pain as a result of the accident, and because he has pre-existing medical conditions that will prevent him from achieving maximal medical recovery. However, the Tribunal found M.K. had failed to provide sufficient evidence to this effect. As a result, the Tribunal found M.K.’s injuries were governed by the MIG and that he was not entitled to either the medical benefits he sought or interest.
M.K. challenges the Tribunal’s decision.
Decision and Reasons
M.K.’s request hinges on the assertion that the Tribunal erred by failing to give sufficient weight to his evidence. He asserts the evidence before the Tribunal establishes he should have been removed from the MIG based on his pre-existing conditions, specifically anxiety and stress. M.K claims they became worse as a result of the accident; however, he has provided no evidence in support of this assertion. He has also failed to identify any errors with the Tribunal’s analysis or its assessment of the evidence.
M.K.’s reconsideration submissions on this issue focus almost entirely on psychological impairments being excluded from the MIG. M.K. appears to argue that the Tribunal failed to acknowledge that psychological impairments are excluded from the MIG.
However, I do not see an error with the Tribunal’s approach or analysis.
The Tribunal explicitly noted that psychological impairments, if established as the predominant injuries, are excluded from the MIG in paragraph 41 of its decision. The Tribunal then assessed the evidence regarding M.K.’s psychological impairments and found that M.K. had failed to provide sufficient evidence to establish that he should be removed from the MIG based on his psychological symptoms. In doing so, the Tribunal reviewed both parties’ evidence and provided its reasons for preferring the evidence of Waterloo Insurance. While M.K. may disagree with the Tribunal’s finding, that by itself is not evidence that the Tribunal failed to properly weigh his evidence.
M.K. also claims that he should have been removed from the MIG based on his pre-existing physical conditions, which he claims were markedly worsened by the accident and pose a barrier to maximum medial recovery within the MIG. Again, M.K. has failed to identify any errors within the Tribunal’s decision.
Instead, M.K. submits that, due to elevated blood pressure readings, he was not cleared by his family doctor to attend an insurer’s examination on June 6, 2017 and, for this reason, will not be able to attend any such examination in the future. On this basis, M.K. asserts this establishes his pre-existing physical conditions are significant enough to pose a barrier to maximal medical recovery within the MIG.
I see no error with the Tribunal’s analysis or its assessment of the evidence.
The Tribunal noted M.K. had submitted a long list of pre-existing physical conditions and, considering all the evidence that was submitted, found that M.K. simply had not substantiated that these pre-existing conditions would pose a barrier to maximal medical recovery within the MIG.
I am simply not convinced an elevated blood pressure reading (even if it is owing to a history of hypertension) before a particular appointment is sufficient evidence of a barrier to maximal medical recovery under the MIG. At any rate, M.K. already unsuccessfully argued the same point before the Tribunal. Reconsideration is not an opportunity to reargue positions which failed at the hearing.
Based on the above, I find that M.K. has failed to support his claim that the Tribunal made a significant error of fact or law by failing to give sufficient weight to his evidence. While, as in this request, a party might disagree with the Tribunal’s assessment of the evidence before it, this is not sufficient basis for revisiting a decision.
Conclusion
- This request for reconsideration is denied.
Jonathan Batty
Associate Chair
Licence Appeal Tribunal
Released: January 14, 2019