RECONSIDERATION DECISION
Before: Matthew M. Létourneau, Adjudicator
File: 18-000131/AABS
Case Name: R.P. vs. Aviva General Insurance
Written Submissions by:
For the Applicant: Frank Mercurio, Paralegal
For the Respondent: Catherine H. Zingg, Counsel
OVERVIEW
1This request for reconsideration was filed by the insured – the applicant in this matter. The request arises out of a decision by the Tribunal dated August 27, 2019 in which the applicant’s claim for Income Replacement Benefits was denied.
2The applicant submits that the Tribunal made a significant error of law or fact such that it would likely have reached a different decision. Specifically, the applicant submits that the Tribunal failed to fully consider medical evidence and the applicant’s testimony, including a report from Dr. Hudes, dated June 5, 2017; a Job Site Analysis from Dr. Hudes of January 24, 2017; and the reports of Dr. Czok of January 19, 2017 and February 23, 2017. The applicant also submits that the Tribunal did not fully consider the findings by Service Canada and Dr. Sharma.
3The applicant is seeking an order to cancel the decision of August 27, 2019 and instead award an Income Replacement Benefit from June 30, 2017 to January 26, 2018, plus applicable interest.
4This reconsideration is rendered in accordance with Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure Version I (October 2, 2017) (“the Rules”). Pursuant to Rule 18 of the Rules, I have been delegated responsibility to reconsider this matter.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The applicant’s main contention is that certain aspects of the evidence submitted at the hearing were ignored or not fully considered.
7The grounds on which a reconsideration can be allowed are set out at Rule 18.2 of the Rules. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
8The onus is on the party seeking reconsideration to establish one or more of the above-stated Rule 18 grounds in order to be successful.
9The applicant submits that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. In general, the applicant submitted that the Tribunal failed to consider the medical evidence and testimony in its entirety and provided examples in his submissions.
10I find that the applicant’s submissions for reconsideration do not point to any errors, but instead propose a re-weighing of the evidence that was fully available, and which was considered in its entirety by the Tribunal at the time of the hearing. It was open to the Tribunal to arrive at the conclusions it did on the face of the evidence submitted. Re-weighing the evidence is not the task on a request for reconsideration. The request is denied for the reasons that follow.
11I find that the Tribunal duly considered the evidence that was pointed to by the applicant in his submissions for reconsideration. It appears that the applicant gives different weight to some of the evidence in his analysis, and that is his prerogative. However, the Tribunal finds that the applicant seeks a re-weighing of the evidence, rather than a reconsideration due to any error. This is not a ground for reconsideration under the Rules.
12Specifically, the first contention of the applicant is regarding the Functional Capacity Evaluation by Dr. Hudes, dated June 5, 2017. The applicant submits he was only able to stand at the “occasional level” and that he tested positive for Orthopaedic tests of sacroiliac joints sufficient to meet the threshold for disfunction. He submits this information was not considered by the Tribunal. The applicant further submits that the Tribunal failed to consider the Job Site Analysis from Dr. Hudes of January 24, 2017 which would have shown that the applicant did not demonstrate the functional abilities required to perform his job duties.
13The Tribunal finds that it did not make any error in assessing this information. This information was considered in detail and is specifically mentioned in paragraphs 20, 27 and 28 of the Tribunal’s decision. The findings in relation to Dr. Hudes report by the Tribunal were that the assessment of ability was on the basis of light duties. Dr. Hudes found some ability for lifting but did notice pain. This was found to be helpful, but not conclusive for the Tribunal as to whether the threshold for substantial inability was met. In addition, Dr. Hudes deferred to the “medical assessors to determine whether an impairment exists”. Therefore, the Tribunal stated that this information “adds” to the conclusion that some duties could be performed but was not the only evidence that was considered.
14Other medical information was considered, as well as the applicant’s testimony. The Tribunal found that the clearest evidence on this point was found in Dr. Jaroszynski’s report of June 5, 2017, as referenced in paragraph 29 of the Tribunal’s decision, which concluded, further to an assessment, that the range of motion of the applicant was normalized and any shortfall was due to lack of effort. There was no evidence that there was any barrier to a safe return to work from a musculoskeletal perspective. The Tribunal accepted this evidence in weighing it over Dr. Hudes’s conclusions.
15The applicant’s second contention is to take issue with the Tribunal’s findings regarding the letter from Manulife dated November 20, 2017 and the applicant’s testimony about having gone off work on October 20, 2016. The applicant clarifies that he attempted to return to work on this date and could not return due, not to this incident, but rather to the accident of June 23, 2017. He states this would be corroborated by Dr. Sharma, the family physician. The applicant goes on to state that Dr. Czok’s evidence, referenced in the Manulife letter, should not be considered because her professional credentials of physical medicine and rehabilitation do not align with her findings regarding a concussion and that she was not correct in how long the applicant would take to recover.
16The Tribunal pointed to the fact that Manulife was assessing a different legal test, at paragraph 30 of its decision, and it clearly did not substitute its own decision for Manulife’s. The records supporting the Manulife decision were, however, contemporaneous to the applicant’s application and merited a detailed review. The Tribunal found that the applicant’s evidence was not robust enough and did not meet the evidentiary threshold to find in favour of awarding an income replacement benefit past June 20, 2017. The Tribunal found that the evidence of Dr. Hudes and Dr. Jaroszynski were determinative on this issue. In relation to the cognitive impairment, the Tribunal chiefly relied upon Dr. Lee’s assessment, as discussed in paragraphs 33 to 34.
17Regarding Dr. Czok’s credentials and conclusions, these are new arguments regarding evidence presented at the hearing. A reconsideration is not the place to raise new arguments which could have been made at the hearing.
18Finally, the applicant submits that the Tribunal failed to consider that Service Canada and Dr. Sharma found the applicant unable to work and that there was a diagnosis of a sleep disorder by Dr. Koponen.
19The Service Canada finding, as well as Employment Insurance information, do not share a similar legal test as that of the Income Replacement Benefit. However, the Tribunal considered this evidence at the hearing and referenced it at paragraph 15 of the decision in discussing Service Canada and - regarding Dr. Sharma’s findings and the applicant’s sleep issues - at paragraphs 23 to 26. The limitations of this evidence were evident in the Tribunal’s decision and further evidence was considered where required. There is no discernable error as alleged by the applicant.
20I am not persuaded by the applicant’s arguments. The Tribunal did not make an error in law or in fact in rendering its decision that would have made it likely to have reached a different result, but for the error. The Tribunal cannot reassess the evidence it has already considered. Upon careful review, the Tribunal has assessed all the evidence and no errors were found.
21I am satisfied that no error of fact or law was made. The Tribunal applied the correct legal test and found the Applicant failed to establish that he was entitled to income replacement benefits from June 30, 2017 to January 26, 2018. The Tribunal considered the Applicant’s medical evidence and found it lacking.
22The Tribunal explained why findings of fact were made and conclusions reached. There was no misapprehension of the evidence. As stated above, the weight to be ascribed to evidence at the hearing is a matter to be determined by the Tribunal at the hearing.
23I find that the Applicant has not established this or any other ground for reconsideration as required by the Rules. The grounds are limited and specific. The Applicant has requested a reconsideration and the onus is on him to prove his ground(s). He has not done so.
24Instead, the Applicant’s submissions appear to be an attempt to re-argue his case before the Tribunal. As noted above, this is not the function of reconsideration.
25The request for reconsideration is denied.
CONCLUSION
26For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Released: December 7, 2020
Matthew M. Létourneau, Adjudicator