RECONSIDERATION DECISION

Before: Lindsay Lake, Adjudicator

Date: February 13, 2020

File: 18-005474/AABS

Case Name: L.H. v. Certas Direct Insurance Company

Written Submissions By:

For the Applicant: Lisa Bishop, Counsel

For the Respondent: Tushar Tangri, Counsel

OVERVIEW

1On July 26, 2019, the applicant, L.H., filed a request for reconsideration of the June 26, 2019 decision (the “decision”)¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2In the decision, the Tribunal found that L.H.’s injuries fell within the Minor Injury Guideline (the “MIG”).² Because L.H. had exhausted the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG, the Tribunal did not consider the reasonableness and necessity of the disputed treatment plans. The Tribunal further held that L.H. was not entitled to attendant care benefits because her injuries fell within the MIG and that she was also not entitled to interest or an award.

3L.H. submits that the Tribunal made errors of fact and/or law such that the Tribunal would likely have reached a different decision and that the Tribunal also violated the rules of natural justice and procedural fairness. The respondent, Certas Direct Insurance Company (“Certas”), submits that L.H. is barred from proceeding with the reconsideration for failing to request a reconsideration within 21 days of the decision pursuant to Rule 18.1 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). Alternatively, Certas submits that the decision should be upheld and the request for reconsideration be dismissed.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,³ I have been delegated the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5L.H.’s request for reconsideration is barred from proceeding as she failed to submit her request for reconsideration within 21 days after the date of the decision pursuant to Rule 18.1. Alternatively, L.H.’s request for reconsideration is dismissed on its merits.

PRELIMINARY ISSUE: L.H.’s Failure to Request a Reconsideration within 21 Days

6Rule 18.1 of the Rules allows the Tribunal to reconsider any decision of the Tribunal that finally disposes of a matter, either on its own initiative or upon request of a party, within 21 days of the date of a decision.

7On July 30, 2019, Certas wrote to the Tribunal stating that L.H.’s request for reconsideration was time-barred for failing to be filed with the Tribunal within 21 days of the decision. The decision was released on June 26, 2019. L.H. filed her request for reconsideration on July 26, 2019.

8I agree with Certas that L.H. filed her request for reconsideration with the Tribunal outside of the 21-day time period set out in the Rules, as her request was 9 days late. Nevertheless, Rule 3.1 of the Rules requires me to interpret the Rules liberally to facilitate a fair, open and accessible process and to allow effective participation by all parties. Rule 3.1 also gives me the discretion to vary or waive the Rules, which includes the 21-day deadline to file a reconsideration request, on my own initiative or at the request of a party. In this matter, however, I find there is no reason to apply my discretion.

9While Certas did not argue that it was prejudiced by the late filing of the request for reconsideration, it did object to it and raised the issue of whether or not L.H.’s request was time-barred. To date, L.H. has provided no response or explanation for her late filing. Further. L.H. was represented by the same counsel at first instance and for the reconsideration but, for whatever reason, L.H. failed to request any relief for, or even discuss, her failure to meet the deadline set out in the Rules in her reconsideration submissions.

10I accept that, ideally, matters should be disposed of on their merits. However, I am also of the opinion that the Rules should be followed to promote an efficient and timely resolution of proceedings and to provide finality to applications. When the Rules are not followed without sufficient or persuasive reasons, or, in this case, without any reasons, there should be consequences. As a result, I am granting the relief sought by Certas and find that L.H.’s request for reconsideration is time-barred pursuant to Rule 18.1 of the Rules.

11Even if I am incorrect in finding that L.H.’s request for reconsideration is time-barred, I would alternatively dismiss L.H.’s reconsideratoin request on its merits.

ANALYSIS

12The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Rules. The grounds that L.H. submits apply in this matter are Rules 18.2(a) and (b), that the Tribunal violated the rules of natural justice and procedural fairness and that the Tribunal made errors of fact and/or law.

13For the reasons that follow, I find that the Tribunal neither violated the rules of natural justice and procedural fairness nor made an error of law and/or fact such that the Tribunal likely would have come to a different decision.

Violation of the Rule of Natural Justice and Procedural Fairness

14L.H. argues that the Tribunal failed to uphold procedural fairness and natural justice. Her submissions on this ground for reconsideration, however, are intertwined with her submissions on errors of law and fact. For example, L.H. argues that the Tribunal breached procedural fairness by failing to review certain documents, such as the clinical notes and records (CNRs) of Dr. Salayeva and the June 2017 Emergency Report of North York General, while also arguing that this failure amounted to an error of law. L.H. further submits that the Tribunal violated procedural fairness and also erred in law regarding the psychological assessment in dispute. In the end, L.H. submitted that, “natural justice and procedural fairness require that an Applicant understand the case they are needing to make.”⁴

15Certas’ position was that there was no breach of procedural fairness or natural justice as the Tribunal considered all of the evidence and concluded that L.H. failed to meet her burden of proving that her injuries fell outside of the MIG.

16By relying upon her previous submitted authorities for the hearing and not submitting any additional case law, L.H. failed to direct me to any decisions that addressed procedural fairness in her request for reconsideration. Based on my review of previous Tribunal decisions, however, I find that procedural fairness encompasses the following:

(i) Ensuring that parties understand the case they have to meet; and

(ii) Ensuring that the parties have an opportunity to be heard to allow him or her to respond accordingly.⁵

17The Tribunal’s October 4, 2018 Order identified the issues in dispute between the parties and a written hearing was scheduled. Both parties submitted written submissions and evidence which was considered by the Tribunal in rendering the decision. The decision also correctly stated that the onus was on L.H. to show that her injuries fell outside of the MIG.⁶

18For all of reasons set out above, I find that L.H. had the opportunity to fully argue her case and respond to the position taken by Certas as the decision referenced and analyzed the evidence and submissions of both parties. Therefore, I do not find any violation of natural justice or procedural fairness. Furthermore, I find that L.H.’s arguments regarding the Tribunal’s consideration and weighing of certain evidence is more appropriately analyzed under errors of fact and/or law.

Errors of Fact and/or Law

19L.H. argues that the Tribunal made the following errors of fact and/or law:

(i) by failing to consider the diagnosis of lumbar and other intervertebral disc disorders with radiculopathy and radiculopathy in Dr. Salayeva’s December 8, 2016 disability certificate (OCF-3) in its finding that L.H.’s injuries were “minor injuries” as defined by the Schedule because there were “‘no attachments or clinical notes from the chiropractor completing this assessment;’”⁷

(ii) by failing to consider the June 2017 Emergency Report of North York General which included a diagnosis of sciatica in its finding that L.H.’s injuries were “minor injuries” as defined by the Schedule;

(iii) by failing to give weight to the psychological pre-screen report when determining whether or not L.H.’s injuries were outside of the MIG and also whether or not the treatment plan for a psychological assessment was reasonable and necessary; and

(iv) by finding that the occurrence of L.H.’s psychological complaints that gave rise to any type of assessment only arose two years post-accident.

20In order to interfere with a decision upon reconsideration under Rule 18.2(b), however, the Tribunal must not only have made an error of law or fact, but that error of law or fact must be enough that the Tribunal likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

21Certas submits that the errors alleged by L.H. are an inaccurate characterization of the decision when read in its totality. As a result, the Tribunal did not make an error in law and/or fact in the decision such that the Tribunal would likely have reached a different conclusion had the error not been made.

22For the reasons that follow, I find that the Tribunal made no error of law and/or fact such that the Tribunal likely would have come to a different decision.

Dr. Salayeva’s Diagnosis and CNRs

23L.H. submits that the Tribunal erred in its finding that L.H.’s injuries were “minor injuries” as defined by the Schedule because it failed to consider the diagnosis of lumbar and other intervertebral disc disorders with radiculopathy and radiculopathy in Dr. Salayeva’s December 8, 2016 OCF-3 because there were, “‘no attachments or clinical notes from the chiropractor completing this assessment.’” The decision, however, contains no such statement. In fact, the decision considered the December 8, 2016 OCF-3 and gave no weight to Dr. Salayeva’s diagnosis of lumbar and other intervertebral disc disorders with radiculopathy and radiculopathy because there was no objective medical evidence to support her findings and also because the OCF-3 contained no attachments or additional information, such as testing or imaging, on how these diagnoses were arrived at.

24Further, L.H. also argued that the Tribunal erred by suggesting that Dr. Salayeva’s CNRs were not provided to the Tribunal and directed me to tab 11 of L.H.’s hearing Book of Exhibits. Again, I disagree that the Tribunal found that Dr. Salayeva’s CNRs were not submitted; rather, the finding was that the OCF-3 contained no attachments, additional information or objective medical evidence to support Dr. Salayeva’s diagnoses.

25In any event, the evidence at tab 11 of L.H.’s Book of Exhibits is identified as the CNRs of Health-Pro Wellness. I accept that these CNRs contain a December 8, 2016 chiropractic assessment that lists Dr. Salayeva listed as the health practitioner. This assessment, however, contains no indication of any radiculopathy. For example, the options of “numb” or “tingles” were not circled, which indicates no presence of symptomatology, for any of the areas of the spine. There is no other information on this assessment as to how any diagnosis of radiculopathy was made. As a result, even if I agreed with L.H. that the Tribunal found that Dr. Salayeva’s CNRs were not provided as part of L.H.’s hearing evidence, which I do not, I find that the Tribunal did not err in the decision regarding the weight it gave to the December 8, 2016 OCF-3 because the CNRs that L.H. highlighted in her reconsideration submissions provided no information on how Dr. Salayeva arrived at her diagnoses of lumbar and other intervertebral disc disorders with radiculopathy and radiculopathy.

Emergency Report and Sciatica Diagnosis

26L.H. submits that the Tribunal erred by failing to consider the June 2017 Emergency Report of North York General (the “Emergency Report”) in its finding that L.H.’s injuries were minor injuries as defined by the Schedule. L.H. argues that she was diagnosed with sciatica in this report, which is an injury that falls outside of the MIG, and that this diagnosis further supported the symptoms of back pain and radiculopathy that was noted by Dr. Salayeva.

27I disagree with L.H. that the Tribunal failed to consider the Emergency Report in the decision as this report was clearly referred to in paragraph [14]. Further, the Tribunal also gave reasons for the weight it gave the sciatica diagnosis contained in the Emergency Report. The purpose of the reconsideration process is not to reargue positions which failed at the hearing and, in my view, this is what L.H. is attempting to do with this argument.

28Based on all of the above, I find that the Tribunal did not make any error of fact or law regarding the Emergency Report and the sciatica diagnosis contained therein.

The Psychological Pre-Screen Report

29L.H. submits that the Tribunal erred by failing to give weight to the psychological pre-screen report when determining not only whether or not L.H.’s injuries were outside of the MIG but also whether or not the treatment plan for a psychological assessment was reasonable and necessary. In fact, L.H.’s reconsideration submissions regarding the psychological pre-screen report primarily focus on its support for the proposed psychological assessment rather than on any errors made by the Tribunal in determining whether or not L.H.’s injuries fall outside of the MIG.

30Firstly, the Tribunal made no findings regarding the reasonableness and necessity of the disputed treatment plans. L.H.’s injuries were found to be “minor injuries” as defined by the Schedule. As L.H. had exhausted the maximum $3,500.00 for medical and rehabilitation benefits under the MIG, the Tribunal did not consider and, therefore, made no error regarding the reasonableness and necessity of the treatment plans including the treatment plan for a psychological assessment.

31Secondly, I do not find that the Tribunal erred in the weight it gave the psychological pre-screen report in determining whether or not L.H.’s injuries were within the MIG. While I agree that the Tribunal stated that it gave no weight to the pre-screen report in the decision based on a lack of accompanying CNRs from Dr. Aghamohseni and the lack of any psychometric testing being completed, the Tribunal also stated that it gave no weight to the report for additional reasons. The Tribunal found that no information was provided regarding what medical records or reports, if any, were reviewed in preparation of the pre-screen report and no information was provided on the duration of the pre-screen. Furthermore, I also find that it is unclear who completed the pre-screen report as Dr. Aghamohseni affixed his name at the conclusion of the report, but the report also states that “we talked with and interviewed” L.H. Therefore, it is unclear who “we” refers to, who actually pre-screened screened L.H. and whose opinion the pre-screen report contains.

32Finally, I also do not agree with L.H. that in the absence of any contrary evidence from Certas that the Tribunal erred in the weight it afford the psychological pre-screen report in its finding that L.H.’s injuries fall within the MIG. The burden never shifts to Certas to disprove L.H.’s entitlement to benefits as L.H. is required to prove on a balance of probabilities that her injuries fall outside of the MIG.

33For all of the reasons set out above, I find that the Tribunal did not make an error of fact and/or law regarding the psychological pre-screen report in the decision.

The Occurrence of L.H’s Psychological Complaints

34Lastly, L.H. submits that the Tribunal erred by finding that the occurrence of L.H.’s psychological complaints that gave rise to any type of assessment only arose two years post-accident.

35I agree with L.H. that the Tribunal erred as the date of the pre-screen report was April 11, 2017, which was within five months of the accident. I do not, however, find that this error would have led the Tribunal to come to a different decision for the following reasons:

(i) the Tribunal’s questioning of L.H.’s delay in seeking psychological assistance for the incorrect period of two years was only one of the reasons the Tribunal did not accept L.H.’s position that she should be removed from the MIG as a result of psychological symptoms. For example, the Tribunal set out its reasons in the decision as to why it gave little weight to the psychological pre-screen report, regardless of the date of completion. The Tribunal also noted that L.H. had not been prescribed any medications to date for her psychological complaints;

(ii) I agree with Certas’ reconsideration submissions, which were a reiteration of its initial hearing submissions, that L.H. failed to provide any objective medical records from her family physician, hospitals that she attended following the accident or any other treating medical professional to support the subjective statements she provided in the pre-screen report. For example, the CNRs of Dr. Erfanfar and Dr. Jia, L.H.’s family physicians, do not include any post-accident reports of any psychological or emotional issues. In fact, the only psychological-related entry on L.H.’s OHIP summary post-accident is on February 27, 2017 by Dr. Paul Lau which notes “adjustment reaction.” The only portion of Dr. Lau’s CNRs that were submitted as hearing evidence, however, were the OHIP billing codes, which for February 27, 2017 was, “Neuroses and Personality Disorders – Adjustment Reaction.” No further CNRs or explanation was provided or information if this February 27, 2017 entry was accident-related given L.H.’s hearing submissions that she was being treated by Dr. Lau for weight loss;

(iii) The pre-screen report also quotes L.H. as stating, “I don’t know what happened to me, I have nightmares every night, I write them down, I am so scared (my emphasis added).” L.H.’s written notes of her nightmares, which could have assisted in corroborating her subjective complaints in the pre-screen report, were not submitted as hearing evidence; and

(iv) while I acknowledge the notation of “PTSD Symptoms” on the December 8, 2016 chiropractic assessment of L.H., Dr. Salayeva is a chiropractor and, in my opinion, not able to make such a diagnosis. Further, no details were provided as to what L.H.’s post-traumatic stress disorder symptoms allegedly were.

36Therefore, even though the Tribunal erred in its finding that the occurrence of L.H.’s psychological complaints that gave rise to any type of assessment only arose two years post-accident, I find that this error would not have led the Tribunal to come to a different decision for the reasons set out above.

CONCLUSION

37I find that L.H. ‘s request for reconsideration is barred from proceeding pursuant to Rule 18.1. Alternatively, I find that L.H.’s request for reconsideration is dismissed as she failed to establish on a balance of probabilities that the Tribunal:

(i) violated the rules of natural justice and/or procedural fairness; and

(ii) made an error of law or of fact such that the Tribunal’s decision would have been different.

Lindsay Lake

Adjudicator

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 118-005474 v Certas Direct Insurance Company, 2019 CanLII 76976 (ON LAT).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issues pursuant to s. 268.3(1.1) of the Insurance Act.
3. 3S.O. 2009, c. 33, Sched. 5.
4. 4Reconsideration Submissions of the Applicant, page 4.
5. 5See the reconsideration decision of IMN v. Intact Insurance Company, 2019 CanLII 101473 (ON LAT) at para. 9 and 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT) at para. 7.
6. 6Supra note 1 at para. 9.
7. 7Reconsideration Submissions of the Applicant, page 1.