RECONSIDERATION DECISION
Before: Tavlin Kaur, Adjudicator
File: 18-007365/AABS
Case Name: SSZ v Certas Direct Insurance Company
Written Submissions By:
For the Applicant: Arash Goneh-Farahani, Paralegal
For the Respondent: Stacey N. Karellas, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant (the insured). It arises out of a decision in which the Tribunal found the applicant’s injuries were within the Minor Injury Guideline (the “MIG”) and therefore not entitled to any of the treatment plans in dispute.
2The applicant submitted that the Tribunal acted outside of its jurisdiction or violated the rules of natural justice or procedural fairness, and that the Tribunal made a significant error of law or fact such that the Tribunal would have likely reached a different decision had the error not been made.
3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, I have been delegated the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
4The request for reconsideration is dismissed.
ANALYSIS
5I will address the respondent’s motion before I consider the applicant’s request for reconsideration as it pertains to the applicant’s submissions and evidence.
Respondent’s motion to exclude
6On December 20, 2019, the respondent filed submissions in response to the applicant’s request for reconsideration. The submissions included multiple requests to exclude certain documents and submissions that were included in the applicant’s request for reconsideration.
7Subsequently, the respondent was informed by the Tribunal that the notice of motion arguments should be included in the response to the reconsideration. On January 7, 2020, the respondent filed a notice of motion and the response to the reconsideration. The Respondent seeks an order excluding the following:
a. The Psychiatric Assessment Report by Dr. M. Mamelak dated November 14, 2019;
b. Any references to the Psychiatric Assessment Report by Dr. M. Mamelak dated November 14, 2019, at paragraphs: 9, 10, 13, 14 and 19 of the Applicant’s Request for Reconsideration;
c. Disability Certificate (OCF-3) dated November 15, 2019 by Dr. Mamelak;
d. Any references to the Disability Certificate (OCF-3) dated November 15, 2019 at paragraph 21 of the Applicant’s Request for Reconsideration;
e. The correspondences between representatives at Tab 3 of the Applicant’s Request for Reconsideration;
f. Any references to the correspondences between representatives at paragraph 20 of the Applicant’s Request for Reconsideration; and
g. That the Tribunal exclude and/or not consider any of the Applicant’s submissions at paragraphs: 20, 21 and 23 which improperly allege that the Respondent: “did not attempt to address the s. 25 assessment reports that were provided…” and “could not accurately and credibly comment on his current physical and psychological limitations”, leading to “a significant breach of natural justice and procedural fairness.”
8It is the respondent’s position that the applicant never specified that he was seeking a reconsideration based on the criteria set out in Rule 18.2(d), which allows a reconsideration where “there is no evidence that could not have reasonably been obtained earlier and would have affected the result.” The respondent submits that the applicant is not permitted to present new evidence for consideration at the Tribunal, unless he is seeking a reconsideration pursuant to Rule 18.2(d).
9Furthermore, the respondent asserts that the Tribunal ought to exclude new evidence, unless the applicant can prove that the new evidence “could not have reasonably been obtained earlier” and “would have affected the result”. The respondent states that the applicant could have reasonably obtained the psychiatric report and disability certificate from Dr. Mamelak prior to the hearing as the applicant was involved in the subject accident on February 24, 2016 and his hearing submissions were due on April 19, 2019. The respondent argues that the new evidence is being used to supplement the evidence which was already before the Tribunal.
10The applicant was provided with an opportunity to provide a reply. As noted in the acknowledgment letter from the Tribunal dated December 16, 2016, the reply submissions were due ten business days after the receipt of the respondent’s submissions. The applicant did not file a reply. I do not have any submissions from the applicant that address the respondent’s position.
11I find the respondent’s arguments to be persuasive. The motion is granted for the following reasons:
12The applicant did not seek a reconsideration based on the criteria in Rule 18.2(d). However, he is relying on Dr. Mamelak’s report for the purposes of this reconsideration request. The applicant has not provided any explanation as to why he could not obtain this report prior to the written hearing submissions deadline.
13I have reviewed the report and find that it is based on the applicant’s subjective reporting and a review of the evidence that predates my decision. Dr. Mamelak has also provided his opinion about my decision. I do not find this report to be persuasive or that it provides new information about the applicant’s conditions. This report does not affect the result of my decision.
14I find that this report is being used to supplement the evidence which was already before the Tribunal in an attempt to re-argue issues that have already been decided by the Tribunal. A request for reconsideration is not an opportunity for a losing party to supplement the evidence once the deficiencies in his or her case have been exposed in a decision. As such, the Psychiatric Assessment Report by Dr. Mamelak dated November 14, 2019 and the references to it in paragraphs 9, 10, 13, 14 and 19 will not be considered by me.
15With respect to the disability certificate completed by Dr. Mamelak, I find that it does not add anything to the case in the substantive sense. There is no explanation as to why this document was not obtained prior to the hearing and that it would have affected the result of my decision. As such, the disability certificate and any references to it in the applicant’s submissions will not be considered.
16The respondent submits that the correspondence between the representatives included in Tab 3 of the applicant’s request for reconsideration and any references to it in paragraph 20 should be excluded. After reviewing these documents, it is my opinion that they are not relevant to the issues raised in the request for reconsideration. As such, they will not be considered in reaching my decision.
17The respondent submits that I should exclude the applicant’s submissions at paragraphs 20, 21 and 23, which allege that the respondent “did not attempt to address the s. 25 assessment reports that were provided…” and “could not accurately and credibly comment on his current physical and psychological limitations”, leading to “a significant breach of natural justice and procedural fairness” on the basis that these allegations are false and misleading.
18The respondent provided evidence that shows that attempts were made to reschedule the psychological assessment. Based on my review of the evidence submitted by the respondent, I find the applicant’s statements to be misleading. As such, the applicant’s submissions at paragraphs 20, 21 and 23 will not be considered in reaching my decision.
19As the respondent’s motion has been addressed, I will now proceed to the applicant’s request for reconsideration.
APPLICANT’S REQUEST FOR RECONSIDERATION
20The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
21The applicant requests a reconsideration of my decision pursuant to Rules 18.2(a) and (b). The applicant argues that the Tribunal made a significant error of law or fact such that the Tribunal would have likely reached a different decision, and that the Tribunal acted outside of its jurisdiction or violated the rules of natural justice or procedural fairness. I considered each of these grounds as follows.
The Tribunal did not err under Rule 18.2(a)
22I have reviewed the applicant’s request for reconsideration and find that there is no clear argument advanced with respect to the Tribunal acting outside of its jurisdiction or violating the rules of natural justice or procedural fairness. The applicant asserts that it was unfair to allow the insurance company to adjudicate the claim without having a medical professional respond to produced reports and documentation. I am not considering these arguments as these have been excluded for the reasons noted above.
23I find that the applicant has failed to demonstrate that I acted outside of the Tribunal’s jurisdiction or violated the rules of natural justice or procedural fairness.
The Tribunal did not err under Rule 18.2(b)
24The relevant test for granting a request for consideration on the basis of a significant error of law or fact is set out in Rule 18.2(b).
25Rule 18.2(b) allows the Tribunal to review a decision for “significant errors”. This Rule does not mean that an adjudicator should reweigh all the evidence. Rather, the errors of fact or law much be significant such “that the Tribunal would likely have reached a different decision.”
26In his request for reconsideration, the applicant alleges that I made errors of law and fact. However, he fails to articulate the specific errors of law and fact in my analysis or my application of the legislation. Rather, he has reproduced portions of my decision and has attempted to use Dr. Mamelak’s report to re-argue the case. As noted above, I am not relying on this report.
27In determining that the applicant’s injuries fell within the minor injury guidelines, I considered whether the applicant had a pre-existing condition, a predominantly minor injury, chronic pain, psychological impairment and post-concussive syndrome. I analyzed the submissions, evidence, legislation and case law.
28I reviewed the medical evidence in detail and found that the applicant did not provide any evidence of pre-existing conditions that were documented prior to the subject accident of February 24, 2016. While there was a previous accident that occurred on January 7, 2016, the conditions stemming from that accident were not documented by a medical practitioner prior to the date of the subject accident.
29However, the applicant alleges that I failed to consider the accident that occurred on January 7, 2016. In support of his position, the applicant argues that he was receiving treatment from the [the clinic] following January 7, 2016 for about six to seven weeks prior to the subject accident in dispute. The applicant has not provided any evidence, such as clinical notes and records from [the clinic], that confirms these visits.
30Furthermore, the applicant has not articulated what his injuries/conditions were from the January 7, 2016 accident. Nor did he articulate how these conditions would prevent the maximal recovery of his minor injuries sustained in February 24, 2016 accident if he were subject to the limits within the minor injury guidelines. The applicant has not advanced any compelling evidence that demonstrates that he should be removed out of the MIG on the basis of a pre-existing condition. Based on the evidence, I find it unlikely that I would have come to a different conclusion.
31With respect to whether the applicant sustained a predominantly minor injury, I reviewed the x-rays, MRI and clinical notes and records. The medical evidence supports that the applicant sustained a predominantly minor injury. The applicant has not advanced any evidence that suggests otherwise.
32I considered whether the applicant was suffering from chronic pain in paragraphs 20 to 25 of the decision. Due to a variety of reasons, I was not persuaded that he suffered from chronic pain. There was a lack of objective evidence that supported that the applicant suffers from chronic pain. I was not persuaded by the reports that were submitted in support of the case. Based on my review of the applicant’s submissions, I find it unlikely that I would have come to a different conclusion.
33I addressed whether the applicant suffered from a psychological impairment in paragraphs 30 to 39 of my decision. There were many inconsistencies between the reports which led me to conclude that the applicant did not suffer from a psychological impairment as a result of the accident. I am not persuaded that my analysis was incorrect.
34Although the applicant has not made any submissions regarding the post-concussive syndrome in his request for reconsideration, I reviewed the evidence to determine whether he suffered from this condition. I conclude that he did not.
35In my opinion, the applicant’s request for reconsideration is an attempt to re-argue some of the issues that were addressed at the hearing. I find that I applied the correct legal tests, properly interpreted the relevant legislation and case law, and considered all relevant evidence. The applicant’s arguments were fully considered in the written hearing and rejected. The applicant has failed to identify any error of law or fact. The applicant has not provided any evidence that shows that I acted outside my jurisdiction or violated the rules of natural justice or procedural fairness in this case.
ORDER
36The applicant’s request for reconsideration is denied.
Tavlin Kaur
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: April 20, 2020