RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 18-011867/AABS
Case Name: DK and Travelers Insurance
Written Submissions by:
For the Applicant: Arthur Semko, Paralegal
For the Respondent: Sara Baum, Counsel
OVERVIEW
1D.K.’s request for reconsideration, filed on April 1, 2020, arises from the Tribunal’s March 17, 2020 decision. The decision determined that D.K.’s accident-related injuries were predominantly minor. As a result, it was unnecessary to determine whether D.K. was entitled to the disputed treatment plans.
2Both D.K. and Travelers filed submissions.
3For the reasons to follow, D.K.’s request for reconsideration is denied.
THE LAW
4There are limited grounds upon which a person can request a reconsideration. In this case, D.K. asserts that the Tribunal made a significant error of law and of fact such that the Tribunal would likely have reached a different decision had the error(s) not been made. D.K. asserts that she therefore is entitled to a reconsideration pursuant to section 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
DISCUSSION AND REASONS
5I find that the Tribunal did not make a significant error of law or facts such that the Tribunal likely would have reached a different decision if it had not made the error.
Errors of Fact
6In this case, D.K. submitted that the Tribunal made errors of fact by misstating party evidence, as set out below.
7D.K. asserts that in paragraph 24, I stated, “The applicant also relied on the report of Dr. Czok, physiatrist”. Dr. Czok, is in fact the assessor relied on by Travelers.
8Travelers submits that this misstatement was inconsequential. Travelers’ position is that the claim made by D.K. regarding Dr. Czok is not a case dealing with competing expert opinions. My decision confirmed that the evidence in Dr. Czok’s report, was consistent with the evidence of Dr. Mikhail, D.K.’s family physician, that D.K. suffered minor injuries. I agree with Travelers that which party was mentioned as relying on Dr. Czok’s report had no bearing on the outcome of the decision.
9D.K. submits that a second error of fact was made at paragraph 25 of the decision, wherein, it states, “I find that the report confirms Dr. Mikhail’s conclusion that D.K.’s injuries are predominantly minor”. D.K. asserts that Dr. Mikhail did not conclude that D.K.’s injuries were predominantly minor. The onus is on D.K. to establish that her injuries were not predominantly minor. The decision considered the evidence, weighed the evidence of the parties, and concluded that the medical evidence supported that D.K. suffered injuries that were predominantly minor. This is evidenced at paragraph 25, which states in part:
Dr. Mikhail and Dr. Czok diagnosed D.K. with similar sprain/strain types of injuries, the OCF-3 noted a diagnosis of sprain/strain types of injuries. Both Drs. Mikhail and Czok did not find any signs of musculoskeletal impairment.
10D.K. submits that the analysis in the decision hinged on the OCF-3 dated October 25, 2017, and that I did not consider that D.K.’s injuries can deteriorate over time. I disagree. At paragraphs 21-23, I specifically referenced the medical evidence (Dr. Mikhail’s referral notes and letter) that D.K. relied on. I was not persuaded by that evidence, nor D.K.’s reconsideration submissions, that there was an error of fact or a lack of consideration of D.K.’s alleged deterioration of injuries over time. D.K. did not put forth evidence to suggest there was such deterioration, and such evidence presented at reconsideration, is not the purpose or intent of the reconsideration process.
11The remainder of D.K.’s assertions in her request for reconsideration refer to specifically emphasized parts of specific paragraphs from the decision. Rather than address each individual reference, I will summarize and respond to them as a whole.
12D.K. submits that I stated that she did not have any pre-existing injuries and that “there is no evidence from the notes that the pain complaints are tied to the accident”. In fact, however, despite my comment on the notes of Dr. Mikhail, I did in fact accept that D.K.’s pain complaints were accident-related, but ultimately held that her injuries were predominantly minor.
13In addition, I specifically referred to D.K.’s evidence that discussed her various pain complaints, and considered the letter of Dr. Mikhail, and specifically found that this was not sufficient to find that her injuries were not predominantly minor. As such, I find no error of fact.
14The Tribunal made specific reference to the evidence of D.K. throughout the decision when weighing the evidence. Despite the error of misstating the party who relied on the evidence of Dr. Czok, I did not ignore evidence or facts but found certain evidence more persuasive over others. I find no error of fact that likely would have resulted in a different decision.
ORDER
15D.K.’s request for reconsideration is denied.
Derek Grant
Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: July 7, 2020