RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 18-011461/AABS
Case Name: N.H. and Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Rome Petricca, Paralegal
For the Respondent: Andrew Franklin, Counsel
OVERVIEW
1N.H.’s request for reconsideration, filed on May 12, 2020, arises from the Tribunal’s April 21, 2020 decision (“the decision”). The decision determined that N.H.’s accident-related injuries were predominantly minor. As a result, it was unnecessary to determine whether N.H. was entitled to the disputed treatment plans.
2Both N.H. and Allstate filed submissions.
3For the reasons to follow, N.H.’s request for reconsideration is denied.
THE LAW
4There are limited grounds upon which a party can request a reconsideration. In this case, N.H. 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. N.H. 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 fact such that the Tribunal likely would have reached a different decision if it had not made the error.
Error of Law
6In this case, N.H. submits that the Tribunal made the following errors of fact or law:
(i) Erred in finding that N.H. does not suffer from any accident-related psychological injuries that would remove her from the Minor Injury Guideline (“MIG”) limit; and
(ii) Erred by failing to consider the context and purpose of the Schedule and the MIG when determining whether N.H.’s injuries fell within the MIG.
7N.H. submits that I placed little weight on the psychological report of Dr. Shaul and Ms. Ilios and erroneously stated that no psychometric tests were administered by Dr. Shaul. Specifically, she submitted that the Adjudicator “chose to narrowly focus on the Insurer’s Examination Report of Dr. Lubbers in making his decision”. N.H. further submits that Dr. Lubbers confirmed the same diagnosis of Adjustment Disorder with Anxiety, however, the Adjudicator failed to comment on this in the decision.
8I disagree. In the section, “Accident-related injuries – psychological”, under the sub-heading, “Dr. Shaul Pre-Screen Report”, at paragraph 17, I specifically state that the pre-screen assessment did not include any psychometric tests. My comments about psychometric testing in reference to the pre-screen report are factually correct.
9N.H.’s position, on reconsideration, is that my failure to address the diagnosis of Dr. Lubbers amounts to an error. N.H. fails to address how my lack of comment on a similar diagnosis is an error, or how that alleged error would have resulted in a different decision had the alleged error not been made.
10In support of her position, N.H. refers to new case law not previously referred to in her initial or reply submissions. N.H. relies on a previous Tribunal reconsideration decision that discussed chronic pain syndrome and its relation to the MIG.
11Allstate submits that N.H. had the opportunity to provide submissions on the case law argument and cannot use the reconsideration request to do so. Allstate further submits that this proceeding is distinguishable from the case law N.H. refers to, in that the decision did not contain a finding that N.H. suffers from any accident-related chronic pain. I agree. The reconsideration process is not the opportunity to advance new arguments that N.H. could have made in her initial submissions but did not. Further, there was no evidence that N.H. suffered from chronic pain as a result of the accident.
12N.H. submits that I failed to consider evidence that supports that her injuries were not predominantly minor. I was confronted with conflicting reports and as a result, N.H.’s self-reporting was crucial to my decision. As indicated in the original decision at paragraph 18, N.H.’s self-reporting to Dr. Lubbers, is that she is “disinterested in psychological counselling to address accident-related difficulties”.
13The Tribunal is not required to address or reference every piece of evidence or case law that is put before it. Although I am required to consider the evidence put before me by the parties, my decision is based on evidence that I find to be persuasive. The result of same not being in favour of one party is not a relevant ground for a request for reconsideration.
14The Tribunal made specific reference to the evidence of N.H. throughout the decision when weighing the evidence. I did not ignore evidence or facts but found certain evidence more persuasive over others. I find no error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
ORDER
15N.H.’s request for reconsideration is denied.
Derek Grant
Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: August 12, 2020