Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Kate Grieves, Adjudicator
File: 18-007679/AABS
Case Name: S.K. and Aviva General Insurance Company
Written Submissions by:
For the applicant: Yanira Monterozza, Paralegal
For the respondent: Patrick Baker, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, arising from a decision released on October 31, 2019 in which I found that the applicant was not entitled to non-earner benefits from the stoppage date of March 16, 2018 to date and ongoing.
2The applicant has asked the Tribunal to reconsider that decision. The applicant submits that the Tribunal made an error of law such that it would have likely reached a different result had the error not been made.
3Pursuant to Rule 18 of the Tribunal’s Common Rules of Practice and Procedure, I have been delegated responsibility to reconsider this matter.
4The applicant is seeking a determination that he is entitled to non-earner benefits, interest and an award pursuant to Regulation 664.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The grounds for a Request for Reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. 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 decision 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 new 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.
7The applicant submits that the Tribunal made the following errors:
(i) Failed to consider a reasonable pre-accident period of time to assess the applicant’s pre-accident activities;
(ii) Granted insufficient weight to the applicant’s pre-accident paramedic related activities;
(iii) Focused on “initial entitlement” rather than “ongoing entitlement” to benefits;
(iv) Granted insufficient weight to the applicant’s psychological impairments;
(v) Failed to consider whether the applicant engaged in his post-accident activities from a qualitative perspective;
8For the reasons that follow, I dismiss the applicant’s request for reconsideration, and find that there were no errors made by the Tribunal. The test for non-earner benefits is clear. The applicant did not satisfy his burden of proof to establish that he was continuously prevented from engaging in substantially all of his pre-accident activities as result of the accident, after March 16, 2018. The Tribunal was not persuaded by the evidence tendered by the applicant.
9Although the applicant is naturally disappointed with the outcome of the hearing, the purpose of the reconsideration process is not to give an unsuccessful party a second opportunity to have its case heard. Taking exception with the duly-reasoned findings of an adjudicator is not a proper ground for reconsideration. Many of the arguments the applicant makes regarding the Tribunal having made an error are not persuasive or logical. I find that the applicant has failed to establish that the Tribunal made any error in law or in fact such that its decision should be reconsidered.
i. Reasonableness of the Pre-Accident Time Frame
10The applicant submits that the Tribunal should have considered the applicant’s pre-accident activities in the 1.5 to 2 years prior to the accident. Importantly, this argument was never made at the hearing. The applicant made no attempt to frame a 1.5 to 2-year pre-accident period as a frame of reference in any of his submissions.
11In any event, at paragraph 9 of the decision, it indicates that the Tribunal considered the applicant’s evidence concerning his graduation in 2015 and activities for the next two years in order to participate in the recruitment process, which is exactly the two-year time frame now suggested by the applicant. At paragraph 17, the Tribunal held that the in-vehicle ambulance hours were not an activity of normal life because they were all accumulated prior to his graduation in 2015. Those activities still fall beyond the two-year time frame suggested by the applicant. I am not persuaded that the Tribunal made an error with respect to the pre-accident time period considered.
ii. Weight Granted to Pre-Accident Paramedic Activities
12The applicant submits that not enough weight was given to the nature of the career path of the applicant – that it is different from other jobs because of the requirements for written tests and rigorous physical assessments, and because he had to be both physically and psychologically fit.
13Further he suggests that if the Tribunal had performed “a simple Google search” for “Paramedic Recruitment Guide 2020” that the Tribunal would have placed more weight on the fact that recruitment for paramedics only occurs once or twice a year.
14I find it absurd to suggest that the Tribunal should have gone outside of the evidence to search for evidence not introduced at the hearing. If the applicant felt that the recruitment guide was relevant, he should have put it before the Tribunal as evidence. It would be wholly inappropriate for the Adjudicator to seek out additional evidence not introduced at the hearing in order to make the applicant’s case for him.
15The applicant essentially disagrees with the weight that the Tribunal accorded to his pre-accident paramedic activities. At paragraph 17 of its decision, the Tribunal indicates that, in accordance with Heath v Economical, it was alive to the fact that greater weight should be given to his inability to perform his pre-accident paramedic activities because of the importance to him. The Tribunal provided reasons in paragraphs 17 and 18 why the applicant had not met his burden of proof, even though greater weight was attributed to his paramedic activities. The Tribunal held that the applicant’s evidence was insufficient with respect to becoming a paramedic, and that even if more weight was given to important activities, it is not at the exclusion of all other activities.
16Contrary to the argument made by the applicant, I find that the Tribunal carefully weighed the totality of the evidence before it and provided sound reasons for finding that the applicant had not met the burden of proof.
17Although the applicant may not agree with the Tribunal’s reasoning or finding, this is not a ground for granting a request for reconsideration. The Tribunal provided sufficient reasons and explanation for weighing the evidence the way that it did. The purpose of reconsideration is not to re-weigh evidence that was properly considered by the Tribunal at first instance. Reconsideration is used to determine if the Tribunal made an error as alleged by the applicant, which in this case I find that it did not. I find no error in how or why the Tribunal made this finding and thus have no reason to interfere with its assessment of the evidence or its decision.
iii. Initial vs Ongoing Entitlement
18The applicant submits the Tribunal focused on the applicant’s initial entitlement to benefits, and did not place enough weight on determining ongoing entitlement. This argument is illogical and not persuasive. The Tribunal explicitly stated at paragraph 10 of the decision that the applicant was paid non-earner benefits until the stoppage on March 16, 2018. There is no indication that the Tribunal engaged in an “initial entitlement” analysis in this case, nor has the applicant presented any argument as to how this would differ from an “ongoing entitlement” that amounts to a reversible error. The test for non-earner benefits is static – it does not change based on initial or ongoing entitlement.
iv. Weight Granted to Psychological Impairments
19The applicant submits that the Tribunal did not place enough weight on his psychological impairments, noting that he was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, PTSD, Chronic pain, Insomnia, and Irritability. The applicant submits that the clinical notes and records and psychological report of Dr. Mpumlwana demonstrate the applicant’s activity restrictions.
20First, a psychological diagnosis is not in and of itself evidence of disability for non-earner benefits. Second, it is trite law that the Tribunal in its reasons is not required to refer specifically to every argument made or piece of evidence that it considered in arriving at its decision. And third, the Tribunal provided sufficient reasons and explanation for weighing the evidence the way that it did. The Tribunal noted the applicant’s psychological injuries at paragraph 8. The Tribunal noted the impact of the applicant’s irritability with respect to performing activities in paragraph 13, the impact on his relationships, social isolation, and anxiety at paragraph 14 and ability to drive at paragraph 16.
21Again, although the applicant may disagree with the Tribunal’s reasoning or finding, this is not a ground for granting a request for reconsideration. The Tribunal carefully weighed the totality of the evidence before it and provided sound reasons for finding that the applicant had not met the burden of proof.
v. Qualitative Analysis of Activities
22The applicant submits that, when the Tribunal considered whether the applicant was able to perform various activities set out in the OCF -12 and addendum, the Tribunal failed to consider that they were performed with restrictions. According to the applicant, because the quality of the performance was affected, it should not be interpreted that the applicant was “engaging in” the activity.
23Again, the applicant is essentially just requesting a second opportunity to argue his case.
24The Tribunal directly addressed both documents in paragraphs 13 and 14, noting that the applicant was able to complete most of the tasks identified in the OCF-12 (40 of 45) and the addendum (15 of 19). The Tribunal noted specifically that he required assistance with some tasks and that others could be completed with restrictions. The applicant’s argument also focuses entirely on the OCF-12 and addendum, while ignoring all other evidence. Even if viewed on their own, without all other evidence, the OCF 12 and addendum do not support a finding that the applicant suffered a complete inability to carry on a normal life after March 16, 2018. Completing activities with some restrictions or assistance is not an example of being continuously prevented from engaging in substantially all of activities. I find that the Tribunal’s analysis of the evidence was appropriate, and there was no error.
CONCLUSION
25The applicant’s request for reconsideration is dismissed.
Released: October 21, 2020
Kate Grieves
Adjudicator