S.G. v. Wawanesa Mutual Insurance Company 2020 OLAT mini 4

RECONSIDERATION DECISION

Before: Kimberly Parish, Adjudicator

Date: January 6, 2020

File: 18-001861/AABS

Case Name: S.G. v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Respondent: Arash Goneh-Farahani, Paralegal

For the Applicant: Jennifer L. Beresford, Counsel

OVERVIEW

1The request for reconsideration was filed by the applicant, S.G. It arises out of a decision released to the parties on July 12, 2019 in which I found S.G. was not entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week as a result of the alleged psychological and physical impairments arising from the July 18, 2015 motor vehicle accident (the “accident”). Further, my decision found S.G. was not entitled to the following: the cost of an accounting report for $2,825.00 plus interest, an award under Regulation 664¹, and S.G.’s claim for costs.

2The request for reconsideration is based on several grounds submitted by S.G.as follows:

i. The Tribunal made a significant error of fact such that the Tribunal would have likely reached a different conclusion by failing to appreciate S.G.’s psychological impairments throughout the in-person hearing;

ii. The Tribunal made a significant error of law such that the Tribunal would likely have reached a different conclusion when the Tribunal failed to consider the psychological impairments which arose from the accident and prevented S.G. from returning to work;

iii. The Tribunal made a significant error of fact such that the Tribunal would have likely reached a different conclusion by failing to appreciate there were no post 104-week IRB s. 44 insurer’s examination (“IE”) assessment reports;

iv. The Tribunal made a significant error of law such that the Tribunal would likely have reached a different conclusion when the Tribunal failed to afford any weight to the applicant’s post 104-week s. 25 IRB reports;

v. The Tribunal made a significant error of law such that the Tribunal would likely have reached a different conclusion and has breached natural justice/procedural fairness by failing to apply any weight to the applicant’s testimony, s. 25 reports, clinical notes and records (“CNRs”), and the applicant’s own accounting report; and

vi. The Tribunal made a significant error of law such that the Tribunal would likely have reached a different conclusion when the Tribunal failed to assign the appropriate weight to the applicant’s evidence, preventing an assessment of the merits of the applicant’s claim.

3S.G. seeks an Order that the Tribunal vary its decision and find she is entitled to IRBs, the accounting report, the award, costs, and interest.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act², I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5The applicant’s request for reconsideration is dismissed.

ANALYSIS

6The grounds for a request for reconsideration are contained in amended Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure, Effective February 7, 2019. 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 procedural fairness;

(b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result 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;

(d) There is 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.

7It is submitted by S.G. that Rule 18.2 (a), and (b) apply. I am not satisfied the applicant has met the criteria detailed under Rule 18 for a decision to be reconsidered and on that basis the reconsideration is dismissed. I will address the reasons for my findings below.

8S.G. submitted the Tribunal made a significant error of fact or law such that it would have likely reached a different conclusion by failing to appreciate the applicant’s psychological impairments presented throughout the in-person hearing. It was further submitted by S.G. that the Tribunal failed to consider the psychological impairments which arose from the accident and prevented her from returning to work. It was also submitted by S.G. that the exhibits produced at the hearing support that she sustained physical and psychological impairments and her testimony supports she sustained psychological impairments as a result of the accident.

9I do not agree with S.G.’s submission that the Tribunal failed to consider the applicant’s psychological impairments which S.G. alleges arose following the accident. Contrary to S.G.’s argument, I find that the Tribunal carefully weighed the totality of the evidence, including consideration of her psychological impairments before it, and provided sound reasons for finding that the applicant is not entitled to IRBs. For example, paragraphs 14 - 32 address the evidence the Tribunal considered and relied upon when it concluded S.G.’s inability to return to work was due to pre-existing impairments to her neck and back, a shortage of work, and a work-related injury on October 19, 2016. As the impairments that prevented her from returning to work was not as a result of the accident, the Tribunal found she was not entitled to receive IRBs.

10The Tribunal further considered both the physical and psychological impairments of S.G. commencing at paragraph 34 of its decision. In paragraph 39 of the decision, the Tribunal weighed the psychiatric evidence from both the applicant and the respondent and provided its reasons why the evidence of the respondent was preferred. Although the applicant disagrees with the Tribunal’s reasoning or finding, this is not a ground upon which I can grant a request for reconsideration. I find that the Tribunal provided sufficient reasons and explanation for weighing the evidence the way that it did. It is not through the reconsideration process to re-weigh evidence that has already been properly considered by the Tribunal.

11I do not agree with S.G.’s submission that the Tribunal erred in fact such that the Tribunal would have reached a different conclusion “by failing to appreciate” there were no post 104-week IRB reports. I agree with the respondent’s submission that the burden of proof rests with the applicant and the Tribunal has already found that the applicant did not meet her burden of proof for entitlement to IRBs. S.G. referenced the evidence she relied on in her reconsideration submissions and why she disagrees with the weight assigned by the Tribunal. Although 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. As the first-level trier of fact, the Tribunal had the responsibility to weigh the evidence before it and, on that basis, render a decision. I find that the Tribunal discharged its duty without error.

12I do not agree with what S.G. has submitted that the Tribunal made a significant error of law such that the Tribunal would likely have reached a different conclusion, or that the Tribunal has breached natural justice/procedural fairness by failing to apply any weight to the applicant’s testimony, s. 25 reports, clinical notes and records (“CNRs”), and the applicant’s own accounting report. It was submitted by S.G. that no accounting report was produced by the respondent and therefore the applicant’s accounting report should be found to be reasonable and necessary under s. 7. of the Schedule³. In paragraph 51 of its decision, the Tribunal found the applicant’s accounting report was not reasonable and necessary as the applicant’s income could be calculated without the report. S.G. further submitted that the Tribunal made a significant error of law such that the Tribunal would likely have reached a different conclusion when the Tribunal failed to assign the appropriate weight to the applicant’s evidence, preventing an assessment of the merits of the applicant’s claim. I am not persuaded by S.G.’s arguments. Contrary to her submissions and as I previously noted above, I find that the Tribunal weighed the evidence and provided careful and detailed reasons for its decision and find no basis on which to interfere with it.

13There were no reconsideration submissions provided by S.G. relating to the Tribunal’s decision to not grant an award, or costs which the Tribunal provided its reasons for within its decision.

CONCLUSION

14For the reasons provided above, I find that the Tribunal did not err under Rule 18.2 (a) or (b) in rendering its decision. The applicant has failed to establish any grounds upon which the Tribunal’s decision should be overturned, the applicant’s request for reconsideration is therefore dismissed.

Footnotes

1. 1R.O. 1990, Regulation 664: Automobile Insurance under Insurance Act, R.S.O. 1990, c. 1.8
2. 22009, S.O. 2009, c. 33, Sched. 5.
3. 3Ontario Regulation 34/10