RECONSIDERATION DECISION
Before:
Derek Grant
10/13/2021
Tribunal File Number:
19-013324/AABS
Case Name:
Vydia Pottayya v. Unica Insurance Inc.
Written Submissions by:
For the Applicant:
Yasar Saffie, Counsel
For the Respondent:
Domenic Nicassio, Counsel
OVERVIEW
1On January 29, 2021, I released my decision in this matter finding that V.P. suffered predominantly minor injuries, and that she was not entitled to a psychological assessment an award or interest. In response, V.P. invoked Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) to request that I reconsider my decision.
2Rule 18.2 sets out the grounds for reconsideration. In this matter, V.P. relies on Rule 18.2(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.”
RESULT
3Upon review of my decision and having considered the submissions of the parties, I find that there was no error of fact or law.
BACKGROUND
4V.P. submits that I made the following errors of law or fact:
a. I stated that the OCF-18 for a psychological assessment was submitted after a telephone interview when she was interviewed in-person;
b. That her pre-accident medical history appears to be relatively unchanged post-accident;
c. I ignored contemporaneous reporting in the medical documentation;
d. I required a psychological assessment to support the need for the disputed OCF-18 for a psychological assessment; and
e. I erred by stating that Dr. Pilowsky’s notes do not qualify as a reasonable diagnosis.
ANALYSIS
Telephone interview vs. in-person interview
5Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
6I agree with V.P. I erred in stating that the interview was a telephone interview, upon review, it was in fact an in-person interview. However, this error would not lead to a different decision had the error not been made. Further, V.P. has not established that this was such a significant mistake of fact that it was a valid ground for reconsideration. As a result, this error falls short of the threshold under Rule 18.2(b), therefore, there is no reconsideration on this basis.
Pre-accident and post-accident medical history
7V.P. submits that my questioning the accuracy of Dr. Pilowsky’s report wherein she states that “V.P. was healthy before the accident” amounts to an error of fact on the basis that her pre-accident health was in fact not the same as her post-accident health. V.P.’s position is that her family physician records contains zero complaints for physical and psychological complaints in the 1.5 years before the accident.
8Unica submits that the family physician records in fact support that V.P. had a significant pre-accident history. Further, that limiting her pre-accident history to 1.5 years, does not allow for consideration of the various records of pre-accident complaints. At paragraph 9 of the decision, I addressed V.P.’s pre-accident health history, and determined that V.P. had a consistent history of pain and insomnia prior to the accident.
9V.P. submits that I should focus on the 1.5 years pre-accident. V.P. did not raise this argument at first instance therefore, this argument has not been properly brought before the Tribunal on reconsideration. Also, V.P. has failed to explain why I should have focused solely on the 1.5 years pre-accident. As such, this argument falls short of the threshold under Rule 18.2.
Contemporaneous reporting in the medical documentation
10V.P. submits that I made an error of fact by ignoring contemporaneous reporting in the medical documentation. V.P. is referring to an October 15, 2019 note whereby the chiropractor refers to her as “passive and depressed”.
11Unica submits that the chiropractor’s note fails to be the type of contemporaneous reporting that would support V.P.’s claim that she suffered psychological impairment as a result of the accident.
12At paragraph 8 of the decision, I stated that I placed very little weight on the diagnosis of the chiropractor who is not trained to assess symptoms of concussion and migraine. Further, a chiropractor is not trained to diagnose psychological impairments. On review, I in fact addressed the evidence of the chiropractor and placed little weight on this evidence.
13I have already dealt with the chiropractor’s statement at first instance and reconsideration is not an avenue to reargue a position that already failed at the initial hearing.
Requirement of a psychological assessment for a psychological assessment
14V.P. submits that at paragraph 11 of the decision, I state that “there was no objective testing to obtain a formal diagnosis to determine the extent of V.P.’s psychological symptoms.” Her position is that I made an error of law and fact by requiring a psychological assessment to support the need for the disputed OCF-18, which was for a psychological assessment.
15Unica submits that V.P. does not clearly set out what error of law and fact is alleged. I agree.
16V.P. appears to re-argue her position that the in-person interview and contemporaneous documentation of her psychological symptoms establishes that the OCF-18 was reasonable and necessary.
17I reject V.P.’s request for me to reweigh the evidence because I have already weighed the evidence that she is relying. Reconsideration is not an avenue to reargue the same position and such an option is not available simply because V.P. disagrees with the process of the discretionary weighing of evidence.
18On reconsideration, V.P. has failed to establish that I made an error of fact and law that likely would have resulted in a different decision had the error not been made.
Dr. Pilowsky’s diagnosis
19V.P. submits that in order for the psychological testing to be reasonable and necessary, the law does not require that objective testing be provided beforehand. I agree. However, I did state at paragraph 11, that there was no report from Dr. Pilowsky that supports V.P.’s alleged psychological impairment. This is significant, as mentioned in paragraph 10 above, Dr. Pilowsky was a treatment provider, and yet her notes do not clearly set out what psychological disorder V.P. suffers from. I agree her notes provide some insight as to what symptoms V.P. suffers from, however there is no diagnosis. Had Dr. Pilowsky not provided several sessions of treatment, there may be reasons to consider evidence beyond her notes in support of V.P.’s claim. I find it difficult to find in her favour when the treatment provider did not provide some sort of report based on the treatment received at the time the OCF-18 was submitted, that would have supported the claim for the assessment.
20While I appreciate that V.P. reported various symptoms to Dr. Pilowsky, and received treatment, a more fulsome summary or report from Dr. Pilowsky may have been helpful. However, in considering the evidence on a whole, in addition to the lack of recommendation or referrals from the family physician for psychological treatment, I was not persuaded that the psychological assessment was reasonable and necessary.
CONCLUSION
21I have considered the parties’ submissions, and I decline to vary my decision at first instance. V.P. has not pointed to any significant error of law or fact that would have any bearing on my initial weighing of the evidence before me, and consequently, my decision to deny her request for the disputed OCF-18. As such, she has failed to meet the test set out in Rule 18.
22As no benefit is payable, it follows that an award or interest is also not payable. For these reasons, her request for reconsideration is denied.
Derek Grant
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: October 13, 2021