RECONSIDERATION DECISION
Before: Paul Gosio, Adjudicator
File: 19-002048/AABS
Case Name: Chandrakumar Chandrasegari vs. Aviva General Insurance
Written Submissions by:
For the Applicant: Davide V. Cortinovis, Counsel
For the Respondent: Maggie Morgan and Jean-Claude Rioux, Counsel
OVERVIEW
1The applicant’s request for reconsideration arises out of a Decision released on September 23, 2020 (the “Decision”) wherein the Tribunal found that the applicant was not entitled to an income replacement benefit. The applicant submits that the Tribunal made a significant error of law and fact such that the Tribunal would likely have reached a different decision if the error had not been made.
2With respect to the error in law, the applicant submits that the Tribunal improperly applied the but-for test without giving the appropriate consideration to the applicant’s experts, Dr. Friedlander and Dr. Goldstein.
3With respect to the error in fact, the applicant submits that the Tribunal misinterpreted the facts by placing more weight on the applicant’s pre-existing condition over the applicant’s expert’s who opined that the applicant was entitled to an income replacement benefit due to his chronic pain syndrome.
4The applicant submits that the Tribunal would likely have reached a different result had the errors not been made and seeks an Order “reversing” the aforementioned Decision.
5The respondent submits that the Tribunal made no error of law or fact and as a result, the applicant’s request for a reconsideration under Rule 18.2 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”) should be dismissed.
RESULT
6After reviewing the submissions of the parties and for the reasons articulated below, I have dismissed the applicant’s request for reconsideration.
ANALYSIS
A. Error in Law
Improperly Applying the “But For” Test
7The applicant submits that the adjudicator erred in law by improperly applying the but-for test without giving the appropriate consideration to the applicant’s experts, Dr. Friedlander and Dr. Goldstein.
8At the hearing, the applicant took the position that his accident related chronic pain syndrome and resulting impairments entitled him to an income replacement benefit. The respondent took the position that the applicant was already substantially unable to perform the essential tasks of his pre-accident employment prior to the accident and was therefore not entitled to the income replacement benefit as claimed. The hearing adjudicator agreed with the respondent’s submissions and in his analysis, applied the “but for” test as articulated in Sabadash v. State Farm et al., 2019 ONSC 1121 and Agyapong v. Jevco Insurance Co., 2018 ONSC 878. This is the established test to determine causation and the hearing adjudicator properly reviewed and weighed the evidence within this context. As a result, I find no error in law in this respect.
B. Error in Fact
9The applicant submits that the Tribunal misinterpreted the facts by placing more weight on the applicant’s pre-existing condition over the applicant’s experts who opined that the applicant was entitled to the income replacement benefit as claimed due to his chronic pain syndrome. I do not agree with the applicant’s submission and find no error in fact in this regard.
10The exercise of weighing evidence is well within the prerogative of the hearing adjudicator. The hearing adjudicator, based on the evidence before him, found that the causal connection between the applicant’s entitlement to an income replacement benefit had not been made. The applicant’s attempt to re-argue a point that was made at the initial hearing is inappropriate.
CONCLUSION
11For the reasons noted above, I find that the applicant has failed to establish that the Tribunal made any error in law or fact such that Decision should be reconsidered. The applicant’s request for reconsideration is dismissed.
Paul Gosio, Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: November 8, 2021