RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Licence Appeal Tribunal File Number: 20-001066/AABS
Case Name: Lisa Caputo v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Sana Jaffery, Paralegal Ramy Akladios, Counsel
For the Respondent: Nabila Majidzadeh, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated September 21, 2021 in which I found that the applicant had not demonstrated that two OCF-18s or interest were reasonable and necessary.
2The applicant submits that I made a significant error of fact such that the Tribunal would have likely reached a different decision had it not been made, arguing that I did not consider the impact of the suspension of passive rehabilitation on her pain relief and did not address the impact of suspending treatment on her function. The applicant submits that the OCF-18s were reasonable and necessary and asks that I vary the decision to make them payable with interest.
RESULT
3The applicant's request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (as amended) (“Common Rules”). The applicant’s request relies on criteria 18.2(b): that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5The test for reconsideration under Rule 18.2(b) involves a high threshold. Reconsideration 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. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence. In a similar vein, an adjudicator is not required to refer to every piece of evidence or submission before them.
6While I am alive to the arguments in her submissions, I find the applicant’s assertions can be whittled down to a disagreement over the weight that I assigned to the evidence at first instance, particularly the recommendations of her family physician, Dr. Langer, regarding passive therapy. It is well-settled that this is not the purpose of reconsideration. The function of an adjudicator is to assign weight to the evidence before them to arrive at a determination.
7On review of my decision, I assigned greater weight to the s. 44 report of Dr. Walters which I found was more in line with the applicant’s reporting and the notes of Dr. Langer. I discounted the report of Dr. Karmy because I found it was not proportional to the bulk of the medical evidence or the applicant’s reported function.
8At para. 8 of the decision, I acknowledged that pain relief is a legitimate goal for treatment, but determined that “at over two-years post accident, I agree with Dr. Walters that where there is no objective injury, it is unlikely that the applicant would benefit from further passive treatment for what appears to be soft-tissue injuries.” Further, at para. 9, I addressed the applicant’s functional claims, noting that she “reported to Dr. Walters that she had returned to playing softball, was riding her recumbent bike, had returned to work, demonstrated full functional range of motion in her back and shoulders and was not taking any pain medication,” which led to my finding that “it is difficult to accept that the treatment proposed is reasonable and necessary to achieve the stated goals.” Contrary to the applicant’s claim, I find that I did consider the impact of the suspension of passive therapies.
9Moreover, while the applicant asserts that I made errors of fact, my decision also turned on the applicant’s failure to meet her burden to address the stated goals. At paras. 8 and 12 of the decision, I noted that the applicant’s submissions did not sufficiently engage with the reasonable and necessary criteria to satisfy her burden of proof—which I properly articulated at para. 4 of the decision—to demonstrate that the passive treatment in the OCF-18s was required. While I appreciate that the applicant would prefer that I weigh the evidence differently, I find no errors of fact that would have changed the outcome of my decision.
CONCLUSION
10The applicant’s request for reconsideration is dismissed.
Jesse A. Boyce
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: November 26, 2021