RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
File: 19-004279/AABS
Case Name: T.A. v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Davide V. Cortinovis, Counsel
For the Respondent: Al Alilovic, Counsel, Did Not Appear
OVERVIEW
1T. A. (“applicant”) filed this Request for Reconsideration. It arises out of a decision in which I found the applicant sustained minor injuries as defined by the Schedule and as a result is subject to the $3,500.00 funding limit in the Minor Injury Guideline (“MIG”). I also found that the applicant is not entitled to income replacement benefits (“IRB”) in the amount of $400.00 per week from November 26, 2018 to February 20, 2020 (“period in dispute”).
2The applicant makes this request 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) (“LAT Rules”). The applicant did not specify what parts of Rule 18.2 are relied on. However, the applicant submits that I made a significant error of law or fact in finding that the applicant falls within the MIG and in finding that the applicant is not entitled to IRB for the period in dispute.
3Under Rule 18.2 of the LAT Rules a request for reconsideration will not be granted unless one of more of the 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; or
(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.
4The applicant also requests an extension of time to receive and hear this Reconsideration because he has been delayed in making the request for reconsideration by the Covid 19 pandemic. The Tribunal’s Associate Chair extended the time limit for the request for reconsideration on October 19, 2020.
5No submissions were made by TD Insurance Meloche Monnex (“respondent”).
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7I find that I did not make an error of law or fact such that I would likely have reached a different result had the error not been made in finding that the applicant’s injuries are within the MIG. It was open to me to do so on the record before me.
8I applied the correct test in determining that the applicant sustained minor injuries. Although the applicant submits that I failed to consider the evidence of Dr. Jeyashankar and the “history” of the applicant, having reviewed the Decision I find that all of the applicant’s evidence and submissions made at the hearing were reviewed. I found no persuasive medical evidence that the applicant should be removed from the MIG. This finding was reached after a thorough review of the applicant’s evidence. I weighed his evidence and found on a balance of probabilities that it was not persuasive evidence of non-minor physical injury which would warrant the applicant’s removal from the MIG. In my analysis of the applicant’s evidence I found no persuasive evidence of a chronic pain condition which would preclude his recovery with the MIG.
9At the hearing, the applicant did not make the submission that he had pre-existing conditions of headaches, vertigo and dizziness which would remove him from the MIG nor did he provide compelling documented medical evidence that he suffers from a pre-existing medical condition that prevents him from achieving maximum medical recovery if restricted to the MIG.
10I find that I did not make an error of law or fact such that I would likely have reached a different result had the error not been made in finding that the applicant is not entitled to IRB for the period in dispute.
11Although the applicant submits that I failed to consider that the applicant was credible and considered forthright by the insurer examination doctors (“IE”) when he stated he physically could not do his job, having reviewed the Decision I find that all of the applicant’s evidence and submissions made at the hearing were reviewed as were the respondent’s evidence and submissions. The applicant’s evidence regarding his entitlement to IRB was found to be lacking for the reasons expressed in paragraphs 27, 28, 29 and 30 of the Decision leading to the conclusion in paragraph 31. In the Decision there is explanation of why findings of fact were made and conclusions reached. I am not required to refer to and list every piece of evidence or submission in the Decision.
12The applicant submits that I misapplied the IRB test for pre-104-week benefits. I have reviewed the Decision. The correct legal test is set out in paragraph 9 and the correct analysis in paragraphs 24, 25, 26, 27, 28, 29, 30 and 31 of the Decision.
13The applicant submits that I erred in considering the IE report of Dr. Czok and in not considering the evidence of IE doctors Dr. Moshiri and Dr. Polygenis. The onus of proof of entitlement to IRB is on the applicant and, having considered the totality of the evidence, I found that the applicant failed to meet his onus of proof as expressed in paragraph 31 of the Decision.
14The applicant also submits that had I placed more weight on the applicant’s evidence than Dr. Czok’s evidence, “the IRB issue would have resulted in favour of the applicant”1. The weight to be given to evidence at the hearing is a matter to be determined by the adjudicator. I found the applicant’s evidence lacking and provided reasons for doing so.
15I find no misapprehension of the evidence or errors of law or fact were made. The conclusion reached is reasonable based on the record before me at the hearing and does not constitute an error of law or fact that likely would have caused me to reach a different decision.
16I find that the applicant has not established his grounds for reconsideration. The grounds for reconsideration of a Tribunal decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Here, because the applicant has requested reconsideration, the onus is on the applicant to prove his grounds and he has not done so. Instead, the applicant’s submissions appear to be an attempt to reargue the case in a new way. A reconsideration is not an opportunity to reargue one’s case.
CONCLUSION
17For the reasons noted above, I dismiss the applicant’s request for reconsideration.
Avril A. Farlam
Vice Chair
Released: January 25, 2021