RECONSIDERATION DECISION
Before: Theresa McGee, Vice-Chair
Tribunal File Number: 19-012308/AABS
Case Name: Quan Que Tran v. Certas Home and Auto Insurance
Written Submissions by:
For the Applicant: Philip Kai Kwong Yeung, Paralegal
OVERVIEW
1The applicant requests reconsideration of a decision dated March 30, 2021 (the “decision”). In the decision, the Licence Appeal Tribunal (the “Tribunal”) found the applicant was not entitled to an income replacement benefit, the cost of a psychological assessment, interest or an award. The applicant submits that the Tribunal erred in fact and law and that the Tribunal would likely have reached a different conclusion if the errors had not been made.
RESULT
2The request for reconsideration is dismissed.
ANALYSIS
3The grounds for a request for reconsideration are contained in 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 (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:
i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
ii. 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;
iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
iv. 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.
Errors asserted by the applicant
4The applicant submits that in finding that she is not entitled to an income replacement benefit, the Tribunal omitted consideration of her knee condition, which required surgery, as well as her impairments in her shoulders, neck and head. The applicant objects to the weight the Tribunal gave to a clinical note of Dr. Hong, dated March 13, 2019: that note, the applicant submits, affirms that she was unable to work due to injuries sustained in the accident.
5The applicant submits that in finding the proposed Psychological Assessment not reasonable and necessary as a result of the accident, the Tribunal erred because it placed little weight on the Psychological Assessment of Ms. Mandy Fang and Dr. Sharleen McDowall. The applicant submits the Tribunal also erred in its conclusion on the Psychological Assessment issue, because at para. 23 of the decision, it found that she experienced psychological sequelae as a result of the accident.
The income replacement benefit determination
6The Tribunal did not omit consideration of the applicant’s knee injury. The applicant’s 2020 knee surgery is contemplated at para. 23 of the decision. The Tribunal’s determination of whether the applicant met the test for an income replacement benefit at the relevant time turned on other factors. The Tribunal’s analysis of the income replacement benefit issue begins at para. 12. The Tribunal found:
i. the applicant worked full-time without modified duties from March 26, 2018 to November 1, 2018;
ii. despite the evidence of the applicant’s family physician, Dr. Melina Hong, that the applicant had “muscle aches” that were “worse after work”, she has not presented evidence to show that she was substantially unable to perform the essential tasks of her employment during the relevant period; and
iii. the applicant has also failed to show that her layoff from work was related to her performance or to any accident-related impairment.
7The only evidence the applicant tendered to show that she was laid off due to the accident and not her employer relocating its manufacturing plant to Mexico is a single clinical note, uncorroborated by other evidence and of little evidentiary weight on its own. The clinical note stated “she can’t continue working due to her recent MVA […] she wants to continue to work”. The Tribunal gave three reasons for attaching little weight to the clinical note:
i. the note referred to the applicant being “not that happy today” after receiving a recent call “regarding her MVA/insurance”;
ii. it was the first mention in Dr. Hong’s clinical notes and records of any distress related to her employment situation in well over a year;
iii. the note is contradicted by the applicant’s remarks to Dr. Hong nearing the time of her layoff that she felt “relieved”.
8The Tribunal reasonably inferred from the clinical note’s reference to the applicant receiving a call about her insurance and from the absence of any other reference to any employment related distress in over a year that the visit to Dr. Hong was prompted by the respondent’s recent denial of the Psychological Assessment.
9In short, the applicant failed to meet her onus. She failed to support her submission that her contract extension was refused because of an accident-related impairment. On a balance of probabilities, the evidence shows that her layoff was due to a structural reorganization.
10Disagreeing with the weight the Tribunal has given to the evidence is not a basis for reconsideration. The applicant has identified no error of fact or law in the Tribunal’s analysis of the income replacement benefit issue, and certainly no error that would have resulted in a different outcome had it not been made.
The medical benefit determination
11The Tribunal did not err in finding that the applicant had failed to establish the reasonableness and necessity of the disputed Psychological Assessment. At para. 23 of the decision, the Tribunal held,
i. The medical records of Dr. Hong show that the applicant did experience psychological sequelae as a result of the accident. But those symptoms were effectively managed through OHIP-funded primary care, and evidently resolved within months of the accident. [Emphasis added.]
12The Tribunal’s determination that a Psychological Assessment was neither reasonable nor necessary is based on the fact that the applicant had been receiving care for her psychological symptoms from her primary care provider, who characterized those symptoms as “mild” and was evidently managing them effectively with counselling and medication. Dr. Hong made no outside referrals for psychological or psychiatric care. The symptoms were apparently resolved by August 2018.
13There is no dissonance between the Tribunal’s finding that the applicant’s mild psychological sequelae resolved within months of the accident and its conclusion that a Psychological Assessment, proposed nearly a year after the accident, was neither reasonable nor necessary as a result of the accident. The weight given to the Psychological Assessment report of Ms. Fang and Dr. McDowall was appropriate: the strength of their conclusions on the causation of any psychological impairment is significantly eroded by the lack of medical reports reviewed. Given that the applicant’s medical history was unknown to these assessors, the weight of their clinical findings and recommendations is minimal.
14The Tribunal did not err in its analysis of the medical benefit issue. The applicant has identified no factual or legal error, let alone an error capable of warranting reconsideration on the basis that the Tribunal would have reached another outcome if it had not been made.
15The applicant has not met her onus as the party requesting reconsideration of establishing any of the grounds set out in Rule 18.2 of the Common Rules. Because the applicant has not satisfied her onus, the Tribunal does not require submissions from the respondent. The request for reconsideration is dismissed.
CONCLUSION
16The applicant has failed to establish any of the asserted grounds for reconsideration. The Tribunal’s March 30, 2021 decision stands. The request for reconsideration is dismissed.
Theresa McGee
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: May 19, 2021