S.N. v. Certas Direct Insurance Company
RECONSIDERATION DECISION
Before: Asad Ali Moten
Tribunal File Number: 18-012376/AABS
Case Name: [S.N.] v. Certas Direct Insurance Company
Written Submissions by:
For the Applicant: Rajwant Singh Bamel
For the Respondent: Aida Davari
OVERVIEW
1The applicant seeks a reconsideration of a June 17, 2020 decision (the “Decision”) in which I determined that the applicant’s injuries fell within the minor injury guideline (the “MIG”). I further determined that, given my finding with respect to the MIG issue it was unnecessary for me to determine the applicant’s entitlement to various medical benefits and costs of examination, whether there was a basis for an award pursuant to Ontario Regulation 664, or if any interest was payable.
2The applicant submits that in making the Decision I erred in fact and law such that I would have likely reached a different decision had the error not been made and that I acted outside the Tribunal’s jurisdiction or violated the rules of procedural fairness. In his written submissions, however, the applicant does not address the latter ground and I therefore will not consider it in this reconsideration.
RESULT
3The applicant’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for the request of reconsideration are contained in 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), as amended (the “Common Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met.
5The applicant relies on Rules 18.2(a) and 18.2(b), namely that the Tribunal (a) acted outside of its jurisdiction or violated the rules of procedural fairness; and (b) made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The applicant’s written submissions, however, center entirely around Rule 18.2(b). As the applicant has made no submissions under Rule 18.2(a), I will not consider that issue here.
6The applicant requests a reconsideration of all the issues in dispute in the Decision. What this is really about, however, is the threshold issue of whether the applicant suffered predominantly minor injuries. In the Decision, I concluded that the applicant had suffered predominantly minor injuries.
7It does not appear that the applicant is arguing that I made an error of law. By process of elimination then, the applicant alleges that I made errors of fact in weighing the evidence. The thrust of the applicant’s argument appears to be that where the respondent has not submitted controverting medical evidence or undertaken independent medical examinations, the Tribunal cannot second guess the only medical evidence before it, namely that of the applicant.
8The applicant suffered injuries that fit in four broad categories. I will consider the applicant’s reconsideration submissions on each of those categories in turn:
a. Physical injuries: the applicant’s own evidence indicates that, except for as described and analysed in the Decision, the physical injuries suffered all fall squarely within the definition of ‘minor injury’ under the Schedule.1 The applicant has not pointed me to any misapprehension of the evidence in this regard. I conclude, therefore, that the applicant cannot succeed on this ground.
b. Pre-existing condition: the applicant has not addressed at all how I may have misapprehended the evidence with respect to the impact of the applicant’s pre-existing chest pains (which appear, from the record, to be cardiovascular) on his ability to achieve maximal recovery. I can only assume this is because the evidence does not disclose an answer to this question. Consequently, I cannot conclude that the applicant has made out his onus and the applicant cannot succeed on this ground.
c. Chronic pain: in the Decision, I described that I could not rely on the report completed by the applicant’s health care provider because (a) I found that the applicant was less than forthcoming during the assessment; and (b) the provider stopped short of finding chronic pain syndrome, noting that the applicant was experiencing chronic pain. In his reconsideration submissions, the applicant reiterates arguments made during the original written hearing, without explaining how, in his view, I have misapprehended the evidence in light of the legal test that there need be more than simply an identification of chronic pain. There must be evidence that chronic pain is the predominant injury and causes functional impairment or that the applicant suffers from chronic pain syndrome. In this case, I found that the evidence did not indicate either, and the applicant has failed to convince me otherwise.
d. Psychological injuries: the applicant argues that I have put the cart before the horse by finding that the pre-screening did not disclose what psychological conditions the applicant suffered from. This is an interesting argument. The applicant argues that my finding would lead to an absurd outcome where every proposed psychological assessment would require a psychological assessment to support it. In my opinion, however, the opposite scenario is also true, and more applicable in this instance. Without at least a threshold level of reporting and analysis by the health care professional conducting the pre-screening, every claim for a psychological assessment would be justified on simply self-reported symptoms. And while it is true that the Tribunal can and should look at the totality of the evidence when determining if there exists a psychological condition that warrants removal from the MIG and a psychological assessment, in this case the totality of the evidence does not assist the applicant. For the reasons described in the Decision, which have not been disputed in the applicant’s reconsideration submissions, the applicant’s evidence is unreliable.
9Further, the applicant’s request rests heavily on the argument that the respondent did not produce reliable expert evidence to contradict the applicant’s evidence. The burden, however, rests with the applicant to prove that he is entitled to the benefits claimed by virtue of the fact that he is not suffering from predominantly minor injuries, and not with the respondent to disprove it.
10Lastly, I note that the applicant largely rehashes the arguments made at the original written hearing. This indicates that the applicant simply disagrees with the Decision. He is allowed to do so, but the grounds for a reconsideration of the Decision require more than simply not liking an outcome.
CONCLUSION
11It is trite to state that a reconsideration is not an opportunity to re-litigate the original hearing. It is instead, an opportunity for the party seeking reconsideration to point out to the Tribunal the basis for seeking reconsideration, to put forward arguments in support of that basis, and to point to evidence on the record, new evidence, or relevant case law applicable to those arguments. For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Released: June 17, 2021
Asad Ali Moten
Adjudicator