Satbir Sidhu v. TD General Insurance Company, 2021 CanLII 53161

19-009840/AABS – R

RECONSIDERATION DECISION

Before: Rebecca Hines, Adjudicator

Date: June 17, 2021

File: 19-009840/AABS

Case Name: Satbir Sidhu vs. TD General Insurance Company

Written Submissions by:

For the Applicant: Alim Ramji, Counsel

For the Respondent: Joseph P. Hogan, Counsel

OVERVIEW

1This reconsideration request follows a Tribunal decision dated November 10, 2020 in which I determined that the applicant sustained a minor injury and was subject to the monetary limit provided for in the Minor Injury Guideline (“MIG”). I also determined that she was not entitled to treatment plans for medical benefits, cost of examination expenses or interest.

2The applicant has requested a reconsideration of my decision and argues that I made several significant errors of fact and law in my determination of the issues before me. In addition, she submitted new evidence that she maintains was not available at the time of the hearing which could have affected the result.

3The respondent opposes the request for reconsideration and submits that my decision does not contain a reviewable error. It submits that the applicant’s reconsideration request is an attempt to reargue her case which ultimately failed at the hearing. In addition, the applicant’s submission of new evidence on this reconsideration request should not be allowed as that evidence was available at the time of the hearing. Further, she failed to submit any proof that this evidence could not have been obtained prior to a determination being made in this matter. Finally, the applicant has failed in her onus to prove that I made an error of fact or law that would result in a different decision.

RESULT

4After reviewing the parties’ submissions and evidence, I order as follows:

(i) The applicant’s reconsideration request is dismissed.

RECONSIDERATION CRITERIA

5The grounds for a request for 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 (“Rules”).

6Rule 18.2 states that a request for reconsideration will not be granted unless one or more 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, which could not have been obtained earlier and would likely have affected the result.

7The following remedies are available to the Tribunal on a request for reconsideration:

(i) dismiss the request;

(ii) confirm, vary or cancel the decision or order; or

(iii) order a rehearing on all or part of the matter.

8The applicant requests that I cancel my decision and make an alternative finding that she did not sustain a minor injury and is entitled to the disputed treatment plans and interest.

9The applicant relies on Rule 18.2 (b) and argues that I made a significant error of law by finding that her accident related impairments fit within the MIG. In particular, she alleges that I erred:

a) By not assigning the appropriate weight to her assessors’ opinions in determining that she does not suffer from chronic pain and a psychological impairment in determining that her impairments fit within the MIG;

b) By providing insufficient reasons for why I preferred the insurer examination (“IE”) of Dr. Baker over Dr. Siddiqui in my analysis of the evidence on chronic pain;

c) By incorrectly interpreting and applying the case law relied upon by the applicant to the facts of this case; and

d) In my assessment of the applicant’s credibility.

10The applicant also relies on Rule 18.2(d) and requests that I consider new evidence filed on this reconsideration request as it was not available at the time of the hearing and would have likely affected my decision.

11The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. Likewise, the test to be met on a request for reconsideration under Rule 18(d) requires the new evidence that was unavailable at the time of the hearing, would likely have affected the result.

ANALYSIS

Did I error in law in my determination that the applicant’s accident-related impairments fall within the MIG?

12I do not find that I made an error in law or fact in my determination that the applicant’s accident-related impairments fall within the MIG. At the hearing, the onus was on the applicant to prove on a balance of probabilities that her accident-related impairments were not minor and did not fit within the MIG. Based on the evidence before me, I determined that the applicant did not meet her onus and that her accident-related impairments fit within the MIG. Further, I provided detailed reasons for why I did not accept the applicant’s expert’s evidence. I agree with the respondent that the applicant’s reconsideration request is an attempt to relitigate her position that already failed at the hearing. Since the applicant has made several allegations, I will address each in turn.

Assessment of Credibility

13The applicant argues that I made a significant error of law and fact by questioning her credibility. Throughout my decision I highlight inconsistencies in the evidence as well as the applicant’s self-reports to assessors about her symptoms and functional limitations. I find the applicant’s argument has no merit. Assessing credibility is an important part of the decision-making process and was completely within my role as an adjudicator to address based upon the evidence before me. The applicant has not submitted any evidence to support her position that I erred in assessing her credibility, nor did she submit any authority to support it is outside of my jurisdiction as an adjudicator to address credibility. Consequently, I find I made no error of law or fact in this regard.

Chronic Pain

14The applicant submits I erred by not applying the appropriate weight to Dr. Siddiqui’s opinion that she suffers from chronic pain as a result of the accident. The applicant contends that I should have preferred Dr. Siddiqui’s opinion over Dr. Baker, the IE assessor.

15The respondent argues that the applicant is attempting to relitigate issues that already failed at the hearing. Furthermore, it submits that I gave very detailed reasons in my decision to support why I preferred the evidence of its expert over the applicants’.

16I agree with the respondent that the applicant is asking the Tribunal to reweigh the evidence submitted for the initial hearing because she disagrees with my decision. As highlighted by the case law submitted by the respondent the purpose of the reconsideration process is not to relitigate matters that already failed at the hearing.¹ In paragraphs [17] to [24] of my decision I provide very detailed reasons for why I did not accept Dr. Siddiqui’s opinion. My main reasons can be summarized as follows:

(i) The doctor relied on the applicant’s self-reports and did not review any medical documentation in completing the assessment, and the diagnosis was not supported by any objective evidence [para 18];

(ii) The doctor concluded that the applicant had limitations in all aspects of life (including her employment) which resulted in a loss of competitive advantage. I determined that this was not supported by the employment file which undermined both the applicant’s credibility in reporting her functional limitations and the value of Dr. Siddiqui’s opinion [paras 18,19 and 20]; and

(iii) The functional limitations and impairments noted by Dr. Siddiqui were inconsistent with the other evidence before me. For all of these reasons, I gave his opinion little weight [para 21].

17The applicant has failed to convince me that I erred in assessing the value of Dr. Siddiqui’s evidence. However, I acknowledge I made two ultimately inconsequential errors in reviewing and analysing Dr. Siddiqui’s findings. First, the applicant alleges that I made an error of fact in paragraph [18] of my decision where I state that Dr. Siddiqui’s assessment was based entirely on the applicant’s self reports and that the physical examination did not reveal anything abnormal. The applicant submits that this was not accurate as the doctor’s physical examination revealed that she had diffuse tenderness to palpation bilaterally in her shoulders and thoracolumbar spine. I agree that my description of Dr. Siddiqui’s examination findings was not accurate; however, I do not accept that this error affected the outcome because, it was not important to my finding.

18Second, the applicant submits that I erred by giving my own medical opinion about the fact that Dr. Siddiqui noted that the applicant was not in any acute distress during his examination by stating “In my opinion, this is not typical of someone suffering from chronic pain.” The applicant submits that I am not a medical doctor and it was an error for me to give a medical opinion. I acknowledge I made an error in finding that the applicant’s conduct during Dr. Siddiqui’s examination was inconsistent with chronic pain. However, this one finding was not central to my overall determination. Dr. Siddiqui’s opinion was not supported by the other evidence such as the sparse CNRs of the walk-in-clinics and records of Complete Rehab. Further, the doctor’s opinion about her functional limitations were wholly inconsistent with her employment file.

19The applicant has failed to convince me that I misapprehended the evidence in the weight I assigned to Dr. Siddiqui’s report, or that I made an error in law that would result in a different decision. As highlighted by the case law submitted by the respondent, the threshold to be successful on a reconsideration request is a high one. Minor inconsequential errors do not meet that high threshold for success on a reconsideration request.²

20The applicant also maintains that I erred in law because I provided insufficient reasons for why I preferred Dr. Baker’s opinion over Dr. Siddiqui’s. In paragraph [22] of my decision I state that I preferred Dr. Baker’s opinion because it was more consistent with the evidence before me. I disagree with the applicant that I provided insufficient reasons. Throughout the decision I provided a very thorough overview of the evidence relied upon by the applicant along with reasons for why I did not find it persuasive.

21The applicant also submits that I erred in law and fact because I did not give enough evidentiary weight to the fact that the applicant’s pain lasted beyond six months post-accident and resulted in functional limitations. Consequently, I incorrectly applied the legal principles highlighted by the Executive Chair’s reconsideration decision in T.S. v, Aviva³. In analysing the application of T.S. v. Aviva to the applicant’s case in paragraph [24] of my decision I state:

I find this case distinguishable from the one before me as the insured in T.S. v. Aviva was diagnosed with chronic pain syndrome by a medical expert which the adjudicator accepted. The insured in that case was successful on the request for reconsideration as the adjudicator determined that chronic pain syndrome was covered by the MIG. In the present case, I do not accept that the applicant’s diagnosis of chronic pain as I do not find it is supported by objective evidence, and I find the evidence about her functional limitations inconsistent.

22I disagree with the applicant that I incorrectly applied T.S. v. Aviva to the facts of this case. The applicant also submitted the reconsideration decision of this Tribunal in P.L. v. Aviva⁴ in support of her position that I erred in applying the definition of chronic pain to the facts of her case. In P.L. v. Aviva the Vice Chair upheld the adjudicator’s decision which determined that the applicant was removed from the MIG as a result of chronic pain. I do not find this decision helpful to the applicant’s reconsideration request as the insured in that case sustained an injury to their spine (confirmed by a CT scan), and suffered degenerative changes resulting in a chronic pain disorder which was well documented in the medical records. These facts do not apply to the present case. Important to my determination in this matter, was a lack of corroborating medical evidence to support that the applicant suffers from ongoing pain that affected her ability to function, and inconsistencies in how she reported her functional limitations. The applicant has failed to convince me that I incorrectly applied the jurisprudence regarding my determination of whether she suffers from chronic pain as a result of the accident.

Psychological Impairment

23The applicant also argues that I erred in finding that she did not sustain a psychological impairment as a result of the accident that would remove her from the MIG. The applicant maintains that I should have applied more weight to the psychological report of Dr. Mills and consequently, determined that the applicant was removed from the MIG as a result of a psychological impairment. I disagree as in paragraphs [32] to [35] I provide detailed reasons why I did not find Dr. Mill’s report persuasive. The applicant was inconsistent in reporting her symptoms throughout the records, and the doctor did not review any medical documentation in completing the assessment.

24The applicant submits that I erred in law in paragraph [33] of my decision where I note that the applicant’s self-reported psychological symptoms on screening forms in Complete Rehab’s clinical notes and records (“CNRs”) were inconsistent. The applicant asserts that my finding is not accurate as there are gaps in the timelines of the four screening forms dated October 31, 2018, November 19, 2018, March 13, 2019 and March 29, 2019. The applicant contends that the gap in between the dates were due to improvement or worsening of symptoms. As a result, she maintains that I incorrectly characterized her varying responses as inconsistent and thus erred in assigning less weight to Dr. Mill’s report. I disagree that I improperly characterized this evidence. Moreover, this was not the only example of the inconsistencies highlighted in my decision. For example, in paragraph [32] of my decision I note that the applicant reported her psychological symptoms inconsistently to her own assessors and the assessments were completed on the same day. The applicant has failed to persuade me that I misapprehended the evidence or made an error in fact or law in rendering my decision.

25The applicant also argues that I erred in law by preferring the IE psychological report of Dr. Rubenstein over the report of Dr. Mills. The applicant states that in her submissions for the hearing she submitted that Dr. Rubenstein’s report should be given less weight because the doctor did not review the report of Dr. Mills in completing the assessment. In addition, Dr. Rubenstein did not ask the applicant about post-accident psychological symptoms, explain the results of the psychometric testing, or conduct validity testing. The applicant submits that I erred in law by not commenting or elaborating on these issues in my decision and that I erred in assigning more weight to Dr. Mill’s report. I disagree as I did address why I preferred Dr. Rubenstein’s evidence over Dr. Mills’ in paragraph [35] of my decision. Further, I agree with the respondent that there is no requirement that the Tribunal refer to or address every argument made or piece of jurisprudence referred to by a party in their submissions.⁵ Overall, I find my decision clearly explains how I came to my determination on whether or not the applicant sustained a psychological impairment in the accident that would remove her from the MIG.

Submission of New Evidence

26The applicant asserts that I made a significant error in law by stating in paragraph [34] of my decision that the applicant’s psychological complaints of sleeping difficulties, anxiety, panic attacks complained about at the walk-in clinics were not accident related. The applicant referred to her pre-accident OHIP Summary and the CNRs of Dr. Okafor in support of her position that she did not have any pre-accident psychological issues.

27The applicant submitted the CNRs of Dr. Okafor for the first time in her reconsideration request to support her position that she did not have any pre-accident psychological symptoms. These CNRs were not submitted for my consideration at the hearing and the applicant provided no explanation for why she is relying on them now as part of the reconsideration process. Rule 18.2(d) provides that in order to satisfy the test there must be some proof that the evidence could not have been obtained earlier.

28The respondent argues that despite the fact that the applicant had these records in her possession in advance of the deadline for her submissions and written hearing date, she did not rely on them at the hearing. Further, the respondent argues that it was first served with these records on December 11, 2020, which is the date the applicant filed her reconsideration request. The respondent submitted case law in support of its position that the reconsideration process is not an opportunity for the losing party to relitigate their position or advance new arguments that should have been made at first instance.⁶ I agree with the respondent that it is inappropriate for the applicant to now rely on this evidence as part of the reconsideration process. This record was in the applicant’s possession in advance of the hearing and it does meet the standard of Rule 18.2(d) of the Rules. Therefore, I will not be considering this evidence, and conclude that I did not error in my finding that there was no evidence that the complaints made by the applicant were accident-related.

29The applicant also submitted a CNR of Dr. Rai (a doctor of a walk-in clinic) dated June 9, 2020, which she maintains is being submitted as new evidence as it complies with Rule 18.2(d) of the Rules. The CNR notes that the applicant attended the clinic to request a refill of Elavil, which she reported taking for two years for sleep and anxiety. The note states that “her symptoms started after an mva two years ago.” The applicant argues that the CNR of Dr. Rai could not have been obtained earlier as it post-dated the production deadline as well as her written submissions. The applicant submits that if this evidence was before me it would have affected my decision.

30The respondent argues that the applicant could have submitted this CNR prior to the release of my decision in November 2020, but no explanation was provided for why she did not. As a result, this new evidence should not be considered as the applicant is attempting to bolster her position after being unsuccessful at the hearing. In addition, it contends that this CNR is of limited value as the applicant had no prior relationship with Dr. Rai before her visit of June 9, 2020, and, the doctor simply took note of the applicant’s subjective reporting of her symptoms, treatment and link to the accident. Consequently, this evidence would not result in an alternative decision.

31I agree with the respondent that the CNR of Dr. Rai submitted by the applicant on this reconsideration request is of limited value and would not have resulted in a different result. I agree that there is no evidence that the applicant had an ongoing doctor-patient relationship with Dr. Rai, and, there is no evidence that the doctor reviewed any medical records detailing the applicant’s medical history. Further, I find the doctor’s entry in the CNR was based on what the applicant reported to the doctor about her symptoms, treatment, and that the accident was the cause of her complaints. Therefore, I conclude that it would not have affected the result of my determination in this matter.

32The applicant has not met her onus in proving that I made an error in law that would result in a different decision, or convinced me that the new evidence she intends to rely would have affected the result.

CONCLUSION

33For all of the above-noted reasons:

(i) The applicant’s reconsideration request is dismissed.

Rebecca Hines

Adjudicator

Licensing Appeals Tribunal

Tribunals Ontario

Footnotes

1. 116-001031 v. Aviva Insurance Canada, 2017 CanLII 43880 (ON LAT), Tab 5, at para 18.
2. 2The Applicant v. The Guarantee Company of North America, 2018 CanLII 130858 (ON LAT), Tab 1, at para 8.
3. 3T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT).
4. 4P.L. v. Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT)
5. 516-001031 v. Aviva, at para. 22.
6. 6The Applicant v. The Guarantee Company of North America, 2018 CanLII 130858 (ON LAT).