AMENDED RECONSIDERATION DECISION
Before: Robert Watt, Adjudicator
Tribunal File Number: 19-012732/AABS
Case Name: Rayon Sookram vs. Zenith Insurance Company
Written Submissions by:
For the Applicant: Lubman & Associates/Sheroz Karimov
For the Respondent: Laxton Glass LLP/Stacey Morrow
OVERVIEW
1This request for reconsideration was filed by the Applicant in this matter.
2This request arises out of a decision in which the Tribunal found that the applicant was not entitled to any non-earner benefits, assessments for chronic pain, cognitive assessment, and Functional Ultrasound of the Applicant’s shoulders and wrist.
3The issues that were before the Tribunal were: whether the applicant was entitled to a non-earner benefit, physiotherapy services, Functional Ultrasound of the shoulders and wrists, Chronic Pain Assessment, Cognitive Assessment and Psychological Assessment, interest and an award.
4The Tribunal found no medical and rehabilitation benefits were owing and no interest or award was owing.
5The Applicant submits that 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.
6The Applicant is seeking an order:
a. Varying the Tribunal’s decision on the issues set out in paragraph [2] above by ordering entitlement to NEBS from November 5, 2018 to October 6, 2020; cognitive and chronic pain assessments and functional ultrasound of the shoulders and wrist.; or,
b. For a rehearing on all of the matters, that were before the Tribunal.
RESULT
7The Applicant's request for a reconsideration is dismissed.
ANALYSIS
8The grounds for a request for reconsideration to be allowed 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 (“Common Rules”). A request for reconsideration will not be granted unless one or more of the following 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 would have 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 have affected the result.
9Reconsideration is only warranted in cases where an adjudicator has exceeded the Tribunal’s authority or violated the rules of procedural fairness, made a 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.
Non-earner benefit
10The applicant is re-arguing his case relating to section 36 of the Statutory Accident Benefits Schedule – Effective September 2010 (“Schedule”) and claiming that the respondent should be paying the NEB, because a proper denial was not given by the respondent. The applicant is also re-arguing his case that he produced enough evidence to support his entitlement to a NEB comparing pre- and post-accident facts. The applicant argues that the Tribunal failed to consider the evidence that he put forward.
11I determined the respondent’s response was valid as set out in paragraphs [19-20, 26]. I also determined in paragraphs [23]-[25] that the applicant did not provide enough evidence to meet the requirement that he has a complete inability to carry on a normal life.
12A reconsideration is not an opportunity to re-argue one’s case on an appeal.1 In this case, the Tribunal analyzed all evidence put before it. The Tribunal is not required to include every argument in its reasons or to make explicit finding on each constituent element leading to its conclusion.2
13I find that the Tribunal did not make any error of law or fact, such that the Tribunal would likely have reached a different result.
14The applicant’s position is that this treatment plan was incurred and was reasonable and necessary.
15There was no evidence before the Tribunal that the applicant suffered wrist injuries from the accident. The injuries were soft tissue injuries found by Dr. Belfon and Dr. Kakznov Kakzanov as set out in paragraphs [11], [15], [24], and [34] in the Tribunal’s decision. The applicant in any event admitted that his wrist injuries had healed.
16The applicant’s own admissions as to his ability to function as set out in paragraphs [15], [24] were also taken into account by the Tribunal.
17I find that the Tribunal did not make any error of law or fact, such that the Tribunal would likely have reached a different result.
18The applicant is re-arguing his original submissions on the evidence.
19The Tribunal made a finding that that there was no evidence that there was any neurological injury as a result of the accident. There was no medical evidence from William Osler Health Centre. The applicant’s family doctor, Dr. Kakzanov noted the applicant’s headaches, but did not make any referral for any neurological investigation. Both Dr. Kakzanov and Dr. Belfon opined that the applicant’s injuries were soft tissue injuries. Dr. Lee found no presence of any symptology symptomology for any psychological diagnosis. This information was all set out in the Tribunal’s decision.
20The evidence before the Tribunal only showed soft tissue injury and this with the above information led the Tribunal to find that the assessments were not reasonable and necessary.
21I find that the Tribunal did not make any error of law or fact such that the Tribunal would likely have reached a different result.
CONCLUSION
22For the reasons noted above, I deny the applicant's request for reconsideration.
Robert Watt Adjudicator Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: June 25, 2021