Flaurence Yokhanna v. Western Assurance Company, 2021 CanLII 93250

Licence Appeal Tribunal

Citation: Yokhanna v. Western Assurance Company, 2021 ONLAT 19-013699/AABS - R

RECONSIDERATION DECISION

Before: Lindsay Lake, Adjudicator

Date of Order: 09/24/2021

Tribunal File Number: 19-013699/AABS

Case Name: Flaurence Yokhanna v. Western Assurance Company

Written Submissions by:

For the Applicant: Daniella Cohen, Paralegal

For the Respondent: Raymond (Rakhman) Ashurov, Counsel

OVERVIEW

1The applicant, Flaurence Yokhanna, filed a request for reconsideration of the March 9, 2021 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal). In the decision, I found, among other things, that the applicant was not entitled to three treatment plans in dispute as she failed to prove that they were reasonable and necessary on a balance of probabilities.

2The applicant requested a reconsideration of the decision. The applicant submitted that:

(i) I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made: and/or

(ii) There is evidence that was not before me when I rendered the decision, that could not have been previously obtained by the applicant that would have likely affected the hearing outcome.

3The respondent opposed the request for reconsideration.

RESULT

4The applicant’s request for reconsideration is dismissed.

ANALYSIS

5The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (Rules). The applicant seeks a reconsideration under Rules 18.2(b) and 18.2(d).

6The applicant sought relief under Rule 18.2(b) on the grounds that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made. Specifically, the applicant submitted that I erred in the decision by:

(i) Incorrectly identifying the treatment modalities proposed in the January 24, 2019 and July 11, 2019 treatment plans (OCF-18s);

(ii) Misapplying the law by stating that assessments are speculative in nature;

(iii) Misinterpreting the applicant’s submissions regarding the Tribunal’s decision in 16-000098 v. Aviva Insurance Canada (16-000098);²

(iv) Misapplying the College of Psychologists of Ontario’s Guidelines for Supervised Practice Members (Guidelines); and/or

(v) Referring to the respondent as “Aviva” once in the decision.

7The applicant also sought a reconsideration under Rule 18.2(d), as the applicant submitted that there is new evidence that could not have reasonably been obtained earlier and would have affected the result of the hearing.

8For the reasons that follow, I find that the applicant’s reconsideration request fails under Rules 18.2(b) and (d) because:

(i) The only error that I made in the decision was a clerical typo, which was inconsequential. As a result, the outcome of the hearing would not have been affected had I not made the error;

(ii) The applicant failed to establish on a balance of probabilities that the new evidence dated prior to the agreed upon document exchange deadline of June 1, 2020 could not have been obtained earlier; and

(iii) The applicant failed to demonstrate how the new evidence dated after the exchange deadline would have affected my decision that the applicant was not entitled to the three treatment plans in dispute.

9The applicant submitted that I erred in determining that the January 24, 2019 and the July 11, 2019 treatment plans were not for physiotherapy, but instead were for various other forms of physical therapy treatment. I disagree.

10There is no physiotherapist listed as a provider in Part 11, “Health Care Providers,” on either the January 24 or the July 11, 2019 treatment plan. The only providers listed are two chiropractors and a massage therapist. Therefore, I find that I did not err in the decision in finding that neither the January 24, 2019 nor the July 11, 2019 OCF-18 proposed physiotherapy.

Assessments Being Speculative in Nature

11The applicant submitted that I erred in the decision by stating, “assessments, by their nature, are speculative.”³ The applicant disagreed with this statement and asserted that assessments are objective and are completed through medical examinations, application of various medical tests and objective evidence, “not speculation.”⁴

12The applicant’s submissions indicate that she agrees with my following statement in the decision that the purpose of an assessment is to determine if a condition exists.⁵ It is in this sense that assessments are considered “speculative.” Further, the respondent correctly pointed out in its submissions the notion that assessments are speculative in nature has long been the view of the Tribunal.⁶ Therefore, I find that I did not err in fact and/or law in the decision by describing assessments as speculative in nature.

The Applicant’s Submissions and 16-000098

13The applicant submitted that erred by misinterpreting her submissions when I stated the following in the decision:

I also disagree with Ms. Yokhanna’s submissions that Dr. Mikhail diagnosed her with severe depression and anxiety or that Dr. Mikhail referred her to participate in any mental health counselling.⁷

14In the decision, I cited paragraph 28 of the applicant’s hearing submissions which read as follows:

The Applicant relies upon various case law to support her position. In a case J.D. v. Aviva [16-000098], Arbitrator Jeanie Theoharis opined that a diagnosis of a psychological condition should preclude an individual from the MIG. The Applicant in this dispute has been diagnosed with severe depression and anxiety, by various medical professionals, not the least of which is his longstanding family physician and was referred to participate in mental counselling (my emphasis added).⁸

15My reading of this submission from the applicant was that she was applying the decision of 16-000098 to the case at hand rather than reiterating facts from 16-000098. In any event, this was not the only reason that I placed greater weight on the October 8, 2019 Psychological Insurer’s Examination (IE) Assessment report by Dr. Douglas Saunders, psychologist, over the evidence relied upon by the applicant which ultimately led to my finding that the applicant was not entitled to a psychological assessment. Therefore, while I may have misunderstood the applicant’s reference and submissions in paragraph 28 of her initial hearing submissions, I find that had I not made this misunderstanding that I would not have arrived at a different decision regarding the applicant’s entitlement to a psychological assessment.

Misapplying the Guidelines

16The applicant’s submission that I misapplied the Guidelines in paragraph 36 of the decision is unclear.

17I agree with the applicant that the January 30, 2019 Psychological Assessment Report was completed by Ms. Snezana Djuric, qualifying psychotherapist, under the supervision of Dr. Valery Klieman, psychologist. The applicant, however, provided no details as to how I made an error in reference to the Guidelines by finding that:

(i) No details were provided on what Dr. Kleiman’s supervision of Ms. Djuric entailed; and

(ii) If the applicant only met with Ms. Djuric for the interview and not Dr. Kleiman, I was unclear as to how the diagnosis of specific phobia, situational (driving and passenger related) was made. This was because the report stated that the diagnosis was based on Ms. Djuric’s interview and Ms. Djuric, as the interviewer, cannot make a diagnosis as a qualifying psychotherapist.⁹

18As a result, I find that I did not make an error of fact or law in paragraph 36 of the decision as submitted by the applicant.

Clerical Error

19I agree with the applicant that I incorrectly referred to the respondent as “Aviva” in paragraph [35] of the decision. In order to interfere with a decision under Rule 18.2(b), however, I must not only have made an error of law or fact, but that error of law or fact must be enough that, if corrected, I likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

20I find that the error of referring to the respondent as “Aviva,” was a minor, inconsequential typo that is not enough to interfere with the decision.

21I also find that the applicant failed to prove on a balance of probabilities that had this error not been made, that I would have arrived at a different decision. The applicant’s position was my reference to Aviva indicated that I did not turn my mind to the facts and issues in dispute. I disagree. In the decision, I listed all the issues in dispute in paragraph [4], I considered each of the issues by weighing the evidence before me and provided a determination of each of the issues.

22Therefore, while I agree that a minor typographical error was made in paragraph [35] of the decision, I find that had it not been made that I would not have come to a difference decision on the issues in dispute.

New Evidence

23The applicant also relied upon Rule 18.2(d) in her reconsideration request. The applicant submitted that there is new evidence that could not have been obtained earlier and would have affected the result of the hearing. Specifically, the applicant sought to submit the following documents under Rule 18.2(d):

(i) Clinical notes and records (CNRs) from Dr. Antoinette Mikhail, the applicant’s family physician, dated July 9, 2020, which included the following documents:

(a) A January 14, 2020 report from Dr. M.K. Joseph Kwok, orthopaedic surgeon; and

(b) A March 16, 2020 MRI Report from William Osler Health System;

(ii) CNRs from Releva Chronic Pain Clinic (Releva); and

(iii) CNRs from the applicant’s new family physician, Dr. Fawaz Jamil.

24According to the June 17, 2020 Case Conference Report and Order, the parties agreed that the evidence for the written hearing would only include the documents that had been exchanged prior to June 1, 2020.

25Although Dr. Mikhail’s CNRs were dated July 9, 2020 which is after the agreed upon deadline for document production, Dr. Mikhail’s CNRs were requested by the applicant’s representatives on May 8, 2020. There is no information before me as to why Dr. Mikhail’s CNRs could not have been obtained prior to the document exchange deadline of June 1, 2020 given that they were requested almost one month prior. There is also no evidence before me of why the applicant agreed to the document deadline date of June 1, 2020 at the case conference knowing that Dr. Mikhail’s CNRs were outstanding.

26Moreover, Dr. Kwok’s January 14, 2020 report and the March 16, 2020 MRI report were dated well before the document exchange deadline. There is also no evidence before me as to why these documents could not have been obtained prior to the June 1, 2020.

27Finally, the only issues that the applicant was not successful on at the hearing were treatment plans dated January 24, 2019, July 11, 2019, and December 13, 2018 (along with corresponding interest). Therefore, even if I agreed with the applicant that the CNRs from Releva and Dr. Jamil meet the test of “new evidence” under Rule 18.2(d), I find that these CNRs are not contemporaneous to the treatment plans that were in dispute as they both have a start date of July 2020. As a result, the CNRs from Releva and Dr. Jamil would not have changed my decision that the applicant was not entitled to the treatment plans dated January 24, 2019, July 11, 2019, and December 13, 2018.

CONCLUSION

28For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Lindsay Lake

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Yokhanna v. Western Assurance Company, 2021 CanLII 28711 (ON LAT) (the “decision”).
2. 22016 CanLII 93136 (ON LAT).
3. 3Supra note 1 at para. 32.
4. 4Applicant’s Reconsideration Submissions, para. D.
5. 5Ibid.
6. 6See, for example, A.W.A. vs. Certas Home and Auto Insurance, 2020 CanLII 40327 (ON LAT) at paras. 35-37, referencing 17-006956 v. The Guarantee Company of North America, 2018 CanLII 110952 (ON LAT) at para. 37, Reconsideration Submissions of the Respondent, tab E.
7. 7Supra note 1 at para. 36
8. 8Applicant’s [Hearing] Submissions, para. 28.
9. 9Supra note 1 at para. 36.