RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 20-007082/AABS
Case Name: Kristofer Bernard v. Unica Insurance Inc.
Written Submissions by:
For the Applicant: Doug Wright, Counsel
For the Respondent: Amanda Lennox, Counsel
OVERVIEW
1This request for reconsideration was filed by the applicant, Kristofer Bernard (“K.B.”). It arises out of a decision dated June 8, 2022, in which I found that K.B. was not catastrophically impaired, I further found that he was not entitled to an attendant care benefit (“ACB”) or two additional treatment plans for occupational therapy services. Further, I found that he was entitled to a non-earner benefit, and a treatment plan for an occupational therapy assessment.
2K.B. submits that I erred in law and fact by “not finding that he had mental and behavioural impairments at least to the extent of 19%.” K.B. also seeks a reconsideration that he is entitled to an ACB.
RESULT
3K.B.’s request for reconsideration is dismissed.
ANALYSIS
Catastrophic Impairment
4In conducting an analysis of whether K.B. was catastrophically impaired as a result of the accident, I needed to consider if he met the criteria set out in s. 3(2)(f) of the Schedule. In other words, I was asked to determine whether K.B. suffered a marked mental and behavioural impairment in order to qualify as being catastrophically impaired.
5In making my decision, I considered the evidence of specific key experts, those being, Dr. Waisman, psychiatrist (incorrectly noted as a psychologist) and Ms. Yegendorf, occupational therapist on behalf of K.B. and the s. 44 insurer examination (“IE”) assessors, Dr. Sivasubramanian (“Dr. S.”), psychiatrist (incorrectly noted as a psychologist) and Ms. Javasky, occupational therapist.
6On reconsideration, K.B. essentially asks whether I made any findings of fact about whether he had any mental and behavioural impairments, and, if so, what the contribution to the required 55% threshold would be. K.B. further alleges that “it does not appear that the Adjudicator made any finding whether he was prepared to accept that K.B. had mental and behavioural impairments as a result of the accident…”.
7I disagree.
8At paragraphs 29-30 of my decision, I provided my reasons for why I preferred the report of Dr. S. over that of Dr. Waisman. Notably, that Dr. S. had assessed K.B. on more than one occasion, while Dr. Waisman had not, giving Dr. S. more familiarity with K.B. Dr. Waisman had not provided a persuasive explanation for the changes he noted in K.B.’s condition. Dr. Waisman mainly relied on an occupational therapy report from Ms. Yegendorf, which I found not to be completely accurate (which was also discussed in my decision). Further, noting K.B.’s post-accident activities of daily living, I found him to be engaged in relationships, friendships, and various daily activities, with limitations due to his leg injury. Lastly, while acknowledging his diagnosed Asperger’s Syndrome, I found K.B. to be a very responsive and credible witness.
9In response, Unica submits that K.B. has put forth nearly identical arguments regarding his evidence, and as such, K.B. has not established that there was a significant error of law or fact such that the Tribunal would have reached a different decision had the error not been made. Unica submits that K.B. is asking for a reweighing of the evidence that he relied on at first instance, which is not a valid purpose of a request for reconsideration.
10I agree with Unica that Dr. Waisman did not provide any evidence as to what whole person impairment (“WPI”) rating should be used if K.B. did not have a marked impairment or how such a rating would be determined. In relying on the reports of Dr. S., Unica submits that Dr. S. found that K.B. did not suffer any impairment, as there was no evidence to support an appropriate rating within the AMA Guides rating system for a WPI range of 0-14% for mild impairments or 15-29% for moderate impairments.
11Despite Dr. Waisman’s opinion, I was not directed to any evidence at first instance that suggested what an appropriate WPI calculation would be, in the event he suffered a moderate impairment. Assuming that K.B. had a moderate impairment for emotional or behavioural impairment, with a corresponding range of 15-29% WPI, it does not follow that the WPI would have been the requisite 19% or more; it might have been 18% or less and still K.B. would have fallen short of the 55% WPI needed to be catastrophically impaired. Returning to the main point, Dr. Waisman’s report was not persuasive; without that threshold finding of persuasion, I assigned less weight to Dr. Waisman’s evidence.
12Further, K.B. initially relied on a report of psychological assessor, Dr. Gerber, who opined that K.B. did not suffer any diagnosable psychological impairment as a result of the accident. At paragraph 38 of my decision, I considered the fact that K.B. had not sought an addendum report from Dr. Gerber, who already had an established history with K.B. On reconsideration, I find Dr. Gerber’s report actually supports the medical and other evidence that K.B. did not suffer a catastrophic psychological impairment as a result of the accident.
13Lastly, I considered additional evidence, at paragraph 39, notably the Ontario Disability Support Program file, which did not contain any records showing that K.B. suffered from any accident-related psychological impairment. In addition, the family physician records did not contain evidence of psychological complaints or referrals for psychological-based treatment or medication.
14I was persuaded by the psychologically based evidence that K.B. fell short of meeting the requirements to establish that he suffered a catastrophic psychological impairment as a result of the accident.
15The test for reconsideration under Rule 18.2 involves a high threshold. Reconsideration is only warranted in cases where an adjudicator has made a significant 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. The reconsideration process is not an invitation for the Tribunal to reweigh evidence, or an opportunity for a party to re-litigate its position where it disagrees with the decision, or the weight assigned to the evidence.
16I agree with Unica that K.B.’s reconsideration request asks me to reweigh the evidence. K.B. has not established that there was any significant error of law or fact in the realm of reasonable outcomes in my finding that he did not suffer a marked mental and behavioural impairment. As such, I see no reason to interfere with my original decision on the issue of whether he suffered a catastrophic psychological impairment as a direct result of the accident.
Attendant Care Benefit
17In his submissions, K.B. claims that I implied that I accepted the September 8, 2017 Form 1 from Ms. Au, in the amount of $2,209.36 per month, but found that the attendant care benefit was not reasonable and necessary. In addition, K.B. acknowledges that if he is found to not be catastrophically impaired, the issue is moot.
18I have confirmed, on reconsideration, that K.B. is not catastrophically impaired, therefore, an analysis of the ACB issue is not required.
19However, in the event an analysis is required, paragraphs 63-64 of my decision considered K.B.’s evidence that, the only services he was receiving was for housekeeping for both himself and his mother. I concluded that K.B. failed to establish that his claim for ACBs was reasonable and necessary. My consideration of the competing Form 1’s, was an exercise in procedural fairness, and was not erroneous in concluding that on the evidence, K.B. failed to meet his onus to establish that ACBs was reasonable and necessary.
CONCLUSION
20Overall, my decision does not make any error of fact or law. I see no reason to reconsider my decision. The decision stands. K.B.’s request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 29, 2022