Licence Appeal Tribunal
Licence Tribunal File Number: 19-012647/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
D.B.
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
RECONSIDERATION DECISION
ADJUDICATOR: Lyndra Griffith
APPEARANCES:
For the Applicant: Carlos Ortiz, Paralegal
For the Respondent: Aly Pabani, Counsel
HEARD: By way of written submissions
OVERVIEW
1This request for reconsideration was filed by the applicant. It arises out of a decision dated March 9, 2021, in which I determined that the applicant’s accident related injuries met the definition of “minor injury” under the Schedule and subject to treatment within the MIG limit.
2In the request, the applicant submits that the Tribunal made an error of law by making an erroneous interpretation of the definition of “minor injury” in s. 3 of the Schedule. The applicant further submits that the Tribunal erred by requiring that he prove a serious and ongoing psychological impairment first in order to have access to accident benefits. The applicant requests an order stating that his injuries are not predominantly minor injuries as defined by the Schedule, and that he is entitled to the cost of the psychological assessment.
RESULT
3The request for reconsideration is dismissed.
ANALYSIS
4The 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 (“Common Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, the respondent relies on Rule 18.2(b), submitting that I committed errors of law and fact in reaching my decision such that the Tribunal would likely have reached a different decision had they not been made.
5The test for reconsideration under Rule 18.2 involves a high threshold. 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. On review, I find no error of law or fact that in my original decision that would have led me to a different result had it not been made. The arguments offered by the applicant on reconsideration are largely similar to those made at first instance.
6The applicant first asserts that I erred in finding that the applicant’s physical injuries fall under the definition of a minor injury set out in s. 3 of the Schedule. The applicant submits that the ear organs are not a muscle, tendon, or ligament and is therefore not a “sprain” or “strain or a facet of WAD. The applicant submits that my conclusion is not followed by any analysis or reasoning with respect to diagnosis of tinnitus and the Minor Injury Guideline, and thus denied the applicant a psychological assessment. The respondent submits that in CL and Allstate1, the Tribunal held at paragraph 11 that a diagnosis of whiplash injury with right tinnitus was predominately a minor injury. As noted in paragraph 13(v) of my decision, the applicant consulted ear, nose and throat doctor Dr. Haight on March 25, 2016 and he reported that his tinnitus occurs briefly and only occasionally. At paragraph 13(x), I noted that on October 28, 2018 the applicant saw Dr. Gooden (Otolaryngology/Head and Neck Surgery) for the symptoms in his ears. He reported occasional pressure in his ears, was unsure whether his tinnitus was bilateral, had no sleep disturbances and felt that message treatments resolve his tinnitus. Dr. Gooden diagnosed the applicant with right asymmetric hearing loss and right asymmetric tinnitus. The applicant did not persuade me that the tinnitus is not clinically associated sequelae of his minor injury. Accordingly, I find no error.
7With regard to the second alleged error, the applicant submits that I erred by requiring him to prove a serious and ongoing psychological impairment in order to access the requested psychological assessment. I see no error. I find that I addressed this at paragraphs 16-18 of my decision where I considered the medical evidence. At paragraph 16 of my decision, I noted that the applicant attended his family physician’s office on multiple occasions and the records do not contain any accident related psychological complaints, recommendations for psychological intervention or prescriptions for a psychological condition. Furthermore, there is no compelling evidence of psychological impairments that would be sufficient for the applicant to be removed from the MIG.
8For completeness, while it is well-settled that a decision-maker does not have to refer to every argument or piece of evidence before them, I also find that I considered all of the applicant’s arguments—I see no error.
ORDER
9For the reasons above, the request for reconsideration is dismissed.
Released: February 23, 2022
Lyndra Griffith, Adjudicator