RECONSIDERATION DECISION
Before:
D. Gregory Flude
Licence Appeal Tribunal File Number:
19-005824/AABS
Case Name:
Clement Amadiegwu v. Aviva General Insurance Company
Written Submissions by:
For the Applicant:
Sam Elbassiouni, Paralegal
For the Respondent:
Mohamed R Hashim, Counsel
BACKGROUND
1The Applicant requests a reconsideration of the Tribunal’s decision released on January 12, 2022. The issues that were before the Tribunal were the Applicant’s entitlement to an income replacement benefit, interest, and an award under s. 10 of O. Reg 664. The Tribunal dismissed the application, and because it found that no income replacement benefits was owing, it followed that no interest was owing and there was no basis for an award. The Applicant submits that the Tribunal:
i. acted outside its jurisdiction or violated the rules of procedural fairness.
ii. made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
2The Applicant is seeking an order:
a. An order finding the Applicant entitled to the income replacement benefits both pre and post 104-weeks.
b. An order to have the matter reheard by the Tribunal.
c. An order awarding the Applicant interest on all overdue amounts
d. An order finding the Applicant entitled to an award at 50%
e. An order on legal cost incurred in this hearing
RESULT
3The Applicant's request for reconsideration is dismissed.
OVERVIEW
4The Applicant was involved in motor vehicle accidents in 2004, 2013 and 2017. He sought an income replacement benefit as a result of impairments arising out of injuries allegedly sustained in the 2017 accident. Following a 10-day hearing, the Tribunal held that the Applicant’s impairments were not caused by the 2017 accident but pre-dated the accident. He was not entitled to an income replacement benefit.
ANALYSIS
5To succeed on a request for reconsideration the Applicant must bring himself within the provisions of Rule 18 of the Tribunal’s Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”). In this case the Applicant relies on Rule 18 (2) a. and b.:
(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.
6Reconsideration is not an opportunity to reargue the case. The onus is on the Applicant to point to an error, in this case either a jurisdictional or procedural error or an error of law or fact, of such consequence that it if not made it would have impacted the outcome of the hearing. The Applicant recognizes this standard in paragraph 2. of his reconsideration submissions and then ignores it by going into a detailed analysis of the evidence before the adjudicator with arguments why she should have come to a different conclusion.
7I will consider each of the grounds individually.
The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
8The Applicant relies on four points to assert this ground:
a. Placing minimal weight on the Applicant’s expert witness opinion due to noted deficiencies (Dr. Getahun).
b. Failing to acknowledge and consider evidence put to the Tribunal by the Applicant’s expert witness Ms. F. Jessa (OT), without providing reasons, comments or even acknowledging its existence despite its relevance and importance.
c. Asking for corroborating evidence that it failed to acknowledge when adduced like the OT situational assessment report.
d. Introducing its own view and argument on the Applicant’s case without allowing for an opportunity for the Applicant to address or respond.
9The complaint about the treatment of Dr. Getahun’s evidence goes to the weight the Tribunal gave to it. In my view, this is not a jurisdictional error or a denial of procedural fairness as the Applicant asserts. The Tribunal conducted a broad-ranging analysis of the Applicant’s pre-existing medical records, emergency records relating to both the accident and other visits to the hospital emergency room and concluded that Dr. Getahun had not properly weighed these factors in forming his opinion. That analysis was open to the Tribunal on the evidence. It must be assumed that the Tribunal considered the evidence pointed out by the Applicant and did not consider that it was sufficient to give greater weight to Dr. Getahun’s opinion.
10The Applicant introduced an extensive occupational therapy report for Ms. F. Jessa, OT, concluding that the Applicant was completely unable to carry out any form of employment or self-employment for which he was reasonably suited by education, training, or experience. The Tribunal did not refer to the report in the decision. The Applicant asserts that the failure to refer to the report is a denial of procedural fairness. In my view, on the facts of this case, there is no denial of procedural fairness. It is clear from a reading of the decision that the Jessa report was directed at the second stage of the analysis. To get to that stage, the Applicant had to pass the first hurdle – was the Applicant’s condition the result of the 2017 accident or was it pre-existing. The Tribunal concluded that it was pre-existing after very thoroughly reviewing the evidence. Having reached that conclusion, evidence of the Applicant’s physical abilities relating to potential post-accident employment was not relevant. The Jessa report did not figure into the Tribunal’s analysis because the analysis was based on causation.
11The Applicant asserts that it was a denial of procedural fairness to treat his evidence with some cynicism, particularly where he was describing his medical history to various treating and assessing doctors. The Tribunal found variations in the Applicant’s evidence as reported to various assessors was a cause of concern. To seek corroboration in other evidence for various statements is not a jurisdictional error.
12The Applicant submits that the Tribunal came to its own conclusion on the evidence and argument. This is the function of the Tribunal. The Tribunal reviewed the evidence of the history of the Applicant’s back issues in detail. It then concluded that all of the post-accident conditions were pre-existing. Indeed, the Applicant’s own treating orthopedic surgeon, Dr. Seligman, notes that the accident only caused an acute phase in the Applicant’s condition and continued treating him as before. It is not a jurisdictional error to weigh that evidence and make a decision. This was the purpose of the hearing.
13The Applicant submits that the Tribunal applied the wrong test for an income replacement benefit. It referred to a “substantial inability” test for entitlement beyond 104 weeks after the accident when the test is actually a “complete inability.” Further, the Applicant points out that the Tribunal omitted the word “reasonably” and recited the remainder of the test as “suited by education, training, or experience.” The Respondent submits that, if the Tribunal misapplied the post-104-week test, it applied a less stringent test, a substantial inability as opposed to a complete inability. I accept the Respondent’s submission, but I would add this with regard to the Applicant’s physical impairments. Regardless of the test applied, the decision turns on causation. The Tribunal found that the accident did not cause the Applicant’s physical impairments. Further, in finding that the Applicant’s psychological impairments did not justify entitlement to income replacement benefits on the substantial inability test, it follows that he would not satisfy the more stringent complete inability test.
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.
14The above jurisdictional discussion also captures this ground for reconsideration with respect to physical injuries sustained by the applicant, however, the added dimension that the Applicant takes issue with is the treatment of the psychological evidence. The Tribunal reviewed the psychological expert evidence and concluded that the Applicant had failed to satisfy his onus that his psychological impairments were sufficiently serious to render him completely unable to carry out any employment or self-employment for which he is reasonably suited by education training or experience. It is not my role on reconsideration to reweigh the evidence. The finding was open to the Tribunal on the record, and it is not an error of law to come to a conclusion that is different from the conclusion the Applicant seeks.
CONCLUSION
15For the reasons noted above, I deny the Applicant's request for reconsideration.
D. Gregory Flude
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 11, 2022