RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 20-004429/AABS
Case Name: Ying Kwan v. Unica Insurance Inc.
For the Applicant: Tanjoyt Deol, Counsel
For the Respondent: Jonathan Heeney, Counsel
Heard by: Written Submissions
BACKGROUND
1Y.K. filed a request for reconsideration of the December 13, 2021 decision of the Tribunal.
2In the decision, I found that Y.K. was not entitled to chiropractic treatment, psychological services, or interest.
3Y.K. has requested a reconsideration of my decision, she submits that I made a significant error of law or fact.
4Unica requests that I deny Y.K.’s request for reconsideration. Its position is that I did not make any significant errors of law that would result in a different outcome, had any alleged errors not been made.
RESULT
5Y.K.’s request for reconsideration is dismissed.
BACKGROUND
6Y.K. sustained injuries in a November 4, 2016 accident. In May or June 2018, Y.K. was involved in a second accident, in which she sustained injuries.
7Y.K. submitted claims for treatment for the 2018 accident to Allstate, which were approved.
8The decision turned on whether Y.K. established on a balance of probabilities that the disputed OCF-18s submitted between March 2018 and November 2019 (1-3 years after the subject 2016 accident) are reasonable and necessary. I found she did not.
ANALYSIS
9The grounds for a request for reconsideration to be allowed 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, J.C. relies on the following ground:
a. 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.
10Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
11I find that Y.K.’s request for reconsideration is such a request, and I reject her assertion that I failed to properly consider the evidence she relied on as it relates to the disputed benefits. Of particular note, the fact that treatment providers recommended physical therapy in 2016-2017 does not establish that 2018-2019 OCF-18s are reasonable and necessary.
Rule 18.2(b) – Significant Error of Law or Fact
12Y.K. submits that I made the following errors of law or fact:
a. Failure to reference certain medical records;
b. I did not consider evidence from treatment providers;
c. I failed to consider the opinion of psychologist, Dr. McDowall; and
d. The impact of the 2018 accident as it relates to the disputed OCF-18s.
Failure to reference or consider certain medical records
13Y.K. submits that I made a significant error in my decision when I concluded that her submissions were largely silent on whether the disputed OCF-18s were reasonable and necessary. In this vein, she refers to the following paragraphs of her initial submissions: 16-18, 20-21, 28-38. She further submits that her reply submissions at paragraphs 1-5 also pointed to evidence supporting that the OCF-18s were reasonable and necessary.
14Y.K. refers to a June 20, 2019 OCF-19, completed after the May 2018 accident. Her position is that I did not reference the OCF-19 or the records of the OCF-19 author in my decision. She submits that my decision did not contain an explanation as to why this evidence was not considered. Y.K. goes on to list various other examples of evidence that she alleges I overlooked, that she relied on at first instance.
15Y.K. also submits that I did not follow Adjudicator Hans in DO1. In DO, Adjudicator Hans found that pain relief and reduction are reasonable and legitimate goals of treatment. Y.K.’s position is that the disputed OCF-18s could be relied upon to show that they are reasonable and necessary.
16In response, Unica submits that while I may not have summarized every piece of evidence and argument put forth by Y.K., I similarly did not address every argument or piece of evidence put forth by Unica. Unica’s position is that Y.K. reconsideration request is an attempt to re-argue her case and have the same evidence re-weighed on reconsideration.
17Unica relies on the evidence that the hospitalization under a mental health Form 1 and the OCF-19 were completed after the May 2018 accident. It submits that it was reasonable to conclude that these records did not establish that the disputed OCF-18s were reasonable and necessary as a result of the subject accident.
18I find that Y.K.’s position on these medical records amounts to a request to reweigh evidence already put before me. She has not established that hospital records or an OCF-19 completed almost two years after the subject accident, support that the disputed OCF-18s are reasonable and necessary. There is no clear connection as I state in my decision at paragraph 12d., that the link between her bipolar disorder (or bipolar affective disorder, as she clarifies in her reconsideration submissions), and the subject accident are clearly established.
19It is well-settled that an adjudicator is not required to expressly address every piece of evidence, argument or case submitted by a party. Based on the evidence, notably, that the OCF-18s are over two years after the subject accident, and similar to the OCF-18s submitted (and paid by Allstate) on the 2018 accident, my finding was within the realm of reasonable outcomes.
20Regarding DO, I find that matter distinguishable, as the evidence from Y.K. that the OCF-18s were reasonable and necessary was not there. For these reasons, I did not need to engage in the “pain relief is a legitimate goal” consideration process.
21Y.K.’s request for reconsideration that I should reconsider evidence that was already before me amounts to a request to reweigh the evidence, which is not permitted under reconsideration. She has not persuaded me that any of the evidence she alleges that I did not specifically address amounted to an error of law or fact that would have led to a different outcome had the error not been made.
Evidence from treatment providers
22Y.K. submits that I made a significant error of law or fact in concluding that the treatment providers had not recommended treatment for her. She refers to Drs. Yeung, Basile and Kachooie’s recommendation for physical therapy, including chiropractic treatment in support of her position.
23Unica argues that those same medical records are not relevant to the issues in dispute. It submits that the records were prepared between November 2016 and May 2017, which does not support that the disputed OCF-18s are reasonable and necessary.
24I agree with Unica. The disputed OCF-18s are for chiropractic services and psychological counselling between March 2018 and November 2019. While I acknowledge the records of the above-name treatment providers in paragraphs 9 and 12, I conclude that these records fail to establish the OCF-18s are reasonable and necessary.
25Y.K. failed to persuade me how records from 1-3 years prior to the OCF-18s establish that any of the recommended treatment is reasonable and necessary. Further, as discussed at paragraphs 10, 12(b), and 12(e), it would appear that the OCF-18s submitted between March 2018 and November 2019 were mainly related to similar claims related to the May 2018 accident. The evidence Y.K. relies on in 2018 is far removed from the evidence from 2016. The causal relationship is not established from the 2018/2019 medical documentation for the reasonableness and necessity of injuries sustained in the 2016 accident.
26Y.K. fails to clearly explain why the similarity exists between the disputed OCF-18s and the approved OCF-18s from the May 2018 accident. On reconsideration, I find there remains this element of uncertainty, which is now beyond the point of contestation. The evidence at first instance has already been considered, weighed and found to have fallen short of meeting the onus to establish on a balance of probabilities the OCF-18s are reasonable and necessary.
27Y.K. has argued the same evidence, which does not meet the threshold of establishing that a significant error of law or fact occurred.
The evidence of psychologist, Dr. McDowall
28Y.K. submits that I made a significant error of law or fact alleging that I failed to consider Dr. McDowall’s March 16, 2018 report. In her report, Dr. McDowall diagnosed Y.K. with major depressive disorder, post-traumatic stress disorder and specific phobia related to travel. Dr. McDowall recommended eighteen sessions of psychotherapy.
29Unica submits that Dr. McDowall’s report is not relevant to the issues in this hearing. I agreed with Unica at first instance and on reconsideration, my position remains unchanged.
30The disputed OCF-18 was submitted on September 17, 2018, after the 2018 accident. Dr. McDowell in a September 19, 2018 report, noted that Y.K. “suffered a setback” as a result of the May 2018 accident. Dr. McDowall went on to note that “her mood became unstable again, making it difficult for her to participate consistently in treatment.” This appears to indicate that Y.K. was coping well, that she was stable, after the subject accident and was in a worse state after the 2018 accident.
31I note that in an April 27, 2019 report, Dr. McDowall recommended psychological counselling as a result of the May 2018 accident, and not due to the subject accident. At page 3 of her report, Dr. McDowall noted that Y.K.’s psychological condition was improving in February 2018 after taking antidepressants. Again, Dr. McDowell opined that since the May 2018 accident, Y.K.’s condition had deteriorated.
32For these reasons, I find that I did not make a significant error of law or fact, nor do I find that my consideration of Dr. McDowell’s evidence requires reevaluation on reconsideration. Y.K. has failed to persuade me that Dr. McDowell’s evidence would lead to a different outcome had any alleged error not been made.
Impact of the 2018 accident as it relates to the disputed OCF-18s
33Y.K. submits that the fact that the disputed OCF-18s were submitted after the 2018 accident does not provide evidence as to whether the 2018 accident was more significant than the subject accident. I disagree.
34Where Y.K. fails to meet her burden of proof on reconsideration with respect to this issue is rooted in the comparison of the disputed OCF-18s and the OCF-18s submitted to, and approved and paid by Allstate. Y.K. submitted similarly identical claims to Allstate after the 2018 accident, wherein it paid for psychological counselling and chiropractic treatment. In October 2019, Y.K. settled her file with Allstate on a full and final basis.
35At first instance, I am not directed to persuasive evidence that convincingly explains how recommendations that came in 2016-2017, establish that 2018-2019 OCF-18s are reasonable and necessary. In addition, as discussed throughout the decision at first instance, and on reconsideration, Y.K.’s own evidence supports that the 2018 accident was significant. Again, I reasonably concluded that the disputed OCF-18s appear to as a result of her 2018 accident-related injuries and the need to obtain treatment for same.
36On the issue of the impact of the 2018 accident, Y.K. has pointed me to evidence that was considered and weighed at first instance. On reconsideration, Y.K. directs me to the same evidence that was already put before me. I reiterate, reconsideration is not the appropriate forum for a re-weighing of the evidence or to request a reconsideration of evidence that was already properly before me.
37For these reasons, Y.K. has failed to persuade me that I made a significant error of law or fact in my consideration of the impact of the 2018 accident.
38I agree with Unica, Y.K. has not raised any issue of law or fact that would have resulted in a different outcome had the error not been made. This was Y.K.’s onus to meet in accordance with Rule 18.2(b). Her submissions on the issues raised on reconsideration amount to a request for a reweighing of the medical evidence. Accordingly, I see no reason to interfere with my initial decision.
CONCLUSION
39For the reasons noted above, Y.K.’s request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 6, 2022
Footnotes
- 18-001673 v Primmum Insurance Company, 2019 CanLII 43884 (ON LAT) at paragraph 34 (“DO”).