Hussen v. The Co-Operators Insurance Company, 2022 CanLII 93719

Citation: Hussen v. The Co-Operators Insurance Company, 2022 ONLAT 19-013658/AABS - R

RECONSIDERATION DECISION

Before: Theresa McGee, Vice-Chair

Licence Appeal Tribunal File Number: 19-013658/AABS

Case Name: Shakar Hussen v. The Co-Operators Insurance Company

Written Submissions by:

For the Applicant: Agal Lankeswaran, Paralegal

For the Respondent: Emily Schatzker, Counsel

OVERVIEW

1The applicant requests reconsideration of a decision dated April 19, 2022 (the “decision”). In the decision, the Licence Appeal Tribunal (the “Tribunal”) found that the applicant was not entitled to an income replacement benefit or medical benefits.

RESULT

2The request for reconsideration is denied.

ANALYSIS

3The grounds for a request for reconsideration are contained in Rule 18.2 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 (the “Common Rules”). A request for reconsideration will not be granted unless one of the following criteria are met:

i. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

ii. 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;

iii. The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

iv. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The applicant submits that the Tribunal made significant errors in law and evidence. She submits she presented the Tribunal with “sufficient evidence” to prove her entitlement to benefits. She submits that the Tribunal failed to consider evidence in support of her claims, including the hospital records from the date of the accident and a psychological pre-screening report prepared by Dr. Leon Steiner.

5In fact, the Tribunal did consider the evidence of Dr. Steiner, and its findings about his evidence are set out in paragraph 16 of the decision. Principally, the Tribunal found that Dr. Steiner’s opinion was uncorroborated by objective medical records. Additionally, the Tribunal afforded less weight to his opinion because he is the practitioner who would have conducted the very assessment he was recommending.

6The Tribunal also considered the hospital records, referenced at paragraph 7 of the decision. However, those records were of little evidentiary weight compared to the clinical notes and records of the applicant’s primary care physician, which made no references to any accident-related complaints.

7The Tribunal weighed and assessed the medical evidence before it and determined that the applicant had not discharged her evidentiary onus. Dissatisfaction with the way the Tribunal weighed the evidence is not a basis for reconsideration.

8The applicant submits that the Tribunal erred in fact by misstating the date she submitted an Election of Benefits Form (OCF-10). She submits that she submitted the OCF-10 to the respondent on April 17, 2019, not May 1, 2019, as the decision states. The record shows that the respondent confirmed receipt of the OCF-10 on May 1, 2019. Presumably, the OCF-10 was submitted sometime earlier. However, this is not an error warranting reconsideration. The OCF-10 submission date does not change the outcome of the Tribunal’s analysis because the applicant did not meet the disability test for entitlement to an income replacement benefit. Nothing turns on the date she completed the steps to apply for a benefit she was not medically entitled to.

9The applicant makes additional submissions that I will not recite here, as they are essentially an attempt to re-argue her application. That is not the purpose of a reconsideration. The applicant also raises new arguments about her means of travel to work and the necessity of the denied psychological assessment. A reconsideration is not an opportunity to raise new argument.

10The applicant has failed to establish a basis for reconsideration. There is no error of law in the decision, and no error of fact that would have resulted in a different outcome. As none of the grounds for reconsideration have been made out, the request must be denied.

CONCLUSION

11The request for reconsideration is denied.

Theresa McGee, Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal