21-001456/AABS- R
RECONSIDERATION DECISION
Before: Laura Goulet, Adjudicator
Licence Appeal Tribunal File Number: 21-001456/AABS
Case Name: Kris Rana v. Coachman Insurance Company
Written Submissions by:
For the Applicant: Kris Rana, Applicant
For the Respondent: No Submissions Provided
OVERVIEW
1On August 21, 2023, the applicant requested reconsideration of the Tribunal’s decision dated August 1, 2023 (“decision”).
2In the decision, I found that the applicant is not catastrophically impaired because she had not demonstrated that she sustained three marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
3The grounds for a request for reconsideration are found 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 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
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;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) 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 has requested a reconsideration pursuant to Rule 18.2(a), (b), (c) and (d). The respondent has not filed any responding submissions and has indicated it will not be doing so.
5The applicant seeks to vary the decision to find that she is catastrophically impaired.
RESULT
6I vary the decision to find that the applicant meets the definition of catastrophic impairment under Criterion 8 of the Schedule.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
8In my decision at paragraphs 67 and 68, I stated that I considered that Dr. Gnam, who found the applicant catastrophically impaired, based his opinions in large part on self-reporting by the applicant and I had some concerns about the applicant’s reliability. Taking all of the evidence into consideration, in my decision, I held that the applicant had not demonstrated that she was catastrophically impaired as she had not demonstrated that she sustained three Marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8.
There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the applicant, and would likely have affected the result
9I find that the applicant has established grounds for reconsideration under Rule 18.2(d). For the reasons that follow, I find that there is evidence before the Tribunal that was not before the Tribunal when rendering its decision, which could not have been obtained by the applicant, which would have affected the result.
10The hearing in this case took place from February 13 to 17, 2023. The applicant underwent a Catastrophic Multidisciplinary Assessment (“CMA”) conducted by the respondent’s assessors, which comprised of evaluations between February 27, 2023 and July 14, 2023. She received the Executive Summary dated July 17, 2023 concluding that the applicant does meet the catastrophic threshold under Criterion 8. The applicant filed this evidence with her reconsideration on August 21, 2023.
11I find that the first part of the test under Rule 18.2(d) has been met. The evaluations in the CMA were conducted after the hearing was completed, and the Executive Summary received by the applicant is dated July 17, 2023. As such, I find that this is evidence that was not before the Tribunal when rendering its decision, and could not have been obtained previously by the applicant.
12In making my decision, I considered the report of Dr. William Gnam, Psychiatrist, who assessed the applicant with a Marked impairment in the following areas:
a. Activities of daily living;
b. Social functioning; and
c. Adaptation to work and work-like settings.
13In order to consider the second part of the test under Rule 18.2(d), i.e. whether the new evidence before me would likely have affected the result, I have reviewed the CMA that was filed by the applicant within this reconsideration request. The CMA is comprised of evaluations to determine the applicant’s applicability for catastrophic impairment under Criteria 2 and 8 as follows:
a. Psychiatry Independent Medical Evaluation – February 27, 2023;
b. Orthopaedic Independent Medical Evaluation – March 22, 2023;
c. Psychology Independent Evaluation – March 23 & April 13, 2023;
d. Occupational Therapy In-Home Assessment – April 27, 2023;
e. Occupational Therapy Community Situational Assessment – April 28, 2023;
f. Psychiatry Addendum – July 14, 2023;
g. Orthopaedic Addendum – July 14, 2023; and
h. Psychology Addendum – July 14, 2023.
14Of particular interest is the psychiatric evaluation of Dr. Anson Liu, Psychiatrist, that was conducted on February 27, 2023, ten days after the hearing was concluded. After conducting an in-person psychiatric evaluation, Dr. Liu was of the opinion that, but for the subject accident, and on a balance of probabilities, the applicant would not have sustained the level of psychiatric impairment she is currently faced with. Further, from a psychiatric perspective, that the applicant has a Marked impairment in the following domains:
a. Activities of daily living;
b. Social functioning; and
c. Deterioration or decompensation in work or work-like settings.
15Dr. Eyal Bodenstein, Psychologist, completed an in-person evaluation on March 23 and April 13, 2023. After his assessments, Dr. Bodenstein was of the opinion that the applicant has Marked impairments in the following domains:
a. Activities of daily living;
b. Social functioning; and
c. Adaptation.
16Both Dr. Liu and Dr. Bodenstein based their opinions on assessments of the applicant, medical records, as well as the In-Home Occupational Therapy Assessments conducted by Justin Moy, Occupational Therapist, on April 27 and 28, 2023.
17The evidence outlined above, which was not before the Tribunal when rendering its decision, and could not have been obtained by the applicant, would certainly have affected my decision. I am persuaded by this evidence, in conjunction with the evidence that was presented at the hearing, that the applicant is catastrophically impaired as she has demonstrated that she sustained three Marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Schedule.
18Having determined that the decision should be varied pursuant to Rule 18.2(d), an analysis of Rule 18(a), (b) and (c) is not necessary.
CONCLUSION & ORDER
19I find that the applicant has established grounds for reconsideration under Rule 18.2(d). I find that there is evidence before the Tribunal that was not before it when rendering its decision, which could not have been obtained by the applicant, which would have affected the result.
20I am varying my decision. I find that the applicant is catastrophically impaired because the evidence filed on reconsideration pursuant to Rule 18.2(d) demonstrates that she sustained three Marked impairments sufficient to meet the requirements of catastrophic impairment under Criterion 8 of the Schedule.
Laura Goulet
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 1, 2023