RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 21-000137/AABS
Case Name: Mariusz Lechowski v. Waterloo Insurance
Written Submissions by:
For the Applicant: David Carranza, Paralegal
For the Respondent: Hermina Nuric, Counsel
OVERVIEW
1On July 21, 2023, the respondent requested reconsideration of the Tribunal’s decision dated June 30, 2023 (“decision”).
2The 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.
3The respondent requests a reconsideration of my decision under Rule 18.2(b). It submits that I made errors of fact and law in my determination that the applicant was removed from the Minor Injury Guideline (“MIG”). The respondent requests an order varying my decision, and seeks a determination that the applicant be found to be within the MIG and that the application be dismissed in its entirety.
4The applicant disagrees and requests that the reconsideration request be dismissed. He submits that my decision did not contain a significant error of fact or law and that the respondent is attempting to re-litigate its position.
RESULT
5The respondent’s request for reconsideration is dismissed.
ANALYSIS
6The 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.
Rule 18.2(b) Errors of Fact – timing of applicant’s return to driving and description of Dr. Wong’s report
7I find that the respondent has not established errors of fact with respect to my description of the applicant’s return to driving or my characterization of Dr. Wong’s findings. The respondent has not established grounds for reconsideration of these issues under Rule 18.2(b).
8The respondent submits that in my decision, I erred in fact by suggesting that the applicant had only returned to driving after attending extensive psychotherapy. It submits that the applicant had in fact returned to driving prior to attending any psychological treatment.
9I disagree and find that I made no error in fact in my decision. In paragraph 14 of my decision, I noted that at the time of the respondent’s surveillance, the applicant had completed twenty-four sessions of psychotherapy, addressing his driving anxiety. However, in my decision, I did not state that he had abstained from driving prior to attending such psychotherapy. Rather, I acknowledged that despite being able to drive, the applicant still suffered from significant psychological impairments relating to such vehicular anxiety.
10I agree with the applicant that the respondent is attempting to relitigate its position. It is not grounds for reconsideration that the respondent does not agree with the Tribunal’s decision.
11The respondent further contends that I erred in fact in paragraph 10 of my decision, by describing Dr. Wong’s findings of “post-traumatic insomnia and psychological stress” as diagnoses, rather than “impressions”. The respondent also states that such conditions are not DSM-V diagnoses.
12I find no error of fact in my description of Dr. Wong’s report. In paragraph 10 of my decision, I summarized Dr. Wong’s reporting letter dated January 21, 2020. In this report, Dr. Wong summarizes the applicant’s complaints and medical history, and provides a summary of the physical examination, his impression and provides recommendations for treatment. Under the section labelled “Impression”, Dr. Wong lists physical impairments, together with “post-traumatic insomnia and psychological stress”. Although the respondent argues that it was an error in fact to state that these findings were diagnoses rather than “impressions”, I disagree. I do not see a significant distinction between a clinical impression and a working diagnosis. Both are summaries of findings or opinions.
13However, even if my use of the term “diagnosis” to describe Dr. Wong’s findings was inaccurate, I do not find this to be a significant error. A formal psychological DSM-V diagnosis was provided by Dr. Aghamohseni in his s. 25 report. In paragraph 11 of my decision, I detail Dr. Aghamohseni’s diagnoses of specific phobia, vehicular, somatic symptom disorder and major depressive disorder, single episode, with anxious distress. As such, even if Dr. Wong’s impressions were not a formal diagnosis, the applicant had still provided sufficient evidence of such a diagnosis. As such, my decision would not change even if Dr. Wong’s findings were described as “Impressions” rather than a diagnosis.
14As a result, I do not find that the respondent has established grounds for reconsideration based on an error of fact.
Rule 18.2(b) Errors of Law – identification of functional limitations and distinction between impairments vs. significant impairments
15I find that I made no errors of law with respect to my analysis of the applicant’s psychological impairments when considering his removal from the MIG.
16The respondent submits that I made a number of errors of law when considering the applicant’s removal from the MIG on psychological grounds. It argues that I did not properly consider whether the applicant had sustained functional impairments/limitations and that I did not properly consider whether the applicant had sustained a significant impairment. I will address each of these issues in turn.
i. Failing to consider whether the applicant suffered from a functional impairment/limitations
17The respondent argues that I erred in law in failing to consider whether the applicant suffered from a functional impairment/limitations when removing the applicant from the MIG on psychological grounds. It argues that it is not sufficient that I found that the applicant had been diagnosed with psychological conditions and had suffered a significant psychological impairment. The respondent argues that in a MIG analysis, there are “at least two stages” – including identifying the diagnosis, but also identifying the functional impairments. The respondent argues that I did not properly consider the decisions it had cited in paragraph 8 of its hearing submissions on this point, namely, Sarmad v. Coseco Insurance Company, 2021 CanLII 45649 at para 16 (“Sarmad”) and 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 at para 23 and 28 (“16-000438”).
18I disagree with the respondent’s position that when assessing an applicant’s removal from the MIG on psychological grounds, “functional limitations” must be identified. Although in my decision I did not summarize the two cases cited by the respondent in its hearing submissions on this point, I note that an adjudicator is not obliged to reference every piece of evidence. I did consider the decisions cited by the respondent in its hearing submissions, but did not find them persuasive on this point.
19Firstly, in Sarmad, the adjudicator did not expressly hold that “functional limitations” are required prior to an applicant’s removal from the MIG on psychological grounds. Rather, the adjudicator noted that an applicant must show significant psychological impairment. In paragraph 14 of my decision, I expressly state that the evidence established that the applicant suffered from a significant impairment. The respondent may disagree with my finding, however, the fact that the Tribunal reached a conclusion the respondent disagrees with is not grounds for reconsideration.
20Further, in the second decision cited by the respondent in its hearing submissions, 16-000438, although the adjudicator expressly referenced “functional limitations” when considering an applicant’s removal from the MIG, it was with respect to the grounds of chronic pain, not psychological impairment. In 16-000438, the portion of the analysis of MIG removal on psychological grounds did not expressly require an analysis of “functional limitations”. As such, I disagree with the respondent’s submissions that I applied the “wrong legal test” in considering the applicant’s removal from the MIG on psychological grounds.
ii. Significant Impairments vs. Severe/Extreme Impairment
21In its submissions for reconsideration, the respondent argues that I erred in law in my decision by not considering whether the identified impairments rose to the level of “significant impairment”. I find this is not grounds for reconsideration and agree with the applicant that the respondent is raising a new argument that was not raised in first instance.
22In its submissions for the written hearing, the respondent stated that to be removed from the MIG “the psychological symptomatology must rise ‘to the level of a severe or extreme impairment’”. However, in its submissions for reconsideration, the respondent now submits a number of additional decisions to address whether symptoms were “clinically significant”, not the “severe or extreme” impairment threshold previously argued. I agree with the applicant that the respondent is adjusting its argument from that raised in its hearing submissions. In its reconsideration submissions, it cites a number of new decisions which use the term “significant impairment” or “clinically significant impairment”.
23I am not persuaded by the respondent’s argument. Firstly, I find that it is raising an argument for reconsideration which differs from the one raised at the hearing on the merits. Namely, that an applicant must suffer a “severe or extreme impairment” vs. a “significant” or “clinically significant” impairment. I agree with the applicant that a reconsideration is not intended to allow a party to raise new arguments that were not raised in first instance.
24Secondly, despite the respondent’s assertion that I did not consider whether the applicant sustained significant psychological impairments, in paragraph 14 of my decision I expressly state that I found that the evidence established a “significant impairment”. When rendering this decision, I considered all of the evidence presented by the parties, and found the evidence presented by the applicant to be persuasive. In paragraphs 10, 11, 14 and 15 of my decision, I reference the s. 25 assessment finding that the applicant suffered from specific phobia, vehicular, somatic symptom disorder and major depressive disorder, single episode, with anxious distress, the clinical notes and records of the family physician and specialists, the psychotherapy session notes and psychotherapy progress notes.
25The respondent may disagree with my findings, however, the reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision. As such, I do not find that the respondent has satisfied the criteria in Rule 18.2(b) for reconsideration based on an error of law.
CONCLUSION & ORDER
26For the reasons noted above, I dismiss the respondent’s request for reconsideration.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 7, 2023