RECONSIDERATION DECISION
Before:
Rebecca Hines
Licence Appeal Tribunal File Number:
21-007731/AABS
Case Name:
Roxanne Martin v. Certas Home and Auto Insurance
Written Submissions by:
For the Applicant:
P Antony Drake, Counsel
For the Respondent:
Michael W Chadwick, Counsel
OVERVIEW
1The applicant has requested a reconsideration of the Tribunal’s decision dated July 19, 2023, in which the panel determined that she did not sustain a catastrophic (“CAT”) impairment pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant argues that we erred in law and/or fact in rendering our decision. Further, we violated the rules of procedural fairness. The applicant submits that had these errors and procedural breach not been made it would result in an alternative decision.
3The respondent argues that our decision is correct, and that the applicant’s reconsideration request is an attempt to relitigate her position which was already considered by the Tribunal at the hearing. Finally, the applicant has not met her onus in demonstrating that we made an error of law and/or fact which would result in a different decision.
RESULT
4After reviewing the parties’ submissions, I order that the applicant’s reconsideration request be dismissed.
RECONSIDERATION CRITERIA
5The grounds for a request for reconsideration are contained in Rule 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019) (“Rules”).
6Rule 18.2 states that a request for reconsideration will not be granted unless 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.
7The appellant relies on Rule 18.2 (a) and (b).
8The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
9The applicant asks that I vary the panel’s decision and make a finding that she sustained a CAT impairment. Alternatively, she requests that I order a rehearing on all or part of the matter.
ANALYSIS
No error in law and/or fact which would result in a different decision.
10The applicant submits that the panel erred in law and/or fact in the following ways:
a) By misinterpreting the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, (the “Guides”) to exclude the evidence of Dr. Persi in our assessment of Criterion 8;
b) By not accepting Dr. Persi’s WPI rating for narcotic abuse;
c) By misapprehending the evidence of Dr. Wismer in assessing causation regarding the applicant’s right wrist impairment; and
d) By finding that Dr. Persi should have used the DRE-Model instead of acknowledging that the DRE-Model is preferred.
No error of law and/or fact in assessing Dr. Persi’s evidence regarding Criterion 8.
11The applicant submits that the panel erred in law and/or fact by misinterpreting the Guides in order to exclude the evidence of Dr. Persi in our assessment of the applicant’s impairment ratings under Criterion 8. The applicant also argues that we erred in law by finding the Tribunal’s decision in Crecoukias v. Toronto Transit Commission, 2022 CanLII 68324 (ON LAT) (Crecoukias) persuasive in support of our finding that it is beyond the scope of a chiropractor to assign ratings for psychological impairments. Further, we also breached the rules of procedural fairness by violating the Browne v. Dunn rule by allowing the respondent to ambush Dr. Persi’s evidence in closing submissions. I find the applicant’s allegations that the panel erred in law and/or fact or breached the rules of procedural fairness have no merit for the following reasons.
12As a starting point, I find the applicant’s arguments for how the Guides should be interpreted were addressed in paragraphs [20] to [22], [28] and [30] of our decision. I see no error in law in how the panel interpreted and applied the Guides to the facts and evidence in this case. In addition, I find the panel did not exclude Dr. Persi’s evidence. Instead, we gave the doctor’s evidence little weight and provided very detailed reasons why in paragraphs [29] to [52] of our decision. The following were important to our findings:
i) It was beyond the scope of Dr. Persi’s expertise as a chiropractor to assign ratings under Chapter 14 (Mental and Behavioural Impairments) of the Guides, because his expertise ends with assessing musculoskeletal impairments. We determined that as a chiropractor he is unable to distinguish between the impact of psychological versus physical impairments on function;
ii) Dr. Pallandi, the psychiatrist who completed the assessment should have used his clinical judgement in assigning the ratings under Criterion 8;
iii) Dr. Persi’s ratings under Criterion 8 were inconsistent with Dr. Pallandi’s ratings under Criterion 7. Further, Dr. Pallandi’s report addressing Criterion 8 was lacking in detail and analysis and did not support Dr. Persi’s ratings;
iv) The applicant’s testimony was unhelpful in addressing Criterion 8 because the focus was on physical pain and limitations;
v) There was a lack of post-accident clinical notes and records from treating psychologist or practitioners regarding the applicant’s psychological complaints and impact on function; and
vi) We preferred some of the ratings assigned by Dr. Sivasubramanian because they were more consistent with the evidence before us.
13I find the applicant is relitigating her position that was already considered by the panel at the hearing and addressed in our decision. Ultimately, the applicant disagrees with the weight we assigned Dr. Persi’s opinion and evidence. That is not the purpose of the reconsideration process. As the trier of fact, it is the adjudicator’s role to assess and assign weight to the evidence which is what the panel did in its decision.
14Furthermore, I find the panel did not err in law and/or fact in finding the Tribunal’s decision in Crecoukias persuasive. Moreover, I find the rule in Browne v. Dunn is not applicable to this case as Crecoukias was not used by the respondent to impeach Dr. Persi’s credibility. Instead, the parties were invited to file briefs of authority with the Tribunal in advance of closing submissions. As a result, the applicant was not taken by surprise by the respondent’s reliance on this decision. I find the respondent was under no obligation to cross-examine Dr. Persi on this decision to rebut its own legal position. The applicant had the opportunity to distinguish Crecoukias in closing submissions and had a full and fair opportunity to present her case. Further, the panel considered the case law relied on by the applicant in paragraph [20] to [23] of our decision and provided reasons why it was not helpful to her position.
15The applicant has failed to persuade me that the panel erred in law and/or fact in the weight it assigned Dr. Persi’s evidence in addressing Criterion 8, or in its application of the Guides or case law to the facts of this case.
No error of law and/or fact by not accepting Dr. Persi’s rating of 29% WPI for narcotic abuse.
16The applicant submits that we erred in law and/or fact by not accepting the 29% WPI rating assigned by Dr. Persi under Criterion 6 because the evidence supports that the applicant has an opioid addiction as a result of the accident. Further, she submits that Chapter 4 of the Guides supports that a rating can be given for this impairment.
16I do not find that we erred in law and/or fact by not accepting the 29% WPI assigned by Dr. Persi for narcotic abuse. In paragraph [22] iv) of our decision we provided our rational for not accepting this rating. Of significance, we determined that it was beyond the scope of a chiropractor to diagnose this disorder. Further, substance abuse disorder was not diagnosed by any of the assessors who completed the applicant’s CAT assessments. Consequently, I do not find that we erred in law and/or fact by not accepting this WPI rating and find we provided sufficient reasons for our decision.
No error of law and/or fact in misapprehending the evidence of Dr. Wismer in assessing causation.
17The applicant submits that we misapprehended the evidence of Dr. Wismer in assessing causation. In particular, in paragraph [23] of our decision we state that Dr. Wismer could not confirm that the impairment to the applicant’s right wrist was accident related. The applicant argues that by using the word “confirm” we imported a higher threshold of certainty that is not in line with the test for causation. She submits that Dr. Wismer’s opinion was also supported by the reports of Drs. Ginty and Kumbhare.
18I do not find that we erred in law by misapprehending the evidence of Dr. Wismer in assessing causation. The fact that we used the word confirm to describe the doctor’s testimony is inconsequential and I do not agree that it raised the threshold for the causation test. I find that we properly described Dr. Wismer’s evidence in paragraph [23] of our decision. I do not find that we erred in law and/or fact in describing Dr. Wismer’s testimony or opinion.
No error of law and/or fact in describing which model should be used from the Guides.
19Finally, the applicant submits that we erred in law and/or fact when we weighed the ratings assigned by Dr. Persi in our decision in paragraph [22] iii) and stated that the “Guides state that in rating the spine the Diagnosis Estimate Model (“DEM”) should be used”, whereas the Guides simply support that this is the preferred method of assigning ratings. I do not find any error in the panel’s description of the Guides in relation to the spine and find it to be inconsequential to the decision. Ultimately, we determined that Dr. Persi’s rating for the applicant’s spine was unsupported because we did not find the accident caused the degeneration to her spine. Further, Dr. Persi did not provide a reasonable explanation for why he used the ROM method versus the preferred method. I am not persuaded that the panel made any error of law and/or fact in its description of the Guides that would result in a different decision.
CONCLUSION
20For the reasons noted above, I dismiss the applicant’s request for reconsideration.
___________________
Rebecca Hines
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 10, 2023