RECONSIDERATION DECISION
Before: Harry Adamidis, Adjudicator
Licence Appeal Tribunal File Number: 21-010975/AABS
Case Name: Yurak Dahi v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Mark Stoiko, Counsel
For the Respondent: Brian Yung, Counsel
BACKGROUND
1This request for reconsideration was filed by the Applicant in this matter.
2It arises out of a decision dated April 20, 2023 in which I found that the Applicant is not catastrophically impaired (CAT), not entitled to a CAT assessment, and she is not entitled to interest.
RESULT
3The Applicant’s request for reconsideration is dismissed.
ANALYSIS
4The 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 (“Rules”). 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.
5Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
6The applicant argues that pursuant to Rule 18.2(b), I made an error of fact and law by ignoring and mischaracterizing evidence such that a different decision would have been reached had the error not been made.
7In paragraph 40 of the decision, I found that the applicant’s musculoskeletal impairments were not caused by the motor vehicle accident (MVA), but by degenerative changes.
8According to the applicant, the orthopedic experts of both parties testified that the applicant experienced an immediate onset of neck pain after the MVA. As well, there is no dispute that the applicant’s neck was injured and that the applicant has continuously experienced neck pain since the MVA.
9The respondent’s expert Dr. Jaroszynski, orthopedic surgeon, acknowledged that an MRI confirms that from the time of the accident, January 29, 2015, to July 24, 2018, the applicant’s condition became progressively worse to the point where she needed surgery. The applicant’s expert Dr. Kwok, orthopedic surgeon, also testified that the applicant’s debilitation is connected to the MVA.
10The applicant submits that this compelling evidence was ignored and mischaracterized when I found that there is not enough evidence to establish that the applicant’s physical impairments are not caused by the MVA.
11I disagree. In paragraphs 33 and 34 of the decision, I noted Dr. Kwok’s opinion that the applicant developed spinal stenosis as a result of the accident. I also noted that this conclusion was entirely based on the fact that the applicant was asymptomatic before the MVA and experienced neck and back pain after the accident.
12In paragraph 36 of the decision, I noted Dr. Jaroszynski’s testimony that there is no evidence of trauma in the imaging of the applicant’s spine taken two weeks after the accident. I further noted his testimony where he explained that in the vast majority of cases spinal stenosis is caused by degenerative changes.
13In paragraphs 29 to 32, I noted that Dr. Marmor, the applicant’s neurosurgeon, stated in a letter dated November 16, 2015 that imaging revealed mild degenerative changes in her spine. Three years later, in a letter dated October 12, 2018, he opined that her MRI reveals a progression of her degenerative condition. He ultimately recommended surgery and later diagnosed her with degenerative disc disease.
14In paragraph 37, I explained why I preferred the opinion of Dr. Jaroszynski over the opinion of Dr. Kwok. I found there is no imaging showing trauma to the spine and that this is inconsistent with Dr. Kwok’s finding that the spine was injured in the accident where degenerative changes are visible in the imaging. Moreover, Dr. Kwok provided no explanation as to why the accident is more likely to have caused the applicant’s impairments than the clearly documented degenerative changes. For these reasons I found that Dr. Jaroszynski’s opinion, that the applicant’s physical impairments were caused by degenerative changes, to be more persuasive.
15The decision thoroughly reviewed and assessed the evidence of the applicant’s physical impairments and concluded that these impairments were not caused by the MVA, but by degenerative changes. The applicant may disagree with how the evidence was weighed and considered, but that does not mean that I ignored or mischaracterized the evidence. This is not an error of law and this is not a ground for reconsideration.
16The applicant submits that the decision does not explicitly reference the “but for” test. She submits that the evidence convincingly establishes that the MVA was a necessary cause of the applicant’s physical impairments. This is enough to establish causation on a balance of probabilities, which would have occurred if the “but for” test had been correctly applied.
17I disagree. The applicant’s causation position is premised on Dr. Kwok’s opinion that the applicant developed spinal stenosis as a result of the MVA. This premise was rejected in paragraph 37 of the decision. There are no further causation elements to consider. As such, the “but for” test was correctly applied. I see no error of fact or law.
18The applicant also submits that I ignored evidence of the applicant’s psychological impairment. She submits that psychological impairment was an important component of the applicant’s evidence and supports her causation argument. She argues that as this evidence was not even mentioned in the decision, this is an error of fact because a valid finding of fact cannot be made by ignoring relevant evidence.
19I disagree. The applicant’s mental impairment rating is 30%. As noted in paragraph 42, this rating was accepted at face value. However, I also found that the applicant’s physical impairments were not caused by the accident. Consequently, it was not possible for the applicant to reach 55% whole of person impairment rating under Criterion 7. This is explained in paragraph 42. Consequently, the applicant’s psychological impairments were not ignored in the Criterion 7 assessment. Her psychological impairments were given full weight.
20In regard to the applicant’s entitlement to a CAT assessment, the applicant submits that I did not apply the test in 17-003496 v TD Insurance, 2018 CanLII 13167 to determine whether she is entitled to a CAT assessment. The applicant cites paragraph 29 which states that “…requiring the applicant to prove causation at this hearing would unfairly force him to prove what the assessment is intended to determine.” In other words, an insured person does not have to prove they are CAT in order to be found eligible for a CAT assessment.
21The legal test for considering the applicant’s entitlement to the CAT assessment is articulated at paragraph 45 of the decision:
In order for a CAT assessment to be reasonable and necessary, the evidence must show that the accident has caused the applicant to be impaired to such a degree that a CAT finding is probable.
22According to the applicant, this equates to the “balance of probabilities” test. She submits that I failed to apply the less onerous test for the CAT assessment. This is an error in law such that the CAT assessment would have been found payable if this error had not been made.
23Again, I disagree. Paragraph 45 of the decision does not say that the applicant must prove that they are catastrophically impaired in order for an assessment to be found reasonable and necessary. It clearly states that the applicant must show that a CAT finding is probable. This is the correct test.
24Paragraphs 47 and 48 set out the reasons why I found that the there was insufficient evidence to establish why a CAT finding was not probable:
47Imagining shows degenerative changes and the applicant’s physical impairments significantly worsened after the 2018 surgery. I have found that, on a balance of probabilities, these two factors caused the applicant’s physical impairments.
48The applicant submits that the purpose of the Tribunal is to offer consumer protection that allows for people, like the applicant, to receive benefits. I certainly agree with this position. But I would also add that decisions must be supported by evidence. In this case, the applicant was certainly aware of the two factors noted in the previous paragraph when she proceeded with a catastrophic determination. However, she has not been able to provide persuasive evidence to demonstrate that her physical impairments were caused by the accident, as required by the Schedule.
25I gave weight to the degenerative changes, and the worsening of her physical impairments after the 2018 surgery when I considered whether the CAT assessment was reasonable and necessary. I also noted that there was no persuasive evidence of the applicant’s impairments being caused by the accident. Again, the applicant may disagree with how I weighed the evidence. However, assigning weight to evidence in a manner that is disagreeable to a party is not an error of law.
CONCLUSION
26For the reasons noted above, the Applicant's request for reconsideration is dismissed.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 28, 2023