RECONSIDERATION DECISION
Before: Harry Adamidis
Licence Appeal Tribunal File Number: 22-001654/AABS
Case Name: Inderani Mariyadas v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: David S. Wilson, Counsel
For the Respondent: Ken Yip, Counsel
OVERVIEW
1On September 6, 2023, the applicant requested reconsideration of the Tribunal’s decision dated August 23, 2023 (“decision”).
2In the decision I found that the applicant is not catastrophically impaired; is entitled to attendant care, a treatment plan for occupational therapy, two treatment plans for a rehab support worker, an attendant care assessment, and interest; is not entitled to housekeeping, nor a treatment plan for occupational therapy; and that the respondent is not liable to pay an award.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“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 committed a material breach 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; or
c) 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 requests reconsideration under 18.2(b) of the Rules. She submits that I made errors of fact and law in the decision.
5The respondent submits that this request for reconsideration should be dismissed.
RESULT
6The request for reconsideration is dismissed.
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.
Request for reconsideration under 18.2(b)
Levels of impairment
8The applicant submits that I erred with respect to what constitutes a moderate impairment as opposed to a marked impairment. According to the applicant, my decision states that a marked impairment for a mental and behavioral disorder significantly impedes “all” useful functioning. This is inconsistent with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), 4th edition, which states that a marked impairment significantly impedes useful functioning. The applicant submits that the word “all” is not in the definition in the Guides, and that a marked impairment level is compatible with some but not all useful functioning, and at the same time, the same impairment may significantly impede useful functioning.
9The respondent submits that the decision set out the correct test as the word “all” is implied in the definition in the Guides, as useful function is not otherwise qualified. Moreover, it argues the decision does not say that having functional abilities disallows a marked impairment rating, as suggested by the applicant.
10I do not find an error of law in my decision. I note that paragraph 27 of the decision states:
There is a clear distinction between a Class 3 moderate and a Class 4 marked impairment. Moderate impairments are compatible with some useful functioning. Marked impairments significantly impede all useful functioning.
11The Guides describe a Class 4 moderate impairment as “Impairment levels significantly impede useful functioning.”
12The Guides describe a Class 3 moderate impairment as “Impairment levels are compatible with some, but not all useful functioning.”
13The Guides do not indicate that a marked impairment is compatible with useful functioning. That language is only used to describe a moderate impairment. As such, I find the applicant’s reconsideration submission conflates the wording of a moderate and marked impairment. This is inconsistent with the Guides.
14Moreover, the decision does not say that a person with a Class 4 impairment simply cannot function at all in the four areas of functioning. Persons with a marked impairment can function. However, as noted above from paragraph 27 of the decision, “useful functioning” is impeded by a mental or behavioral disorder. In my view, this interpretation is consistent with the Guides. Consequently, the use of “all” to qualify the extent of “useful functioning” impeded by a marked impairment is also consistent with the Guides. Therefore, this is not an error of law, nor a ground for reconsideration under Rule 18.2(b)
Concentration, persistence, and pace (CPP)
15The applicant submits that the decision cites menial tasks that the applicant is able to complete or partially complete. In her view, these tasks do not justify a finding that she has a moderate impairment in CPP. As such, I made an error of law by giving too much weight to this evidence.
16The respondent submits that the evidence cited in the decision correctly shows that the applicant has the ability to sustain focus and complete some tasks and that she has a moderate level of impairment in CPP.
17I find that the applicant is asking me to reassess the evidence in the decision. Requests for reconsideration under 18.2(b) are limited to reviewing errors of law or fact. This is not an opportunity to re-weigh the evidence. I cannot reconsider the evidence in the manner requested by the applicant. Therefore, I see no error of law.
Social Functioning
18Again, the applicant submits that evidence cited in the decision does not justify a finding that she has a moderate impairment in social functioning. I see no error in the decision with respect to social functioning and for the same reasons above, I find that I cannot reconsider the evidence as requested by the applicant.
Attendant Care
19The applicant submits that I failed to appreciate the evidence when I found that the applicant does not need attendant care at night to ensure comfort. Moreover, I erred when I found that she has the ability to resume sleeping on her own if she awakes from a nightmare because other persons were at home and provided the required attendant care.
20The respondent submits that the mere fact that other persons are home at night does not make my finding erroneous.
21I do not see an error in the decision. Paragraph 61 of the decision states:
The applicant is not entitled to attendant care for ensuring comfort. Ms. Baboulas recommended 3360 minutes per week for an attendant to comfort the applicant if she wakes up after a nightmare. The respondent submits the applicant is able to resume sleeping without an attendant. I agree. The applicant testified that she if she awakes at night, then she is able to resume sleeping on her own. As such, I find that 3360 minutes per week to ensure sleep hygiene is not necessary.
22The applicant testified that she has the ability to regulate her emotions and resume sleep if she awakes from nightmares. The applicant now submits that this is incorrect. However, she does not point to any specific evidence that contradicts her own testimony. As such, I do not find that I failed to appreciate the evidence as suggested by the applicant.
Attendant Care Benefit (ACB)– Deemed Incurred
23The applicant submits that I erred when I found that attendant care cannot be deemed incurred under section 3(8) of the Schedule. She also argues that I did not give enough weight to the fact that the respondent did not consider Sabadash v. State Farm et al., 2019 ONSC 1121 on the issue of causation. Instead, I focused on the denial being “clear, transparent and fully explained.” She submits the respondent’s denial is clearly unreasonable because it ignores Sabadash and this justifies a finding that the ACB should be deemed incurred.
24The respondent submits that the decision is consistent with the leading caselaw. In particular, the reconsideration decision in S.M. v Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) which affirms that insurers are entitled to consider the opinions of their own experts and that merely making an error does not establish unreasonable denial under 3(8) of the Schedule.
25I find I did not err in my assessment of whether ACB should be deemed incurred. Paragraph 72 of my decision states:
Causation and the reasonable and necessary test are used to determine entitlement to benefits. However, these are two separate and distinct tests. The denial of the ACB is based on causation. I disagree with the respondent’s position on causation, but this alone does not make its denial unreasonable. The respondent’s denial is clear, transparent, and fully explained in its letter of June 18, 2021 and at the hearing. As such, I do not find that the respondent unreasonably denied the ACB. Consequently, I also find that the ACB cannot be deemed incurred under section 3(8) of the Schedule.
26As set out above, I considered the respondent’s position on causation and found that this alone was not enough to establish that the denial is unreasonable. The applicant may disagree with the focus of my 3(8) analysis. However, this does not constitute an error.
Occupational Therapy
27The applicant submits that I failed to appreciate the evidence when I found that the treatment plan for occupational therapy in the amount of $7,169.28 is not reasonable and necessary. She argues that with the exception of some wording, this plan is similar to two plans that were found to be reasonable and necessary. According to the applicant, the decision at paragraph 79 makes it clear that I was not aware of this. She submits that if not for this error, then the result would likely have been different.
28The respondent submits my finding is reasonable because the applicant made no submissions to support this treatment plan.
29The reasons for finding that the applicant is not entitled to this treatment plan are set out in paragraph 79:
The second treatment plan for occupational therapy services in the amount of $7,169.28 is not reasonable and necessary. No submissions were made as to why both plans for occupational therapy are required. Consequently, there is no justification to find that the applicant is entitled to the second plan.
30The applicant made no closing submissions in regard to this treatment plan. The applicant is now making new submissions post-hearing. Parties cannot re-litigate in a reconsideration request. As such, I am not in a position to consider these new submissions. Consequently, I find that no error was made.
Award
31The applicant relies on the above submissions in respect to ACB being deemed incurred to support reconsideration of the award. In particular, that the respondent did not properly apply the caselaw in regard to causation and that this constitutes a basis for an award. Having found that there is no error in the deemed incurred analysis of the decision, I further find that the applicant has not established a basis to reconsider the award.
CONCLUSION & ORDER
32For the above reasons, I dismiss the applicant’s request for reconsideration.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: December 4, 2023