Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 20-003960/AABS
Case Name: Eleonor Quinn v. Security National Insurance Company
Written Submissions by:
For the Applicant: Stanley Razenberg, Counsel
For the Respondent: Francine Papadopoulos, Counsel
OVERVIEW
1On July 18, 2023, the applicant requested reconsideration of the Tribunal’s decision dated June 29, 2023 (“decision”). In that decision, the Tribunal determined that the applicant was entitled to a treatment plan (“OCF-18”) dated September 17, 2019 for chiropractic services and was not entitled to income replacement benefits (“IRBs”), attendant care benefits, the remaining OCF-18s or an award.
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 applicant is seeking reconsideration pursuant to Rule 18.2(a) and (b). In her reconsideration submissions, the applicant has not specified the relief being requested. However, she disputes the Tribunal’s findings with respect to the issues of IRBs, attendant care benefits, the OCF-18 dated June 3, 2019 for chiropractic treatment and the award. From the submissions, I infer that the applicant is requesting that an order be granted upon reconsideration for payment of the denied benefits and the award.
4The respondent submits that the applicant’s reconsideration request should be denied.
RESULT
5The applicant’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 applicant must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(a): Acted Outside of Jurisdiction and Violation of Procedural Fairness
7I find that the applicant has not established grounds for reconsideration under Rule 18.2(a). The applicant submits that the Tribunal acted outside of its jurisdiction and violated procedural fairness on the issue of IRBs. The applicant argues that the Tribunal erred in its determination that she was not entitled to IRBs, since the dispute on the issue of IRBs solely related to the quantum of IRBs, not entitlement.
8The applicant contends that at the videoconference hearing, the respondent’s handling adjuster testified that the respondent determined that she was entitled to IRBs, and that based on the adjuster’s testimony, the respondent’s “official position” was that the applicant is entitled to payment of IRBs. The sole remaining issue as to the quantum of IRBs was addressed at the hearing by way of viva voce evidence and an accounting report. As such, the applicant argues that the Tribunal incorrectly considered the issue of entitlement, as opposed to quantum.
9The respondent argues that there was no violation of procedural fairness or jurisdiction. It submits that the applicant failed to provide any caselaw or authority in support of her position that the handling adjuster’s viva voce evidence was uncontradicted evidence of entitlement to IRBs. The respondent further submits that in its decision, the Tribunal acknowledged the adjuster’s testimony but delineated why other evidence was preferred.
10I find that the applicant has not met her onus to demonstrate that the Tribunal acted outside of its jurisdiction or violated procedural fairness in its determination that the applicant was not entitled to IRBs. The Case Conference Report and Order dated February 26, 2021 listed the issues in dispute for the two combined accidents addressed at the videoconference hearing. For the August 6, 2017 accident, the issue was identified as: “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 13, 2017 to date and ongoing?”. With respect to the September 15, 2019 accident, the issue was identified as: “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from July 26, 2020 to date and ongoing?”. The applicant does not dispute that at the hearing, she withdrew her IRB claim for the September 15, 2019 accident.
11I agree with the respondent that in its decision, the Tribunal properly considered the issues before it. In paragraph 22 of the decision, the Tribunal identified the issue of entitlement to IRBs, and in paragraphs 24 to 26 outlined the evidence it considered in support of the claim, including the evidence of the handling adjuster. The applicant submits that the viva voce evidence of the adjuster is uncontradicted evidence of entitlement to IRBs and confirms the respondent’s “official position” that she is entitled to payment of IRBs. However, the applicant has not led any evidence in support of this claim. No transcript evidence of the adjuster’s testimony has been provided by the applicant to confirm the particulars of the applicant’s submissions. It is well settled that submissions alone are not evidence. Rather, evidence must be provided in support of a claim.
12The applicant has not directed me to any evidence supporting her claims of purported admissions from the respondent. Further, I agree with the respondent that the applicant has not provided any authority in support of her contention that viva voce evidence amounts to uncontradicted entitlement. Without transcript evidence or supplemental authority on this point, I find that the applicant has failed to meet her onus to prove any breach of procedural fairness, or that the Tribunal acted outside of its jurisdiction in violation of Rule 18.2(a).
Rule 18.2(b): Errors of Law
13The applicant submits that the Tribunal made errors of law such that the Tribunal would likely have reached a different result had the errors not been made. I disagree and find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
14The applicant argues that the Tribunal:
i. Failed to provide sufficient reasons in support of its decision in rejecting certain viva voce and medical evidence;
ii. Failed to provide sufficient reasons as to why one chiropractic treatment plan was found to be reasonable and necessary, but not the other;
iii. Failed to consider whether a special award was payable in respect of the benefits owing to the applicant;
iv. Disregarded the uncontradicted evidence of the respondent’s adjuster as to the issue of IRB entitlement;
v. Failed to properly consider evidence put forward by the applicant on the issue of IRB quantum, including the accounting report of RSM Canada Consulting LP; and
vi. Failed to properly consider the viva voce and medical evidence in support of the applicant’s claim for attendant care benefits.
Failing to provide sufficient reasons
15I find that the Tribunal provided adequate reasons in its decision. I agree with the respondent that it is well-settled that an adjudicator is not required to refer to every piece of evidence when reaching a determination on the issues in dispute. I further find that in the course of its analysis, the Tribunal properly set out and applied the correct legal tests, reviewed and assessed the evidence submitted by both parties, and set out its conclusions.
16With respect to the issue of IRBs, at paragraph 23, the Tribunal set out the legal test to establish entitlement to post-104 week IRBs. At paragraph 24 the Tribunal set out the applicant’s evidence, including the testimony of the occupational therapist, and the testimony of the respondent’s adjuster. At paragraph 25, the Tribunal considered the respondent’s medical evidence and submissions that the applicant had reported significant improvements to medical professionals and had returned to work on modified duties. In paragraph 26, the Tribunal acknowledged the applicant’s evidence, but stated that it was not persuaded by the evidence and found that the applicant did not meet the test for post-104 week IRBs.
17Similarly, on the issue of attendant care benefits, at paragraph 28 of its decision, the Tribunal set out the test for entitlement to the benefits. In paragraph 29, it reviewed the applicant’s evidence in support of this claim, including the occupational therapy assessment report and two Assessments of Attendant Care Needs (Form 1s). At paragraphs 31 and 32, the Tribunal assessed the applicant’s evidence and provided reasons why it preferred the evidence submitted by the respondent. The Tribunal provided its conclusion, at paragraph 32, that the applicant did not meet the legal test for attendant care benefits.
18With respect to the OCF-18 in dispute, at paragraphs 35 and 36, the Tribunal reviewed the evidence presented by the parties and at paragraph 37, provided reasons why it preferred the evidence of the respondent’s medical expert, Dr. Holland. I do not agree that the Tribunal’s decision that one chiropractic treatment plan is reasonable and necessary, while the other one is not, was contradictory. I agree with the respondent that the Tribunal provided sufficient reasons for this determination. At paragraph 37, the Tribunal distinguished between the two chiropractic treatment plans, and noted that one of the plans related to the 2017 accident, while the other related to the 2019 accident. Given the accident history, complaints and medical evidence, the Tribunal found that the OCF-18 relating to the 2017 accident is not reasonable and necessary.
19I find that the reasons provided in the decision on the stated issues are sufficient. They review the evidence submitted by the parties, establish a logical connection between the evidence and the law, set out the findings of fact upon which the Tribunal reached its decision, provide the Tribunal’s conclusions and explain the reasoning process that led to the conclusions. I find that the applicant has not established grounds for reconsideration.
Failing to consider special award for OCF-18
20The applicant argues that the Tribunal erred in fact and law in failing to consider the claim for a special award in respect of the benefits she had been awarded. I agree with the applicant that in the decision, the Tribunal did not consider whether the applicant was entitled to an award for the OCF-18 dated September 17, 2019 for chiropractic services. In paragraph 47, the Tribunal notes that an award is not payable, “(g)iven that the applicant failed to establish entitlement to the benefits she sought”. However, the applicant did establish entitlement to the OCF-18 dated September 17, 2019.
21Although I agree with the applicant that the Tribunal erred in not considering her claim for a special award with respect to one treatment plan, I find the applicant has not established grounds for reconsideration. The applicant has not provided any submissions on whether this error would have likely caused the Tribunal to have reached a different result, had the error not been made as required by Rule 18.2(b). It is the applicant’s onus to demonstrate how the two-part test in Rule 18.2(b) has been met. The bar for an award is high. There were a number of issues in dispute, and the applicant has not established how entitlement to one treatment plan would likely have changed the Tribunal’s decision that she is not entitled to a special award. I find that applicant has not met her onus to establish grounds for reconsideration under 18.2(b).
Consideration of Evidence
22The applicant submits that the Tribunal erred in law in failing to properly consider certain evidence. Specifically, that the Tribunal improperly disregarded the evidence of the respondent’s adjuster with respect to IRB entitlement, failed to properly consider the accounting report relating to IRB quantum and failed to properly consider the viva voce and medical evidence in support of the applicant’s claim for attendant care benefits.
23I find no error of law in the decision. As previously noted, on each of the issues in dispute, the Tribunal provided clear and cogent reasons as to why the respondent’s evidence was preferred to that of the applicant. The fact that the applicant does not agree with the Tribunal’s analysis or decision is not grounds for reconsideration. I agree with the respondent that the reconsideration process is not meant to be a reweighing of the evidence presented at first instance. I find that the applicant’s reconsideration submissions on this point are an attempt to reargue her case.
CONCLUSION
24For the reasons noted above, I dismiss the applicant’s request for reconsideration.
Ulana Pahuta Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: December 18, 2023