Reynolds v. CUMIS General Insurance Company, 2023 CanLII 15051

Citation: Reynolds v. CUMIS General Insurance Company, 2023 ONLAT 20-001599/AABS - R

RECONSIDERATION DECISION

Before: Ulana Pahuta

Licence Appeal Tribunal File Number: 20-001599/AABS

Case Name: Nicholas Reynolds v. CUMIS General Insurance Company

Written Submissions by:

For the Applicant: Naphtali Silverman, Counsel

For the Respondent: Hooman Zadegan, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant in this matter. It arises out of the November 10, 2022 decision (“decision”) in which I found that the applicant was not entitled to income replacement benefits (“IRBs”) or interest.

2The applicant requested a reconsideration of the decision on the basis that I violated the rules of procedural fairness and made errors of fact such that I would likely have reached a different result had the errors not been made. The applicant is seeking an order varying my decision and approving his claim to IRBs from March 2020, to date and ongoing. In the alternative, the applicant is seeking a rehearing on this issue.

3At the initial hearing I considered both the pre-104 week and post-104-week IRBs and found that the applicant was not entitled to IRBs for either period in dispute. In his request, the applicant is not requesting a reconsideration of my finding on the pre-104-week IRBs. Rather, his reconsideration request is limited to the post-104-week IRBs from March 2020 to date and ongoing.

RESULT

4The applicant's request for reconsideration is denied.

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, Version I (October 2, 2017) as amended (“Rules”).

6Under Rule 18.2, a request for reconsideration will not be granted unless one 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.

7Reconsideration 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.

8The applicant advances his request for reconsideration request under Rule 18.2(a) and (b).

ANALYSIS

Rule 18.2(a) - Procedural Fairness

9The applicant submits that I violated the rules of procedural fairness by - considering new arguments that were not raised by the respondent in its submissions; overruling the diagnosis of medical professionals in the absence of evidence to the contrary; and failing to provide adequate reasons.

10I have considered each of these arguments and find the applicant has not established grounds for reconsideration under Rule 18.2(a) for the reasons set out below.

Considering Arguments not Raised by the Respondent

11The applicant submits that I erred when I found that the applicant had not provided submissions or evidence of the details of his employment, experience or schooling. At paragraph 66 of my decision, I noted that the applicant had not led any evidence or provided details about his schooling, training, or details as to his job experience. The applicant argues that since the respondent did not raise an argument about the lack of evidence, I was improperly arguing my “own, new case against the Applicant”.

12I disagree. The role of the Tribunal is to interpret and apply the law. As noted in paragraphs 8 to 10 of my decision, pursuant to s. 6(2) of the Schedule, in order to establish entitlement to post-104-week IRBs, an applicant bears the onus of proving that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. My finding that the applicant had not provided submissions or evidence of the details of his employment, education, training or experience was not a new argument that I had raised, but rather an application of the legal test he was required to meet. This is my responsibility as an adjudicator. It is not a violation of procedural fairness and as such, it is not grounds for reconsideration.

Overruling the Diagnosis of Medical Professionals

13The applicant submits that I acted outside of my qualifications as an adjudicator by overruling the diagnosis and conclusions of regulated medical professions in the absence of medical opinions to the contrary, and that this is a violation of procedural fairness. With respect to his ankle injury, the applicant submits that I erred in my finding that it was not caused by the accident and that I had “overruled” the diagnosis of Dr. Peskun, an orthopedic surgeon.

14I disagree. I considered Dr. Peskun’s report in paragraphs 27 to 28 of my decision in the context of the entire medical record. I found that while the applicant had consistently attended at numerous doctors in the four years post-accident, the applicant had not previously reported any bilateral ankle pain. The applicant is re-arguing his case which is not grounds for reconsideration.

15In addition I find that even if I had erred in finding that the applicant’s ankle impairments were not caused by the accident, this would not have changed the outcome of the decision. In his submissions for reconsideration, the applicant highlights Dr. Peskun’s finding that due to his ankle impairments, the applicant reported difficulty with standing, walking and climbing stairs. However, the applicant had not provided any submissions or evidence as to whether his employment involved physical activity or if it was sedentary, or how this ankle injury impacted his ability to work. As such, even if I was incorrect in my finding that the ankle impairment was not caused by the accident, the applicant still did not meet his burden to prove that the ankle impairment caused a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

16The applicant further submits that it is a violation of procedural fairness to “disagree with the applicant’s medical professionals in the absence of competing medical opinions”. The applicant submits that since I did not accept the opinion of some of the respondent’s IE assessors when making my findings, this means the respondent has not provided a competing medical opinion in support of its position. As such, the applicant appears to be arguing that the opinions of his assessors must be accepted and that he is entitled to IRBs.

17I find the applicant’s arguments do not establish grounds for reconsideration. I considered the totality of medical evidence in rendering my decision, and referenced the extensive medical record, including clinical notes and records of the applicant’s treating physicians and specialists. The applicant is essentially arguing that I violated procedural fairness by failing to properly consider and weigh his evidence. As part of its fact-finding function, the Tribunal weighs evidence as it considers appropriate. Dissatisfaction with the weight the Tribunal accords to evidence is not a basis for reconsideration.

Failing to Provide Adequate Reasons

18The applicant submits that I failed to provide adequate reasons for my decision. I disagree. In the course of my 14 page decision, I set out the legal tests to be met, reviewed and assessed the evidence, and gave reasons for my conclusions on each issue. In paragraphs 51 to 60 of my decision, I considered the applicant’s medical evidence with respect to post-104 week IRBs. At paragraph 66 of my decision, I set out the relevant legal issue.

19At paragraphs 66 to 68, I noted that even though the applicant had led evidence that he suffered from accident-related impairments, he had not provided an opinion from a treating physician or assessor of such a complete inability to engage in employment. In addition, I noted that the applicant had not led any evidence as to how these impairments affected his ability to engage in employment, nor did he provide any details as to his schooling, training or work experience. As such, I found that he had failed to meet his onus to prove that he met the eligibility for the post-104 week test for entitlement to IRBs.

20I find no violation of procedural fairness in my decision. I appropriately weighed the evidence, made findings of fact, and provided sufficient reasons for concluding that the applicant was not entitled to post-104 IRBs pursuant to s. 6(2) of the Schedule.

Rule 18.2(b) - Errors of Fact

21The applicant submits that I made several errors of fact when reviewing the medical records, such that I would likely have reached a different result had that error not been made. I will review each of these in turn.

22The applicant submits that I erred in fact in not giving sufficient weight to a medical note from his treating physician Dr. Pflug, dated April 6, 2020.

23I disagree. The applicant has not pointed to an error of fact. In my decision, I weighed the evidence and came to a conclusion. At paragraphs 57 to 62, I discussed the evidence, including the note from Dr. Pflug. I referenced a number of the applicant’s self-reports, including that he stopped work due to Covid concerns and not due to his accident-related impairments and that he had subsequently requested a follow-up note from Dr. Pflug to his employer with respect to proper protective equipment. I noted that the applicant further referenced subsequent correspondence with his employer about his Covid-related concerns and greater protective measures. Finally, I noted at paragraph 61 of my decision, that in a July 2021 CNR entry from Dr. Pflug, Dr. Pflug stated that he had completed a work certificate for the applicant. In my decision, I noted that none of these underlying referenced documents were provided by the applicant.

24The applicant also submits that I did not provide appropriate weight to Dr. Pflug’s note, as evidence that his medical practitioner opined that he was completely unable to work. I disagree. While the note did state that the applicant should not work outside his home, Dr. Pflug did not state that the applicant was completely unable to work. In paragraphs 11 to 28 and 60 of my decision, I discussed the applicant’s serious medical conditions stemming from childhood, which had led to an immunocompromised state. I considered Dr. Pflug’s comment that the applicant should not work outside the home, in the context of the applicant’s immunocompromised state, his reported Covid concerns and reiterated that the previously mentioned employment documentation had not been provided by the applicant. As such, I do not see any error in my consideration of Dr. Pflug’s note.

25Finally, the applicant submits that I erred in my characterization of his impairments and in not providing sufficient weight to various reports from his assessors, including multidisciplinary CAT reports. I disagree. In paragraphs 12 to 28 of my decision I detailed the applicant’s pre-existing serious medical conditions and his psychological and physical impairments post-accident. In paragraph 45 of my decision, I noted that the applicant was able to return to work post-accident despite ongoing diagnoses of chronic pain and serious psychological impairments, such as severe major depression, PTSD, somatic symptom disorder, moderate and specific phobia – vehicular, and social anxiety disorder. In paragraph 42 of my decision, I noted that the applicant self-reported that he was able to return to work post-accident, due to accommodations from his employer and that his employer “has been understanding of his situation.”

26The applicant submits that I should have placed more weight on his multidisciplinary CAT assessments, and should have referenced the class designation conclusions of Dr. Hannah Rockman, psychologist, in my decision. While I agree that I did not expressly reference Dr. Rockman’s conclusions in my decision, I am not required to identify all of the evidence submitted, weighed, and contemplated in making my decision. I reviewed and considered the psychological CAT assessment in the course of making my determination, but did not find it persuasive on the issue of IRBs.

27In Dr. Rockman’s psychological assessment, she raised validity concerns with respect to the applicant’s testing. Dr. Rockman noted that the applicant’s responses on tests were either invalid or indiscriminate and that the information he provided was “not always commensurate with the information in other reports”, specifically with respect to his return to work.

28I find that the applicant’s request for reconsideration is an attempt to reargue his case, and that the applicant is asking the Tribunal to re-weigh the evidence already submitted at the initial hearing. A reconsideration is not an opportunity for an applicant to reargue one’s case or an appeal. The applicant has not established grounds for reconsideration under Rule 18.2(b).

CONCLUSION

29For the reasons outlined above, the applicant’s request for reconsideration is dismissed.

Ulana Pahuta

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal