RECONSIDERATION DECISION
Before:
Christopher Evans
Licence Appeal Tribunal File Number:
20-009383/AABS
Case Name:
Nanette Roldan v. The Personal Insurance Company
Written Submissions by:
For the Applicant:
Darcie Sherman, Counsel
For the Respondent:
Eric B. Heath, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision in which I found that she was not entitled to two treatment plans for chiropractic services and massage therapy, nor the cost of an orthopaedic assessment. I also found that the applicant sustained a non-minor injury and was therefore not limited to $3,500.00 in medical and rehabilitation benefits, and that she was partially entitled to the cost of a psychological assessment. Those findings are not in dispute.
2The applicant seeks reconsideration based on Rules 18.2(b) and (d) of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Rules”). She requests that my decision be varied to provide that she is entitled to the treatment plans and the cost of the assessment.
RESULT
3The applicant’s request for reconsideration is dismissed.
ANALYSIS
4In my decision, I found that the applicant had not met her onus of proving that the proposed chiropractic treatment, massage therapy, and orthopaedic assessment were reasonable and necessary. The applicant stated only that it was apparent from the evidence that she is entitled to these services without providing further explanation. She did not identify any evidence demonstrating that the proposed services are reasonable and necessary, including what musculoskeletal issues the orthopaedic assessment is intended to investigate, and did not refute the opinion of Dr. S. Dessouki (an independent assessor) that no further treatment and assessments are required.
5Rules 18.2(b) and (d) provide that a request for reconsideration will be granted if:
(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; and/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.
Rule 18.2(b): Error of Law or Fact
6I find that I did not make an error within the meaning of Rule 18.2(b).
7The applicant submits that I disregarded the following evidence:
a. The clinical notes of Dr. A. Araujo, her family doctor, which indicate that the applicant had back and shoulder injuries that pre-existed the accident, and that Dr. Araujo recommended that the applicant obtain physiotherapy and orthotics after the accident; and
b. The disputed treatment plans for chiropractic services and massage therapy, which describe the applicant’s injuries from the accident.
8The applicant also argues that she provided sufficient evidence to establish that the proposed services are reasonable and necessary, and that Dr. Dessouki’s opinion should not be accepted for a variety of reasons.
9The respondent submits that I did not make an error of law or fact. It argues that the applicant was required to explain how the evidence overcame Dr. Dessouki’s opinion that further treatments or assessments were not reasonable or necessary, and that she did not do so. It argues that the applicant is essentially asking me to re-weigh the evidence, which is not the purpose of reconsideration.
10I did not disregard the evidence highlighted by the applicant. I considered the clinical notes and records of Dr. Araujo and the applicant’s other family doctors, and refer to them at several places in my decision. I did not comment on the specific notes referenced by the applicant because they were not material to my decision. The existence of pre-existing injuries does not in itself establish that the proposed services are reasonable and necessary, nor does Dr. Araujo’s recommendation that the applicant obtain physiotherapy and orthotics establish that chiropractic services, massage therapy, or an orthopaedic assessment are reasonable and necessary. I considered the disputed treatment plans for chiropractic services and massage therapy, and commented on them at paragraph 34 of my decision.
11The applicant makes further submissions on why the proposed services are reasonable and necessary, and why Dr. Dessouki’s opinion should not be accepted. However, reconsideration is not an opportunity to reargue one’s case in a new way: K.M. v Aviva General Insurance Company, 2020 CanLII 45491 (ON LAT) (Reconsideration) at para 22. The applicant has not identified an error of law or fact in my decision, absent which I would have likely reached a different result. Consequently, she has not met the test under Rule 18.2(b).
Rule 18.2(d): Evidence Not Before the Tribunal
12I find that the applicant is not entitled to reconsideration under Rule 18.2(d).
13The applicant argues in her reply submissions that the respondent failed to produce Dr. Dessouki’s clinical notes and records as required by the Tribunal’s Case Conference Report and Order of March 31, 2022, and that this evidence likely would have affected the result of the application.
14The respondent moved for leave to file a sur-reply on this issue. In a Motion Order released concurrently with this reconsideration decision, I granted leave because this issue was raised for the first time in reply.
15In its sur-reply submissions, the respondent outlines its efforts to obtain Dr. Dessouki’s clinical notes and records. For the purposes of this reconsideration, it is sufficient to note that there are no such documents. Consequently, there is no evidence that could have affected the result of the application, and no grounds for reconsideration under Rule 18.2(d).
16The applicant argues that Dr. Dessouki must have clinical notes and records because he commented on the applicant’s functional abilities in his report. I do not accept this submission. When the respondent requested these documents from Dr. Dessouki, he advised that there are none. I am not prepared to infer that this is untrue because his report comments on the applicant’s functional abilities.
17In any event, Rule 18.2(d) requires that the party seeking reconsideration have evidence it seeks to introduce. It states that reconsideration is available if there is evidence that was not originally before the Tribunal and that could not have been obtained previously by the party now seeking to introduce it. It is insufficient to argue that such evidence should exist. Furthermore, Rule 18.2(d) requires that the evidence would likely have affected the result of the application. It is impossible to make this assessment without having the evidence in question.
ORDER
18The applicant's request for reconsideration is dismissed.
Christopher Evans
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 6, 2023