20-008352/AABS - R
RECONSIDERATION DECISION
Before: Christopher Evans
Licence Appeal Tribunal File Number: 20-008352/AABS
Case Name: Mellissa Stone v. BelairDirect Insurance Company
Written Submissions by:
For the Applicant: Nicholas Whelan, Paralegal
For the Respondent: Nickola Haddad, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision in which I found that the applicant sustained a predominantly minor injury and was consequently limited to $3,500.00 in medical and rehabilitation benefits, and that she was not entitled to benefits for physiotherapy services proposed in two treatment plans.
2The applicant submits that I made errors of law and fact absent which I would likely have reached a different result and that I am biased. She requests that my decision be varied to provide that she sustained a non-minor injury and that she is entitled to the benefits in dispute with interest.
3I take the applicant to be relying on Rules 18.2(a) and (b) of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, which provide that reconsideration may be granted if the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made, and/or if it acted outside its jurisdiction or violated the rules of procedural fairness.
RESULT
4The request for reconsideration is dismissed.
ANALYSIS
5The applicant argues that I erred in giving little weight to Dr. W. Mar’s diagnosis that she sustained a concussion, and showed myself to be biased in doing so. She also argues that I erred in declining to infer that she sustained a concussion from her reported symptoms.
The Decision
6Dr. Mar’s diagnosis is stated in a clinical note dated July 31, 2018, which I reproduced in full at paragraph 17 of my decision. I noted that the parties disagreed on the reasoning behind Dr. Mar’s diagnosis. The applicant argued that the basis of the diagnosis was headaches and difficulty keeping balance. The respondent argued that the basis of the diagnosis was headaches and fatigue, and that Dr. Mar made no mention of balance issues. At paragraphs 19 and 20 of my decision, I stated that I gave the diagnosis little weight for the following reasons:
a. The rationale for the diagnosis was unclear, as illustrated by the parties’ differing interpretations of the clinical note;
b. It was unclear whether the statement “balance n” in the clinical note referred to difficulty maintaining balance;
c. On either party’s interpretation of the clinical note, the diagnosis was based only on the applicant’s reported symptoms. There was no indication that Dr. Mar conducted a physical assessment or tested for any other symptoms of a concussion; and
d. Headaches and fatigue are generic symptoms with many possible causes. There was no indication that Dr. Mar considered other potential diagnoses and determined that a concussion was the most likely cause of these symptoms.
7At paragraph 25 of my decision, I found that the applicant’s reported symptoms did not support the inference that she sustained a concussion. I gave two reasons:
a. I gave little weight to Dr. Mar’s diagnosis, which was based on the symptoms she reported at the July 31, 2018 appointment; and
b. When the applicant reported other symptoms at different times to the emergency room doctor, Dr. Mar at an appointment on July 17, 2018, and the author of a disability certificate (OCF-3), none of them diagnosed her with a concussion.
Positions of the Parties
8The applicant submits that I erred in giving Dr. Mar’s diagnosis little weight because the parties differed in their interpretation of the clinical note, that it was not open to me to place little weight on the objective evidence of a qualified doctor, and that her symptoms clearly indicate that she sustained a concussion.
9The respondent submits that the applicant is essentially asking me to re-weigh the evidence, which is not the purpose of reconsideration. It argues that I was entitled to assign limited weight to Dr. Mar’s diagnosis even though he is a medical professional, and that my finding that the applicant did not sustain a concussion was based on the totality of the evidence.
Findings
10I find that I did not err in giving little weight to Dr. Mar’s diagnosis or in declining to infer that the applicant sustained a concussion from her reported symptoms.
11I agree that it would be an error to find that the rationale for the diagnosis was unclear solely because the parties differed in their interpretation of the clinical note. When parties disagree on the interpretation of a document, the finder of fact may have to decide which interpretation is more persuasive. However, my finding was that the rationale for the diagnosis was unclear from the text of the clinical note, and that this lack of clarity was illustrated—not caused—by the parties’ differing interpretations. In any event, I found that the diagnosis was entitled to little weight on either interpretation because it was based solely on the applicant’s reported symptoms with no physical examination or testing, and there was no indication that Dr. Mar considered and ruled out alternative diagnoses for the applicant’s headaches and fatigue.
12I disagree that it was an error to place limited weight on the diagnosis because it was the objective evidence of a medical professional. It is the role of the finder of fact to assign weight to the evidence, including expert opinions.
13In my decision, I rejected the argument that it is clear from the applicant’s symptoms that she sustained a concussion. The applicant’s submissions on reconsideration are a restatement of that argument. The purpose of reconsideration is not to re-argue one’s case, but, in the case of Rule 18.2(b), to identify an error of law or fact in my decision. The applicant has not done so.
14I disagree that giving little weight to Dr. Mar’s diagnosis revealed that I am biased. There is a strong presumption of judicial or quasi-judicial impartiality. To overcome that presumption, the applicant must identify serious grounds. A finding adverse to the applicant is insufficient on its own.
CONCLUSION
15The request for reconsideration is dismissed.
Christopher Evans
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 14, 2023