Ngoc My Ly v. Aviva General Insurance, 2023 CanLII 19849

Licence Appeal Tribunal

Citation: Ly v. Aviva General Insurance, 2023 ONLAT 20-012558/AABS- R

RECONSIDERATION DECISION

Before: E. Louise Logan

Licence Appeal Tribunal File Number: 20-012558/AABS

Case Name: Ngoc My Ly v. Aviva General Insurance

Written Submissions by:

For the Applicant: Meghan Hull, Counsel

For the Respondent: Jonathon White, Counsel

BACKGROUND

1The applicant is seeking a reconsideration of the Tribunal’s decision released on September 9, 2022 (“decision”). In the decision, the Tribunal determined the applicant is not entitled to an income replacement benefit (“IRB”), attendant care benefits, treatment plans (“OCF-18”) for medical and rehabilitation benefits, interest, or an award under section 10 of Regulation 664. The applicant is seeking a reconsideration of the Tribunal’s decision with respect to the IRB, OCF-18s, interest and section 10 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 a reconsideration pursuant to Rule 18.2(b). She requests that the Tribunal vary the decision to grant the applicant’s claims. Alternatively, she requests an order for a rehearing of the issues.

4The respondent submits that the applicant has not established grounds for reconsideration. The respondent argues the applicant’s request should be dismissed.

RESULT

5The applicant's request for reconsideration is denied.

ANALYSIS

6The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. The test involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision, or where it failed to meet its burden at first instance. The requestor must show how or why the decision at first instance falls into one of the categories in Rule 18.2.

7The applicant submits that the Tribunal made a number of errors of fact and law in the decision. Upon review, I find the applicant has not established grounds for reconsideration under Rule 18.2(b) for the reasons set out below.

Concussion

8The applicant argues the Tribunal erred when it concluded there was no evidence to support a finding that the applicant had a concussion; made mistakes of fact and law in its assessment of the family doctor’s notes related to a concussion diagnosis; and erred when it did not acknowledge the significance of the applicant’s psychological diagnosis. The applicant argues that these errors are such that the Tribunal would likely have reached a different result had the errors not been made.

9I disagree. I find no error of fact or law in the Tribunal’s treatment of the concussion evidence. In doing so, I note that at paragraphs 7 to 17 the Tribunal conducted a comprehensive review of the medical evidence before concluding the evidence does not support a concussion diagnosis. At paragraph 10, the Tribunal noted that in January 2020 the applicant’s family doctor “completed a medical leave form for [the applicant’s] employer and confirmed the diagnosis was a concussion and secondary back pain”. In the same paragraph the Tribunal noted that in October and November 2021 the family doctor opined that the applicant’s dizziness and anxiety could be from a concussion. At paragraph 11, the Tribunal set out the reasons why it did not find the family doctor’s opinion compelling. At paragraph 13, the Tribunal set out the results of the neuropsychological assessment undertaken by Dr. Valentin. The Tribunal noted that Dr. Valentin stated that the applicant had possibly sustained a concussion, but also opined that this was not consistent with a neurocognitive disorder, and the applicant’s cognitive issues were likely due to her emotional problems.

10I find that the Tribunal’s decision shows that it assessed the medical evidence and provided reasons for finding that the evidence did not support a concussion diagnosis. In doing so, the Tribunal considered the family doctor’s notes, the applicant’s psychological diagnosis, as well as other relevant evidence. I find that the applicant’s arguments do not establish grounds for reconsideration under Rule 18.2(b).

Surveillance Evidence

11The applicant submits that the Tribunal’s conclusions about the surveillance evidence are factually inaccurate. Specifically, she submits that the surveillance was taken over a four-day period rather than on one day; disputes the Tribunal’s findings about what the surveillance shows; and disputes its relevance to the case given the passage of time between the accident and the surveillance.

12I disagree. I find no error in the Tribunal’s treatment of the surveillance evidence. At paragraph 19 the Tribunal notes that the surveillance relied on by the respondent was taken on March 9, 2022. A footnote to that paragraph notes that the video “was taken over a 4-day period in March 2022”. At paragraph 20, the Tribunal addressed the question of the timing of the surveillance and its relevance to the issues in dispute. The Tribunal noted that the surveillance was conducted 2 years and 4 months after the accident, which was “at a time when the applicant claimed her symptoms and pain continued”.

13At paragraph 19, the Tribunal noted that the surveillance showed the applicant walking, sitting, standing, entering and exiting a vehicle. It also showed the applicant bending, grabbing and carrying a recycling bin. She was also observed shopping in a store with bright lights, pushing a shopping cart, and holding a grocery bag. The applicant submits that the Tribunal’s finding that the applicant showed no signs of distress under the bright lights in the store was an error as the applicant’s back was to the camera. I do not find this to be grounds for reconsideration. I find that paragraph 19, taken as a whole, is consistent with the Tribunal’s finding that the surveillance was helpful “in assessing the applicant’s injuries as they relate to the level of severity and persistence claimed by the applicant”.

Income Replacement Benefit

14The applicant submits the Tribunal made numerous errors in its determination that she was not entitled to an IRB. She submits the Tribunal erred in stating that the quantum of IRB was in dispute. She argues that the Tribunal erred in stating that the applicant’s education was not mentioned in Dr. Valentin’s testimony. She submits that the Tribunal erred in finding that the applicant had failed to provide sufficient evidence that she meets the test for entitlement to an IRB. She argues the Tribunal mischaracterized the evidence of Dr. Valentin regarding the applicant’s return to work. She submits that the correct facts are that Dr. Valentin addressed the applicant’s education in her testimony; Dr. Valentin testified that the applicant met the pre-104 IRB test; and Dr. Valentin testified that the applicant meets the post-104 IRB test.

15I agree with the applicant that Dr. Valentin mentioned the applicant’s education in her testimony and report. At paragraph 14, the Tribunal noted that “no mention is made in [Dr. Valentin’s] testimony about the applicant’s education which is part of the post-14 weeks IRB statutory test”. The transcript provided by the applicant in her submissions indicates that Dr. Valentin briefly referred to the applicant’s education in her testimony. The applicant also points to Dr. Valentin’s written report which includes a sentence about the applicant’s education. This sentence reads as follows: “Ms. Ly advised that her highest level of education was “Form 3” in Vietnam, noting she can both read and write.” However, I find the applicant has not shown how the Tribunal’s error would likely have affected the result, as required by Rule 18.2(b). I find it is clear from paragraph 44 that the Tribunal’s conclusions with respect to Dr. Valentin’s evidence do not hinge on her brief testimony about the applicant’s education, or a single sentence in her report.

16The applicant also argues the Tribunal erred in its finding at paragraph 12 that the family doctor’s records do not provide any opinion on the applicant’s ability to return to work. The applicant argues this statement is an error because it did not take into account the Disability Certificate (OCF-3) completed by the family doctor. I disagree. I find that in paragraph 12 the Tribunal is referring to the clinical notes and records of the family doctor. The OCF-3 is discussed in paragraph 8 where the Tribunal identified it as being completed by the applicant’s family doctor, and noted it indicated the applicant cannot work, including on modified duties. The Tribunal is not required to reference the OCF-3 again, four paragraphs later, in paragraph 12.

17The applicant also takes issue with paragraph 44 of the Tribunal’s decision, and argues the Tribunal made two errors of fact in relation to the medical evidence of Dr. Dharamshi. First, the applicant submits that contrary to the Tribunal’s finding, Dr. Dharamshi had no medical records at the time of his assessment on December 18, 2019. Second, the applicant submits that Dr. Dharamshi was not asked to re-assess the applicant’s entitlement to IRB in his second report, and therefore Tribunal erred in referring to the second IE report in its discussion of whether Dr. Dharamshi reviewed the applicant’s medical records.

18I find no errors of fact in the Tribunal’s treatment of Dr. Dharamshi’s evidence. At paragraphs 21 to 25, the Tribunal set out the findings in Dr. Dharamshi’s January 7, 2020 insurer’s examination (“IE”) report. At paragraph 24, the Tribunal noted that the “IRB claim was denied based on the findings of Dr. Dharamshi in his report dated January 7, 2020”. At paragraphs 35 and 36, the Tribunal found that the applicant had failed to meet her burden of proof in relation to the IRB, as she did not present any evidence, reports or testimony that spoke to legal test. At paragraph 43, the Tribunal stated it found Dr. Dharamshi’s evidence “compelling in that he did assess her ability to work”. The Tribunal also found Dr. Dharamshi’s findings were supported by those of Mr. Levidas in his OT report.

19At paragraph 44, the Tribunal addressed the applicant’s argument, repeated on reconsideration, that Dr. Dharamshi did not consider all the available medical evidence. The Tribunal stated as follows:

The applicant in her closing submissions submits the respondent improperly denied the IRB claim in that it did not consider all the medical evidence available to it. She argues Dr. Dharamshi in his first report did not refer to the pre-accident clinical notes of the family doctor, and a CT scan and X-ray. She claims Dr. Dharamshi based his opinion on “having no contemporaneous notes whatsoever.” The stoppage of the IRB was thus contrary to section 36 (7) (a) and (b). This argument I find is not reasonable. The evidence indicates Dr. Dharamshi reviewed these notes and digital imaging for his second report. Moreover, Dr. Dharamshi is a physician and he completed a medical examination of the applicant and based on his medical expertise arrived at certain findings. To state he made a finding having no contemporaneous medical records is not correct or reasonable.

20I find the Tribunal addressed the applicant’s concerns about Dr. Dharamshi’s evidence in its decision. Furthermore, I have reviewed Dr. Dharamshi’s reports and find that in his January 7, 2020 report, he addressed the essential tasks of the applicant’s pre-accident employment and concluded that, from a musculoskeletal perspective, the applicant “does not suffer a substantial inability to perform the essential tasks of her pre-accident employment, as a direct result of this motor vehicle accident.” In response to a question about whether he had adequate documentation and information to arrive at his opinion and conclusions, he replied: “Yes; however, this evaluator would welcome the opportunity to review pre-accident clinical notes and records and x-rays conducted to date as well as CT scan of her head.” Thus, I find that Dr. Dharamshi indicated he had adequate documentation and information to arrive at his findings in his first report, which the respondent relied on when denying the IRB claim. Moreover, as noted in the decision, Dr. Dharamshi is a physician, he completed a medical examination, and he arrived at certain findings based on the exam and his medical expertise. In addition, as noted in paragraph 44, Dr. Dharamshi reviewed the clinical notes and records of the family doctor, digital imaging and the other medical records listed in his second report of August 31, 2020. While I agree with the applicant that the second IE report does not refer to the applicant’s employment or ability to work, I do not agree that it was an error of fact when the Tribunal referenced the second IE report in paragraph 44.

21I find that the applicant’s submissions with respect to the IRB are an attempt to re-argue her case. The fact the applicant does not agree with the Tribunal’s characterization of the medical evidence, weighing of the evidence, or conclusions based on the evidence, is not grounds for reconsideration.

OCF-18s

22The applicant submits the Tribunal erred in its assessment of the reasonableness and necessity of the OCF-18s for occupational therapy, physical therapy, and social work. She argues the Tribunal erred in fact and law in its assessment of the medical evidence, and the weight it gave to the IE assessments. I find the applicant has not established grounds for reconsideration in relation to the OCF-18s for the following reasons.

23First, the applicant submits that the OCF-18 discussed at paragraph 85 is for social work services, not occupational therapy services as stated in the decision. I agree. I have reviewed the OCF-18 and find that it is for social work services. However, I find that the applicant has not met the second part of the test in Rule 18.2(b). It is the applicant’s onus to establish grounds for reconsideration, and she has not shown that the Tribunal would likely have reached a different result had this error not been made, as required by Rule 18.2(b).

24Second, the applicant argues the Tribunal made an error at paragraph 85 when it stated that the applicant did not have a diagnosis of chronic pain. The applicant argues the Tribunal should have considered Dr. Ratti’s IE report, which references chronic pain. I disagree that the Tribunal made an error. I have reviewed Dr. Ratti’s report and find that while he states that the applicant’s “scores are comparable to what is reported by individuals with chronic pain”, he does not diagnose the applicant with chronic pain.

25Third, the applicant’s submissions in relation to the OCF-18s for physical and occupational therapy are not clear. Under the heading “Occupational Therapy”, the applicant argues there is an error in paragraph 85 with respect to an OCF-18 submitted by Gail Liffshiz dated November 1, 2019 for occupational therapy services. However, I find that the November 2019 OCF-18 is addressed in the Tribunal’s decision at paragraphs 60 to 62, not 85. Paragraph 85 discusses a different OCF-18 submitted by a different provider, as noted above. Under the heading “Physical Therapy”, the applicant argues that the Tribunal erred when it failed to consider the IE findings “as support for the reasonableness of the related treatment plans”. The applicant does not specify which OCF-18s she is referring to in her arguments.

26Finally, the applicant notes two inaccuracies in the decision that she argues may have affected the findings of the Tribunal. The first is at paragraph 17, where the Tribunal states that Mr. Levidas was hired by the applicant. The second is at paragraph 80 where the Tribunal states that Dr. Ratti was hired by the applicant. Upon review, I find it is clear from the decision as a whole that the Tribunal knew that Mr. Levidas and Dr. Ratti were the respondent’s experts. I find that the inaccurate references at paragraphs 17 and 80 are minor errors which would not likely have changed the result of the Tribunal’s decision.

27For the reasons set out above, I find that the applicant has not established grounds for reconsideration in relation to the OCF-18s for medical and rehabilitation benefits.

Interest and Section 10 Award

28The applicant states that she is seeking a reconsideration of the Tribunal’s decision with respect to entitlement to interest and a section 10 award. However, the applicant made no submissions with respect to interest or the section 10 award and thus, she has not established grounds for reconsideration.

CONCLUSION

29For the reasons noted above, I deny the applicant's request for reconsideration.

E. Louise Logan Vice-Chair Tribunals Ontario – Licence Appeal Tribunal