RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 19-014473/AABS
Case Name: Jihan Shalto v. Intact Insurance Company
Written Submissions by:
For the Applicant: Aron Zaltz, Counsel
For the Respondent: Darrell March, Counsel
BACKGROUND
1This request for reconsideration was filed by J.S. in this matter. It arises out of a decision dated October 26, 2022, in which I determined that J.S. did not meet the criteria for catastrophic impairment (“CAT”) under s. 3(2)(f) of the Schedule because she did not suffer marked mental and behavioural impairments.
2J.S. has requested a reconsideration of my decision. She argues that I erred in law in that I added a requirement: “to have suffered a brain injury” to the test under s. 3(2)(f). Further, J.S. argues that I made an error of fact in finding that “the parties’ medical experts rated her as moderately (Class 3) impaired under concentration, persistence and pace.”
3The relief sought, pursuant to her request for reconsideration is that: a) in the event that an error of law was made, she seeks a re-hearing of the matter, b) in the event an error of fact was made, J.S. seeks a re-hearing on the issue of her impairment rating in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, in the area of concentration, persistence and pace.
4Intact submits that J.S. simply disagrees with the weight assigned to her evidence and the decision reached as a result of the weight assigned to the evidence. Intact’s position is that the request for reconsideration should be dismissed.
RESULT
5J.S.’ request for reconsideration is denied.
RECONSIDERATION CRITERIA
6Rule 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, states that a request for reconsideration will not be granted unless 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 or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d. There is new 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 have affected the result.
7The following remedies are available to the Tribunal on a request for reconsideration:
a. dismiss the request;
b. confirm, vary or cancel the decision or order; or
c. order a rehearing on all or part of the matter.
8J.S. relies on Rule 18.2(b), arguing that I erred in law and fact in stating:
a. “brain injury” in my comments when analyzing the elements of the test under Criterion 8; and
b. Dr. Zakzanis rated J.S. as moderately impaired, when commenting that “the parties’ medical experts rated J.S. as moderately impaired under concentration, persistence and pace.”
9J.S. submits that had I not made the above-noted errors of law and fact, that I would have reached a different result had the errors not been made.
ANALYSIS
Error of law – “brain injury”
10For the following reasons, I disagree with J.S. and find that I did not err in law in my decision. Further, I disagree that had this alleged error not been made, I would have reached a different outcome.
11At paragraph 25 of my decision, I summarize my finding regarding J.S.’s s. 25 assessor reports, stating:
In my view, these reports of the s. 25 assessors do not confirm that J.S. suffered from any psychological impairments as a result of the accident, as these findings are consistent with someone who is confirmed not to have suffered a brain injury. These reports are not helpful in support of J.S.’s claim of catastrophic impairment.
12J.S. submits that I have added a requirement: “to have suffered a brain injury”, to the test set out in s. 3(2)(f) of the Schedule. Her position is that a brain injury is not an element of the test governing Criterion 8. Further, that I treated “brain injury” as a necessary element of the Criterion 8 test. As such, she argues that I would have reached a different decision, had this alleged error of law not occurred.
13Intact argues that the reference to whether or not J.S. suffered a brain injury was not in the context of adding an additional requirement to the Criterion 8 test but was stated as part of the explanation for why J.S. did not meet the test.
14I agree with Intact that I did not err in law and find that J.S.’ reliance on comment in the decision, fails to take into consideration my analysis, reasons and findings in the decision as a whole. For example:
a. Paragraph 18 – my consideration of the non-accident-related factors of J.S. losing 20 friends and family in the war in Syria, the loss of friends to cancer, the struggles with her daughter and her son’s run-in with the police, which had a significant impact on her psychological well-being;
b. Paragraph 19 – during the portion of her testimony regarding the above circumstances, J.S. was very emotional;
c. Paragraph 24 – the psychological reports found no evidence of loss of awareness or amnesia, no loss of consciousness or head trauma, and the Glasgow Coma Scale rating of 15 was noted on several occasions;
d. Paragraph 29 – the treating physicians clinical notes and records failed to mention any psychological complaints, however, there were several complaints about physical pain; and
e. Paragraphs 37 to 42 – Regarding the impact of the accident on J.S.’ concentration, persistence and pace, I consider the evidence of her own assessors, and self-reporting, and find that physical pain has been more of a barrier and causing impediments and precluding useful functioning that any psychological impairments. I noted that J.S. successfully completed her Canadian Citizenship course, which required a significant level of memorization, concentration, persistence and pace.
15I find that the consideration of the evidence on a whole, and my conclusion that J.S. suffered a moderate impairment, did not amount to an error of law when I mentioned that the s. 25 assessor reports did not confirm that J.S. suffered from any psychological impairments as a result of the accident. Even if I had not included the additional statement, “as these findings are consistent with someone who is confirmed not to have suffered a brain injury”, my concluding opinion on the s. 25 reports was that they were not helpful in support of J.S.’s claim of catastrophic impairment.
16There is no evidence on reconsideration that my decision relied solely or to any significant extent on whether or not J.S. suffered a brain injury. The comment in the decision, was not based on her failing to establish that she suffered a brain injury. I agree that this is not a part of the test for Criterion 8, nor did the decision make it so. My analysis of the evidence, focused solely on the facts that were put before me, as well as the testimony of the witnesses.
17I find that the “brain injury” comment would not have changed the outcome of the decision, had the comment not been made. Accordingly, I find that no error of law was made in the decision.
18It is well settled that the test for reconsideration under Rule 18.2(b) involves a high threshold. In this regard, the Adjudicator is not required to reference every piece of evidence or argument before them, to the extent that a failure to reference a specific piece of evidence is a ground for reconsideration. Further, the reconsideration process is not an opportunity for parties to ask the Tribunal to reweigh evidence that was properly before it or for a party to re-argue its position at first instance, where it may disagree with the decision of the Adjudicator or the weight the Adjudicator assigned to the evidence.
Error of fact – Dr. Zakzanis’ report
19J.S. submits that I made an error of fact in stating that the parties’ assessors rated J.S. as having suffered a Class 3 impairment. Her position is that I failed to state that Dr. Zakzanis rated her as having a Class 4 (marked) impairment.
20While I agree that the decision did state that the parties’ assessors rated J.S. as having a Class 3 (moderate) impairment, I find this does not amount to an error of fact that would result in an alternate decision.
21At paragraph 34. I specifically mention that Dr. Zakzanis “concluded that J.S. meets the Chapter 14 Table definition of a Class 4 (marked) mental and behavioural impairment…”. Despite J.S.’ argument on reconsideration, I find that I did, in fact, mentioned Dr. Zakzanis’ correct finding.
22Having specifically mentioned that Dr. Zakzanis rated J.S. with a Class 4 (marked) impairment, goes against her claim that I did not correctly acknowledge the rating that Dr. Zakzanis gave her.
23However, I disagree that my comment on the parties’ assessors, would have led to a different outcome, because at paragraphs 35 and 36, I provide my analysis of the s. 44 report of Dr. Sivasubramanian and Dr. Zakzanis, I indicated that I preferred the report of Dr. Sivasubramanian and provide reasons for why. Of note, are my reasons for not preferring Dr. Zakzanis’ report, in that, her abilities to engage in a number of her pre-accident activities was not indicative of a 40% whole person impairment (“WPI”) rating. Further, I found that Dr. Zakzanis 67% WPI rating was indicative of an individual with a much more severe level of disability, which was not present in J.S.’ case.
24I agree with Intact, that it was open to the Tribunal to assign more weight to one expert report over another, and to rely on the opinions and conclusions contained within the report, where there may be a conflict with the opinions and conclusions in a competing report. It is within the discretion of an Adjudicator to assign the appropriate amount of weight to any and all evidence before them, and a request for reconsideration will not be granted on the basis that one party preferred that the evidence should be weighed differently in a manner that favours the party requesting the reconsideration.
25Accordingly, I find that the decision contained no error of law or fact that I did properly acknowledge the rating that Dr. Zakzanis indicated in his report. I find that the decision would not have led to a different outcome had the errors been made. J.S. has failed to meet her burden on reconsideration.
CONCLUSION
26For the reasons noted above, I deny the J.S.’ request for reconsideration.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: June 13, 2023