RECONSIDERATION DECISION
Before: Sandeep Johal, Vice Chair
Licence Appeal Tribunal File Number: 20-004327/AABS
Case Name: Lisa Majerczyk v. Economical Mutual Insurance Company
Written Submissions by:
For the Applicant: Doug Wright and Aryeh Samuel, Counsel
For the Respondent: Martin Forget, Counsel
OVERVIEW
1A request for reconsideration was filed by the applicant and the respondent. It arises out of a decision in which I found the following:
a. the applicant did not meet the definition of having a catastrophic impairment.
b. the applicant was not entitled to attendant care benefits (ACBs) in the amount of $6,000 per month.
c. the applicant was entitled to an income replacement benefit (IRB) in the amount of $382.16 from April 26, 2021, to date.
d. treatment plans in the amount of $11,804.28, $789.06, $700.00, and $2,200.00 were reasonable and necessary.
e. treatment plans in the amount of $2,835.99, $3,791.00, and $5,407.87 were not reasonable and necessary; and
f. the applicant was not entitled to an award.
2The grounds for a request for reconsideration are contained 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.
3Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
4The applicant seeks a reconsideration of the original decision based on Rule 18.2(a) and (b) in that the Tribunal: (a) acted outside its jurisdiction or violated rules of procedural fairness; and (b) made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5The applicant seeks: 1) a rehearing on the catastrophic impairment determination before a different adjudicator, 2) an order that the treatment plan for psychological treatment in the amount of $5,407.87 is reasonable and necessary and 3) a finding that the respondent’s conduct justified an award payable to the applicant.
6The respondent seeks a reconsideration of the original decision that found the applicant was entitled to a post-104-week IRBs because according to the respondent, the original decision contained multiple errors of fact in the analysis in awarding the post-104-week IRB. Although not stated in the respondent’s submissions, it appears the ground for seeking a reconsideration is under Rule 18.2(b), that 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.
7The respondent seeks a new hearing on the issue of the IRB before a different adjudicator.
RESULT
8For the following reasons, the applicant and the respondent’s request for reconsideration are both dismissed.
ANALYSIS
1. Applicant’s reconsideration request:
9The applicant submits that Rule 18.2(a) and (b) apply in this case and, specifically, that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness and that I erred under Rule 18.2(b) by not providing adequate reasons with respect to my findings. The applicant submits that the reasons in the original decision did not adequately explain how I arrived at my conclusion that the applicant did not sustain a catastrophic impairment; did not explain why the psychological treatment plan was not reasonable and necessary, and that I did not provide adequate reasons for denying the applicant’s request for an award.
The Tribunal did not act outside its jurisdiction or violate the rules of procedural fairness under Rule 18.2(a)
10The applicant submits that the original decision failed to provide reasons that are adequate to explain the decision and that the original decision does not allow for meaningful review.
11The respondent takes the position that the reconsideration decision of the Tribunal in P.P. and Portage La Prairie Mutual Insurance Company, 2019 CanLII 94129 (ON LAT) at paragraph 24 sets out the four factors to consider whether written reasons are sufficient and whether they provide a meaningful basis for judicial review. Those four factors are as follows:
a. The adjudicator must set out the findings of fact and the principal evidence upon which those findings are based.
b. The reasons must address the major points in issue.
c. It is insufficient for the decision maker to summarize the parties’ positions and the “baldly state its conclusions”; and,
d. The reasoning must be set out and reflect consideration of the main relevant factors.
12The respondent submits the original decision followed the factors as set out above, identified the issues in dispute, and adequately reviewed the findings of fact and the evidence being relied upon (Dr. Kiraly’s report, the applicant’s own testimony, the surveillance and domains of functioning as articulated by the American Medical Association’s Guide to the Evaluation of Permanent Impairment) (the “AMA Guides”).
13I agree with the respondent, I am not persuaded the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. Arguments regarding the adequacy of reasons are often at their core about the tribunal’s findings of fact. I find that to be the case here. My reasons demonstrate that I considered the important issues in the case as I will elaborate below.
No error in finding that the applicant did not meet the test for catastrophic impairment under Rule 18.2(b)
14The applicant submits that I erred in finding she was not catastrophically impaired. In particular, she argues that in determining whether she sustained a criterion 8 catastrophic impairment it is not clear from the original decision whether I relied on the applicant’s physical pain complaints. According to the applicant, the weight of the medical evidence was that the applicant’s pain constitutes a mental and behavioral impairment. The basis for this submission would appear to be one sentence in paragraph 32 of the original decision where I stated under the catastrophic domain of Adaptation that the “…evidence suggests she has difficulty sleeping and possibly mood and pain issues.” (Emphasis added). Reading the section and paragraph as a whole, it is clear that sentence does not turn on anything and is obiter dictum. That sentence was not essential to the decision and in any event, the original decision went on to say that I was not persuaded by the evidence that the applicant had a Marked impairment for the purposes of the Adaptation domain.
15Paragraph 16 of the original decision stated my conclusion that the applicant did not meet the test for catastrophic impairment as set out in the Schedule and paragraphs 17-33 include my analysis and the reasons for my findings. Those reasons set out the findings of fact and the evidence relied upon. For example, in paragraphs 19, 21, 26, and 30, the factors to consider under the AMA Guides for each of the 4 domains are set out and following those paragraphs are the evidence and reasons why I found the applicant did not meet the factors for each of the 4 domains.
16I find the applicant’s submissions mainly seek to reargue the case and take issue with how the evidence was weighed and applied. As the decision maker, the applicability of weight and how it is applied to the evidence is an exercise of discretion. A reconsideration is not an opportunity to seek a reweighing of the evidence.
17As a result of the above, I am not persuaded that I made an error of law or fact with respect to my finding that the applicant does not meet the test of having 3 Marked impairments to be found to be catastrophically impaired.
No error under Rule 18.2(b) in finding that the psychological treatment was not reasonable and necessary
18The applicant submits that I was not clear in the original decision in summarizing what the respondent’s submissions were as I noted the respondent’s position was contained in paragraph 78 of the original decision, whereas paragraph 78 discussed Dr. Rizvi and Dr. Yee’s reports. I acknowledge that the reference to paragraph 78 was a mistake as the paragraph containing the respondent’s position in denying the treatment plan was found in the preceding paragraph 77. Even so, the paragraph number would not have changed the outcome, it was merely restating the respondent’s position and nothing in the original decision turned on the mistaken reference to the incorrect paragraph.
19Further, the applicant submits that in the original decision I relied upon the surveillance evidence that shows the applicant driving and being able to leave her home in finding that she does not have in-vehicular anxiety or major depression. However, according to the applicant, it was unclear why the treatment plan is not reasonable and necessary and that I did not specify which contemporaneous evidence I was relying on in the original decision.
20Paragraph 87 in the original decision stated “…I am not persuaded based on any contemporaneous evidence…” this was a typographical error. The sentence should have stated that “I was not pointed to any contemporaneous evidence.” Despite this typographical error, I am not convinced that the Tribunal would likely have reached a different result had the error not been made. The applicant further submits that the treatment plan was accompanied by a report from Ms. Sabet that recommended psychological treatment and so I should have found that she did. However, there was no corroborating evidence from any medical practitioner recommending psychological treatment other than Ms. Sabet who was also the same person recommending the treatment and who submitted the treatment plan. A treatment plan on its own is not compelling evidence. In order to find that the applicant needed treatment, something more would have been required in support of this conclusion.
21The onus is on the applicant to prove on a balance of probabilities that she required treatment and despite a videoconference hearing that took place over the course of 9 days and with written submissions that followed, the applicant did not refer me to any contemporaneous evidence in support of the treatment plan. The applicant’s submissions focused on the log note from the adjuster, which was referred to and considered in the original decision at paragraphs 85 and 87. What the applicant is now seeking to do through this reconsideration request is reargue the case and ask me to reweigh the evidence. As stated earlier, that is not the purpose of a reconsideration. As a result of the above, I find that the applicant has not pointed me to any errors such that I would likely have reached a different result on this issue.
No error in finding the applicant is not entitled to an award
22The applicant is seeking to reargue her case for an award and asks me to reweigh the evidence. The applicant’s submissions do not point to any specific error that was made and whether it would have changed the result had it not been made.
23The bar for an award is high. The original decision at paragraphs 89-93 discussed the reasons for not granting an award. Paragraphs 90 and 91 pointed to the test that applicant must meet for the finding of an award and paragraph 92 considered the case law. The original decision gave examples of the type of conduct that may warrant an award. The original decision set out my finding that the reliance on surveillance evidence by an IE assessor in denying a claim was not on its own conduct that I found to be inflexible, stubborn, immoderate, or unyielding. The respondent’s decision to rely on its evidence and IE assessors was reasonable. I see no error.
24I will now turn to discuss the respondent’s reconsideration request.
2. Respondent’s reconsideration request:
No error in finding that the applicant is entitled to a post-104-week IRB
25The respondent requests a new hearing on the issue of the post-104-week IRB. It takes the position that the original decision’s analysis and findings of fact are not supported by the evidence.
26The applicant submits the respondent is seeking to reargue an issue that was unsuccessful at first instance and there was no error of law or fact and the findings from the original decision are entitled to deference.
27I agree with the applicant, what the respondent is seeking to do with this reconsideration request is ask me to reweigh the evidence which is not the purpose of a reconsideration request.
28The respondent’s main argument is that the original decision referred to evidence from the pre-104-week IRB period, that the applicant had a substantial inability to carry on the essential tasks of her employment, to find the applicant met the post-104-week test. The test for a post-104-week IRB is different. It involves assessing whether there is a “complete inability” to engage in any employment or self-employment for which the applicant is reasonably suited by education, training, or experience. The respondent takes the position that the evidence suggested the applicant did not meet the pre-104-week test and therefore she could not have met the more stringent post 104-week test. As a result, respondent submits that the original decision found the applicant met the post 104-week test in the original decision was an error.
29In the present case, the evidence was that applicant was being paid a pre-104-week IRB. In fact, this was confirmed by the testimony of the respondent’s adjuster, Chris Metcalf during the hearing. The fact that the applicant was being paid pre-104-week IRBs, suggests to me that the respondent conceded that the applicant met the pre-104-week IRB test.
30While I acknowledge that paragraphs 39 and 40 of the original decision refer to Dr. Qureshi’s evidence and to the applicant’s pre-104-week impairments, that was not the only evidence the original decision referred to in making the finding that the applicant also met the post 104-week IRB test.
31In fact, paragraphs 41-54 discussed the other evidence being relied upon in concluding that the applicant met the post 104-week IRB test. The original decision relied upon the report and testimony of Dr. Ahn who assessed the applicant during the post-104-week IRB period and discussed in paragraphs 43-44 and 55 why less weight would be placed on the respondent’s evidence of Dr. Marchuk and Dr. Sivasubramanian.
32As a result, I am not persuaded any error of law or fact exists such that I would likely have reached a different result had the error not been made.
CONCLUSION
33For the reasons noted above, I dismiss the applicant and the respondent’s Request for Reconsideration.
Sandeep Johal
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: June 22, 2023