Citation: Ma v. Co-operators General Insurance Company, 2023 ONLAT 21-002500/AABS - R
RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
Licence Appeal Tribunal File Number: 21-002500/AABS
Case Name: Gui Zhen Ma v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Sareena Samra, Counsel
For the Respondent: Emily Schatzker, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of the Tribunal’s Decision dated April 14, 2023, in which I found the applicant’s injuries were subject to the Minor Injury Guideline and that she was not entitled to any benefits being claimed.
2The applicant submits that once she established that there was evidence to support her submissions, I failed to shift the burden of proof onto the respondent that the Minor Injury Guideline should apply and that the treatment plans were not reasonable and necessary. The applicant argues that I weighed the evidence incorrectly considering the respondent did not have any medical opinions of their own. The applicant also argues that in assuming there was a one-year gap in the medical records, I failed to realize that the applicant had no medical concerns needing treatment. Therefore, I erred in fact by failing to acknowledge that the records do support that she had improved prior to the accident, and the accident is the sole cause of her chronic pain. She also claims I failed to acknowledge her diagnosis of PTSD and a concussion after the accident. Lastly, the applicant argues that I failed to consider that the denial did not contain “medical and other reasons” for the denial, which it is required to do. The applicant argues that these errors of fact and law affected my ultimate decision and, had it not been for these errors, I would have reached a different conclusion.
3The respondent submits that the burden of proof is always on the applicant. It claims that it is not a prima facie burden that shifts to the insurer to rebut a presumption. The respondent also notes that I committed no error in presuming there was a gap in the medical records because the records of Dr. Kwong note that the applicant was returning to China in January 2018. The respondent also argues that the medical reports were weighed properly. Lastly, the respondent argues the applicant did not provide specifics regarding how the denials do not meet the requirements for a valid denial.
RESULT
4The request for reconsideration is denied.
ANALYSIS
5The criteria for granting a reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure:
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.
6Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. Minor, inconsequential procedural or substantive mistakes are not enough to interfere with a decision made in the first instance.
7The applicant appears to be relying on criterion 18.2 (a) and (b) above. She submits that I made errors of fact and law and that had those errors not been made, the outcome of the Decision would have been different.
Failure to shift the onus on the respondent
8The applicant argues that once there is enough evidence in her submissions to prove her case the burden then shifts to the respondent.
9The applicant has not directed me to case law to support her arguments. Case law has held that it is always the applicant’s burden to prove entitlement to benefits. Therefore, my decision was correct in ensuring it is the applicant’s onus to prove her case.
Failure to acknowledge that gaps in medical history were improvements in her condition and failure to weigh the evidence in favor of the applicant.
10The applicant argues that I made an assumption not based on evidence. She argues that the gaps in medical history are not because medical documents were missing, but because the applicant had improved in her condition.
11The respondent argues that my assumptions were not wrong, as the family doctor’s records note on December 11, 2017, that the applicant was returning to China. Therefore, it argues that I was right in assuming that medical information was missing.
12I agree I might have overstepped by assuming that the applicant had failed to produce medical information and therefore, her medical status from 2017 remained unchanged. Although, she may have returned to China, does not mean she pursued medical treatment or that her issues from 2017 were ongoing.
13In accordance with the Rules, a reconsideration is only granted if the error affects the result. In this case, it does not. The medical records from the two years before the accident note, ongoing history of depression, chronic insomnia, chronic pain, and fibromyalgia. Even if some had improved before the accident, the applicant has not sufficiently shown why her injuries should be out of the Minor Injury Guideline (MIG). Following the accident, the applicant had three months of consistent medical visits to her family doctor. During the initial visit after the accident, she reported she hit her head and is still feeling nauseous, has headaches and is anxious. The subsequent visits, note a diagnosis of PTSD, vertigo after taking medication, a subsequent fall and back pain. Other than the first visit the applicant did not mention the accident as the root cause of her impairments. She complained to her family doctor that she was not getting any compensation from the insurance company and the doctor advised that she might want to seek representation. She also only attended two visits to the treating facility Total Recovery. After June 13, 2019, she did not go back to her doctor for one and a half years. Her records from 2021 do not mention any pain complaints from the car accident or any psychiatric concerns. Therefore, even if I acknowledged she had improved in her condition prior to the accident, her very limited visits to her family doctor and treatment facility do not support her being removed from the MIG. There a very few records to support that the car accident was the root cause of her impairments.
14The applicant would like me to rely on the expert assessments authored almost two years after the accident, which mainly rely on the applicant’s self-reports. With very few records to support the medical assessor’s opinion, my decision gave very little weight to the reports. An adjudicator must look at the totality of the evidence. At most, I have two visits to a family doctor and two visits to a treating facility that notes the car accident. Those limited records are not enough to support the serious diagnoses made two years later. In any event, the family doctor’s records around the time the experts wrote their reports, did not support any impairments related to the accident.
15Therefore, even if minor errors were committed, the reasons for my decision still support the end conclusion that the applicant is not entitled to the benefits being claimed.
Failure to acknowledge the applicant’s submissions that clearly demonstrate an invalid denial
16Lastly, the applicant argues that I failed to consider that the denial did not contain “medical and other reasons” for the denial, which it is required to do.
17The respondent argues the applicant did not provide specific submissions regarding how the denial letters do not meet the requirements for it to be considered valid.
18I agree with the respondent, simply asserting that it does not meet the requirements for a valid denial is not enough to find in the applicant’s favor. The applicant must refer to the letter, explain what is deficient in comparison to the requirements under the Schedule, how the medical information around the time of the letter may be different from what is reported in the denial letter, and any applicable case law. The applicant did not do this and therefore no error was committed by not considering her very generic submissions.
CONCLUSION
19For the reasons noted above, I deny the applicant's request for reconsideration.
Chloe Lester
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 4, 2023