RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 21-007827/AABS
Case Name: Yunjuan Chen v. Economical Insurance
Written Submissions by:
For the Applicant: Nima Azizi, Counsel
For the Respondent: Mai Nguyen, Counsel
OVERVIEW
1This reconsideration request follows a Tribunal decision dated March 13, 2023, in which I determined that the applicant’s accident-related impairments fit within the Minor Injury Guideline (“MIG”). As a result, she was not entitled to some disputed medical benefits, interest or an award.
2The applicant has requested a reconsideration of my decision regarding my finding in relation to the above. The applicant argues that I erred in fact and/or law such that I would have reached a different result had the error not been made.
3The respondent submits that my decision is correct. Further, that the applicant’s reconsideration request is an attempt to relitigate issues which already failed at the hearing.
RESULT
4After reviewing the parties’ submissions, I order that the applicant’s reconsideration request is dismissed.
RECONSIDERATION CRITERIA
5The grounds for a request for reconsideration are contained in Rule 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019 (“Rules”).
6Rule 18.2 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 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.
7The applicant relies on Rule 18.2 (b) and argues that I made an error of law or fact that would have resulted in an alternative decision.
8The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
9The applicant requests that the Tribunal vary its decision and make an alternative finding that the applicant’s impairments do not fit within the MIG and that she is entitled to the medical benefits claimed.
ANALYSIS
I did not error in fact or law in my determination that the applicant’s accident-related impairments fit within the MIG.
10The applicant argues that I erred in law because I determined that she had proven that she had a pre-existing psychological condition in paragraph [17] of my decision. She asserts that I misapplied s. 18(2) of the Schedule in finding that this pre-existing psychological condition would not prevent her from achieving maximum medical recovery within the MIG. In addition, she submits that I erred in my determination that she did not sustain a psychological impairment as a result of the accident because she reported having driving anxiety and worsening psychological symptoms to her family doctor on August 15, 2022. Further, she also reported driving anxiety to Dr. Aleem and Dr. Mandel, insurer examination (“IE”) assessor which supports removal from the MIG as a result of an accident-related psychological impairment. Therefore, I erred by disregarding this evidence in coming to my determination that her accident-related impairments fit within the MIG. She contends that had these errors not been made I would have rendered an alternative decision in her favour.
11The respondent submits that the applicant has not met the threshold for reconsideration and has not proven that I erred in fact and/or law which would result in a different decision. It argues that the applicant is relitigating her position which already failed at the hearing and is asking that the Tribunal re-weigh the evidence which was already considered. It argues that the case law is well established that this is not appropriate grounds for a reconsideration request. I agree.
12I find that the applicant is relitigating her position which already failed at the hearing. Further, she is asking me to reweigh the same evidence that was already considered by me in rendering my decision. The applicant has failed to convince me that I erred in fact or law in rendering my decision. In paragraphs [18] to [26] of my decision, I provided very detailed reasons in explaining why I preferred the opinion of Dr. Mandel over Dr. Bao in my determination that the applicant had not proven that her pre-existing psychological condition would prevent her from achieving maximum medical recovery within the MIG. As highlighted by the respondent the purpose of the reconsideration process is not to ask the Tribunal to reweigh evidence already considered by it. Further, it is within an adjudicator’s discretion to prefer one expert’s opinion over another. The fact I preferred Dr. Mandel’s opinion in this case is not an error of fact or law.
13Moreover, in paragraphs [12] and [13] of my decision I considered the family doctor’s clinical notes and records and explained why I did not find this evidence persuasive. I also discussed the evidence of Dr. Aleem in paragraphs [22] of my decision. Further, the IE reports of Dr. Mandel do not support the applicant’s position that she has been diagnosed with driving anxiety (which warrants MIG removal) because ultimately the doctor determined that she did not sustain a psychological impairment as a result of the accident. In paragraphs [24] and [25] I discuss Dr. Mandel’s evidence and explained why I preferred it. I find that the applicant simply disagrees with my decision and is asking that I re-weigh the same evidence and render an alternative finding. As highlighted by the respondent, that is not the purpose of the reconsideration process. The applicant has not persuaded me on a balance of probabilities that I erred in fact and/or law which would results in alternative decision.
14Finally, the applicant relies on this Tribunal’s decisions in F.T. v. The Cooperators Insurance Company, 2022 Canlii 2807 ON LAT (“F.T”) and I.D.C. v. Aviva Insurance Canada, 2019 CanLII 101540 ON LAT (“I.D.C.”) in support of this reconsideration request. In F.T., the adjudicator determined the insured was removed from the MIG as a result of a psychological impairment. In I.D.C., the adjudicator removed the insured from the MIG as a result of a pre-existing psychological condition. These decisions are not helpful to the applicant’s reconsideration request because the adjudicators determined that the insureds met their onus in proving that a pre-existing psychological impairment or accident-related psychological impairment warranted removal from the MIG. In this case, I determined that the applicant did not meet her onus. Further, I am not bound by these decisions. It is well established that it is within an adjudicator’s discretion to consider and weigh all of the evidence. I find that is what I did in the present case.
15For all of the above-noted reasons, the applicant has not persuaded me that I erred in fact and/or law in rendering my decision.
CONCLUSION
16The applicant’s request for reconsideration is dismissed.
________________ Rebecca Hines
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: July 19, 2023