RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 20-011567/AABS
Case Name: Sebastian Naskrent v. Western Assurance Company
Written Submissions by:
For the Applicant: Dimple Verma, Counsel
For the Respondent: Ken Yip, Counsel
OVERVIEW
1The applicant requested reconsideration of the Tribunal’s decision dated February 17, 2023, in which the panel determined that he was not entitled to an income replacement benefit (IRB), attendant care, a medical benefit, interest or an award.
2The applicant submits that the Tribunal denied him procedural fairness and erred in fact and/or law in its determination. He submits that had these errors not been made it would have resulted in a different decision.
3The respondent submits that the Tribunal’s decision is correct. Further, it submits that the applicant’s reconsideration request is an attempt to relitigate issues which already failed at the hearing. It maintains the applicant has not met the high threshold for reconsideration.
RESULT
4The 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 submits that all four criteria apply on this reconsideration request.
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 cancel its decision and order that the matter proceed to a rehearing before another adjudicator.
ANALYSIS
The Tribunal did not act outside of its jurisdiction or violate the rules of procedural fairness.
10The applicant alleges that the panel acted outside of its jurisdiction or denied him the right to procedural fairness by:
a) Allowing the applicant’s motion for productions for the updated accident benefit (“AB”) file and adjuster’s log notes;
b) Denying the applicant’s motion to add the claims adjuster, Arthur Hissa, as a witness and refused to issue a summons;
c) Allowing the respondent’s last-minute motion to limit the applicant’s claims for an IRB to the two-year mark, and then relied on post-104 evidence in the decision; and
d) Reducing the applicant’s in-chief testimony from 4.5 hours to 2 hours, but then allowed the respondent extra time to cross-examine the witness Shelly Rush, which demonstrates bias. Further, that the panel consistently rushed and interrupted the testimony of the applicant and his witness, Shelly Rush.
No breach of procedural fairness in denying the applicant’s request for the production of AB file and adjuster’s log notes
11The applicant asserts that the panel violated his right to procedural fairness because we declined to order the production of the updated AB file and adjuster’s log notes from June 24, 2020 ongoing, despite two orders from the Tribunal ordering the respondent to comply. He argues that our denial of the motion violated his right to procedural fairness because he was unable to present his case fairly and fully. Further, he submits we ought to have drawn a negative inference from the respondent’s failure to comply with the Tribunal’s order because there was a claim for an award due to the respondent’s mishandling of the applicant’s claim.
12I find no breach of procedural fairness in denying the applicant’s motion for these records. I find the respondent complied with the applicant’s request for the records prior to the June 30, 2021 deadline. The respondent also provided the applicant with the updated AB file, which was contained in Tabs 82-94 of its document brief. Moreover, in paragraph [7] of our decision, we declined both parties’ requests for updated productions as both requests were made less than two-weeks prior to the hearing and neither party provided a reasonable explanation for the last-minute requests when they received nine months’ notice of the hearing date.
No breach of procedural fairness in declining the applicant’s request to summons the adjuster as a witness
13The panel denied the applicant’s motion to summons the adjuster as a witness because it was made five days after the deadline given for the parties to exchange witness lists. The applicant argues that we violated his right to procedural fairness because there was sufficient time to summons the adjuster who would have supported his claim for an award.
14I find no breach of procedural fairness. A procedural ruling is within the discretion of the hearing adjudicators. At the hearing, the applicant did not make any persuasive argument that the testimony of the adjuster was required and did not provide a reasonable explanation for why the request for the summons was not made sooner. Therefore, I do not find the Tribunal breached the rules of procedural fairness in denying the request.
No breach of procedural fairness in limiting the applicant’s claim for an IRB to the two-year mark
15The applicant submits that we violated his right to procedural fairness by allowing the respondent’s last-minute motion to limit his claim for an IRB to the two-year mark in order to allow the respondent the opportunity to obtain post-104-week insurer examinations (“IEs”). The applicant maintains that he was not given prior notice of the motion and that there was no valid reason to limit the claim to the two-year mark. By granting the respondent’s request, the applicant claims we gave it an “extra kick at the can” to fix its mistake of not scheduling the IEs sooner. The applicant maintains that this ruling demonstrated that we are biased in favour of the respondent.
16I do not find we breached the applicant’s right to procedural fairness by making this ruling. In paragraph [9] of the decision, we state that section 44 of the Schedule provides the respondent with the right to conduct IEs prior to an insured being able to dispute the denial of the benefit. I find that the applicant has failed to demonstrate that the panel demonstrated bias in its interpretation of the Schedule. Finally, even if we did not limit the dispute to the two-year mark, it would not have resulted in a different decision because we determined the applicant did not meet the pre-104-week test for entitlement to the benefit.
No breach of procedural fairness for placing time limits on in-chief and cross-examination of witnesses
17The applicant argues that we breached his right to procedural fairness because we limited his in-chief testimony from 4-5 hours to 1.5-2 hours. Consequently, he argues he was denied a full and fair opportunity to present his case. As a result of this alleged denial of procedural fairness, the applicant asserts his testimony was incomplete and he was unable to fairly present all of his evidence. He also submits that the panel allowed the respondent an hour to cross-examine Dr. Efala, which further supports that the panel was biased.
18I do not find that placing time limits on the in-chief and cross-examination of any of the witnesses at the hearing was procedurally unfair. Section 23(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”) provide administrative tribunals with the authority to control their proceedings to ensure hearings proceed in a timely and efficient manner. I also agree with the respondent’s submissions that counsel for the applicant was unorganized, and repeatedly failed to adhere to the panel’s instructions, which necessitated time limits on testimony. Further, I find that the panel was patient and flexible, and even ensured all the evidence relevant to the IRB issue was disclosed by asking questions at the end of the applicant’s examination. Notably, the panel placed time limitations on the testimony of all witnesses to ensure the hearing could be completed in the time allotted.
No breach of procedural fairness by rushing and interrupting the testimony of the applicant and his witness.
19The applicant argues that I consistently rushed and interrupted the in-chief examination of the applicant. The applicant also asserts that I interrupted the examination of Shelly Rush to let the respondent know that one of their witnesses was in the virtual waiting room. The applicant also submits that I showed a complete lack of respect, patience and disregard for the applicant and his witnesses’ testimony. The applicant relies on portions of the transcript in support of his position. He submits that these actions denied him procedural fairness because he was not able to fully present his case.
20I find these allegations have no merit. Again, the SPPA provides the Tribunal with the authority to control its process. Where the hearing was conducted via Zoom, it is not procedurally unfair to pause to let a witness waiting in a virtual waiting room know that they had arrived at the wrong time. The applicant failed to demonstrate that this brief pause in the proceedings in any way prevented him from fairly presenting his case. Further, when the transcript of applicant’s testimony is viewed as a whole, I find that the panel demonstrated patience and flexibility. For example, there were significant delays in locating documents because of the poor organization of the applicant’s document brief, and the panel had to remind counsel several times to refer to and identify evidence and confirm where it could be located so that it could be marked as an exhibit. Therefore, I find the applicant’s allegations that the panel was disrespectful unfounded.
21For all of the above-noted reasons, I do not find that the panel acted outside its jurisdiction or violated the rules of procedural fairness in rendering its decision or throughout the proceeding.
The Tribunal did not make an error of law or fact such that it would have reached a different result had the error not been made.
22The applicant submits that the panel made the following errors of law and/or fact by:
a) Applying the wrong legal test in our analysis on the applicant’s entitlement to IRBs;
b) Considering post-104 week (“post-104”) evidence to determine pre-104 week (“pre-104”) benefits in our analysis on causation and the applicant’s entitlement to IRBs;
c) Failing to consider all impairments caused by the accident in determining the benefits in dispute, focussing solely on his hip and psychological impairment;
d) Failing to apply a robust and pragmatic approach when determining causation;
e) Failing to consider the testimony of Vidhur Sapra, the applicant’s physiotherapist;
f) “Cherry-picked” evidence to suit our ruling; and
g) Misapprehending the evidence and facts.
23Overall, I find that the applicant’s submissions that we erred in law and/or fact to be an attempt to relitigate his position that already failed at the hearing. Alternatively, I find he is asking that we reweigh the evidence which was already considered. Although I acknowledge that the decision did contain some factual errors, I find these errors would not result in a different decision. The following sets out my findings in response to the applicant’s allegations.
The panel applied the correct legal test for IRBs in the decision
24The applicant submits that the panel erred in law because we did not set out the correct legal test for entitlement to IRBs because in paragraph [28] we state:
Section 5(1) provides that the insurer shall pay an income replacement benefit to the insured if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential duties of their pre-accident employment.
25He submits that we misquoted s. 5(1) of the Schedule because it should have stated the “essential tasks of that employment.” The applicant submits that “duties” and “tasks” are very different things and our misquote of the law amounts to a legal error.
26Although the applicant is correct that the decision used the word “duties” in lieu of the word “tasks” in paragraph [28], I do not find that this paraphrasing of s. 5(1) of the Schedule is an error of law, as it is clear that we applied the correct legal term in paragraphs [29] to [30] of our decision that immediately follow. Accordingly, the applicant has failed to persuade me that this error would result in a different decision as the panel applied the correct language in its analysis and was alive to the appropriate legal test.
No error of law in consideration of post-104 evidence
27The applicant submits that the panel acted outside of its jurisdiction by considering post-104 evidence in determining his entitlement to pre-104 IRBs. He submits we also acted outside of our jurisdiction in our analysis of whether the accident caused the applicant’s post-104 hip surgery on March 18, 2022. Further, the applicant asserts that the panel’s role was to determine the pre-104 benefits in dispute, not to assess whether his post-104 hip surgery was caused by the accident. He maintains that this was highly prejudicial and ought not to have been adjudicated upon. Therefore, our decision is wrong and must be reconsidered.
28I find no error of law in the panel’s consideration of the progression of the applicant’s pre-existing osteoarthritis in our analysis. The applicant’s main argument at the hearing, and the medical evidence he submitted, focussed on whether the accident caused a deterioration in his pre-existing osteoarthritis, which ultimately led to the need for bilateral hip surgery seven days after the two-year mark. Therefore, I find no error of law in our consideration of this evidence as it formed part of the applicant’s theory of his case.
The panel did not “cherry pick” the evidence to support its decision
29The applicant submits that the panel “cherry-picked” the evidence to suit our decision. For example, that we accepted Dr. Seigel’s opinion to deny attendant care benefits at paragraph [56] of our decision where we note that the applicant reported being independent with his activities of daily living. However, the applicant submits our decision was inconsistent because we rejected Dr. Seigel’s opinion at paragraph [25] of our decision because the doctor failed to review the clinical notes and records (“CNRs”) of Dr. Vachanni and Ms. Brown. The applicant argues the panel’s decision is inconsistent and biased as it favored the respondent’s evidence.
30I do not find that we cherry-picked the evidence to support our decision or erred by accepting some but not all of Dr. Seigel’s opinion. It is the role of an adjudicator to assign weight to evidence to arrive at a determination. Where the decision provided the rationale for our weighing of and preference for certain evidence, I find the applicant is simply asking the Tribunal to re-weigh evidence we already considered, which is not the purpose of the reconsideration process.
The panel did not err in law in considering the evidence of Vidhur Sapra
31The applicant argues that we erred in law by failing to address the testimony of Vidhur Sapra, the applicant’s physiotherapist, in our decision. He contends that this witness gave compelling evidence about the nature of the applicant’s impairments and our failure to address this evidence at all in our decision is an error of law.
32I find no error of law in the panel’s failure to address Mr. Sapra’s evidence and the fact that we did not address it would not result in a different decision. Of significance, Mr. Sapra was not an expert witness and did not author a report addressing the applicant’s impairments. Further, he never reviewed any of the applicant’s pre-accident CNRs. Therefore, his evidence was of limited value where causation was at the crux of the dispute. Although I acknowledge that the panel’s decision could have been clearer on why we did not find Mr. Sapra’s evidence helpful, the case law is well established that an adjudicator is under no obligation to cite every piece of evidence or summarize the testimony of every witness in its reasons.
No error in law in causation analysis regarding psychological impairment.
33The applicant asserts that the panel erred in fact and law in paragraphs [20 to 26] of our decision regarding our finding that the applicant’s psychological impairment was not caused by the accident. He submits that the following evidence overwhelmingly supports that the accident caused his psychological impairments.
i) The applicant’s psychotherapist Ms. Rush testified that the accident was “a cause” of his psychological impairment, and this opinion was also supported in her report.
ii) Dr. Seigel, the insurer’s own psychologist, diagnosed the applicant with Adjustment Disorder with mixed symptoms of Depression and Anxiety (DSM-5, 309.28) as a direct result of the accident. He also opined that the diagnosis was significant and compelling enough to require psychological treatment. He also stated: “But for the indexed motor vehicle accident of February 29, 2020 he would not otherwise have this diagnosis”. The applicant submits that we erred by giving this IE no weight because the doctor did not review the CNRs of Dr. Vachanni or Chloe Brown. He submits that this was harsh and unfair.
iii) We also had compelling evidence from Dr. Jeeva, Dr. Vachanni and Ms. Brown sufficient enough for us to make a finding that the applicant sustained psychological impairments arising from the accident. The applicant submits that we had no reason to deviate from those opinions, especially as the insurer’s own doctors agreed.
34The applicant relies on Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash) which sets out that the accident need not be the only cause of the impairment, but a necessary cause, and the principle outlined by the Supreme Court in Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181 that “Scientific proof of causation is not required”. The applicant submits that because Ms. Rush discussed the accident and employment events interchangeably, it meant that both events caused the psychological impairment. Therefore, the test outlined in Sabadash was met and we erred in finding that it was not.
35I find the panel did not err in law in its analysis on causation in finding that the accident was not the cause of the applicant’s psychological impairment. In paragraphs [20] to [26] the panel provided detailed reasons to support its decision. We considered the records of Ms. Brown, and the reports of Dr. Siegel, Dr. Jeeva and Ms. Rush and ultimately determined that they did not support the applicant’s position on causation. It is up to the trier of fact to assign weight to the evidence which is what the panel did based on the totality of the evidence. Moreover, we provided the rationale for our finding in paragraphs [24] and [25] of our decision. In my view, the applicant is relitigating his position and asking that we re-weigh evidence that was already considered by us at the initial hearing which is not the purpose of the reconsideration process.
36In addition, the applicant refers to the thirteen visits he made to Dr. Vachanni in this reconsideration request. Of significance, despite the panel’s instructions, the applicant did not specifically refer to the thirteen entries or highlight the relevance of same at the hearing. As a result, the Tribunal did not err in not considering or referring to these records in its decision because the applicant failed to direct the panel to this evidence. I find the applicant simply disagrees with our decision which is not the purpose of the reconsideration process.
The panel did not misapprehend the evidence and I find any factual errors made were inconsequential and would not result in a different decision
37I find that many of the applicant’s allegations regarding any factual errors made by the panel to be inconsequential and would not result a different decision. For example, he submits that the panel did not list all of his complaints or symptoms on the day of the accident in paragraph [14] of the decision. The applicant did not make the other complaints or symptoms a focus at the hearing. Therefore, I do not find the panel erred in not addressing it in its decision.
38Moreover, I find the applicant’s allegations that the panel did not give appropriate weight to the opinions of Dr. Stoddard and Mr. Sasani to be another attempt to ask the Tribunal to conduct a wholesale reweighing of the evidence because he disagrees with the decision, which is not the purpose of the reconsideration process. I find the panel gave sufficient reasons for why it gave limited weight to this evidence in paragraph [15] and paragraph [56] of its decision and do not find it necessary to repeat these findings further.
39The applicant argues the panel erred in fact and law in its treatment of Dr. Sandhu’s evidence. First, in our factual finding that “the diagnostic imaging does not support that the applicant sustained an injury to his hip as a result of the accident” in paragraph [17] of our decision. Second, we erred in law in our assessment of Dr. Sandhu’s evidence regarding causation.
40I do not find we erred in describing Dr. Sandhu’s evidence or testimony in paragraph [17] of the decision. Dr. Sandhu’s IE report discusses the MRIs which revealed that the applicant had pre-existing osteoarthritis. While Dr. Sandhu’s report indicated that the applicant’s pre-existing osteoarthritis would preclude him from recovering within the Minor Injury Guideline (MIG), he testified that the MRIs of the applicant’s hips do not support that the accident caused this impairment or that it was exacerbated as a result of the accident. Accordingly, I do not find we made an error of fact or law in describing Dr. Sandhu’s evidence or in our findings regarding causation. Again, I find the applicant is asking that I reweigh the evidence which is not the purpose of the reconsideration process.
41By contrast, I agree with the applicant that the panel did make some factual errors. Nonetheless, I find the factual errors to be inconsequential to the decision for the following reasons.
a) The panel incorrectly concluded that there was no pre-accident employment file in paragraph [30], whereas exhibits 42 and 44 included the pre-accident employment records. I agree with the applicant that this was a factual error. However, I do not find this error would result in a different decision because the applicant did not follow our instructions at the hearing and point to specific page numbers in the employment file pertaining to his pre-accident employment in order to meet his burden of proof. Therefore, I do not find we erred by not addressing it or by not giving it significant weight.
b) The panel incorrectly concluded that Dr. Vachanni approved the applicant’s return to work on June 11, 2020 in paragraph [33]. The doctor’s CNR simply confirm that he was doing better and reported that he planned to return to work. The applicant is correct that we made a factual error in describing this record. Yet, I do not find that this error would result in a different decision because it does not support that the applicant meets the legal test for entitlement to an IRB because he himself reported that he was able to return to work. Moreover, there was nothing in the doctor’s CNRs that supported that the applicant could not return to work as a result of any accident-related impairment.
c) The panel incorrectly described Dr. Efala’s report in paragraph [16] of our decision by stating that the report stated, “the accident could have exacerbated the applicant’s osteoarthritis in his hip.” I concede that we made this factual error in paragraph [16] in our description of Dr. Efala’s report. Instead, we should have stated that Dr. Efala testified that “the accident could have exacerbated the applicant’s osteoarthritis.” Nevertheless, I do not find this error would result in a different decision because we considered the totality of Dr. Efala’s evidence set out in both his report and testimony and provided sufficient reasons in paragraph [16] for why we did not find it helpful to the applicant’s case.
The Tribunal did not hear false evidence from a witness, which was discovered only after the hearing which would affect the result.
42The applicant argues that the panel heard false or misleading evidence from Dr. Sandhu that was only discovered after the hearing and would have affected the result according to Rule 18.2(c). The applicant contends that we erred in law in paragraph [18] of our decision in accepting Dr. Sandhu’s testimony that the applicant had “severe end stage osteoarthritis”. The applicant maintains that Dr. Sandhu did not make any findings of “end stage” osteoarthritis in his reports and only raised this for the first time at the hearing in order to mislead the Tribunal into believing that he had reached the final stage of osteoarthritis, prior to the accident. The applicant submits Dr. Sandhu was not qualified to make this opinion and did not provide a basis for it in his report. Further, the applicant submits there was no indication in the applicant’s pre-accident medical records that he had “end stage” osteoarthritis. Therefore, the applicant submits we erred in law by accepting this opinion.
43The respondent submits that we did not err in law by accepting Dr. Sandhu’s opinion. With respect to Dr. Sandhu's evidence relating to the pre-accident MRI and end-stage arthritis, it submits that the proper time for the applicant to raise this argument would have been at the hearing during Dr. Sandhu's in-chief or cross-examination. It argues that it is inappropriate for the applicant to raise this argument for the first time in this reconsideration request. Finally, it submits the Tribunal has wide evidentiary powers to allow Dr. Sandhu’s evidence if it assists in determining the issues in dispute.
44I agree with the respondent that if the applicant believed that Dr. Sandhu was leading false evidence, the proper time to challenge it would have been at the hearing or in closing submissions. I do not find that Rule 18.2(c) applies in this case because the applicant cross-examined Dr. Sandhu and could have also opposed Dr. Sandhu’s evidence regarding the “end stage” arthritis. Therefore, I find the applicant had the opportunity to challenge Dr. Sandhu’s evidence at the hearing but did not. However, if I am wrong and this evidence should not have been accepted it would not result in a different decision because Dr. Sandhu’s evidence was one out of many reasons highlighted in paragraphs [14] to [18] of the decision in support of the panel’s finding on causation regarding the osteoarthritis in the applicant’s hips.
45For the above-noted reasons, I find the panel did not hear false evidence from a witness, which was discovered only after the hearing which would affect the result.
The applicant failed to prove that the new evidence submitted on this reconsideration request (that was not before the Tribunal when rendering its decision) could not have been obtained previously, and would likely have affected the result
46The applicant submitted new evidence on this reconsideration request that was not before us at the hearing. These records included five T-4 slips from 2021, an RRSP contribution printout and a fax from Summer Family Health Team. The applicant contends that this evidence was not available at the hearing because it was not previously requested by the respondent, and ought to be considered because it clarifies the income on the 2021 Tax Summary. He submits that the T-4 slips for 2021 contradicts the panel’s assumption that he was earning employment income in 2021.
47The respondent submits that the 2021 T4-slips were requested by it in advance of the hearing and would have been in the applicant’s possession in advance because they pre-date the 2021 tax summary. As a result, this is evidence that was not before the panel when rendering its decision, but could have been previously obtained by the applicant, which does not meet the requirements of Rule 18.2(d). It also submits that the fax from Summer Family Health Team could have also been obtained prior to the hearing.
48I find the applicant could have obtained the above records prior to the hearing. Further, I do not find the applicant’s argument for why the records were not obtained prior to the hearing persuasive. It was the applicant’s onus to prove entitlement to the benefits in dispute. I find that even if the respondent did not request these records, it does not shift the onus to the respondent. The applicant has not met the threshold in proving that the new evidence submitted on this reconsideration request could not have been obtained previously. As a result, I have not considered this new evidence on this reconsideration request.
ORDER
49For all of the above-noted reasons, the applicant’s reconsideration request is dismissed.
Rebecca Hines
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 27, 2023