RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 21-003127/AABS
Case Name: Hahn Ngo v. The Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Christina Martin, Counsel
For the Respondent: Daniel M. Himelfarb, Counsel
BACKGROUND
1This request for reconsideration was filed by the Applicant. It arises out of a decision dated June 30, 2023 in which I found that she was not entitled to non-earner benefits (“NEBs”), two treatment and assessment plans, and an award.
2The Applicant submits that I committed an error of fact or law such that a different result would have been reached had the error note been made. She further submits that there is new evidence available that was not available at the time of submissions but would likely have affected the result.
3The Applicant is seeks an order varying my original decision or, in the alternative, a rehearing on all or part of the issues in dispute.
RESULT
4The Applicant's request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. 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.
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.
7With respect to her entitlement to NEBs, the Applicant submits I erred in law and fact when I found that her self-reports of limited functionality to D. Hrovat, social worker, noted in the report dated August 21, 2019, contrasted with the surveillance evidence from July 2021. She submits that there was no evidence that she attempted to work at the nail salon prior to or during her claim for NEBs and that Dr. Teasell’s November 17, 2021 report notes that she was unable to return to training at the nail salon due to increased pain and an inability to endure prolonged sitting or standing.
8The Respondent submits that the Applicant’s arguments are more a disagreement with the weighing of evidence at the hearing. With respect to the weight given to the surveillance evidence, the Respondent submits that the Applicant had the opportunity to make reply submissions on the relevance of the surveillance evidence and in fact did, requesting that little weight be given to it, instead of framing it as an error of law as she does now.
9I find no error of law or fact in my weighing of the evidence with respect to the Applicant’s entitlement to NEBs. At paragraphs 8 through 16 of the decision, I outlined my reasons why I felt the Applicant failed to demonstrate that she met the test for NEBs during the period of claim. I noted that the Respondent’s insurer’s examination (“IE”) reports were contemporaneous with the period of claim and concluded that she did not suffer a complete inability to carry on a normal life. I found that the clinical notes and records (“CNRs”) from Dr. A. Imran, family physician, did not demonstrate that she meets the disability test for NEBs.
10I agree with the Applicant that it was wrong for me to highlight the contrast in her report to social worker Hrovat in 2019 to her functionality exhibited in the surveillance evidence. This is because they are not contemporaneous with each other, given that the surveillance occurred about two years following the Hrovat assessment. However, this was one small component of the overall reasons for my decision, and this is not an error of law that would result in a different outcome had it not been made because her functionality exhibited in the surveillance evidence remains in contrast to her reports to Dr. Teasell . As outlined in paragraph [12] of the decision, social worker Hrovat’s report noted that the Applicant had some functional limitations but did not demonstrate a complete inability to carry on a normal life as a result of the accident.
11Furthermore, I find no error of law in how I considered the surveillance evidence. The Applicant submits it was an error of law to consider the surveillance evidence because it occurred after the period of her claim for NEBs. Yet, the Applicant asks me to consider Dr. Teasell’s reports which are contemporaneous to the surveillance evidence and occur after the NEB period claimed. As noted in paragraph 13, I discounted Dr. Teasell’s reports as it relates to the Applicant’s entitlement to NEBs because those reports occurred after the NEB period and her self-reporting in those reports is contradicted by the surveillance evidence. It is difficult to see how it was an error of law for me to consider surveillance outside of the NEB period when the Applicant is urging me to consider her evidence from the same period.
12With respect to the treatment and assessment plans in dispute, the Applicant submits that it was an error of fact to find them not reasonable and necessary because she consistently complained of pain. The Applicant submits that she made pain complaints to her assessing and treating practitioners and that Dr. Teasell’s report dated November 17, 2021 concluded that she would benefit from physiotherapy to improve range of motion. She further submits that I committed an error of fact when I failed to refer to Dr. Teasell’s recommendations. Lastly, she submits that a failure to consider pain relief as a reasonable goal was an error of law.
13The Respondent submits that there is nothing in the decision that allows one to conclude that Dr. Teasell’s opinion was not considered and, in the event it was not, the Applicant has failed to distinguish how the outcome of the decision would be different had Dr. Teasell’s report been taken into consideration. It submits that the evidence was correctly weighed at paragraphs 17-20 and that the Applicant is attempting to relitigate the matter.
14I find no error of fact or law with respect to my weighing of the evidence as it relates to the Applicant’s entitlement to the physiotherapy treatment plans in dispute at paragraphs 17 to 20 of the decision. As noted in the decision, I preferred the contemporaneous opinions of the IE assessors, who encouraged the Applicant to engage in all her regular activities, and Dr. Imran’s CNRs noted that the Applicant found physiotherapy to be unhelpful. I see no error in my finding that it is not reasonable to fund a physiotherapy assessment or ongoing treatment which the Applicant has reported as being unhelpful to her recovery.
15Lastly, the Applicant submits that there is evidence that was not before the Tribunal when rendering its decision, was not available to the Applicant when written submissions were due which would likely have affected the results. The Applicant submits that Dr. Imran referred her to Dr. I. Udo, psychiatrist, on November 7, 2022. An assessment occurred and Dr. Udo diagnosed the Applicant with post-traumatic stress disorder (moderate), moderate depression, and chronic pain. She submits that Dr. Udo recommended that she consult a pain clinic and that this report supports her claims to the treatment plans in dispute.
16The Respondent submits that the Applicant made no attempt to include the report in the hearing, despite obtaining it prior to the release of the decision. It submits that it would be inappropriate to try to rely on the evidence now. It further questions the validity of the report due to the timing of it because the assessment is four years post-accident. It submits that little weight be given to the report for this reason. Lastly, the Respondent submits that the report includes no opinion on whether the physiotherapy plans are reasonable and necessary.
17I find that the report by Dr. Udo is not evidence that would likely have affected the results of the hearing. Dr. Udo’s assessment and recommendations are not contemporaneous with the Applicant’s claims for NEBs and ongoing physiotherapy. Dr. Udo’s report provides no retroactive assessment of the Applicant’s ability to carry on a normal life as a result of the accident. Further, Dr. Udo, a psychiatrist, made no recommendation for physiotherapy or ongoing physiotherapy. Considering the timing and scope of Dr. Udo’s report, I find that it is not evidence that would likely have affected the result of the hearing.
CONCLUSION
18For the reasons noted above, I dismiss the Applicant’s request for reconsideration.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 6, 2023