RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 20-008996/AABS
Case Name: Shahrokh Reyhani v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: James Klein, Counsel
For the Respondent: Kevin D. H. Mitchell, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicant in this matter. It arises out of a decision in which I found that the Applicant was not entitled to income replacement benefits, (“IRBs”), beyond 104 weeks following the accident, (“post-104 IRBs”), as a result of an accident on August 25, 2017.
2The Applicant seeks a variance on the initial decision and an Order granting his entitlement to post-104 IRBs.
3The Applicant also requested that another adjudicator conduct the reconsideration.
RESULT
4Pursuant to Rule 18.1 of the Tribunal’s Common Rules of Practice and Procedure and supported by the Divisional Court’s decisions in Gore v. Rusk (2022 ONSC 2893) and Warren v. Licence Appeal Tribunal, et al. (2022 ONSC 3741), the task of reconsideration was assigned to me. Further and as detailed below, the Applicant’s omission to supply a transcript of the hearing’s oral evidence, despite his reconsideration submission that the record supports his arguments, lends support to my conducting the reconsideration.
5The Applicant's request for reconsideration is denied.
BACKGROUND
6The Applicant was involved in an accident and claimed that his accident-related impairments such as chronic pain and cognitive issues cause a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
7The Applicant returned to work following the accident, at about two-thirds capacity. He remained at work at this capacity until about May 2020, when he negotiated a temporary layoff with his employer, related to a downturn in business due to the Covid-19 pandemic. The Applicant returned to work in September 2021, again at about two-thirds his working hours and pay.
8The Applicant sought a finding that he meets the post-104 IRB test for entitlement. Notably, the Applicant conceded that he mitigated his income loss by returning to work on a part-time basis.
ANALYSIS
9The grounds for a request for reconsideration to be allowed 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. 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.
10The Applicant advances his request for reconsideration pursuant to criterion (b) and submits that I made errors of law or fact such that the Tribunal would likely have reached a different result had the errors not been made. The Respondent submits that the Applicant has not met his onus to demonstrate that an error of law or fact occurred such that the Tribunal would likely have reached a different result had the error not been made.
11Reconsideration 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. The reconsideration of a decision is not an opportunity to relitigate the issues when a party disagrees with the previous decision. Reconsideration is not a venue to tender new evidence unless the evidence was unavailable for the initial hearing and would likely affect the result if admitted, which would fall under criterion (d); however, the Applicant does not rely on criterion (d) nor did he tender any new evidence on reconsideration.
12I note that the Applicant, on several occasions, submitted that the record “will” show that certain evidence, particularly oral testimony, was not as reflected in my decision. However, the Applicant never provided a transcript of the proceedings to support such assertions with his reconsideration request. Thus, I am left to rely on my notes from the hearing, the exhibits I admitted as evidence at the hearing, and the submissions presented by the parties on reconsideration.
Errors of fact
13The Applicant submits that I made several errors of fact when assessing his pre- and post-accident employment. He states that the errors led me to reach conclusions regarding his status, job security, and competency to perform the essential tasks of his employment. Such examples include:
finding that the CFO of the company described that the Applicant lessened her workload post-accident instead of pre-accident;
concluding that the Applicant had a decrease in managers reporting to him, whereas the Applicant submits that no managers report to him now;
failing to note that each department hired dedicated after-hours contacts because the Applicant could no longer fulfill that role;
that a project failed because the Applicant could not fly to Korea;
the Applicant’s working hours were reduced to 62.5%, not 66.6%; and
finding that the Applicant’s pre-accident employment can be done part-time.
14I find no error of fact in my apprehension of the evidence regarding the Applicant’s employment. The findings in my decision are consistent with my hearing notes, and as noted, the Applicant never provided a transcript of the proceeding to cross-reference. Specifically, my records support the following findings:
The CFO described the Applicant’s current role as lessening her workload.
Some VPs still report to the Applicant.
There is no evidence demonstrating that people were hired as after-hour contacts.
There is no evidence that the Korean project failed. Instead, according to the CFO, the project was handled by the President’s son and the Applicant was involved in it “a little bit”.
The CFO testified that the Applicant is still second only to the president of the company.
The Applicant never established that working full-time hours is required for his role as vice-president, or that an inability to work full-time hours equates to a complete inability to engage in suitable work. On this basis, I concluded that his return to work establishes that he can be successful in his role at a reduced capacity.
15The Applicant also takes issue with my finding that there are no employment records speaking to his ability to work or his need for accommodation. He submits that the absence of employment records is not evidence of an absence of accommodation. I agree with this statement but find that it fails to appreciate that the onus falls on the Applicant to make his case. In this matter, the onus is on the Applicant to demonstrate that he is entitled to post-104 IRBs as a result of impairments arising from the subject accident. I found at paragraphs 41 that his failure to produce any records, be it employment or medical, which states that he is unable to engage in reasonably suited employment, is remarkable.
16As stated at paragraph 19 of the initial decision, the test for post-104 IRBs involves an assessment of whether the Applicant suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by way of education, training, or experience. I find the Applicant’s submissions on reconsideration are an attempt to reargue his case. They also suggest that he misconstrues the post-104 IRB test to be based on his ability to find new work in the event that his current employer terminates his employment, rather than his ability to engage in any suitable employment. His return to work, be it at 66.6% or 62.5% capacity demonstrates that the Applicant does not suffer a complete inability to engage in suitable employment or self-employment.
Misapprehended the evidence of D. Remedios
17The Applicant submits that the Tribunal would not have concluded that an employer, acting rationally, would employ him in a similar or same capacity had the evidence of D. Remedios, vocational specialist and career counsellor been properly considered.
18I find that this is also an attempt to re-litigate the issue. The Applicant has not demonstrated an error of law or fact to address as it applies to the testimony of D. Remedios. Instead, the Applicant disagrees with my weighing of the evidence. The weighing of evidence is entirely within the purview of the adjudicator and is not a ground for reconsideration.
Findings Regarding Medical Evidence are Unsupported by the Evidence
19The Applicant submits that my finding at paragraph 44 of the initial decision, that the Applicant’s inability to work more than 5 hours per day was not based on a medically recommended restriction, was erroneous. He submits that Dr. M. Khan, physiatrist, and Dr. D. Berbrayer, physiatrist, both concluded that the Applicant was medically restricted from working more than 5 hours per day.
20I find that this is not only an attempt to relitigate the issue, but it is also without any factual basis. The Applicant directs me to no evidence to support his submissions. In fact, as I noted in paragraph 44, there is no evidence that the Applicant is medically restricted from working more than 5 hours per day. This is not reflected in the reports, medical records, or testimony at the hearing.
Negative Inferences Made Despite Finding the Applicant Credible
21The Applicant disagrees with my conclusions based on his evidence. Essentially, he submits that I should find that his pain symptoms restrict his physical activities post-accident and that I was wrong to conclude that his job was secure and that it could be done part-time, and that other employers would hire him under the same or similar circumstances.
22I find that this is also an attempt to re-litigate the issue. The Applicant has not demonstrated an error of fact or law which would likely lead to a different result. Therefore, I will not address it on reconsideration except to state that the Applicant’s submissions on this issue mischaracterize my findings in the initial decision. I did not make a finding with respect to whether the Applicant’s job was secure, nor did I comment on the Applicant’s job security. These are not components of the legal test and are irrelevant to my determination on the issue. Likewise, I did not make a finding with respect to whether the Applicant’s job could be done part-time, or whether other employers would hire him under the same or similar circumstances. Rather, at paragraph 44 of the initial decision, I found that the Applicant had not established that working full-time hours is required for his role as a Vice President, Operations and that by returning to work the Applicant has demonstrated that he can be successful in his role, despite working reduced hours.
Errors In Law
23The Applicant submits that I erred in law when I failed to properly analyze the history of cases that help interpret the test for post-104 IRBs, as outlined in section 6(2) of the Schedule. He states that I never set out the legal analysis which I undertook to reach my decision. The Applicant also submits that he presented significant evidence demonstrating that his post-accident work was qualitatively different than his pre-accident work and that his status within the company was diminished.
24The Respondent submits that the Applicant provides no authority that dictates that I must review the long history of cases interpreting section 6(2) of the Schedule. Rather, it submits that the subject expertise is presumed and, in any event, the post-104 test factors were considered and are clearly demonstrated throughout the decision. The Respondent submits that I applied a practical approach to the legal test, as the Applicant had suggested be done. The Respondent reiterates that the Applicant bears the onus of proof to demonstrate that he was unable to engage in employment in a competitive and real-world setting, as noted in the case-law presented and that the facts of this case support a finding that the Applicant was unable to meet his onus.
25I find no error in law in my omission of specific references to the cases provided by the Applicant. I also find that in making these submissions, the Applicant is attempting to relitigate the issue.
26I agree with the respondent that I am not required to list the cases that have influence on the post-104 IRB test, nor am I required to provide an analysis of the cases which led to my interpretation of the legal test. An adjudicative Tribunal is not held to the same standard as the Courts and is not bound by the decisions of other Tribunals, such as the Financial Services Commission of Ontario.
27In the decision at paragraphs 41 to 45 I applied the post-104 IRB test as submitted by the Applicant. I assessed the Applicant’s disability and whether he is able to engage in employment in a real-world competitive setting. I viewed the Applicant’s employment competencies as they apply in real-world settings as well as outlined in the vocational testing presented at the hearing and determined that he did not meet the post-104 test.
28I also assessed the Applicant’s disability, as outlined in the medical records and testimony at the hearing and determined that the Applicant did not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience as a result of any accident-related disability. At paragraph 27 of the initial decision, I noted that the Applicant’s witness, Dr. Berbrayer, determined that the Applicant’s disability was related to overall limited mobility and an inability to sit or stand for prolonged periods, which was self-reported and not due to a medical restriction. At paragraph 30 I found that there was insufficient evidence to demonstrate that the Applicant’s information processing, judgement, concentration, and focus are impaired as a result of accident-related injuries. At paragraph 31 I noted that the Applicant’s cognitive complaints were broad and fell short of meeting the test, considering only Mr. Remedios assessed the Applicant for cognitive impairments, that no medical practitioner assessed the Applicant’s cognition, and the Applicant returned to work in a similar role. At paragraph 39, I found that the Applicant exhibited no cognitive difficulties on the minimal testing completed and had unrestricted formal and informal learning mechanics. At paragraph 40, I noted that the medical assessor found that the Applicant’s employment was largely cognitive, involving the use of a computer and participating in meetings. At paragraph 42, I noted that the Applicant’s predominant complaint of limited mobility and an inability to engage in prolonged postures, does not preclude him from using a computer, which is a substantial component of his employment.
29I also assessed the changes in the Applicant’s status and reward from employment. As outlined in paragraph 44 of the initial decision and I found that the Applicant mostly maintained his status and reward from employment. I acknowledged the changes to the Applicant’s compensation following the accident but determined that they were commensurate with the reduction in working hours that the Applicant negotiated with his employer, which was not based on a medical recommendation. I noted the changes in the Applicant’s role at the company and determined that he maintained his status despite a reduction in people reporting to him, a reduction in after-hours support, and a reduction in international travel. In fact, during testimony, the CFO of the company where the Applicant is employed stated that the Applicant is still the number two in the company. Further, contrary to the Applicant’s submissions for this reconsideration, there was no evidence demonstrating that new after-hours contacts were hired to replace the Applicant and no evidence demonstrating that certain projects failed due to a lack of participation from the Applicant or that the Applicant was unable to participate in them as a result of the accident. The CFO of the company testified that departments have different after-hours contacts, but never stated that new employees were hired to fulfill the role. Similarly, the CFO testified that the CEO’s son led the Korean project and that the Applicant participated in the domestic side of it. No evidence was provided that indicates the project failed.
30My decision turned, predominantly, on the fact that the Applicant provided no evidence demonstrating that he is medically restricted from working as a result of accident-related impairments. No medical practitioner opined that the Applicant would be harmed by returning to work at his full capacity. From a physical perspective, Dr. Khan opined that the Applicant should return to regular day to day activities and that a lack of exercise or activity will result in deconditioning and a loss of stamina or endurance. Further, the Applicant presented no compelling evidence demonstrating that his cognition, such as information processing, judgement, concentration, and focus are impaired as a result of the accident or chronic pain syndrome. As noted at paragraph 37 of the initial decision, Mr. Remedios testified that he felt that the Applicant had decision making and processing issues due to chronic pain, yet the Applicant completed the Wonderlic Cognitive Ability Test, the only cognitive ability test results provided by the Applicant, without any cognitive difficulties or complaints. This discrepancy caused me to discount Mr. Remedios’ opinion relative to Dr. Holland and Dr. Khan.
CONCLUSION
31For the reasons noted above, I deny the Applicant's request for reconsideration.
Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: February 13, 2023