RECONSIDERATION DECISION
Before: Brett Todd
Licence Appeal Tribunal File Number: 20-015014/AABS
Case Name: Jennifer Nelson v. Coseco Insurance
Written Submissions by:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Julianne Brimfield, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant on June 26, 2023. It arises out of a decision dated June 6, 2023 (“decision”) in which I found the applicant to be within the Minor Injury Guideline (“MIG”), that she was not entitled to two treatment plans in dispute that proposed treatment outside of the MIG, and that she was not entitled to interest or an award.
2Grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice & Procedure, Version I, (October 2, 2017) as amended (“Rules”). To grant a reconsideration request, the Tribunal must be satisfied that 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.
3Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
4The applicant is seeking a reconsideration under Rule 18.2(b) and Rule 18.2(d).
5Pursuant to 18.2(b), the applicant submits that I made a significant error of law or fact such that I would have likely reached a different decision. She argues that I weighed and misapprehended evidence in an “unduly and contradictory manner such that the applicant’s evidentiary burden became inadvertently and unreasonably higher than required in law.”
6Pursuant to 18.2(d), the applicant submits that there is evidence that was not before me at the time of rendering my decision and that could not have been previously obtained by the applicant that would have likely affected the result. This evidence consists of a psychological report and a neurology report, both of which were completed after the date set for applicant submissions for the hearing, and were submitted with the applicant’s request for reconsideration.
7The applicant requests that I admit the above evidence and vary my decision to order that:
The applicant is found to be outside of the MIG.
The applicant is entitled to $1,120.00 for occupational therapy services, recommended by Green Tree Rehabilitation in a treatment plan/OCF-18 dated October 15, 2020.
The applicant is entitled to $4,950.00 for occupational therapy services, recommended by Green Tree Rehabilitation in a treatment plan/OCF-18 dated November 4, 2020.
The applicant is entitled to interest on both of these treatment plans.
The respondent is liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
RESULT
8The applicant’s request for reconsideration is dismissed.
ANALYSIS
The MIG Finding – Rule 18.2(b)
9I find that I made no error of law or fact with respect to my finding that the applicant sustained impairments treatable within the MIG. The applicant has not established grounds for the reconsideration of this issue under Rule 18.2(b).
10The applicant submits that I exceeded the discretion of the Tribunal and applied a stringent and/or unduly narrowed evidentiary burden regarding the MIG determination. Specifically, the applicant argues that the evidence at the hearing indicated that it was more likely than not that she sustained a concussion as a direct result of the subject accident. This was based on the clinical notes and records (“CNRs”) of her family physician, Dr. David Ryan.
11In addition, the applicant claims that I improperly preferred the insurer’s examination (“IE”) report of Dr. Garry Moddel, neurologist. The applicant submits that Dr. Moddel’s report was “deficient” due to it having been conducted remotely over a cell phone while the applicant was in her car. As a result, the applicant submits that my preference for this report created a situation where my “misapprehension of evidence” was “palpable and overriding” to the point where my decision warrants reconsideration.
12In response, the respondent submits that no error of fact or law was made in the decision and that this reconsideration request is an attempt to re-litigate the MIG determination. As a result, the respondent argues that Rule 18.2(b) does not apply.
13I agree with the respondent. My decision was based on the totality of the evidence before me and an application of the legal test as I described in paragraphs #6-7 of the decision—not solely on my preference for Dr. Moddel’s report over the CNRs of Dr. Ryan. This was detailed in the extensive analysis in paragraphs #12-20 of my decision, where I reviewed Dr. Ryan’s CNRs, ambulance and hospital reports from the day of the subject accident, records of the applicant’s visits to Rivercrest Medical Centre, treatment recommendations, records of a past accident, and the insurer’s examination (“IE”) reports.
14Also, I noted in my decision that Dr. Moddel performed his assessment of the applicant remotely. I also specified that I applied less weight to this assessment report as a result, even if I still preferred it over Dr. Ryan’s CNRs due to both the IE reports and a preponderance of the medical evidence before me, as described above. Lastly, at paragraph #20 I specifically noted that I would have found the applicant to have not met her burden of showing, on a balance of probabilities, that her injuries fell outside of the MIG, even if I set aside the IE reports.
15In summation, I find that this is an attempt to re-litigate the original hearing. Much of the applicant’s argument focuses on evidence presented at the hearing. She essentially is requesting that I re-weigh the evidence and come to a new result that removal from the MIG is warranted.
16The applicant’s request for reconsideration of the MIG determination under Rule 18.2(b) is dismissed.
New Evidence Regarding the MIG Determination – Rule 18.2(d)
17I find that the applicant could have obtained the evidence submitted as part of her request for reconsideration prior to the hearing. Accordingly, the applicant has not established grounds for reconsideration pursuant to Rule 18.2(d).
18In reconsideration submissions, the applicant argues that new reports from Shauna Karasick-Franks, psychologist, and Dr. Manu Mahdiratta, neurologist, were not available for the hearing and should be admitted into evidence on reconsideration. She argues that these reports were delayed by “a failed, but robust, attempt at obtaining a physiatry report, persistent difficulty finding practitioners in Alberta that are willing and able to do assessments in accordance with the [Schedule], and Coseco’s denying of funding forcing the assessments to be incurred at the applicant’s expense.”1 The applicant further submits that excluding these reports would be “gravely prejudicial” as she would then be left without expert evidence to respond to insurer assessments.
19The applicant requests that these two reports be admitted into evidence and that they be assessed alongside related arguments in the applicant’s reconsideration submissions to provide a new MIG determination. She also references the Rules and s. 2 of the Statutory Powers Procedure Act (“SPPA”) as part of this request, arguing that the Tribunal has discretion to admit these reports to ensure the efficient, proportional, and timely resolution of this application.
20The respondent submits that this request fails all three Tribunal tests required to warrant reconsideration under Rule 18.2(d), as this evidence is not new, it could have previously been obtained, and that it would not likely have affected the result. It notes that both the psychology and neurology reports were requested in a treatment plan/OCF-18 filed by Dr. E. Lyle Gross, physiatrist, in November 2021, before the hearing. The respondent argues that the reports could have been obtained prior to the production deadlines for the hearing. Additionally, the respondent submits that these reports would not have affected the result of the hearing, due mainly to the lack of support in the applicant’s medical evidence, such as the CNRs of her family physician.
21I agree, with caveats. I disagree with the respondent’s contention that these reports should not be considered new because they were the result of an OCF-18 filed before the submission dates set for the hearing. The reports themselves were not completed until later, and are new for the purpose of reconsideration. Moreover, the test in Rule 18.2(d) does not reference “new,” as noted above in paragraph 2(d). Instead, this section of the Rule references “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.”
22However, I find that these reports could have been obtained for the hearing. For this reason, I deny the request for reconsideration under Rule 18.2(d). I further find that this makes it unnecessary to assess the reports themselves in order to make a ruling on whether they likely would have affected the result of my decision.
23The applicant’s submissions fail to demonstrate that these reports could not have been made available for the hearing. The applicant references a “robust” but ultimately fruitless attempt at securing a physiatry report, although it is not clear how this effort impacted on her ability to secure the psychology and neurology reports at issue here. I fail to understand how this necessitated such a delay in obtaining these other assessments. No evidence has been submitted to support the claim that such “robust” attempts were made, either.
24The applicant similarly does not substantiate her argument that these two reports should be admitted into evidence due to the insurer playing “gatekeeper” and denying s. 25 expert assessment requests. She submits that admitting these reports would allow her “an equal playing field with respect to experts,” as the respondent arranged s. 44 IEs while denying the applicant funding for her own examinations. Yet the applicant does not direct me to any part of s. 25 or any jurisprudence that would support such a claim.
25At any rate, the wording in s. 25 of the Schedule does not give rise to any ambiguity, particularly regarding the “shall pay” provisions. If the drafters of this legislation had intended it to obligate insurers to pay for s. 25 assessments to level the playing field with s. 44 IEs, language would have been included to that effect. It was not. As a result, I find this argument without merit.
26I accept the applicant’s argument that she may have encountered challenges finding medical practitioners in her native Alberta. I tacitly acknowledged the difficulties presented by this situation in my decision at paragraph #20. I criticized the respondent for having the applicant assessed remotely in videoconference sessions conducted by Ontario physicians instead of in person in her native Alberta, where she returned soon after the accident, and applied lesser weight to the IE reports as a result.
27Regardless, I do not agree that the applicant’s medical treatment in two provinces was significant enough of an issue to cause such a delay in arranging these two assessments. The respondent points out in its reconsideration submissions that the applicant had 22 months after the accident and 16 months after the filing of her Tribunal application to obtain and serve her medical reports for the original hearing. This is a length of time that I find should have accommodated any possible delays caused by the applicant’s need to seek an assessment in Alberta, and even to locate an assessor with some familiarity with Ontario regulations such as the Schedule.
28The extended timeframe noted above included the applicant’s request for an adjournment and an extension to the original date set for document exchange, submissions, and evidence. These requests were granted by motion order of the Tribunal on November 18, 2021.
29Consequently, it is clear that the applicant was aware that she could have applied for further relief from the Tribunal regarding these two reports in advance of the hearing, not included them as part of a reconsideration request after the conclusion of the hearing and the release of an unfavourable decision. So, I cannot accept that she would be prejudiced by the exclusion of these reports now. She had every opportunity to avoid this situation by filing an additional extension request prior to the hearing, and did not do so.
30For the preceding reasons, I find that the applicant has not established grounds for reconsideration under Rule 18.2(d).
CONCLUSION
31The applicant’s request for reconsideration is dismissed.
Brett Todd
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 19, 2023