Andrea Ranger v. Belair Insurance Company Inc., 2024 CanLII 113003

Licence Appeal Tribunal

File Number: 22-004216/AABS-R (also 22-004216/AABS)

Reconsideration Decision

Case Name: Andrea Ranger v. Belair Insurance Company Inc.

Before: Ulana Pahuta, Adjudicator

Written Submissions by: For the Applicant: Nicholas Whelan, Paralegal For the Respondent: No submissions provided

OVERVIEW

1On July 15, 2024, the applicant requested reconsideration of the Tribunal’s decision dated June 24, 2024 (“decision”).

2In this decision, I found that the applicant’s accident-related impairments did not warrant removal from the Minor Injury Guideline (“MIG”), that she was not entitled to the treatment plans in dispute or interest, and that the respondent was not liable to pay an award.

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or

c) 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.

4The applicant seeks reconsideration pursuant to Rule 18.2(b). She submits that 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. The applicant submits that she should have been removed from the MIG on the basis of a pre-existing impairment, and that all of the subsequent treatment plans should have been deemed reasonable and necessary.

5The respondent did not provide reconsideration submissions.

RESULT

6The applicant’s request for reconsideration is dismissed.

ANALYSIS

7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Rule 18.2(b): Error of Law or Fact

8I find that the applicant has not established grounds for reconsideration.

9The applicant submits that in the decision, I made an error of law or fact when I determined that the applicant’s accident-related impairments did not warrant removal from the MIG. The applicant argues that the medical evidence established that her pre-existing sciatica and thoracolumbar scoliosis were clearly aggravated as a result of the accident and created limitations and decreased recovery that was not treatable within the confines of the MIG.

10She further relies on the Tribunal decision Thai v. Aviva General Insurance Company, 2021 CanLII 19420 (ON LAT) to argue that in similar circumstances, where complaints of sciatica were made even one year apart, a chronic pain assessment was awarded. The applicant argues that this cements the position that exacerbated sciatica brings the person outside of the MIG, and warrants a chronic pain assessment.

11I find that the applicant has not met her onus to prove that I erred in law or fact in my determination that the applicant remained within the MIG.

12The applicant argues that my finding in paragraph 16 of the decision, where I found that the applicant’s pre-existing sciatica was initially aggravated by the subject accident, and that sciatic complaints were made in the first 6-7 months post-accident, establishes that she should have been removed from the MIG. I disagree. Although in her reconsideration submissions the applicant argues that her complaints of sciatica were “constant” for 6-7 months, in my decision I found that the applicant did not report consistent sciatic symptoms in the 6-7 months post-accident. Rather, in paragraph 17 of my decision, I note that although Dr. Ang noted a month post-accident that the applicant’s sciatica was “worsening”, despite attending at her doctor’s office numerous times in the following five months for pregnancy issues, no further complaint of sciatic pain was made until November 20, 2020 when the applicant requested a medical note for a leave of work absence prior to her maternity leave.

13In her reconsideration submissions the applicant further references a January 2022 entry from Dr. Ang where sciatic pain was noted and physiotherapy was recommended, as evidence that she was prevented from recovery within the MIG due to sciatica. However, as I found in paragraph 18 of my decision, on January 12, 2022 Dr. Ang did not link the applicant’s sciatica to the subject accident, rather, it was expressly noted that the applicant had suffered from sciatica since 2014, it had worsened with pregnancy and weight gain. There was no mention of the accident. I further noted in paragraph 17 that despite attending at Dr. Ang’s office a number of times in 2021 for unrelated reasons, no complaints of sciatica were made in 2021.

14I find that the applicant is raising the same arguments previously raised in her initial hearing submissions. In the decision I considered the evidence and submissions presented by the parties and addressed the question of whether the applicant’s pre-existing sciatica prevented recovery from an accident-related impairment within the MIG. The reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision.

15I further do not agree with the applicant that the Tribunal decision Thai v. Aviva General Insurance establishes that sciatica, when aggravated, removes a claimant from the MIG. In Thai v. Aviva, the claimant’s removal from the MIG was not an issue in dispute, rather, the sole issue was whether the applicant was entitled to a chronic pain assessment. The reasonableness and necessity of a proposed assessment involves different considerations from whether a pre-existing medical condition prevents recovery from an accident-related injury within the confines of the MIG. As such, I find the decision cited by the applicant to be of limited persuasive value.

16For the foregoing reasons, I find that the applicant has not established an error of law or fact in the decision such that the Tribunal would likely have reached a different result had the error not been made.

CONCLUSION & ORDER

17The applicant has not established grounds for reconsideration under Rule 18.2(b).

18The applicant’s request for reconsideration is dismissed.

Ulana Pahuta Adjudicator Tribunals Ontario – Licence Appeal Tribunal