RECONSIDERATION DECISION
Before:
Robert Rock
Licence Appeal Tribunal File Number:
22-006530/AABS
Case Name:
Felicia Misiti v. Aviva General Insurance Company
Written Submissions by:
For the Applicant:
Braden Adsett, Counsel
For the Respondent:
Melanie Sousa, Counsel
OVERVIEW
1On August 29, 2024, the applicant requested reconsideration of the Tribunal’s decision dated August 8, 2024, (“decision”).
2In the decision, I found that the applicant was not removed from the MIG based on a pre-existing condition, and that the applicant was not entitled to the treatment plan in dispute, interest, or 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 is seeking a reconsideration of the decision pursuant to Rules 18.2(b) and (c) on the basis that the Tribunal made an error of law or fact in the adjudication of the applicant’s pre-existing medical condition and also on the basis of new evidence, specifically the clinical notes and records (CNRs) of Dr. Profetto, the applicant’s new family physician, from February 15, 2024, to May 24, 2024.
5The respondent requests the reconsideration be dismissed and the decision be upheld.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7I find the applicant has not established grounds for the reconsideration under Rules 18.2 (c) and (b).
8The 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.
Reconsideration under Rule 18.2(b)
9I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2 (b) regarding error of law or fact.
10The applicant submits that I made the following three errors of law or fact in the decision:
i. Misuse of the terms “injury” verses “condition;”
ii. Mischaracterization of Dr. Kopyto’s assessment; and
iii. Omitting the CNRs of Dr. Tavormina.
a) “Injury” vs. “Condition”
11I find that the applicant has not established grounds for a reconsideration with respect to Rule 18.2(b) regarding an error of law or fact in association with a misuse of the terms injury verses condition.
12The applicant submits that I misused the term “injury” when I should have used the term “condition” during my MIG analysis. The applicant argues that using the term injury instead of condition added a pre-requisite to the legislative test.
13The respondent submits that the decision included the phrase “documentation of a pre-existing injury or condition.” Also, they point out that I did not apply a more onerous test and appeared to not have intended any distinction between the use of the term injury or condition.
14I not satisfied that it was a legal error to use the phrase injury in place of condition, but that even if that was an error, I find nothing in the decision that shows I applied a more onerous test than that set out in in s. 18(2) of the Schedule;
“an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline”
15In paragraph 11 of the decision, I outlined the two-part test for MIG removal based on a pre-existing condition: first that there is a pre-existing condition, and second, that that pre-existing condition would preclude recovery from the accident-related minor injury if the claimant is held within the MIG.
16In paragraph 21 of the decision, I did not dispute the existence of a pre-existing condition, but I focused my analysis on the evidence submitted which did not provide compelling medical evidence that the condition would preclude the applicant’s recovery in MIG.
17I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2(b) and an error in law or fact regarding the misuse of the term injury, instead of condition. I am not satisfied that it was a legal error to use the phrase injury in place of condition, but even if that was an error, nothing turned on it because there was no evidence of a pre-existing condition that would have warranted removal from the MIG. Additionally, the applicant has not made a submission that would change the decision I made on the basis of no compelling medical evidence that the condition would preclude the applicant’s recovery in MIG.
b) Dr. Kopyto’s assessment
18I find that the applicant has not established grounds for a reconsideration with respect to Rule 18.2(b) regarding an error of law or fact in association with a mischaracterization of the evidence by Dr. Kopyto.
19The applicant submits that I mischaracterized the evidence of Dr. Kopyto and improperly weighed it. The applicant submitted that I failed to include the term “chronic” in reference to her neck pain and, as a result of this omission, I applied more weight to the findings of Dr. Kopyto and used those findings to weigh them against the incorrect test of injury verse condition. The term chronic was not included regarding Dr. Kopyto’s reference to neck pain, but I am not directed to how the absence of that term changed the test that was applied to make a decision on the applicant’s condition. The applicant relies on the term chronic and endorsing a pre-existing condition, but the opinion of Dr. Kopyto was clear that from a presentation perspective, the applicant presents compatible with her pre-accident history. This statement by Dr. Kopyto presents that the applicant is not suffering from a functional impairment due to the motor vehicle accident.
20The respondent denies that I mischaracterized the evidence of D. Kopyto and asserts that the crux of the assessment by Dr. Kopyto focuses on the lack of findings that would support a functional impairment.
21The applicant has not directed me to how the lack of the use of the term chronic would change the test regarding functional impairment. Dr. Kopyto’s assessment clearly states that the applicant, “does not suffer an impairment that continuously prevents her from engaging in substantially all of the activities that she normally engaged in before the accident.” Additionally, Dr. Kopyto states that the applicant presents compatible with her pre-accident history. Using those two statements from the assessment of Dr. Kopyto, I do not believe that the conclusions are mischaracterized, nor that an improper test of the applicant’s injuries was made. The applicant has not successfully argued, why the inclusion of the term that would have changed the weighing of the evidence based on the clinical opinion provided by the doctor at the conclusion of his assessment.
22I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2(b) and an error in law or fact regarding mischaracterizing Dr. Kopyto evidence nor that a incorrect application of the test was made.
c) Dr. Tavormina’s CNRs
23I find that the applicant has not established grounds for a reconsideration with respect to Rule 18.2(b) regarding an error of law or fact in association with the medical evidence of Dr. Tavormina.
24In the applicant’s submission, she submitted that I did not reference the CNRs of Dr. Tavormina, chiropractor, in the decision. The applicant submitted that these CNRs formed part of the applicant’s submissions. The applicant relies on a paraphrased version of the Schedule which states in 38(3) regarding treatment plans, “compelling evidence is to be provided using the Treatment and Assessment Plan (OCF-18), with attached medical documentation, if any, prepared by a health practitioner”. Reviewing the applicant’s original submission, Dr. Tavormina quote is extracted from the CNRs referring to the doctor’s opinion on the applicant through her treatment. In the original submission, the applicant made no submission as to how Dr. Tavormina’s CNRs were relevant to the question of the applicant’s pre-existing condition or a functional impairment due to the pre-existing condition. As such, the CNRs of Dr. Tavormina were not omitted from the decision erroneously. Rather, the applicant did not direct me to how Dr. Tavormina’s CNRs would speak to the pre-existing condition with a functional impairment and therefore were not included in the review of medical evidence.
25I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2(b) and an error in law or fact regarding the CNRs of Dr. Tavormina. I based my decision on the fact that the applicant didn’t outline in their submission, how or in what way the CNRs of Dr. Tavormina should be evaluated. Additionally, I am not directed to how an evaluation of the CNRs of Dr. Tavormina would have led me to make a different decision had they been part of my analysis of the evidence.
Reconsideration under Rule 18.2(c)
26I find that the applicant has not established grounds for a reconsideration with respect to Rule 18.2(c) regarding the introduction of new evidence.
27Rule 18.2(c) sets out a three-part test:
i. There is evidence that was not before the Tribunal when rendering its decision;
ii. The evidence could not have been obtained previously by the party now seeking to introduce it; and
iii. The evidence would likely affect the result.
28In the applicant’s submission, she submits there is new evidence that was not available at the time of the production deadlines, as the applicant’s appointment with Dr. Profetto was after the application deadline. Specifically, the evidence that the applicant submitted meets the test in Rule 18.2(c) is a diagnosis by Dr. Profetto of a concussion and post-concussion syndrome.
29I find that the applicant has met the first part of the test in Rule 18.2(c) with respect to the CNRs of Dr. Profetto.
30Turning to the second part of the test, I find that the applicant has not established that the evidence she now seeks to introduce could not have been obtained previously. Although the applicant submits that she first saw Dr. Profetto after the production deadline on February 16, 2024, she does not say why she could not have obtained the diagnosis of a concussion prior to this visit with Dr. Profetto.
31Lastly, in the third part of the test, I find that the applicant has not established that this new evidence would likely affect the result. The applicant has not directed me to how the diagnosis of concussion and post-concussion syndrome was substantiated and did not include any outline of the medical documentation that was reviewed to assist in determining this diagnosis. I place little weight on this new evidence, as the applicant made a no submission as to how this diagnosis is contradicted by the CNRs of Dr. Campos-Bustamante, her previous family doctor, and Dr. Farahani, neurologist, neither of who diagnosed the applicant with a concussion or post-concussion syndrome.
32Additionally, the applicant asserts that Dr. Profetto’s diagnosis provides additional evidence of chronic pain, a functional impairment, and establishes that the applicant’s pre-existing injuries are preventing her recovery with the MIG. In the CNRs, Dr. Profetto states that the applicant, “experienced migraines/headaches/neck pain daily since the accident.” The doctor makes no reference to the pre-existing condition of the applicant. Additionally, there is no direction on how Dr. Profetto substantiated his comments on the applicant’s lifestyle or psychological condition. Again, the applicant has made no submission as to how the new evidence by Dr. Profetto’s diagnosis regarding chronic pain, a functional impairment or her pre-existing injury would likely affect the result, given that the diagnosis is not supported by all the previous evidence submitted by the applicant.
33I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2(c) and, therefore, a reconsideration is not granted on this basis.
CONCLUSION & ORDER
34For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Robert Rock
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 8, 2024