RECONSIDERATION DECISION
Before:
Harry Adamidis
Licence Appeal Tribunal File Number:
23-006078/AABS
Case Name:
Janis Hare v. Algoma Mutual Insurance Company
Written Submissions by:
For the Applicant:
Georgiana Masgras, Counsel
For the Respondent:
Philippa G. Samworth, Counsel
OVERVIEW
1On May 27, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 6, 2024 (“decision”).
2In the decision, I found that the applicant is barred from proceeding to a hearing on the issues of a catastrophic impairment (CAT) determination and the denial of a chiropractic assessment because she failed to attend insurer’s examinations (IEs) under s. 44 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). As a result, the application was dismissed.
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 submits that, pursuant to Rule 18.2(b), I made errors of law such that I would likely have reached a different decision had those errors not been made. The applicant seeks a reversal of the decision in its entirety and a determination in favour of the applicant on all of the issues in dispute.
5The respondent submits that the applicant has not identified any error of law and, therefore, the reconsideration request should be dismissed.
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.
Errors of Law and/or Fact
8The applicant submits that the decision incorrectly states that the applicant and her brothers attended the insurer examinations (IE) when, in fact, only the applicant and one brother attended all the IEs. I note that the decision references the applicant and her brothers attending the IE with Ms. Beacock, occupational therapist, on March 11, 2022. This reference to “brothers” comes from the account of the IE written by Ms. Beacock. I agree that if this is incorrect, then this would constitute an error of fact. However, this error is inconsequential as the number of people present at the IE with Ms. Beacock had no impact on the decision.
9The applicant submits that I “arbitrarily” accepted the respondent’s version of what happened at the IE with Dr. Shahmalak. I disagree. In paragraphs 24 to 28 of the decision I reviewed the evidence of both parties regarding the IE with Dr. Shahmalak. I found that the applicant did not submit to this examination as required under s. 44(9)(2)(iii) of the Schedule and provided clear reasons for why I did not accept the explanation for her conduct. As such, the analysis is not arbitrary.
10The applicant argues that I erred in concluding that a lack of evidence to establish causation of a psychological impairment constitutes sufficient justification for IEs. She bases this submission on the methodology on page 3 of Chapter 1 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition (the “Guides”). According to the applicant, this reference in the Guides establishes that causation in motor vehicle accidents cannot be determined by in-person medical evaluations, but rather by evaluating past medical records. Accordingly, the applicant submits the decision is inconsistent with this practice.
11I disagree. There is nothing on page 3, Chapter 1 of the Guides which limits impairment evaluations to historic medical records, or prohibits the use of recent or current medical reports. Consequently, there is no error of fact or law as the applicant has misstated the instructions in the Guides.
12In paragraph 17 of her submissions, the applicant submits that requiring her to sign a consent form to proceed with the IE of Dr. Shahmalak amounts to fraud. The assessor did not complete a questionnaire provided to him by the applicant and, under these circumstances, the applicant submits that she could not sign a form confirming that all her questions were answered to her satisfaction as this would be a false statement. According to the applicant, the decision creates a situation where she cannot access her appeal rights at the Tribunal without signing an untrue statement.
13This issue was dealt with in paragraphs 25 and 26 of the decision where I found that the questions asked by the applicant were irrelevant to providing informed consent. Additionally, the applicant is putting forward the identical position on providing informed consent for a second time. Re-litigating the same position is not permitted in a request for reconsideration. In any event, I see no error of fact because this point was already addressed in the decision.
14The applicant argues that the respondent's notice to attend the IE provided insufficient information on how the in-person evaluation would address causation. I disagree. Paragraph 15 of the decision states:
I agree with the applicant that the first reason given by the respondent for the IEs, that it does not believe that the applicant’s psychiatrist completed a proper catastrophic impairment rating, is vague and provides no meaningful insight into why the IEs are reasonably necessary. However, the second reason for the IEs, because there is insufficient evidence to establish that the accident caused a marked or extreme psychological impairment, is more substantial. In my view, a lack of evidence to establish causation of a psychological impairment constitutes sufficient justification for the IEs.
15The applicant may disagree with my analysis, but merely disagreeing with the decision does not constitute an error of fact.
16The applicant notes that she signed a consent form for Ms. Beacock after writing “Without Prejudice and Under Protest.” This was accepted by Ms. Beacock and, therefore, should have been accepted by all assessors. She submits that I erred in finding that the applicant did not provide adequate authorization to proceed with a similarly completed consent form for the IE of Dr. Shahmalak.
17The applicant’s argument, that all assessors should adopt the same position as Ms. Beacock on proceeding with IEs with consent that is made “under protest” is not persuasive. This is because there is no requirement for assessors to proceed with IEs “under protest” from the insured. For this reason, I find that the point being made by the applicant does not raise an error of fact.
CONCLUSION & ORDER
18The applicant’s request for reconsideration is dismissed.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 14, 2024