RECONSIDERATION DECISION
Before: Robert Rock
Licence Appeal Tribunal File Number: 22-005379/AABS
Case Name: Sarajuddin Najem v. TD General Insurance Company
Written Submissions by:
For the Applicant: Rizwan Wancho, Paralegal
For the Respondent: Jagdeep Khela, Counsel
OVERVIEW
1On August 6, 2024 the applicant requested reconsideration of the Tribunal’s decision dated July 16, 2024 (“decision”).
2In the decision, I found that the applicant was not entitled to a non-earner benefit (NEB), that his accident-related impairments did not warrant removal from the Minor Injury Guideline (MIG), and that the applicant was not entitled to the disputed treatment plans.
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 pursuant to Rule 18.2 (c) and (b). The applicant is requested the decision be varied and the applicant be removed from the MIG, the disputed treatment plan be found to be reasonable and necessary, that an award be granted, and interest payable.
5The respondent requests the reconsideration be denied 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 Rule 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).
10The applicant submits I made three errors of law or fact in the decision as follows:
a. That I improperly weighed evidence regarding the applicant’s claim for NEBs, chronic pain with a functional impairment, and a psychological condition;
b. That I mischaracterized the findings of an MRI from March 2020; and/or
c. That I found that the applicant did not suffer from a psychological condition because he drove to his daughters home from the accident.
Improper weighing of evidence
11The applicant submits that I did not properly weigh evidence from Dr. Wong, physiatrist, and Dr. Dhalla, family doctor. The applicant, however, does not direct me to how the evidence was improperly weighed in the decision and these submissions point to no errors of fact and/or law. Instead, the applicant appears to disagree with my findings which is not a ground to grant a reconsideration of a decision.
12The applicant also submits that I improperly weighed the s. 44 reports by Dr. Khalid, MD, Dr. Oshidari, MD, and Mr. Sasani, OT. The applicant argues that the CNRs of Dr. Dhalla were not provided to these assessors. Additionally, these three assessments happened after the assessments he submitted from Dr. Kachooie, physiatrist, Dr. Wong, physiatrist, Dr. Razvi, chronic pain specialist, and the CNRs or Dr. Dhalla, regarding the decision on chronic pain with a functional impairment.
13The applicant has not directed me to how the CNRs of Dr. Dhalla, if provided to the s.44 assessors would have likely changed their diagnosis of the applicant. Nor has the applicant provided direction on why I should have found differently based on the timing of the assessments instead of their diagnoses and conclusions.
14Additionally, the applicant submits that I did not weigh evidence from Dr. Dhalla, physiotherapy treatment clinic CNRs, OFC-3 dated January 8th, 2020, the OCF-3 dated March 9th, 2020, Dr. Razvi’s report dated July 10th, 2021, or Dr. Wong’s report, dated August 20th, 2021. In review of the applicant written submissions, I was not directed to how this evidence should be considered in association with the applicant’s psychological condition.
15As a result, I find that this is a new argument that could have been made in the respondent’s hearing submissions but, for whatever reason, it failed to do so. Therefore, I am not prepared to address this request as part of the Tribunal’s reconsideration process as a reconsideration request is not an avenue to advance new arguments or make new requests that a party could, but did not, make before the Tribunal during the hearing of the matter.
16I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2 (b). Disagreeing with the weight assigned to evidence is not a basis for reconsideration. The argument made by the applicant is their belief that improper weighing of evidence was applied in the decision on NEB, this is not an error of law or fact. The applicant has not directed me to how the evidence by Dr. Wong, or the CNRs of Dr. Dhalla would have led to me reaching a different result.
The March 2020 MRI
17Additionally, the applicant submits that the I mischaracterized the findings of an MRI from March 2020. In the decision at paragraph 22, I stated, “MRI of March 2020 did note mild wedging of the T8-9 vertebrae but did note mild spinal canal stenosis.”
18The full text of the March 2020 MRI reads as follows:
a. At T5-6 level there is a broad based osteocartilaginous bar causing mild spinal stenosis. At the T7-8 level there is a moderate sized left paracentral osteocartilaginous bar causing moderate spinal canal stenosis. At T8-9 level there is a broad based osteocartilaginous bar causing mild spinal canal stenosis. At the T9-10 level there is abroad based osteocartilaginous bar causing mild spinal canal. In summary there is a moderate sized osteocartilaginous bar causing moderate spinal canal stenosis.
19The applicant has not directed me to how the portion of the text I used in my review led to a wrong result. In review of the two texts, the reference to T8-9 regarding mild spinal canal stenosis, is the same. Nor has the applicant argued how the longer version of the text would have led me to reach a different result.
20I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2 (b) regarding the decision on chronic pain. The applicant has not substantiated reasons why the evidence they put forward was superior to that of the s.44 examinations other than timing. Similarly, the applicant has not made a persuasive argument that including the full text of the MRI report from 2020 would have led me to reach a different decision.
Psychological condition
21The applicant submitted that I erred in finding that the applicant did not suffer from a psychological condition due to driving his daughters home from the accident.
22In review of the decision, I did not find against a psychological condition solely on the basis that the applicant drove his daughters home. I additionally found that the psychological report by Ms. Gronkowska contained many internal inconsistencies and did not clearly outline how she made her diagnosis of major depressive disorder.
23I find that the applicant has not established grounds for reconsideration with respect to Rule 18.2(b) such that I erred in fact or law in the decision regarding the applicant’s psychological condition.
24For all of the reasons set out above, I find that the applicant has not established grounds to grant a reconsideration under Rule 18.2(b).
Reconsideration under Rule 18.2(c).
25I find that the applicant has met the first part of the test in Rule 18.2(c) with respect to all the new evidence.
26For a reconsideration to be granted under Rule 18.2(c), the following three-part test must be met:
a. There is evidence that was not before the Tribunal when rendering its decision;
b. The evidence could not have been obtained previously by the party now seeking to introduce it; and
c. The evidence would likely affect the result.
27The applicant is seeking to introduce the following new evidence that the applicant claims fits the criteria under Rule 18.2(c):
a. Three letters of diagnosis by Dr. Sokolova, neurologist, dated February 5, March 4, and April 12, 2024;
b. A letter of diagnosis by Dr. Miller, heart specialist, from January 16, 2024;
c. The clinical notes and records (CNRs) of Dr. Hodge, MD, from January 1, 2024; and
d. The CNRs of Dr. Dhalla, the applicant’s family doctor, from August 9, 2023 to January 17, 2024.
28The submits the evidence set out above was not available at the time of the production deadlines, as the applicant’s appointment with Dr. Sokolova, Dr. Miller, Dr. Hodge, and Dr. Dhalla were after the application deadline of July 9, 2023.
29The respondent made no submissions disputing this position.
30I find that the applicant has met the first part of the test in Rule 18.2(c) with respect to all the new evidence.
31Turning to the second part of the test, I find that the applicant has not established that the evidence he now seeks to introduce could not have been obtained previously. The production deadline as set out in the March 11, 2023 Case Conference Report and Order was July 9th 2023. Although the applicant submits that he first saw Dr. Sokolova after the production deadline on February 5, 2024, the applicant does not submit why he could not have obtained the diagnosis of a cervical radiculopathy prior to this visit with Dr. Sokolova.
32A reconsideration is not an opportunity for parties to correct the shortcomings of their submissions and evidence once highlighted by the Tribunal. Again, as stated in the decision, the parties are required put their best foot forward when first called upon to do so.
33Lastly, I find that the applicant has not established that this new evidence would likely affect the result. The diagnosis by Dr. Sokolova of cervical radiculopathy is not a definitive diagnosis. Dr. Sokolova states in her letter that the applicant, “most likely has symptoms suggestive of cervical radiculopathy.” The clinical finding of “suggestive” is not a definitive diagnosis. Similarly, the CNRs of Dr. Dhalla, Dr. Miller, and Dr. Hodge are focused on chest pains and panic attacks. In review of the evidence submitted regarding the chest pains and panic attacks, none of the doctors make any association with them and the accident, nor does the applicant.
34I find that the applicant has not established grounds to grant a reconsideration under Rule 18.2(c).
CONCLUSION & ORDER
35For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Robert Rock
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 15, 2024