RECONSIDERATION DECISION
Before:
Amar Mohammed
Licence Appeal Tribunal File Number:
21-011659/AABS
Case Name:
Sonia Dorcil v. Wawanesa Insurance
Written Submissions by:
For the Applicant:
Michael Brill, Counsel
For the Respondent:
Elizabeth Scott, Counsel
OVERVIEW
1On June 18, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 29, 2024 (“decision”).
2The outcome of the decision was that the applicant was found not to have sustained a catastrophic impairment. The applicant was also found not to be entitled to treatment and assessment plans for psychological services, a neuropsychology assessment, and a claim for transportation expenses. The applicant was found to be entitled to a treatment plan for a multidisciplinary chronic pain program and interest on any overdue payments.
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 argues that the Tribunal made errors of law or fact such that the Tribunal would likely have reached a different result had the errors not been made. The respondent’s position is that the Tribunal did not make any error of law or fact but did make typographical errors that are inconsequential to the result.
5The applicant seeks an order that the applicant is deemed catastrophically impaired because of the subject automobile accident on May 24, 2018; and that as a result of the applicant’s catastrophic determination, she is entitled to the full value of the benefits claimed in her application. In the alternative, the applicant seeks for this matter to be reheard, all or in part, by a new adjudicator. The respondent submits that the request for reconsideration 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.
8I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b). The Tribunal did not make an error of law or fact such that the Tribunal would have reached a different result had the error not been made.
Typographical errors in references to evidence, dates and names alleged by the applicant.
9The applicant submits that the Tribunal made a number of typographical errors in the decision and argues that they have far-reaching implications. While I acknowledge that there were some typographical errors in the decision, I find that these errors do not establish grounds for reconsideration for the following reasons.
10The applicant submits that, in paragraphs 2-4 of the decision, the Tribunal made typographical errors in referencing two reports that the respondent was seeking to exclude because of late filing: “The two documents were (A) the June 2023 report of Dr. Getahun; and (B) the September 2023 report of Dr. Gouws.”
11I agree there are errors, specifically the dates of these reports need to be switched and Dr. Ghouse’s name is misspelled. After addressing the errors, the above should read as follows: The two documents were (A) the September 2023 report of Dr. Getahun; and (B) the June 2023 report of Dr. Ghouse. The same error carries over to paragraph 11 of the decision when referencing Dr. Ghouse’s report.
12The applicant also submits that the sub-heading to paragraphs 2-4 should not include the term addendum when referencing Dr. Getahun’s report. The applicant submits that Dr. Getahun’s report is properly described as a Catastrophic Impairment Executive Summary Report and Medicolegal Opinion led by Dr. Getahun. The applicant argues it is not an addendum and rather was meant to supersede the incomplete 2022 multi-disciplinary report led by Dr. Syed.
13I find that these errors are not grounds for reconsideration. Referencing the correct date of the reports, not making an error in the spelling of a name, and not using the term “addendum” in a sub-heading would not likely have changed the result.
14The applicant argues two further points regarding this evidence.
15First, that the respondent was seeking to exclude the June 2023 addendum multi-disciplinary report led by Dr. Syed instead of the June 2023 report of Dr. Ghouse. For clarity, Dr. Ghouse’s report is contained within Dr. Syed’s multi-disciplinary report. The transcript of the hearing is clear that the respondent made some concessions in arguing the motion to exclude the applicant’s late-filed evidence. While the respondent originally sought to exclude more of the applicant’s evidence, during argument the respondent’s focus was Dr. Ghouse’s report because it was filed late and contained new testing data. To conclude on this first point, reference to Dr. Ghouse’s report in paragraph 11 of the decision is not an error.
16Second, the applicant argues the Tribunal made an error when stating that it denied introduction of Dr. Ghouse’s report because the applicant argues that “none of [the applicant’s] reports were denied”. For clarity, Dr. Getahun's report was not excluded, and the applicant conceded and withdrew Dr. Ghouse’s report in response to a motion to exclude it, as referenced in paragraphs 2-4 and 11 of the decision. Paragraph 11 of the decision explains that Dr. Ghouse’s report did not form part of the evidence at the hearing because the applicant attempted to rely on it but was denied that opportunity after having already withdrawn it at the start of the hearing. To conclude on this second point, reference to the Tribunal denying introduction of Dr. Ghouse’s report in paragraph 11 of the decision is not an error.
17The applicant argues that the Tribunal’s typographical errors are material because they indicate the Tribunal misquoted and misapplied key evidence. The applicant argues that because of these typographical errors, the Tribunal was under the impression that a 9% WPI rating for sleep impairment provided by Dr. Gomez-Vargas, a neurologist, was provided by Dr. Parekh, a psychiatrist. However, the applicant has not established based on the above errors that the Tribunal either misquoted or misapplied evidence. Further in this decision, I will deal with the applicant’s argument about the source of the 9% rating for sleep impairment and explain that the decision does not attribute the rating to Dr. Parekh, as the applicant alleges.
SLEEP RATING
Errors of mixed law and fact alleged by the applicant.
18The applicant argues that the Tribunal erred in not accepting the 9% WPI sleep rating for the following alleged reasons:
(a) The Tribunal erred in finding the applicant’s sleep impairment is not “rateable” in paragraph 14 of the decision.
(b) The Tribunal erred in attributing the 9% WPI sleep rating as being provided by Dr. Parekh in paragraph 23 of the decision and by not referencing Dr. Gomez-Vargas directly.
(c) The Tribunal erred in considering Dr. Parekh’s evidence in the context of the applicant’s complaints about sleep disturbance instead of the evidence of Dr. Gomez-Vargas in paragraph 23 of the decision.
(d) The Tribunal erred in concluding there is a lack of causal evidence, and the Tribunal should have followed a precedent set in, Z.R. v Gore Mutual Insurance Company, 2020 CanLII 34430 (ON LAT) ("Z.R. decision”).
(e) The Tribunal erred in finding the applicant’s first complaints to her family doctor regarding sleep difficulties was in November 2020 in paragraph 23 of the decision rather than in January 2019, and by not referencing the applicant’s daughter’s testimony.
(a). Use of the term “rateable” in paragraph 14 of the decision in reference to sleep impairment.
19The applicant submits that the Tribunal erred when it referenced sleep impairment as “not rateable”. In support, the applicant argues this is an error because the applicant’s neurologist provided a rating, and the respondent did not have evidence from a neurologist to counter this opinion. In addition, the applicant argues that the respondent’s position was not that the impairment is not rateable under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“AMA Guides”), rather that it is excessive and that there is a lack of evidence the impairment is accident related.
20I agree that the use of the terms “rateable” or “not rateable” in paragraph 14 of the decision do not clearly communicate the Tribunal’s findings. Paragraph 14 reads as follows:
We do not accept the impairment ratings by the applicant’s assessors as being accurate because we do not find that the applicant has met her burden of proving that she suffers from rateable impairments under upper extremity and sleep impairment.
21The decision provides a finding regarding the applicant’s sleep impairment at paragraph 23 of the decision. Paragraph 14 is an introductory paragraph for this section of the decision and must be read together with the paragraphs dealing with sleep impairment to best understand the Tribunal’s decision. In using the term rateable at paragraph 14, the Tribunal was illustrating that the evidence to establish the rating was not persuasive and resulted in the Tribunal not accepting the applicant’s sleep impairment rating. More specifically, the rating was not accepted because of the applicant’s inconsistent reporting regarding sleep impairment and a lack of causal evidence linking this impairment to this accident given the several falls which the decision describes as intervening events. This is clear when paragraph 14 is read together with the specific paragraphs dealing with sleep impairment, including paragraph 23. While I find that the term rateable in paragraph 14 did not clearly communicate the Tribunal’s findings, I find that this error does not constitute grounds for reconsideration because the Tribunal’s finding was based on evidence and submissions referred to in other parts of the decision. The Tribunal did not accept the rating, and this was not because the Tribunal found sleep impairment was not rateable under the AMA Guides. For these reasons, the use of another term, other than “rateable”, would not likely have changed the result.
(b) Source of the 9% WPI sleep rating in paragraph 23 of the decision.
22The applicant submits that the Tribunal erred in paragraph 23 when it referenced the applicant relying on Dr. Parekh’s report as the source of a 9% WPI rating for sleep impairment. I find that the Tribunal did not make this alleged error. The decision does not state that the 9% rating was provided by Dr. Parekh or that Dr. Parekh was the source of the applicant’s WPI rating for sleep impairment. At paragraph 23, the decision states that the source of the 9% ratings for sleep are Drs. Syed and Getahun, this is a reference to their executive summary and multi-disciplinary reports. For clarity, Dr. Gomez-Vargas rated the applicant with a 9% WPI sleep rating, however he deferred calculation of the final combined WPI rating for Criterion 7 to the author of the Executive Summary, namely in this case Dr. Getahun. The evidence is clear that the 9% WPI sleep rating relied upon in Dr. Getahun’s executive summary is a rating provided by Dr. Gomez-Vargas. A reference to the 9% WPI sleep rating provided in Dr. Getahun’s executive summary is a reference to Dr. Gomez-Vargas’ 9% rating. The decision does not state otherwise as suggested by the applicant. While the decision could have better referenced the originating assessor’s report rather than the executive summary which combines and contains all the different ratings relied upon by the applicant, this is not an error that would have likely changed the result.
(c) Considering Dr. Parekh's evidence in the context of the applicant's complaints of sleep disturbance in paragraph 23 of the decision.
23The applicant argues Dr. Parekh’s evidence “is entirely irrelevant to [the applicant’s] WPI sleep impairment rating”. In this case, the question is why the Tribunal referred to Dr. Parekh’s evidence in paragraph 23 and is it an error as the applicant alleges. While the Tribunal considered Dr. Gomez-Vargas’ reports, they were not referred to because they do not meaningfully assist in the Tribunal’s analysis. For clarity, the decision acknowledges the 9% WPI sleep rating provided in Dr. Getahun’s executive summary which was provided by Dr. Gomez-Vargas. It then considers Dr. Parekh’s evidence because Dr. Gomez-Vargas pointed the Tribunal to consider the applicant’s complaints to other assessors about sleep disturbance. This is because Dr. Gomez-Vargas’ reports and testimony were deficient as they relate to the sleep rating he provided. Dr. Parekh, a psychiatrist assessor, discussed for the benefit of the Tribunal the applicant’s sleep complaints. For these reasons, the decision considers Dr. Parekh’s evidence regarding the applicant’s sleep complaints.
24The Tribunal was pointed to consider the evidence of other assessors by Dr. Gomez-Vargas for the following reasons. For clarity, Dr. Gomez-Vargas has two reports that are relevant. He met the applicant only once in September of 2022 with the resulting report containing no mention of sleep complaints to Dr. Gomez-Vargas. In this first report, there is a single mention of sleep where Dr. Gomez-Vargas states that sleep disturbance is a typical symptom associated with concussion but does not confirm whether or not the applicant suffers from sleep disturbance. His testimony confirmed the applicant did not make sleep related complaints to him. There is no rating for sleep related issues provided in this report.
25Dr. Gomez-Vargas’ second report is an addendum report based on a document review. This report was completed in September 2023, a year after the first report referred to above. In this addendum, Dr. Gomez-Vargas provides ratings, including the 9% WPI sleep impairment rating. Other than providing ratings, there was no reasoning or analysis provided. Instead, the addendum report points back to the September 2022 report for “a detailed description of all relevant accident-related information, claimant background information, assessment/physical examination findings, diagnosis and recommended treatment.” As discussed above, the September 2022 report is deficient and does not assist in assessing the applicant’s sleep related complaints. For this reason, other than the provision of the 9% rating, Dr. Gomez-Vargas’ reports were not referred to in the decision.
26Further, during cross-examination, Dr. Gomez-Vargas confirmed that the applicant did not make any sleep complaints to him, but he provided the rating for sleep impairment based on complaints she was making to other assessors. Dr. Gomez-Vargas was asked to identify who these other assessors were to assist in assessing those complaints and he was unable to identify the source of this information during cross-examination. He also confirmed that the information is not contained in his reports. It follows then, that the Tribunal considered the evidence of other assessors relevant to the applicant’s complaints about sleep disturbance because Dr. Gomez-Vargas, the expert that provided the rating, had pointed the Tribunal to engage with that evidence. The applicant now argues other assessors are irrelevant and their evidence should not be considered at all; this is not an argument that was made at the hearing and the position contradicts the evidence of the applicant’s neurology expert who provided the rating.
27For the reasons above, considering Dr. Parekh’s evidence as it relates to the applicant’s sleep complaints was not an error. Alternatively, even if it was an error and the Tribunal disregarded Dr. Parekh’s evidence regarding the applicant’s sleep complaints, Dr. Gomez-Vargas’ reports and testimony don’t identify any complaints that would form the basis for a 9% WPI sleep impairment rating, so it would not have likely changed the result.
(d). Lack of causal evidence as alleged by the applicant, the Tribunal’s failure to consider a precedent set in the Z.R. decision, and other reasons argued by the applicant.
28The applicant argues that the Tribunal erred when it found a lack of causal evidence linking the sleep impairment to the accident including for reasons grounded in Dr. Gomez-Vargas’ name not being mentioned in the decision and the Tribunal considering Dr. Parekh’s evidence relating to complaints of sleep disturbance. Since I have already dealt with these arguments in this reconsideration decision, I will focus on other arguments made by the applicant that she submits relate to causation.
29The applicant argues that the 9% WPI rating for sleep impairment is not arbitrarily high. However, the applicant simultaneously argues for the first time now on reconsideration that a 5% WPI rating for sleep impairment is “fair, reasonable and just”. The applicant argues that the Tribunal ought to have cut the rating provided by the applicant’s neurologist in half from 9% to 4.5% and then rounded it up to 5%. However, this is a fresh position now being argued on reconsideration because this was not the applicant’s position at the hearing. This does not address the Tribunal’s finding of inconsistent reporting of sleep complaints and a lack of evidence linking any sleep impairment to the accident when considering the several intervening falls, all of which was considered by the Tribunal as found in paragraph 23 of the decision. The Tribunal not decreasing the sleep impairment rating from 9% to 5% is not an error.
30The applicant also argues that the Z.R. decision stands for the principle, as it should apply in this case, that because neurologist Dr. Gomez-Vargas provided a sleep rating and the respondent did not engage any neurologist to counter that rating, the Tribunal should not engage in analyzing the strength or weakness of the applicant’s evidence and instead should defer to Dr. Gomez-Vargas’ rating. I disagree, the applicant cannot meet her onus based on the perceived weakness of the respondent’s position or evidence. The applicant bears the onus to establish entitlement. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical one, as established in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at paras 29-30. In addition, the Z.R. decision is provided on reconsideration and was not provided in the applicant’s filed book of authorities for the hearing. In any case, the Tribunal not deferring its decision to Dr. Gomez-Vargas is not an error.
(e) Sleep disturbance complaints made to the applicant’s family doctor in paragraph 23 of the decision.
31The applicant submits that the Tribunal erred when it found November 25, 2020, as the date the applicant first complained to her family doctor about sleep. I do not agree and find no such error. The Tribunal correctly noted the applicant’s first complaint of sleep issues in the family doctor’s notes and records being on November 25, 2020, the same date Nortriptyline was prescribed to the applicant for the first time.
32The applicant reargues on reconsideration that the form completed by the family doctor dated January 24, 2019, is the first complaint to the family doctor about sleep issues. As a result, the respondent is also rearguing that the January 24, 2019, form does not reference any sleep disturbance complaints or reference the accident. This is rearguing a position from the hearing where the Tribunal has already decided that the first sleep complaint reference in the family doctor’s notes and records is dated November 25, 2020, in paragraph 23 of the decision. Ideally, the Tribunal should have explained this finding, however, the Tribunal, in a decision, does not need to address every single piece of evidence or every submission made by the parties. Not making this finding in favour of the applicant is not an error and the lack of an explanation of this finding is not an error such that it would likely have changed the result.
33Further, the applicant argues that the Tribunal made an error when analyzing her sleep complaints by not considering the evidence of the applicant’s daughter’s testimony and the family doctor prescribing Nortriptyline for sleep on November 25, 2020. I do not agree. The family doctor’s notes are referred to in paragraph 23 of the decision and the date on which Nortriptyline is prescribed for the first time is the date the Tribunal found to be the first sleep complaint made to the family doctor. While the applicant’s daughter’s testimony is not referenced in the decision, I find that the Tribunal did not err by not referencing every piece of evidence offered and every submission made by the parties.
34I find that the applicant’s submissions, in part, are attempting to reargue her position and do not establish grounds for reconsideration. The 9% rating for sleep was considered in the decision at paragraphs 21 through 25.
CONCLUSION & ORDER
35For the reasons above, the applicant’s request for reconsideration is dismissed.
___________________
Amar Mohammed
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 15, 2024