RECONSIDERATION DECISION
Before: Brett Todd, Vice-Chair
Licence Appeal Tribunal File Number: 21-001863/AABS
Case Name: Hussein Houmani v. Lloyd’s Underwriters
Written Submissions by:
For the Applicant: Colleen Burn, Counsel
For the Respondent: Jason Frost, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent on October 11, 2023. It arises out of a decision dated September 20, 2023 (“decision”) in which I found the applicant to be entitled to income replacement benefits (“IRB”) from October 18, 2018 to date and ongoing and that he was entitled to two treatment plans.
2Grounds 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.
3The respondent is seeking reconsideration under Rule 18.2(b). It submits that I reversed the evidentiary onus regarding the IRB issue, did not apply the legal test for entitlement to IRB, made findings of fact in the absence of evidence or that were contrary to the evidence, and relied on medical assessment reports too late to be of value in determining entitlement to pre-104 week IRB. Further, it argues that I would likely have reached a different result in my decision had these errors not been made.
4The respondent seeks that the decision be varied in accordance with Rule 18.4(b) to find that the applicant did not meet his onus of proving entitlement to the claimed benefits and to dismiss the application.
5The applicant submits that the respondent’s request for reconsideration does not meet the test for reconsideration under Rule 18.2. He argues that the respondent is essentially seeking a rehearing due to disagreements with the outcome of the decision. He further submits that the respondent is disagreeing with the weight that I assigned to the evidence and that no errors of law or fact were made such that I would have likely reached a different decision.
6As a result, the applicant requests that this request for reconsideration be dismissed.
RESULT
7The respondent’s request for reconsideration is dismissed.
ANALYSIS
8Reconsideration involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position on the matter, disagree with a Tribunal decision, or challenge weight assigned to evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(b): Errors of Law or Fact
9I find that the respondent has failed to establish grounds for reconsideration under Rule 18.2(b).
10The respondent bases its reconsideration request largely on the argument that I reversed the evidentiary onus regarding entitlement to IRB and held that the respondent failed to arrange a multi-disciplinary insurer’s examination (“IE”) report that took into account all of the applicant’s impairments. In its reconsideration submissions, the respondent notes the following specific issues that it argues demonstrate the reversal of onus:
(i) The respondent’s expert evidence was not persuasive or convincing as those experts purportedly did not engage in validity testing (paragraph 25 of the decision).
(ii) The conclusions of the insurer’s examination (“IE”) experts did not “match their observations or test results” (paragraph 26 of the decision).
(iii) The respondent failed to arrange a multi-disciplinary summary report to provide an “integrated overview that took all of the applicant’s health issues into account” (paragraph 22 of the decision).
11Essentially, and as I understand it, the respondent takes the position that I reversed the evidentiary onus and required that the respondent prove that the applicant did not meet tests for entitlement to pre- and post-104 IRB. The respondent further argues that I did not properly apply the test for pre- and post-104 IRB, as the applicant did not provide a full listing of the applicant’s job tasks and challenges completing them. And the respondent submits that two reports that I relied on involved assessments completed too late to be of value in making the pre-104 IRB determination.
12The respondent also argues that I made an error at paragraph 25(iii) of the decision in stating that Dr. Paul Duhamel, psychologist, “did not perform any tests for symptom magnification or malingering to support allusions that the applicant was not entirely forthcoming during the examination.” It submits that this is an error involving making a finding of fact in the absence of evidence or contrary to the evidence.
13The respondent largely relies on Housen v. Nikolaisen, 2002 SCC 33 (“Housen”). Specifically, the respondent cites how this decision of the Supreme Court of Canada holds at paragraph 27 that:
“…if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.”
14In addition, the respondent claims that the alleged errors regarding the IRB tests and validity testing carried over to the findings regarding the two disputed treatment plans.
15Below, I separately assess these arguments.
Reversal of onus and application of the IRB tests
16I find that I did not reverse the onus onto the respondent with regard to the IRB matter, nor did I improperly apply/not apply the tests for IRB, in such a manner that I would likely have reached a different result in the decision.
17Much of the respondent’s argument here amounts to an attempt to rehear this matter. In the decision, I made it clear at paragraph 15 that I was persuaded by the applicant’s medical evidence with regard to his entitlement to pre- and post-104 IRB. Perhaps most importantly with regard to this reconsideration argument, I also noted my opinion in paragraph 15 that the applicant’s medical evidence was supported by “the diagnoses and observations of the respondent’s IE assessors, if not their final conclusions.” This made it clear that I based my IRB finding on a review of the totality of the evidence and that I did not reverse the onus onto the respondent.
18I further noted in paragraph 16 of the decision that I assigned significant weight to the psychological reports of Dr. Tammie Ricci, psychologist, and in paragraph 18 to the physiatrist reports of Dr. Alex McKee, all adduced by the applicant. In addition, and as noted by the applicant in his reconsideration submissions, I acknowledged in paragraphs 17 and 19 that both Dr. Ricci and Dr. McKee did not refer to the specific terminology and tests governing IRB entitlement. However, I also detailed in those same paragraphs that both physicians made definitive statements regarding the applicant’s inability to work at any place of employment due to psychological and physical injuries and impairments.
19For example, in paragraph 17, I noted Dr. Ricci’s opinion that the applicant would not be able to work at any job position due to his psychological injuries and impairments. In paragraph 19, I wrote that Dr. McKee assessed the applicant as being permanently impaired as a result of the accident and that he would require significant clinical improvement to consider returning to any gainful employment. In my view, and as I expressed in the decision, these opinions meet the IRB tests, as they are definitive regarding the applicant’s complete inability to work at all due to his accident-related impairments.
20I also made it clear in the decision at paragraphs 17 and 19 that both Dr. Ricci and Dr. McKee performed paper reviews of the IE reports as part of their assessments of the applicant. It is apparent in the decision that these reviews—which included the assessment of functional abilities evaluation (“FAE”) IEs that dealt with the applicant’s ability to perform workplace tasks—strengthened their reports and bolstered the physicians’ definitive conclusions regarding the applicant’s inability to perform in any workplace in accordance with the IRB tests.
21The above, in my view, also addresses the argument raised in the applicant’s reply reconsideration submissions that the Dr. Ricci and Dr. McKee assessments were performed too late in 2021 and 2022 to be relied upon with regard to the pre-104 week IRB test. I concur with the applicant’s argument that neither Dr. Ricci nor Dr. McKee addressed the precise test for pre-104 IRB eligibility (as was noted in the decision). However, these reports were comprehensive and included reviews of medical records on this file dating back to the day of the accident and earlier. Both physicians also reviewed the earlier IE reports1 dealing with the pre-104 period of time. These factors make the reports a valid source of information to rely on with regard to a pre-104 IRB assessment.
22Lastly, although I extensively detailed the respondent’s IE reports in the decision at paragraphs 22-26 and assigned them (and/or their conclusions) limited weight for the reasons contained therein, I do not agree that this constitutes a reversal of onus. Nor do I concur that pointing out what I deemed to be deficiencies in these IE reports—as the respondent raises in its reconsideration submissions with reference to paragraphs 22, 25, and 26 of the decision—amounts to the same. Critiquing weaknesses in IE reports as I did in these paragraphs amounts to a weighing of the entirety of the evidence, not a reversal of onus.
23Correspondingly, and for the aforementioned reasons, I do not find that my decision is in contravention of the principles in Housen.
24The respondent’s claim for reconsideration based on reversal of onus and improperly applying/not applying the IRB tests, and relying on late reports submitted by the applicant, is dismissed.
Findings of fact in the absence of evidence or contrary to the evidence
25I find that I did not make an error regarding the report of Dr. Duhamel or the validity testing of other assessors in such a manner that I would likely have reached a different result in the decision, either with regard to the IRB issues or the treatment plans in dispute.
26Although I acknowledge the respondent’s reconsideration submissions are correct in indicating that Dr. Duhamel applied a number of tests apparently designed to assess the applicant’s reliability, these tests were not addressed in the respondent’s written hearing submissions. Where the respondent compiles mentions of this testing as noted throughout Dr. Duhamel’s report into a chart in its reconsideration submissions, this was not the case in the respondent’s written hearing submissions. In those submissions, the respondent addressed the Dr. Duhamel report solely in paragraph 15, and did not mention reliability testing or the physician’s apparent belief that the applicant was magnifying his symptoms.
27Even the notations included on the chart in reconsideration submissions require me to make assumptions that all these references mean that the applicant failed validity testing. For example, I do not agree that I made an error in my decision by not assuming that notations of “invalid” for Verbal Recognition and Non-Verbal Recognition tests; “low” and “very low” in Numbers and Letters Speed, Numbers and Letters Accuracy, Story Immediate, Story Delayed, and Mazes; and “results reflect a tendency to present a negative impressive particularly for postmorbid functioning” in the Ruff Neurobehavioral Inventory, were meant to refer to specific validity testing to determine if the applicant was magnifying symptoms.
28I also do not agree with the assertions made in paragraphs 19 and 20 of the respondent’s reconsideration submissions, as Dr. Duhamel was unclear about his opinion regarding the overall validity of the applicant in his report. Although I concur with the respondent that Dr. Duhamel did write on page 25 of his report that the applicant “performed poorly on multiple measures of task engagement. As such, scores on the other performance-based measures are of questionable validity,” this is not, in my view, the clear and definitive statement that the respondent presents it to be in reconsideration submissions.
29Dr. Duhamel did not plainly mention symptom magnification or otherwise call attention to validity testing/the credibility of the applicant in the body of his report, nor refer to this in his report conclusions—where one would expect to find such an opinion emphasized, if it were as significant as the respondent alleges it be in its reconsideration submissions. I referenced how Dr. Duhamel handled this issue in paragraph 25(iii) of the decision, where I wrote that the physician found that the applicant’s responses “reflected severe accident-related cognitive, emotional, and physical impairment,” yet qualified this with “at face value.”
30While the respondent seems to submit in its request for reconsideration that all of the above should have made it apparent that Dr. Duhamel performed validity testing and that he concluded that the applicant failed such testing, as stated in my decision, this was neither clear nor definitive. In addition, it is well accepted that a party must direct an adjudicator to specific evidence in its submissions. The respondent did not do so in its submissions for the original hearing in regard to the validity testing comments in the Dr. Duhamel report.
31Further, my validity testing comments on the Dr. Duhamel report at paragraph 25(iii) of the decision formed a minor part of my overall analysis. I mainly referred to Dr. Duhamel’s opinion with regard to the applicant having not sustained a concussion as a result of the accident, which I noted to be outside of his medical area of expertise. As such, my comments on validity testing did not form such a significant part of the decision that, if altered, it would have likely resulted in my reaching a different conclusion.
32I took a similar position with regard to validity testing and the treatment plans, which I found to be reasonable and necessary in my decision based on weighing the entirety of the evidence before me. My rationale was detailed in the decision at paragraphs 37 and 38 (concerning the chiropractic treatment plan) and at paragraphs 45 and 46 (concerning the psychological assessment treatment plan).
33While I did not extensively reference validity testing in my decision, this does not mean that I did not consider it. As in paragraph 39 of Housen, a decision-maker’s failure to discuss a relevant factor, such as validity testing conducted on an applicant, is insufficient to warrant reconsideration, unless there is a reasoned belief that the decision-maker has forgotten, ignored, or misconceived the evidence in a way that affected the conclusion.
34In my view, and in accordance with Housen, the respondent has not adduced sufficient argument or evidence demonstrating that these criteria have been met. I also note that there is evidence in the decision that I did consider validity testing when assessing the IE reports. I referenced this factor in paragraph 46 of the decision, where I detailed the reasons why I was not persuaded by the validity comments of Dr. Ronald Frey, psychologist, who authored a psychological assessment IE report.
35Lastly, I rely on Housen again with regard to the respondent’s argument in paragraph 21 of its reconsideration submissions that I failed to discuss Dr. Ricci’s opinion on the applicant’s responses to validity testing. This amounts to an attempt to rehear the matter. While I did not detail Dr. Ricci’s observation that the applicant showed a “tendency toward random responding and magnification of physical and psychological symptomatology” in the decision, I did not do so because the physician concluded that this was explained by the applicant wanting to ensure that examiners were aware of his suffering, and that a totality of the medical evidence that she reviewed and the overall and the applicant’s consistency supported such a finding. Accordingly, I find that my failure to discuss this matter is not sufficient to warrant reconsideration, again based on the criteria noted above in Housen.
36For the above reasons, the respondent’s request for reconsideration based on an error regarding the Dr. Duhamel report and other validity testing is dismissed.
ORDER
37The applicant’s request for reconsideration is dismissed.
Brett Todd
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: March 4, 2024
Footnotes
- As the applicant noted in response submissions for this reconsideration, these reports included a May 2, 2019 FAE completed by Candace Lee, kinesiologist. I detailed my opinion of this report at paragraph 25 of the decision.