Mohamad Parweez v. Economical Mutual Insurance Company

RECONSIDERATION DECISION

Citation: Parweez v. Economical Mutual Insurance Company, 2024 ONLAT 21-010731/AABS - R

Before: Ludmilla Jarda

Licence Appeal Tribunal File Number: 21-010731/AABS

Written Submissions by:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Martin Forget, Counsel Jagpreet Sekhon, Counsel

OVERVIEW

1On December 14, 2023, the applicant requested reconsideration of the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) decision dated December 8, 2023 (“decision”).

2In its decision, the Tribunal addressed both preliminary issues raised by the respondent and the substantive issues in dispute. With respect to the preliminary issues, the Tribunal found that the applicant was not barred from proceeding to a hearing for entitlement to income replacement benefits (“IRB”) and denied the respondent’s request for repayment of IRB.

3As for the substantive issues, the Tribunal found that the applicant was entitled to IRB for the period of October 2, 2019 to February 26, 2020, and declined the applicant’s request that the Tribunal also consider his entitlement to IRB for the period of February 26, 2020 to April 23, 2023. The Tribunal further found that the applicant’s injuries were predominantly minor, and therefore, he was not entitled to the disputed treatment plans, attendant care benefits (“ACB”), interest, or an award under Regulation 664.

4The 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.

5The applicant is seeking reconsideration pursuant to Rules 18.2(a), (b) and (c).

6The respondent submits that although the Tribunal may have erred in fact by failing to consider the actual duration of IRB in dispute, the balance of the request for reconsideration should be dismissed in its entirety. The respondent further submits that the applicant’s request for reconsideration is simply an attempt to get the Tribunal to reweigh the evidence and re-litigate the matter.

7The applicant seeks an order cancelling the decision, with directions for a new hearing on all substantive issues, or some issues as allowed on this reconsideration, with another adjudicator.

RESULT

8The applicant’s request for reconsideration is allowed, in part.

9I vary the Tribunal’s decision as it relates to the applicant’s entitlement to IRB for the period of February 26, 2020 to April 23, 2023 and find that the applicant is not entitled to IRB for this period, nor is he entitled to related interest.

ANALYSIS

10The 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 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.

Rule 18.2(a): Material breach of procedural fairness or reasonable apprehension of bias

11I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness pursuant to Rule 18.2(a) and there is no reasonable apprehension of bias in the Tribunal’s decision.

12The applicant submits that there is a reasonable apprehension of bias in the Tribunal’s decision which amounts to a breach of procedural fairness because the adjudicator failed to consider relevant medical conclusions of the applicant’s specialists, including Dr. Usman Kazmi and Dr. Samina Moghal, neurologists. The applicant indicates that the Tribunal failed to outline, review, or otherwise consider the findings of Dr. Kazmi and Dr. Moghal; meanwhile, the Tribunal discusses in great detail the respondent’s neurological and neuropsychological reports before concluding that the applicant’s injuries are minor.

13I do not agree with the applicant’s submissions. I find that there is no reasonable apprehension of bias which amounts to a material breach of procedural fairness.

14The test for a reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice and Liberty et al. v National Energy Board et al., 1976 CanLII 2 (SCC) at page 394. There is a strong presumption of adjudicative impartiality. The burden lies on the party alleging bias to establish that there are “serious” or “substantial” grounds for such a finding: Wewaykum Indian Band v Canada, 2003 SCC 45 at paragraph 59.

15I find that the applicant has not overcome the strong presumption of adjudicative impartiality. His submissions do not identify “serious” or “substantial” grounds for a finding of bias. Rather, they consist of broad unfounded assertions that the Tribunal failed to outline, review, or otherwise consider relevant medical conclusions of the applicant’s specialists, including Dr. Kazmi and Dr. Moghal.

16Further, it is clear from the decision that the Tribunal was aware of the findings of Dr. Kazmi and Dr. Moghal when it addressed the issue of whether the applicant’s injuries could be treated within the Minor Injury Guideline (“MIG”). Indeed, it referred to the evidence of the applicant’s specialists in paragraph 27 of the decision, which clearly indicates that the applicant submitted that various medical professionals have consistently diagnosed him with persistent chronic pain and associated limitations across multiple body sites, carpal tunnel syndrome, concussion and post-concussion symptoms, cognitive impairment, sleeping issues, and mood and anxiety disorder.

17The Tribunal also noted that the applicant relied on various clinical notes and records, including those of his treating neurologists, Dr. Kazmi and Dr. Moghal. However, the Tribunal’s analysis of the applicant’s evidence focused on Dr. Grigory Karmy’s report as opposed to the findings of Dr. Kazmi and Dr. Moghal as the applicant primarily argued that he should be removed from the MIG due to his chronic pain and psychological impairments.

18It is well established that an adjudicator should review all evidence put before him or her that is relevant, but an adjudicator does not need to refer to every piece of evidence in reasons for a decision. The absence of in-depth reference to evidence does not render a decision inadequate, nor does it amount to a breach of procedural fairness.

19Accordingly, I find that there is no reasonable apprehension of bias on the part of the Tribunal, and there is no material breach of procedural fairness.

Rule 18.2(c): New evidence

20I find that the applicant has not demonstrated that there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the applicant, and would likely affect the result. As such, the applicant has not satisfied the criteria of Rule 18.2(c).

21The applicant submits that there is evidence from his family physician that was not before the Tribunal, that could not have been obtained previously, and that will likely affect the applicability of the MIG, and by extension, his entitlement to the disputed treatment plans.

22The applicant seeks to introduce the updated clinical notes and records (“CNRs”) of Dr. Hanna. He states that he requested Dr. Hanna’s records on January 20, 2023, February 8, 2023, February 21, 2023, and June 1, 2023. Although the records were printed by Dr. Hanna’s office on July 18, 2023 and sent to the applicant’s legal representative’s office on the same day, via email, the applicant claims that he did not receive the records until September 15, 2023. The applicant explains that the records were sent to a former articling student of his legal representative’s firm, and that he did not have access to the articling student’s email account.

23I am not satisfied that the applicant could not have obtained an updated copy of Dr. Hanna’s records before the hearing. The applicant initiated his application with the Tribunal on August 31, 2021 and a case conference was held on December 12, 2022 which ordered the written hearing, including the due dates for the disclosure of documents. The applicant agreed to produce, among other things, Dr. Hanna’s CNRs from one year pre-accident to date within 60 days of the case conference, i.e. February 10, 2023, and he failed to do so.

24Further, I find that the evidence supports that the applicant obtained the updated CNRs of Dr. Hanna before the written hearing. Indeed, the applicant’s evidence supports that on June 22, 2023, the articling student sent payment to Dr. Hanna’s office for the release of her records, and that on July 18, 2023, Dr. Hanna’s office sent a copy of the records to the articling student’s email account. Although the applicant claims that he did not have access to the articling student’s email account, there is no evidence to support this assertion. Also, considering that the applicant’s written hearing submissions and evidence were due on July 19, 2023, I find that the applicant received Dr. Hanna’s records prior to the written hearing.

25Accordingly, although Dr. Hanna’s updated CNRs were not before the Tribunal when rendering its decision, I find that the applicant has failed to demonstrate that this evidence could not have been obtained previously by the applicant, which is a requirement of Rule 18.2(c).

Rule 18.2(b): Error of law or fact

Minor Injury Guideline (“MIG”)

26I find that the applicant has not established that the Tribunal made an error of law or fact in its determination that his injuries could be treated within the MIG.

27The applicant submits that the Tribunal made an error of law and fact by failing to consider the applicant’s medical reports which diagnosed him with a concussion and post-concussion symptoms. The applicant argues that he led sufficient evidence to warrant removal from the MIG. Further, he relies on 17-001473 v. Unica Insurance Inc., 2017 CanLII 69462 (ON LAT) and S.S. v. Aviva General Insurance Company, 2019 CanLII 130376 (ON LAT), and he submits that a diagnosis of a concussion and post-concussion symptoms including headaches and dizziness warrants removal from the MIG.

28I do not agree with the applicant’s submissions, and I find no error of law or fact in the Tribunal’s decision.

29The applicant did not argue at first instance that he should be removed from the MIG on the basis that he suffers from a concussion and post-concussion symptoms. Although he noted that he had been diagnosed with a concussion and post-concussion symptoms, his submissions focused on being removed from the MIG on the basis that he suffered from chronic pain with functional impairments and psychological impairments.

30Further, at paragraph 34 of the decision, the Tribunal accepted Dr. Alex Jahangirvand’s finding that the applicant likely suffered from post-concussion syndrome and noted that, from a neurological perspective, this injury was minor and that the prognosis was good. Further, Dr. Jahangirvand also indicated that the applicant’s headaches were attributed to medication overuse due to increased intake of Tylenol and/or morphine.

31The Tribunal also noted at paragraph 35 of the decision that Dr. Ricki Ladowsky-Brooks conducted neuropsychological testing and found that there was no obvious concussion or injury to the head, and that it did not appear that the applicant sustained a mild injury to the brain. Although she recommended that the applicant undergo a CT or MRI scan of the brain to rule out any abnormality, there was no evidence at the hearing that the applicant underwent further diagnostic imaging to the head.

32The fact that the applicant would have preferred that the Tribunal reach a different conclusion based on its review of the evidence does not render the reasons provided insufficient nor does it demonstrate that the Tribunal made an error of law or fact. In its decision, the Tribunal highlighted the evidence that it considered more relevant to the issue in dispute, assigned weight accordingly, and came to the conclusion that the applicant’s injuries could be treated within the MIG. Assigning more or less weight, or preferring certain evidence, does not amount to an error of law or fact.

33For the above reasons, I find that the Tribunal did not make an error of law or fact in finding that the applicant’s injuries can be treated within the MIG. The fact that the applicant does not agree with the Tribunal’s decision is not ground for reconsideration under Rule 18.2(b).

Income Replacement Benefits (“IRB”)

34I find that the applicant has established that the Tribunal made a factual error by indicating that the period of entitlement in dispute for IRB was October 2, 2019 to February 26, 2020, and had this error not been made, the Tribunal would have adjudicated the applicant’s entitlement to IRB for the period of February 26, 2020 to April 23, 2023.

35The applicant submits that the Tribunal erred by indicating that he did not properly dispute his entitlement for the period of February 26, 2020 to April 23, 2023. The applicant indicates that this is factually incorrect as the period of entitlement for IRB identified in his Application by an Injured Person was February 26, 2020 to ongoing, and the respondent referred to February 26, 2020 to ongoing as the period in dispute in its Response by an Insurance Company. Also, in their written hearing submissions, the parties referenced the appropriate test for IRB as well as the relevant medical and factual evidence relating to the applicant’s entitlement to the benefit for the period of February 26, 2020 to April 23, 2023.

36The applicant further submits that the case conference adjudicator incorrectly identified the time period in dispute for IRB as being October 2, 2019 to February 26, 2020 in the Case Conference Report and Order (“CCRO”) dated January 18, 2023. He argues that it was an inadvertent mistake overlooked by the parties, and that had this error not occurred, the Tribunal would have made a determination regarding the applicant’s entitlement to IRB for the period of February 26, 2020 to April 23, 2023.

37I agree with the applicant that the period of entitlement identified in the CCRO is incorrect, and per the Application by an Injured Person, the correct period of entitlement in dispute is from February 26, 2020 to April 23, 2023. I find that the Tribunal’s factual error meets the test under Rule 18.2(b) because had the error not been made, the Tribunal would have reached a different result and adjudicated the applicant’s entitlement to IRB for the period of February 26, 2020 to April 23, 2023.

38I will now turn to the remedy under Rule 18.4. Pursuant to Rule 18.4, when considering a reconsideration request, the Tribunal may order a rehearing, or confirm, vary, or cancel the decision. The discretion to determine the outcome of the reconsideration lies with the Tribunal. For the reasons that follow, I vary the Tribunal’s decision on the issue of the IRB entitlement.

39Based on the parties’ written hearing submissions and evidence, I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to IRB for the period of February 26, 2020 to April 23, 2023 at the rate of $291.83 per week.

40As set out in paragraphs 38 and 39 of the decision, two sections of the Statutory Accident Benefits Schedule – Effective September 1, 2020 (the “Schedule”) define the process required to determine entitlement to IRB, specifically s. 5(1) and 6 of the Schedule. The applicant bears the burden of proving, on a balance of probabilities, that he meets the tests and criteria set out in these sections.

41As noted at paragraph 40 of the decision, at the time of the accident, the applicant was self-employed on a full-time basis as a limousine driver for First Flight Limousine, and he provided ride-sharing services for Uber. He also has a university degree in Economics.

42As noted at paragraph 41 of the decision, the applicant applied for and received IRB for the period of October 1, 2019 to February 26, 2020.

43In his written hearing submissions, the applicant submits that he is entitled to IRB at the rate of $291.83 per week for the period of February 26, 2020 to April 23, 2023, for a total of $47,860.12, plus interest. The applicant relies on a Disability Certificate (OCF-3) dated October 3, 2019 completed by Aliya Salayeva, chiropractor, the clinical notes and records (“CNRs”) of his family physician, Dr. Phebe Hanna, the CNRs of his treating neurologist, Dr. Moghal and Dr. Kazmi, and a Chronic Pain Assessment report dated October 15, 2021 completed by Dr. Karmy, a chronic pain physician.

44In response, in its written hearing submissions, the respondent maintains that it properly terminated the applicant’s entitlement to IRB and submits that the applicant did not continue to suffer a substantial inability to perform the essential tasks of his pre-accident employment. The respondent relies on various insurer examination reports, including a neurology report completed by Dr. Jahangirvand, a physiatry report completed by Dr. Yuri Marchuk, a psychology report completed by Dr. Janet Clewes, a dentistry report completed by Dr. Aviv Ouaunounou, and a functional abilities evaluation report completed by Dr. Paul Cha, chiropractor, all dated February 11, 2020, along with a neuropsychology report dated September 30, 2020 completed by Dr. Ladowsky-Brooks.

The applicant’s entitlement to IRB pre-104-weeks

45I find that there is insufficient evidence to support that the applicant continued to suffer from a substantial inability to perform the essential tasks of his pre-accident employment following the termination of his entitlement to IRB. Although Dr. Salayeva noted in the OCF-3 dated October 3, 2019 that the applicant was substantially unable to perform the essential tasks of his employment following the accident and that he could not return to work on modified hours and/or duties, I assign limited weight to this OCF-3. The latter indicates that the anticipated duration of disability is 9 to 12 weeks, meaning that the period of disability would have ended prior to the February 26, 2020 termination of IRB.

46Further, while Dr. Kazmi diagnosed the applicant with a concussion, post-concussion syndrome, medicine-overuse headaches, personality changes towards depression, left hand paresthesia, and severe left median neuropathy of the left wrist, there is no indication in her clinical notes dated January 29, 2020 and May 7, 2020 that she opined that the applicant was unable to return to work.

47Moreover, while the applicant asserts that he was substantially unable to return to work as a driver because he was unable to tolerate prolonged sitting, heavy lifting, and long driving hours, this is not supported by the evidence. There is no indication in Dr. Hannah’s CNRs nor in the various hospital records that the applicant must refrain from returning to work due to his accident-related injuries. Even though the applicant directs the Tribunal to Dr. Hanna’s medical note dated April 2, 2020 which indicates that the applicant was unable to work for three months due to medical reasons, there is no corresponding clinical note discussing the medical reasons affecting the applicant’s ability to work. Also, Dr. Hannah did not identify the essential tasks of the applicant’s employment, which tasks he was unable to perform, and to what extent he was unable to perform them.

48Additionally, it is the applicant’s evidence that he attempted to return to work in Summer 2021 as a truck driver. Although he claims that he was unable to work for two days before he was laid off by his employer due to driving anxiety, heavy lifting limits, memory problems, and chronic pain, there is no evidence to support the applicant’s assertions. Of note, the applicant’s employment file is not part of the evidentiary record.

49Finally, I accept the findings of the respondent’s assessors that the applicant did not suffer from a substantial inability to perform the essential tasks of his pre-accident employment.

50The applicant underwent a functional abilities evaluation with Dr. Cha. There was no Employer’s Confirmation Form (OCF-2) available for review, but the applicant reported that he worked 12 hours per day, 6 days per week, and that he drove a stretch limousine and occasionally a bus limousine. The applicant stated that the majority of his clients belong to wedding parties, and that he occasionally provided transportation services to and from the airport.

51During the evaluation, Dr. Cha observed that the applicant exhibited limited range of motion in his neck, left shoulder, low back, and left hip, while all other ranges of motion through his upper and lower extremities remained within functional limits. The applicant demonstrated predominantly light strength capacity. He exhibited accurate handling and fingering skills, and he was able to reach at, above, and below shoulder level. He was unable to crouch or kneel at the time due to reported low back pain, but he was able to stoop forward to appropriate knee level. Dr. Cha did not express an opinion regarding the applicant’s ability to return to work, and he deferred to Dr. Marchuck and Dr. Jahangirvand.

52From a physical perspective, Dr. Marchuck found that there was minimal loss of range of motion, muscle strength was normal, and there were no signs of complex injuries sustained as a result of the accident. Dr. Marchuck noted that the applicant’s employment as a driver physically demands that he sit, and he concluded that the applicant did not suffer from a substantial inability to perform the essential tasks of his pre-accident employment.

53From a neurological perspective, Dr. Jahangirvand concluded that the applicant did not suffer from a substantial inability to perform the essential tasks of his pre-accident employment. However, due to the applicant’s complaints of fragmented sleep, anxiety, pain, and language barrier, he indicated that neuropsychological testing should be considered.

54From a neuropsychological perspective, Dr. Ladowsky-Brooks noted that the applicant did not report having any cognitive problems that would cause him to have a substantial inability to perform the essential tasks of his employment.

55From a psychological perspective, Dr. Clewes indicated that no psychological barriers were identified that prevented the applicant from resuming his pre-accident employment.

56From a dentistry perspective, Dr. Ouaunounou found that the applicant’s oral and maxillofacial examination was unremarkable and that the prognosis was good. There was no indication that the applicant was unable to return to work.

57Accordingly, the applicant has not proven that he is entitled to receive IRB for the period of February 26, 2020 to September 21, 2021.

The applicant’s entitlement to IRB post-104-weeks

58I find that the applicant’s evidence and submissions are lacking in demonstrating that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience. Further, as there is no evidence that a vocational evaluation was conducted, the scope of the applicant’s education, training, and experience is unknown.

59Although Dr. Karmy found that the applicant’s injuries prevented him from returning to work as a limousine driver and that he was unable to return to work in any capacity, there is no evidence to support that Dr. Karmy considered the applicant’s ability to engage in any employment for which he is reasonably suited by education, training, or experience. In his report, Dr. Karmy acknowledges that the applicant has a university degree in Economics, but there is no evidence to support that he considered the applicant’s ability to pursue employment in this field.

60Aside from Dr. Karmy’s report, the applicant has not directed the Tribunal to any evidence to support that he meets the legal test for IRB beyond 104-weeks after the accident. Further, it is the applicant’s evidence that he resumed full-time employment as of April 23, 2023 as a truck driver for Solutions Services Inc.

61Based on the evidence as a whole, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that he is entitled to IRB at the rate of $291.83 per week for the period of February 26, 2020 to April 23, 2023. As such, no IRB is payable for this period.

CONCLUSION & ORDER

62The applicant’s request for reconsideration is allowed, in part.

63I vary the Tribunal’s decision as it relates to the applicant’s entitlement to IRB. I find that the correct period in dispute is February 26, 2020 to April 23, 2023.

64I find that the applicant is not entitled to IRB for the period of February 26, 2020 to April 23, 2023.

Ludmilla Jarda Adjudicator Tribunals Ontario – Licence Appeal Tribunal