Treen v. The Commonwell Mutual Insurance Group
RECONSIDERATION DECISION
Before: Craig Mazerolle
Licence Appeal Tribunal File Number: 21-014462/AABS
Case Name: Amanda Treen v. The Commonwell Mutual Insurance Group
Written Submissions by:
For the Applicant: Agal Lankeswaran, Paralegal
For the Respondent: Cecil Jaipaul, Paralegal
OVERVIEW
1On December 28, 2023, the applicant requested reconsideration of the Tribunal’s decision dated December 18, 2023 (the “decision”).
2Stemming from an accident on August 20, 2020, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). In the decision, I found the applicant did not establish she should be removed from the Minor Injury Guideline (“MIG”), nor did she establish entitlement to payment of two treatment plans for chiropractic services or a non-earner benefit (“NEB”).
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 sole criterion cited by the applicant in support of her reconsideration request is Rule 18.2(b). Specifically, the applicant claims that, by finding she did not establish that she should be removed from the MIG, I made an error of law and fact that merits reconsideration.
5The applicant asks the Tribunal to remove her from the MIG and to deem the two treatment plans for chiropractic services to be reasonable and necessary. The applicant also asks for a finding that she is entitled to interest. She did not make a request related to the NEB.
6The respondent opposes the applicant’s reconsideration request.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
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.
9I find the applicant has not established grounds for reconsideration, as she has not demonstrated how my finding concerning the MIG constitutes an error of law or fact. Rather, I find the applicant is, in effect, asking the Tribunal to reweigh the evidence that was presented during the initial written hearing.
10The applicant supports her reconsideration request by claiming that in rendering my decision I ignored compelling evidence of accident-related chronic pain, most notably the clinical notes and records of pain specialist, Dr. Anureet Garg. Chronic pain is recognized by the Tribunal as being an impairment that falls outside the definition of a “minor injury”. According to the applicant, I incorrectly found her accident-related impairments were all “minor” in nature. Or, as she summarized in her reply [emphasis in original]:
In previous decisions, the Tribunal has established that chronic pain with functional impairment or a psychological impairment may warrant removal from the Minor Injury Guideline. Adjudicator Mazerolle made an error of law and evidence when failing to remove the Applicant out of the Minor Injury Guideline despite several clinical notes and records and diagnoses from Dr. Garg stating that the Applicant continued to suffer from chronic back pain.
11First, I do not agree that I committed an error of law or fact due to an alleged failure to consider the evidence she presented from Dr. Garg. Instead, I find the decision includes several sections where I specifically engaged with this evidence. For instance, at paragraph 24, when summarizing evidence in support of the applicant’s position on chronic pain, I wrote: “I accept that there is some support for ongoing pain complaints in the records cited by the applicant. Most notably, Dr. Garg’s notes detail findings of chronic pain over a series of visits from June 2022 to early 2023.” I then went on to explain why I found the applicant’s evidence (including that of Dr. Garg) did not establish removal from the MIG. At paragraph 30, I addressed the functional impairments noted by Dr. Garg as follows:
Further, there are few references to functional limitations in the records from Dr. Garg that the applicant cited. For example, on June 22, 2022, Dr. Garg wrote: “The pain interferes with her sleep and function.” There are no details provided about how pain is interfering with her “function”. On the other hand, this same record noted that the applicant was working “Full time” as a PSW. In later entries, Dr. Garg expands on her ability to work by noting that the applicant “works with 6-7 residents at a time as a PSW.” Again, I find this ability to work following the accident raises questions about whether her accident-related pain impacted her functionality, and, by extension, Dr. Garg’s conclusion that pain was impacting her function.
12Since the evidence of Dr. Garg was considered in the decision, I conclude that the applicant has not presented a compelling explanation for why my treatment of this evidence constituted an alleged error of law or fact. In my view, the applicant is attempting to challenge the weighing of this evidence through a reconsideration request.
13In her reply, the applicant claimed that Dr. Garg’s recommendation of pain injections is further evidence in support of the applicant’s chronic pain arguments. Again, I find this is not grounds for reconsideration and rather is asking me to reweigh evidence.
14The applicant also made several further submissions about other evidence that she claims should have established the existence of accident-related chronic pain. Most notably, the applicant highlighted the “extensive documentation” from her family physician, Dr. Ripple Dhillon.
15I find this argument does not establish grounds for reconsideration under Rule 18.2(b). There is no indication of what error of law or fact is being claimed. The basis of the applicant’s request is disagreement with my weighing of this evidence. For instance, several times in her reconsideration submissions, the applicant highlighted psychological complaints she made to Dr. Dhillon. Yet, this evidence was considered in the decision (paragraphs 32 and 35):
The applicant also submitted that the accident left her with sleep and mood issues. She mainly supported her claim of an accident-related psychological impairment by citing “the psychological assessment” from Dr. Dhillon. There is no date provided for this “assessment”, and the only records that appear to fit this description are two questionnaires… and a related medical note from April 28, 2022.
I do not find the applicant has provided a sufficient evidentiary basis to demonstrate that her psychological complaints merit removal from the MIG, because I am not satisfied that the applicant has established that these psychological complaints from April 2022 are accident-related…
16The applicant also submitted that I did not consider how her psychological complaints resulted from her physical injuries. This argument again ignores the reasoning in my decision. After determining that the applicant did not establish that the psychological complaints were accident-related in the paragraphs quoted above, I further concluded that even if I had found they were accident-related, these complaints would not have merited removal from the MIG (at paragraph 36):
… even if I accepted that these psychological complaints are accident-related, I find the relatively minor severity of the complaints means they are better understood as clinically associated sequelae to otherwise “minor” injuries. For instance, even though there are brief references to depression and anxiety in Dr. Garg’s records, there is no indication of how these complaints are impacting the applicant’s functionality. I also have no compelling explanation for how the responses the applicant provided on the two questionnaires… would establish the existence of a psychological impairment that merits removal from the MIG. In fact, the GAD-7 listed the applicant’s score as below the “mild” range of anxiety.
Therefore, even if the applicant could establish that there was an “error” about my findings regarding the connection between different types of injuries and limitations, there is no compelling explanation for why addressing this “error” “would likely have reached a different result”. Instead, my finding about the “relatively minor severity” of the psychological complaints would remain undisturbed. Accordingly, I find this argument does not meet the standard for granting a reconsideration under Rule 18.2(b).
17In support of her requested relief, the applicant also cited s. 54 of the Schedule. This provision relates to an insurer’s notice obligations when it is seeking to reduce or remove payment of a benefit that an insured person is currently receiving. The applicant did not explain how this provision relates to the specific relief she is seeking.
18As a final note, the applicant made a brief reference to my findings being “biased”. Specifically, the applicant claimed I presented “a biased option” when I did not acknowledge that she had recently graduated from a PSW program, and she needed to work (with limitations) to support herself.
19The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in the oft-cited case of Committee for Justice and Liberty v. Canada, 1976 CanLII 2 (SCC), at p. 394:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
20In Wewaykum Indian Band v. Canada, 2003 S.C.R. 45, at para. 59, the Supreme Court confirmed the existence and importance of a strong presumption of judicial or quasi-judicial impartiality. In order to overcome this presumption, a party alleging actual or reasonable apprehension of bias must establish the presence of serious and substantial grounds. Establishing bias requires cogent evidence because bias allegations call into question the personal integrity of the adjudicator and the integrity of the administration of justice. Suspicion or conjecture is not enough: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, at para. 117; Marchand v The Public General Hospital Society of Chatham, 2000 CanLII 16946 (ON CA), at para. 131. The onus rests on the party making the allegation to demonstrate a reasonable apprehension of bias, and the threshold is a high one: Ontario Provincial Police v. MacDonald, 2009 ONCA 805.
21The applicant did not present any arguments to demonstrate how my findings reach the high threshold needed to establish a reasonable apprehension of bias. She has not presented cogent evidence that substantiates her allegation. Rather, this allegation appears to rest on the applicant’s disagreement with my findings in the decision. I find that disagreement with the decision alone is not sufficient to establish a reasonable apprehension of bias in this case.
CONCLUSION & ORDER
22The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 3, 2024