Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Harry Adamidis
Licence Appeal Tribunal File Number: 21-014937/AABS
Case Name: Sharukin Dooman v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Alim Ramji, Counsel
For the Respondent: Thulasi Kandiah, Counsel
OVERVIEW
1On November 30, 2023, the applicant requested reconsideration of the Tribunal’s decision dated November 9, 2023 (“decision”).
2In the decision I found that the applicant’s injuries are predominantly minor as defined in s. 3 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”) and that he is not entitled to three 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 submits that I made errors of fact and law, and that my interpretation of the evidence raises a reasonable apprehension of bias. He seeks an order finding that his injuries are not predominantly minor as defined in s. 3 of the Schedule, and that he is entitled to the treatment plans in dispute and interest.
5The respondent submits that the request for reconsideration should be dismissed.
RESULT
6The request for reconsideration is dismissed.
PRELIMINARY ISSUE
7The respondent notes that the Rules limit the applicant’s initial submissions to 10 pages. It submits that the applicant provided 13 pages of submissions. The respondent submits that the final three pages should be excluded from this application for reconsideration.
8The applicant submits that the body of their submissions are 10 pages and the remaining three pages consist of a cover page, index, and signature line. In his view, these submissions conform to the Rules.
9Paragraph 18.1(c) of the Rules states:
The Tribunal may reconsider any decision of the Tribunal that finally disposes of an appeal if:
c. The reconsideration request includes the following:
i. All submissions in support of the request, which must specify the applicable criteria under Rule 18.2. The submissions must not exceed 10 double-spaced pages in length, exclusive of evidence and authorities; (emphasis added)
10The Rules set a 10 page limit to the submissions alone.
11I note that the respondent’s own submissions consist of 10 pages, along with 6 additional pages for the index and cover page.
12In my view, the applicant’s submissions conform to the Rules as the body of the submissions contain 10 pages. For this reason, I am not excluding the final three pages of the applicant’s reconsideration submissions.
ANALYSIS
13The 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.
Request for reconsideration under 18.2(b)
14The applicant submits that the only evidence before me at the initial hearing that addressed the issue of chronic pain was the report of Dr. Karmy, physician. As there was no opposing evidence from the respondent, I was required to accept Dr. Kramy’s diagnosis of chronic pain at face value. Instead, I analyzed this evidence and determined that Dr. Kramy’s report should be given little weight. According to the applicant, as I am not a medical expert I cannot prefer my own opinion over the opinion of a medical expert to make factual findings. The applicant submits that this constitutes an error of fact and/or law.
15The respondent submits that it is open to me to assess evidence and make factual findings. Consequently, it was not an error of fact to give little weight to Dr. Karmy’s report.
16I find that giving little weight to Dr. Karmy’s report is not an error of fact or law.
17In the written hearing, the applicant argued that he has chronic pain based on meeting three of the six criteria in the American Medical Association Guides 6th edition (Guides) for establishing chronic pain. The applicant relied on criteria 3, 5, and 6.
18Criterion 3 was analyzed in paragraphs 15 to 17 of the decision as follows:
The part of criterion 3 on which the applicant relies requires the avoidance of physical activity to be based on fear. The examples taken from Dr. Karmy’s report, of being unable to enjoy football and hockey, are not persuasive as there is no indication in the report that the applicant’s avoidance of these sports is fear-based.
The Psychological Report of Dr. Jacqueline Brunshaw, psychologist, was completed for the applicant. His results on the Pain Catastrophizing Scale (PCS), a psychometric test, show that the applicant “does not fixate on his pain and its negative consequences…” This does not support the premise that the applicant avoids physical activity due to fear of pain.
Overall, the applicant is quite functional and engages in a fairly high level of physical activity despite his pain symptoms. This is also inconsistent with fear avoidance of physical activity due to pain. For all these reasons, I find that criterion 3 does not apply to the applicant.
19My assessment of criterion 3 considered the evidence cited by the applicant and Dr. Brunshaw’s report.
20Criterion 5 was assessed in paragraphs 18 and 19 of the decision as follows:
The applicant also relies on criterion 5, the failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs. The two examples cited by the applicant are that he has not returned to recreational activities such as hockey and football, and has not returned to working full-time.
Again, the examples given by the applicant are not persuasive. The applicant is able to work part-time as a hairstylist. As such, his physical capacity is sufficient enough to pursue work. The applicant is unable to play football or hockey. However, he is able to engage in recreational activities such as playing tennis and rollerblading. In the insurer’s examination (IE) of Dr. Sadiq Hasan, psychiatrist, the applicant advises that he has also socializes with family and friends. In my view, the evidence does not support a finding that the applicant meets the requirements of criterion 5.
21According to the applicant, “failure to restore pre-injury function” is sufficient to establish that he meets the requirements for criterion 5. Post-accident, the applicant can only work part-time and, as such, he has not been restored to his pre-accident function. The applicant submits that I should have accepted the expert opinion of Dr. Karmy and alleges that I misapplied the Guides and this resulted in an error of fact and law.
22I disagree. As noted in paragraph 11 of the decision, criterion 5 is defined in the Guides as:
Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs;
23The Guides require an inability to pursue work, family, or recreational needs. The evidence before me is that the applicant works part-time, socializes with family and friends, and that he enjoys recreational sports. He has the ability to pursue work, family, and recreational needs. As such, it was reasonable to find that he does not meet the requirements of criterion 5.
24The applicant submits that I did not consider criterion 4, even though Dr. Karmy found that the applicant meets the requirements of criterion 4.
25The respondent submits that in the written hearing, the applicant made no submissions on criterion 4. As such, the respondent argues the applicant is trying to re-litigate his case with new submissions.
26In reply, the applicant submits that I should have assessed criterion 4 because it was noted in Dr. Karmy’s report.
27In my view, it is inappropriate for adjudicators to go through a party’s evidence, as suggested by the applicant, to make their case for them.
28The applicant submits that it was an error for me to find that the clinical notes of Complete Rehab Centre are illegible. He asserts that the notes on pages 4-18, 20, 23, and 26 from Tab 4 are legible. Consequently, it was an error of fact to find that they are illegible.
29He also submits that I could have requested more legible clinical notes if the notes in evidence could not be read by me.
30I have re-read the pages cited by the applicant. The handwritten portions, which contain the information relevant to the issues in hearing, are not legible. I did not make an error of fact or law. Moreover, it is not the Tribunal’s role to review evidence to identify deficiencies and then direct a party to correct those deficiencies.
31I gave weight to the chronological gaps in the applicant’s pain reporting. He submits that this was an error because the absence of evidence cannot be considered evidence.
32The respondent relies on Binet v Liberty Mutual Insurance Company, 2021 CanLII 60474 (ON LAT). At paragraph 31 the Tribunal found that an applicant had not met his burden of proof because there was an absence of evidence supporting the assertion that he sustained injuries caused by the accident. The respondent submits that it was open for me to make a similar finding in regard to the chronological gap in pain reporting.
33The parties are referencing the part of the decision that deals with the issue of whether the applicant’s pre-existing condition was exacerbated by the accident. This was dealt with in paragraphs 21 to 24 of the decision.
34In my view, the applicant has mischaracterized how I considered the evidence. I reviewed the evidence related to the applicant’s pain reporting and made findings based on what I saw in the evidence. I did not, as alleged by the applicant, make a finding without any evidence to support that finding. Consequently, I see no error of fact.
35In sum, I have reviewed the errors of fact raised by the applicant and find that he has not established grounds for reconsideration under Rule 18.2(b).
Request for reconsideration under 18.2(a)
36According to the applicant, I did not reference any medical reports when I determined that he does not have chronic pain. Instead, I selectively applied factors to make my own medical diagnosis. He submits that this was improper and that the manner in which I interpreted the evidence raises a reasonable apprehension of bias.
37The respondent notes that the threshold to establish a reasonable apprehension of bias is high. It submits that mere fact that the applicant disagrees with the decision does not demonstrate bias.
38The test for whether a reasonable apprehension of bias, as set out by the Supreme Court of Canada, is whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not the decision-maker, whether consciously or unconsciously, would not decide fairly: Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369 at 394.
39In 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 a reasonable apprehension of bias must establish the presence of serious and substantial grounds. Because bias allegations call into question the personal integrity of the adjudicator and the integrity of the administration of justice, establishing bias requires cogent evidence. Suspicion or conjecture is not enough: R v. S(RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484 at para 117. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one: Ontario Provincial Police v. MacDonald, 2009 ONCA 805.
40I find that a reasonably informed person would not conclude that the manner of my analysis gives rise to a reasonable apprehension of bias.
41Contrary to the applicant’s submission, I did not selectively apply factors to arrive at a medical diagnosis. Rather, I reviewed medical reports and the clinical notes of the applicant’s family doctor were considered in the decision.
42Moreover, the decision is not a medical diagnosis. The decision reviewed the parties submissions, assigned weight to the evidence referenced in those submissions, and resolved the issues in dispute. The applicant’s concerns related to my analysis are addressed above in paragraphs 14 to 35.
43The applicant has not overcome the presumption of impartiality and met their onus to establish serious and substantial grounds. This is because his assertion, that I did not reference medical reports in the decision, is factually incorrect. Additionally, weighing evidence is a core function of an adjudicator. The decision is transparent as it provides reasons explaining how I weighed the evidence. Merely disagreeing with the weight assigned to evidence is not a basis for establishing bias. Consequently, I find the applicant has not established grounds for reconsideration under Rule 18.2(a).
CONCLUSION & ORDER
44The request for reconsideration is dismissed.
Harry Adamidis Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: April 8, 2024