RECONSIDERATION DECISION
Before: Bonnie Oakes Charron
Licence Appeal Tribunal File Number: 22-002576/AABS
Case Name: Behboudimoghaddam v. BelairDirect Insurance Company
Written Submissions by:
For the Applicant: Ramy Akladios, Counsel
For the Respondent: Mikal Daniel, Counsel
OVERVIEW
1On January 12, 2024, the applicant requested reconsideration of the Tribunal’s decision dated December 22, 2023 (“decision”).
2In the decision, the Tribunal found that the applicant’s injuries were minor as defined in s. 3 of the Schedule, rendering the applicant subject to the Minor Injury Guideline (“MIG”). As a result, the Tribunal found that she was not entitled to the treatment plan for a chronic pain assessment or interest, as it proposed treatment outside the MIG. The Tribunal also found that the respondent was not liable to pay an award under section 10 of Regulation 662.
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 is seeking a reconsideration pursuant to Rule 18.2(b) and (c). She seeks an order that:
a. her injuries be found outside the MIG;
b. that the respondent issue payment to Elite Specialist Group Inc. for the incurred chronic pain assessment in the amount of $2,907.01, dated December 9, 2021, plus interest on overdue amounts, and
c. that an award be made pursuant to s. 10 of Ontario Regulation 664 on the basis the respondent unreasonably delayed payments.
In the alternative, she seeks a new hearing.
5The respondent argues the decision should be upheld and the request for reconsideration denied as the applicant has failed to establish any grounds for reconsideration.
RESULT
6The applicant’s request for reconsideration is dismissed.
ANALYSIS
7I find that the applicant has not established grounds for reconsideration for the following reasons.
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.
Rule 18.2(c)
9With regard to the applicant’s request pursuant to Rule 18.2(c), the applicant did not file any supporting submissions. As the onus is on the requestor, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(c).
Error of law pursuant to Rule 18.2 (b)
10I also find the applicant has not established grounds for reconsideration under Rule 18.2(b).
11Establishing an error of law is a two-part test. First, establishing that an error took place, and secondly, that the Tribunal would have reached a different result had the error not been made. Here, the applicant has established neither.
12The applicant’s argument pursuant to Rule 18.2(b) is that the Tribunal made an error of law by not “applying the correct legal standard”. The applicant argues that the Tribunal erred:
a. when assessing the evidence by not assessing the respondent’s expert evidence to explain which evidence was preferred,
b. in its assessment of the applicant’s evidence and the weight afforded this evidence, and
c. when it discounted the applicant’s evidence without referring to any conflicting evidence that was preferred on a balance of probabilities.
13The applicant submits that the Tribunal must balance conflicting evidence and demonstrate how the scale tipped for the respondent, alleging that the Tribunal did not fully evaluate both the applicant’s and respondent’s evidence. She further submits that a full assessment of both parties’ evidence could have affected the outcome with regard to the applicability of the MIG, allowing for consideration of the treatment plan in dispute.
14In paragraph 16 of the decision, the Tribunal highlighted that the applicant underwent two assessments, with s. 25 assessor Dr. Benmoftah and s. 44 assessor Dr. Choi respectively. The two experts arrived at opposite conclusions. First, the decision referenced how Dr. Choi found that the applicant suffered soft tissue injuries, layered over degenerative changes in the spine – treatable within the MIG. Secondly, the decision contrasted this with Dr. Benmoftah’s conclusion that the applicant has Chronic Pain Disorder and functional limitation – with the recommended treatment being a chronic pain program at a cost well outside the MIG at $15 – 20,000.00.
15The Tribunal provided fulsome reasons as to why the applicant failed to establish that she requires treatment outside the MIG due to chronic pain. While Dr. Benmoftah diagnosed the applicant with chronic pain, similar findings were not made by any other medical professional. There was no other diagnosis of chronic pain in any of the OCF-3, OCF-23, or CNRs of her GP to corroborate the diagnosis made by Dr. Benmoftah.
16It was not necessary to write a detailed evaluation of the respondent’s evidence given Dr. Benmoftah’s diagnosis was unsupported by any other treatment provider. Not only was the diagnosis not reflected in any provider’s CNRs, but there was also no mention of chronic pain at all in the other medical evidence, nor any referral for chronic pain treatment such that Dr. Benmoftah proposed.
17The decision referenced the medical documentation at paragraph 24, as well as the imaging results at paragraph 13, and both the applicant’s and respondent’s assessment reports at paragraphs 16 and 17. Notably, paragraph 17 concludes with a statement that neither assessor found any injury that falls outside the definition of minor in s. 3 of the Schedule, other than the differing conclusion about chronic pain.
18At paragraph 26 of the decision, the Tribunal declined to qualify Dr. Benmoftah, the applicant’s specialist, as an expert witness. The Tribunal’s reasoning was sound given the report was not compliant with the Rules (Rule 10.2). The report did not include an Acknowledgement of Expert’s Duty form contrary to Rule 10 of the Licence Appeal Tribunal Rules. The Tribunal nevertheless admitted and considered the report but assigned it less weight. This was open to the Tribunal because of the applicant’s noncompliance with Rule 10.2.
19At paragraph 28 of the decision, beyond the lack of a Duty Acknowledgement and the lack of alignment with the other medical evidence, the Tribunal referenced other reasons, which are appropriate, to give the report less weight.
20At paragraph 30, the Tribunal reviewed the lack of clarity around the terms chronic pain disorder and chronic pain syndrome, both used in Dr. Benmoftah’s report. As a result, the actual diagnosis lacked precision. No statement was made by the Tribunal as to whether the terms were interchangeable, or not – only that using multiple terms made the actual diagnosis less evident for the reader. Further, even if the two terms are not different, this would have no impact on the outcome because it was only one of the factors the Tribunal relied on in assigning less weight to Dr. Benmoftah’s report.
21At paragraph 31, the Tribunal also considered the focus of Dr. Benmoftah’s practice, which is orthopedic surgery. According to the qualifications section of the s. 25 report, Dr. Benmoftah’s area of specialty is orthopedic surgery, while he also practices chronic pain management. There are multiple credentials and qualifications listed for orthopedic surgery, but nothing specific for treatment of chronic pain.
22As a result, it was determined that the applicant had not provided sufficient evidence to establish she has CPS as a result of the accident. Correspondingly, a detailed evaluation of the respondent's evidence beyond what was outlined in the decision, was not necessary.
23The Tribunal considered all the evidence and appropriately weighed it, including a reference to the findings of the s. 44 report of Dr. Choi. I outlined both opinions and then explained the reasons why I placed less weight on the s. 25 report, resulting in more weight being given to the s. 44 report that did not suffer from the same issues.
24In conclusion, I find that the decision contains no error of law. An adjudicator is not required to address every submission or each piece of evidence in detail. The evidence of both parties was reviewed and weighed for its merit. This is the role of the Tribunal. The applicant seeks a reweighing of the evidence with a view to finding her injuries to be outside the MIG. Disagreement with the decision does not indicate a legal error.
25For the reasons set out above, I find the applicant has not established grounds for reconsideration under Rule 18.2(b). with respect to the application of the correct standard of proof.
CONCLUSION & ORDER
26The applicant’s request for reconsideration is dismissed.
Bonnie Oakes Charron
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 18, 2024