RECONSIDERATION DECISION
Before: Ludmilla Jarda
Licence Appeal Tribunal File Number: 22-001468/AABS
Case Name: Irene Josephs v. Novex Insurance Company
Written Submissions by:
For the Applicant: Alim Ramji, Counsel
For the Respondent: Yasar Saffie, Counsel
OVERVIEW
1On February 23, 2024, the applicant requested reconsideration of the Licence Appeal Tribunal ("Tribunal") decision dated February 2, 2024 ("decision").
2In its decision, the Tribunal found that the applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline ("MIG"). As the MIG limit is exhausted, the applicant was not entitled to the disputed treatment plans nor interest.
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 reconsideration pursuant to Rules 18.2(a) and (b). The applicant submits that the Tribunal acted outside its jurisdiction and made significant errors of law and fact. The applicant also submits that the Tribunal violated the rules of natural justice and procedural fairness. The applicant further seeks a finding that his injuries do not fall within the MIG and that he is entitled to the disputed treatment plans and interest. Alternatively, the applicant seeks a rehearing of all the issues.
5The respondent submits that the applicant's request for reconsideration should be dismissed, and that the decision should be upheld.
RESULT
6The applicant's request for reconsideration is dismissed.
ANALYSIS
7The 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): The Tribunal did not act outside its jurisdiction or commit a material breach of procedural fairness
8I find that the applicant has not established that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness pursuant to Rule 18.2(a).
9The applicant submits that the Tribunal acted outside its jurisdiction when it determined that the applicant did not suffer from chronic pain. The applicant states that the Tribunal does not have the jurisdiction nor the qualifications to apply the test for chronic pain as outlined in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th Edition (the "Guides") for establishing chronic pain. The applicant argues that while the Tribunal can weigh the evidence of the experts applying the test, it is not the role of the Tribunal to determine whether the test for chronic pain has been satisfied.
10The applicant further submits that the Tribunal violated the rules of natural justice and procedural fairness because it did not accept the diagnosis of chronic pain made by Dr. Grigory Karmy, physician.
11I do not agree with the applicant's submissions, and I find that the Tribunal did not act outside its jurisdiction or commit a material breach of procedural fairness.
12I find that the applicant is attempting to relitigate the Tribunal's findings that the applicant's accident-related injuries are predominantly minor and can be treated within the MIG. Indeed, as indicated at paragraph 10 of the decision, the applicant argued at first instance that she suffered from chronic pain and as a result she should be removed from the MIG. She relied, among other things, on the Guides and Dr. Karmy's report.
13As noted at paragraphs 14-24 of the decision, the Tribunal found that the applicant failed to prove, on a balance of probabilities, that she suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, she remains within the MIG and its $3,500.00 limit on treatment. The Tribunal further found that the evidence supports that the applicant sustained soft tissue injuries within the definition of minor injury under s. 3 of the Schedule, and that there is insufficient evidence to support that the applicant suffers from chronic pain with functional impairment.
14Further, as indicated at paragraph 19 of the decision, although the Guides provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain, the Guides are not incorporated in the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain.
15It was within the Tribunal's jurisdiction to make a determination regarding the severity of the applicant's accident-related injuries and whether her injuries can be treated within the MIG. Further, the fact that the Tribunal preferred the respondent's evidence that the applicant sustained soft tissue injuries as a result of the accident, as discussed in paragraphs 17 and 18 of the decision, does not amount to a material breach of procedural fairness in the circumstances.
16Accordingly, I find that the Tribunal did not act outside of its jurisdiction or commit a material breach of procedural fairness. As such, I find that the applicant has not established grounds for a reconsideration of the decision under Rule 18.2(a).
Rule 18.2(b): The Tribunal did not make an error of law or fact
17I find that the applicant has not established that the Tribunal made an error of law or fact in its determination that her injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
18The applicant submits the Tribunal made an error of law and fact by deciding that the applicant's injuries fall within the MIG. The applicant states that the Tribunal failed to give sufficient evidentiary weight to Dr. Karmy's diagnosis of chronic pain and erred by preferring Dr. Cavaliere's report over Dr. Karmy's report. These submissions are closely tied to the argument made for reconsideration under Rule 18.2(a) set out above.
19I do not agree with the applicant's submissions, and I find no error of law or fact in the Tribunal's decision.
20I have already addressed the Tribunal's findings that the applicant's injuries fall within the MIG above.
21As for the Tribunal preferring Dr. Cavaliere's report over Dr. Karmy's report, as indicated at paragraphs 17 and 18 of the decision, although Dr. Karmy diagnosed the applicant with, among other things, chronic pain syndrome, he relies heavily on the applicant's self-reporting, and there is no other evidence to support his findings. The Tribunal preferred Dr. Cavaliere's report as she conducted a thorough observational and physical examination of the applicant. The Tribunal also preferred Dr. Cavaliere's findings that the applicant sustained soft tissue injuries as a result of the accident and that she did not have functional or physical limitations as this was consistent with the evidence, as discussed at paragraphs 15 and 16 of the decision.
22The 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, is the role of the Tribunal and it does not amount to an error of law or fact.
23Accordingly, I find that the Tribunal did not make an error of law or fact in finding that the applicant's injuries fall within the MIG and that she is not entitled to treatment outside the monetary limit of 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).
CONCLUSION & ORDER
24The applicant has not established grounds for reconsideration under Rule 18.2(a) or (b).
25The applicant's request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 15, 2024