RECONSIDERATION DECISION
Before: Tanjoyt Deol
Licence Appeal Tribunal File Number: 21-014149/AABS
Case Name: Rita Gershcovich v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant: Kateryna Vlada, Counsel
For the Respondent: Emily Schatzker, Counsel Amirali Golpira, Counsel
OVERVIEW
1On March 1, 2024, the applicant requested reconsideration of the Amended Decision dated February 15, 2024 (“decision”).
2In the decision, I found that the applicant’s injuries are predominantly minor injuries, and she is subject to the MIG limits for treatment. Also, I determined that the applicant was entitled to whatever amount remained within the $3,500.00 MIG limit as of the date of the decision, as such benefits were deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
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) of the Rules. The applicant asks that I amend my decision to “align with the applicant’s initial representations” or that a new hearing be ordered. The respondent requests that the applicant’s request for reconsideration be dismissed, as it is an attempt by the applicant to reargue her entire case.
RESULT
5The applicant’s reconsideration request is dismissed.
PROCEDURAL ISSUES
The reconsideration request will not be assigned to a different member
6In her reconsideration submissions, the applicant is requesting that her reconsideration request be heard by a different member of the Tribunal. The applicant argues that the Tribunal’s practice of having reconsiderations heard by the same adjudicator is a violation of procedural fairness, natural justice, and erodes public opinion in the Tribunal and the rule of law. She further argues that it raises an apprehension of personal and institutional bias.
7The respondent cites the authority of Warren v. Licence Appeal Tribunal (“Warren”), 2022 ONSC 3741, and argues that the Divisional Court has upheld that having an adjudicator reconsider his or her own decision does not violate the common law rules of natural justice and procedural fairness, including the rule against bias. As such, the respondent submits that it is unnecessary to appoint a different member of the Tribunal to hear this request for reconsideration.
8The applicant’s request that a different adjudicator hear the reconsideration request is not granted. The Rules specifically provide that a request for reconsideration may be heard by the same member whose decision is the subject of the request. The authority to assign cases lies with the Tribunal, not the parties.
9It is also well settled by several Divisional Court decisions that the mere fact that an adjudicator determines a request for reconsideration of their own decision does not, in and of itself, create a reasonable apprehension of bias (see: Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at paras. 15-17; Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 90-99; Decosse v. Miklos, 2019 ONSC 6034 at paras. 25-26; Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 (Warren at paras. 9-14).
10In fact, the Divisional Court has found that having members reconsider their own decisions is a familiar feature in the administrative law landscape, promotes efficiency, and allows for timely resolutions since the hearing adjudicator knows the file and, therefore, are the best placed to assess the issues raised in a reconsideration request (Warren at paras. 21-22).
11As such, I am not persuaded by the applicant’s position that a different member has to be assigned to hear this reconsideration request.
12Likewise, I am not persuaded by the applicant’s argument that the unchanged Rule 14.3 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) should be adopted to prohibit the same member who heard the initial hearing from hearing the reconsideration request. To be frank, Rule 14.3 of the Common Rules pertains to case conferences and has no bearing to a reconsideration request. The relevant rule with respect to reconsideration requests is Rule 18 of the Rules, which as noted above, allows the same member to be assigned. As well, Rule 18.1 of the Common Rules also allowed the same member to be assigned to a reconsideration.
13In conclusion, assigning a reconsideration to the same member doesn’t give rise to a conflict by itself. The applicant's request is denied.
ANALYSIS
14The 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(b) – No errors of law or fact
15I find that the applicant has not established grounds for reconsideration under Rule 18.2(b). The applicant submits that I erred in law and fact by:
a. Misinterpreting provisions of the Schedule as it relates to the application of the MIG.
b. Misconstruing the applicant’s injuries.
c. Overlooking the fact that the respondent’s denials are exclusively based on subjective interpretation, given that the respondent failed to arrange examinations under s. 44 of the Schedule.
d. Not making any reference to the caselaw presented in support of the applicant’s position.
16I will address each of these arguments in turn.
i. No error in interpreting the Schedule and the MIG
17In her reconsideration submissions, the applicant appears to be arguing that I misinterpreted s. 18(2) of the Schedule and I failed to “accurately delineate the concept of chronic pain.”
18The respondent argues that I made no error in my decision, and this is an attempt by the applicant to re-litigate her claim, as she was unsuccessful in proving causation.
a) No error with s. 18(2)
19The applicant submits that at paragraph 24 of the decision, I recognized that her pre-existing conditions deteriorated following the accident, yet I also concluded that there was an absence of medical evidence supporting that these pre-existing conditions were exacerbated by the accident. The applicant argues that this created a paradox, as it yielded conclusions that are conflicting and contradictory. Also, the applicant submits that in paragraphs 26 to 29 of the decision, I acknowledged the deterioration of her pre-existing anxiety and lower back injuries, as demonstrated in several MRIs, but then determined that there was no established causal link between the collision and the worsening of her pre-existing conditions.
20I find that the applicant’s reconsideration submissions on this point are an attempt to reargue her case. From paragraphs 19 to 30 of the decision, I outlined the parties’ respective positions, weighed the evidence, and provided detailed reasons on why the applicant did not meet the second portion of the test under s. 18(2) of the Schedule. The fact that the applicant does not agree with my analysis or decision is not grounds for reconsideration. The reconsideration process is not meant to be a reweighing of the evidence presented at first instance.
21Next, the applicant argues that she has not experienced any falls, accidents, collisions, or traumatic events from the date of the accident to the current date, and she has produced the clinical notes and records (“CNRs”) from three years pre-accident. Therefore, she submits that it “would be” unreasonable for the Tribunal to suggest that the documented deterioration in the applicant’s lower back condition and anxiety could be contributed to any event other than the accident. Further, she argues that she can’t control what is in the CNRs and that she requested payment for s. 25 reports, but they were declined by the respondent.
22I disagree and see no error in my determination that the applicant did not establish that her pre-existing conditions worsened as a result of the accident or would preclude her recovery from any accident-related minor injuries. At paragraphs 25 to 29, I weighed and analyzed the evidence (the CNRs of Dr. Grossman, Dr. Santhiramohan, and the MRI, dated May 20, 2023) proffered by the applicant and provided reasons on why the applicant was unsuccessful. The onus is on the applicant to establish her pre-existing conditions would warrant removal from the MIG, not on the respondent to disprove. I found the applicant had not met her onus. Therefore, I see no error, nor was it unreasonable for me to weigh the evidence, analyze the weakness of the evidence, and conclude that the applicant has not established her pre-existing conditions have deteriorated as a result of the accident.
23Similarly, the applicant appears to be arguing that I made an error in my decision, as I did not consider “two significant notes” from Dr. Grossman, one being the entry dated November 11, 2019, and the second, dated September 17, 2020.
24Once again, I see no error here. It is well-settled that an adjudicator is not required to cite every piece of evidence and authority submitted by the parties in the reasons for its decision. While I did not reference the note, dated November 11, 2019, I did refer to the actual clinical note and record, dated November 11, 2019, at paragraph 25 of the decision. Regardless, this note, dated November 11, 2019, is underwhelming, as there is no reference to the applicant’s pre-existing conditions, nor whether they were aggravated by the subject accident.
25Now turning to the September 17, 2020, entry, I also find there was no error. I find that this entry, dated September 17, 2020, has little probative value. In this entry, Dr. Grossman did not even address the applicant’s pre-existing conditions, whether they were aggravated by the accident, or more importantly, whether they prevented the applicant from recovering from her accident-related injuries if she was kept within the MIG. Thus, these two notes do not establish that I made an error of law or fact.
b. No error with respect to chronic pain
26The applicant argues that I failed to accurately “delineate the concept of chronic pain.” The applicant bases this argument because at paragraph 15 of my decision, I noted that chronic pain accompanied by a functional impairment and a psychological condition would warrant removal from the MIG. She argues that at paragraph 34 of the decision, I contradicted this as I did not note a psychological component can also contribute to the diagnosis of chronic pain.
27I disagree and find the applicant’s arguments do not identify an error of law or fact. At paragraph 15, I noted that the Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. At paragraphs 31 to 41, I outlined the parties’ positions, weighed the evidence, and provided reasoning on why the applicant’s injuries were found to be in the MIG, and why she was not removed from the MIG on the basis of chronic pain.
28I also find that the applicant’s reconsideration submissions at paragraphs 21 to 23, are an attempt to advance new arguments, which she did not raise in her initial submissions. These new arguments by the applicant include: that her claim of chronic pain is based on the progressive nature of anxiety and lower back for four years following the accident, not merely due to the passage of time; referring to T.S. v. Aviva General Insurance Company (“T.S.”) 2020 CanLII 51295 (ON LAT); and referring to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“Guides”). The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not make, before the Tribunal during the hearing process. The applicant had an opportunity to address this in her hearing submissions.
29Although, it’s open to me to dismiss the applicant’s submissions with respect to these newly raised issues, I have considered them on their merits for fairness to the applicant. I am not bound by T.S. and it is also unclear how T.S. assists the applicant’s position with respect to chronic pain, as the Tribunal determined that the applicant was not removed from the MIG as a result of his chronic pain. In my interpretation, the factual matrix between T.S. and the matter before me is similar. Hence, the applicant has not established that I made an error of law in determining the applicant’s injuries were in the MIG.
30Similarly, at paragraph 26 of the decision, I noted the applicant’s position of Dr. Grossman’s records documenting a progressive deterioration of her pre-existing anxiety. Moreover, in the same paragraph, I weighed the evidence of Dr. Grossman, and provided reasons on why these entries were unrelated to the accident, and why they did not establish that her pre-existing conditions were exacerbated.
31Furthermore, at paragraphs 26 and 47 of the decision, I found the entries to be unrelated to the accident because there was no reference to the accident in the entries dated March 31, 2020, April 30, 2020, May 4, 2020, May 12, 2020, May 20, 2020, May 28, 2020, and June 10, 2020. Also, the entries dated April 30, 2020, May 4, 2020, and May 20, 2020, noted that the applicant was anxious due to her familial issues (daughter), tenant issues, and having a potential stomach tumor. As well, I found that Dr. Grossman did not diagnose the applicant with a psychological impairment as a result of the accident.
32As such, while I appreciate that a chronic pain claim may have a psychological component, I find that I made no error here, as the evidence did not support that the applicant sustained a psychological impairment as a result of the accident.
33In a similar vein, I find that the applicant’s new submissions with respect to the Guides, does not reveal an error in my decision, as I am not bound by the Guides, nor has the applicant established that she meets at least three out of the six criteria. These criteria are:
a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
b. Excessive dependence on health care providers, spouse, or family;
c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
d. Withdrawal from social milieu, including work, recreation, or other social contacts;
e. 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; and
f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
34The applicant submits that she meets criteria a, b, and f. First, with respect to criterion (a), as noted at paragraph 38 of the decision, I noted that the applicant did not direct me to evidence that supports she has been prescribed pain medicine for her accident-related injuries. I also note that the applicant did not tender a copy of a prescription summary in either her initial submissions or reconsideration submissions. Nor did she refer me to evidence that supports she has been using Zoloft, Cipralex, Xanax, and Imovane beyond the recommended duration.
35Second, with respect to criterion (b), the applicant has only produced records from her treating physiotherapy clinic up until September of 2021. Also, as noted at paragraph 37 of the decision, the applicant has only met Dr. Grossman for accident-related injuries on two occasions, in the last four years. Therefore, I disagree that she demonstrated excessive dependance on her health care providers.
36Third, with respect to criterion (f) at paragraphs 26 to 27, and 47 of the decision, I have already provided reasons on why I found the applicant’s psychological complaints to Dr. Grossman to not be related to the accident. As such, I find the applicant’s new arguments would not change the outcome of the decision.
37With respect to the applicant’s submission that her chronic pain argument was also premised on the deterioration of her lower back condition. I have already considered this at paragraph 40 of the decision. At paragraph 40, I weighed the MRIs of the lower back, dated May 11, 2021, June 28, 2021, and May 20, 2023, and that the applicant had not directed me to a medical opinion that establishes a connection between these results and the alleged chronic pain. Accordingly, I find that this is an attempt by the applicant to reargue her case.
38I also find the applicant’s submissions at paragraph 24, are an attempt to reargue her case. These submissions include that the applicant was referred to a pain specialist, Dr. D. Rozen and that the referral form noted that the applicant had “pain anterior thigh from low back”. At paragraph 39 of the decision, I assessed and weighed the evidence of the referral form to Dr. Rozen and explained why this evidence had little probative value. For example, I noted that the referral form made no reference to the accident, or whether the pain was from the accident.
39Furthermore, at paragraph 39 of the decision, I noted that the July 13, 2022, entry from Dr. Grossman’s office made no reference to the subject accident, when the applicant complained of ongoing pain in her lower back and proximal upper legs. Also, I noted that the applicant had not produced a copy of Dr. Rozen’s records, and that the last time she saw Dr. Grossman for an accident-related complaint was on September 17, 2020. Therefore, I was unable to determine whether the pain complaints to Dr. Grossman in July of 2022 were connected to the accident.
40Finally, I am not persuaded by the applicant’s position that since the respondent did not produce medical documentation to rebut her chronic pain claim, that this somehow means she has met her onus. The onus is on the applicant to prove she has chronic pain to warrant removal from the MIG, not on the respondent to disprove. As outlined at paragraphs 34 to 41 of the decision, I have already provided reasons on why the applicant did not meet her onus to establish chronic pain that would warrant removal from the MIG. I see no error with respect to this.
41To summarize, I find that I did not make an error of law or fact in my decision with respect to the finding that the applicant did not sustain accident-related chronic pain, that would warrant removal from the MIG.
ii. I did not misconstrue the applicant’s injuries
42I find that I did not make an error of law or fact as I did not misconstrue the applicant’s injuries, and that the applicant’s reconsideration submissions are largely an attempt to re-argue her case.
43I find that I considered the medical evidence and submissions before reaching my conclusion. In the decision, I provided reasons for the weight I assigned to the evidence, including to the MRI reports. I also provided reasons on why the applicant had not established that she has psychological impairments as a result of the accident.
44The applicant further argues that at paragraph 46 of the decision, I determined that the presentation of her recurring psychological symptoms does not constitute as evidence. With respect, this is incorrect. At paragraph 46 of the decision, I noted that the applicant had not provided me with evidence to support her submissions that she has psychological impairments as a result of the accident, and that it is well-settled that submissions do not constitute as evidence. Moreover, in my decision, I have already provided reasons on why Dr. Grossman’s records do not support that the applicant has a psychological impairment as a result of the accident.
45Lastly, the applicant submits that the Tribunal determined in 17-005791 v. Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT), that psychological symptoms are sufficient to remove an applicant from the MIG, which she raised in her initial submissions and argues that the Tribunal did not refer to in its decision. Reasons are not required on why non-binding case law is not being followed, nor does this constitute as an error of law or fact. Prior decisions from this Tribunal may be persuasive and provide guidance and insight, however, they are not binding, thus there is no error here.
46To conclude, I find that the applicant has not established grounds for reconsideration with respect to her argument that I misconstrued her injuries.
iii. No error with respect to the alleged overlooking of submissions
47The applicant submits that I overlooked the fact that the respondent failed to conduct examinations under s. 44 of the Schedule, which she argued in her initial hearing submissions, and was not considered by me
48As noted above, it is trite to say that an adjudicator is not required to cite every piece of evidence, submission, and authority submitted by the parties in the reasons for its decision. I also agree with the respondent, that the onus is on the applicant to produce medical evidence to warrant removal from the MIG, not on the respondent to disprove. Additionally, the insurer’s examinations available under s. 44 are optional for insurers, not mandatory (see: A.R. v Coseco Insurance, 2020 CanLII 30389 (ON LAT), at para. 32). Accordingly, the applicant has not established an error in this regard.
iv. No error in not referencing all the caselaw presented by the applicant
49As noted above, I am not required to cite every piece of evidence and authority submitted by the parties in the reasons for the decision. Also, there is no error of law in not referring to non-binding authorities in the decision. As such, I find that the applicant has not established grounds for a reconsideration under Rule 18(b) of the Rules.
CONCLUSION
50The applicant’s request for reconsideration is dismissed.
Tanjoyt Deol
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: July 18, 2024