Baskaran v. Security National Insurance Company, 2024 CanLII 72658

Citation: Baskaran v. Security National Insurance Company, 2024 ONLAT 21-008435/AABS - R

RECONSIDERATION DECISION

Before: Leo Demarce

Licence Appeal Tribunal File Number: 21-008435/AABS

Case Name: Shanoojan Baskaran v. Security National Insurance Company

Written Submissions by:

For the Applicant: Vanessa Liang, Counsel

For the Respondent: Nicole De Bartolo, Counsel

OVERVIEW

1On January 31, 2024, the applicant requested reconsideration of the Tribunal’s decision dated January 10, 2024 (“decision”).

2In that decision the Tribunal determined that the applicant had not demonstrated removal from the Minor Injury Guideline (“MIG”) was warranted and that he was not entitled to the treatment plans in dispute.

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 seeks reconsideration pursuant to Rule 18.2(b) arguing that the Tribunal made errors of law and fact such that the Tribunal would likely have reached a different result had the errors not been made. In this request the applicant seeks an order varying the decision, removing him the MIG and that the treatment plans in dispute be approved.

5The respondent submits that the request for reconsideration should be dismissed; that a reconsideration is not an opportunity to reargue one’s case or relitigate the issues in dispute.

RESULT

6The applicant’s request for reconsideration is granted in part. The decision is varied such that an error in law was made when I failed to address the applicant’s claim that they be removed from the MIG based on chronic pain. I have considered the evidence and find that the applicant does not qualify to be removed from the MIG based on chronic pain. The remainder of the 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 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.

An Error of Law pursuant to Rule 18.2(b) was made in failing to consider chronic pain causing functional impairment as a factor to remove the applicant from the MIG

8The applicant argues that I failed to consider chronic pain causing functional impairment as a factor to remove him from the MIG. I find that I made an error in law in failing to do so and am therefore varying the order specifically for this issue. The modifications to the order are detailed in the Conclusion and Order section of this Reconsideration Decision.

Chronic Pain

9To prove chronic pain there must be considerable medical evidence to support the claim. Simply claiming that pain is chronic is insufficient.

10In my review of the applicant’s submissions regarding chronic pain are the following references:

a. In Paragraph 9 the applicant states that he experiences pain on a daily basis.

b. In paragraph 31 it states Dr. Steiner included a Chronic Pain Psychiatric Questionnaire in his analysis which led him to the conclusion that the applicant’s symptoms are suggestive of the diagnosis of Specific Phobia, Situational.

c. In paragraph 32 the applicant refers to chronic pain as a mode to be removed from the MIG.

d. In paragraph 39 the applicant states that his pains are chronic in nature.

e. In his conclusion at paragraph 50, the applicant claims to suffer from chronic pain.

11The applicant failed to meet the burden of proof that he suffers from chronic pain with functional impairment as a result of the accident. There was no formal diagnosis of chronic pain by an expert. Although Dr. Steiner is being relied upon as an expert by the applicant to point to evidence of chronic pain, there is no formal diagnosis, merely that the symptoms are suggestive.

12Furthermore, the applicant did not point to any evidence to qualify as having chronic pain by suffering from at least three of the six criteria as set out in the American Medical Association’s Guides (AMA) that the Tribunal has adopted as an interpretive tool for chronic pain claims in the absence of a diagnosis.

13I find that the applicant was unable to persuade me that he qualifies to be removed from the MIG based on chronic pain causing functional impairment. The order is to be varied to include my analysis on the issue of chronic pain.

Error of Fact and/or Law pursuant to Rule 18.2(b)

14Consumer Protection nature of the Schedule: The applicant argues that I failed to observe the consumer protection nature of the Schedule. I find that no error in law was made regarding the consumer protection nature of the Schedule.

15The applicant makes arguments as to why he should have had treatment plans approved, and that in failing to find these benefits payable, the Tribunal acted contrary to the consumer protection nature of the Schedule. The applicant states that lack of funding by the respondent is what precluded the applicant from seeking treatment.

16The Tribunal is required to weigh the medical evidence and determine the reasonableness and necessity of the proposed treatment interventions when considering an applicant’s removal from the MIG. An applicant’s ability to independently fund treatment is not a factor in the analysis.

17I find that the applicant is seeking to have evidence reconsidered, rather than any error in law relating to the consumer protection nature of the Schedule.

18Weight given to the s.25 Psychological Assessment Report: The applicant argues the Tribunal erred in giving less weight to the s.25 Psychological Assessment Report. I find that no error in law was made in how much weight was assigned to the s.25 Psychological Assessment Report.

19It is a primary function of an adjudicator to weigh the evidence presented to them in a hearing. It is the applicant’s position that the Tribunal made an error in law when performing this function, and that the s.25 Psychological Assessment Report was not granted the weight they perceived it should have been provided. The applicant further argues that the Tribunal should give less weight to the respondent’s s.44 psychiatric report.

20I find that the applicant is seeking to have the evidence regarding the s. 25 psychological assessment report reweighed as opposed to presenting any reasons to suggest that the Tribunal made an error in law or fact.

21Other claims of errors in fact and/or law: In section II of the applicant’s request for reconsideration the applicant argues the Tribunal erred in considering the wrong facts in finding that the applicant sustained a minor injury, specifically:

a. Paragraph 21; Adjudicator Demarce erred in finding that the applicant’s injuries caused by the accident were primarily sprains and strains.

b. Paragraph 26; Adjudicator Demarce erred in only considering the Respondent’s evidence and finding that the Applicant did not discharge his proof that his injuries are not minor and that he should be removed from the MIG on a balance of probabilities (only 1% tilting to the Applicant).

c. Paragraph 27; Adjudicator Demarce erred in finding that the Applicant did not sustain psychological impairment.

22I find that no errors in law or fact were made with regards to the applicant’s claims their submissions in paragraphs 21, 26 and 27. I considered and weighed the evidence presented to me by both parties and made my decision. There was no error in law or fact.

23The purpose of the reconsideration is to identify if the adjudicator made an error in law or fact that would change the outcome of the ruling. It is not an opportunity to retry the facts simply because a party doesn’t agree with the ruling. The applicant resubmitted evidence that was presented at the hearing and is requesting that the Tribunal consider reweighing the evidence. Disagreeing with the adjudicators interpretation of the evidence is not proof of an error in law or fact.

24I find that with respect to the applicants submissions in paragraph 21, 26 and 27 there were no errors in law or fact pursuant to Rule 18.2(b).

CONCLUSION & ORDER

25The applicant’s request for reconsideration is granted in part. The decision is varied to include the following:

a. Paragraph [9] of the order shall be replaced as:

9The applicant submits he should be removed from the MIG on these grounds:

i. A pre-existing injury to the applicant’s right shoulder that was dislocated while playing a sport; and

ii. He suffered a psychological impairment as a result of the accident, namely Adjustment Disorder with Mixed Anxiety and Depressed Mood – Specific Phobia, Situational (Driver/Passenger-related).

iii. He suffers from chronic pain with functional impairment or psychological condition.

b. The order shall include the sub-heading Chronic Pain and then paragraphs [9] through [13] of this decision, which shall be inserted into the order after paragraph [22].

26The remainder of the applicant’s request for reconsideration is dismissed.

Leo Demarce

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal