Abdiaziz Muhumed v. Economical Insurance Company, 2024 CanLII 81199

Citation: Muhumed v. Economical Insurance Company, 2024 ONLAT 22-006383/AABS - R

RECONSIDERATION DECISION

Before: Bruce Stanton, Adjudicator

Licence Appeal Tribunal File Number: 22-006383/AABS

Case Name: Abdiaziz Muhumed v. Economical Insurance Company

Written Submissions by:

For the Applicant: Carlyle Mazankowski, Counsel

For the Respondent: Kevin So, Counsel

OVERVIEW

1On June 19, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 29, 2024 (“decision”).

2In the decision, I found that the applicant’s injuries were predominantly minor and he was therefore subject to the Minor Injury Guideline (“MIG”) and only entitled to a maximum of $3,500.00 in medical and rehabilitation benefits, and that he was not entitled to several treatment plans in dispute or 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.

4In his request for reconsideration, the appellant identifies Rule 18.2(b) as a basis for his reconsideration request.

5The applicant seeks that the decision be varied to find that his accident-related injuries are not minor, that the MIG limit does not apply, and that he is entitled to the disputed treatment plans and interest. In the alternative, he seeks an order for a rehearing.

6The respondent argues that the request for reconsideration should be dismissed.

RESULT

7I find the ground for reconsideration under Rule 18.2(b) has not been met. I find no errors of law or fact such that I would likely have reached a different result. The request for reconsideration is dismissed.

ANALYSIS

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.

9I find the applicant has not met the ground in Rule 18.2(b) for reconsideration. I find no errors of law or fact that would likely have caused me to reach a different result.

10In his request for reconsideration the applicant alleges I made several errors of fact and two errors of law in the decision. He alleges:

i. That I erred in concluding, at paragraph 19 of the decision, that there was insufficient evidence to prove that the applicant sustained a likely remote fracture to his 4th right finger in the accident;

ii. That I made an error of fact at paragraph 12 of the decision in the date of diagnostic imaging (x-rays) that reported the applicant sustained a likely remote fracture to his 4th right finger;

iii. That the decision, also at paragraph 12, did not directly consider or mention that the applicant was being referred by his physician for diagnostic imaging and that the imaging was being sought because of the accident;

iv. That I made a factual error at paragraph 20 in referring to the February 17, 2021 x-ray findings as being the “only” reference to the 4th finger being fractured;

v. That my use of the word “only” at paragraph 22 is ambiguous. The applicant questions whether “only” applies to whether the injury was a fracture vs. a post-traumatic deformity, or the injury was accident or not-accident related;

vi. That, at paragraphs 52, 57, and 65 of the decision, the OCF-18 treatment plans associated with various issues in dispute had not been filed in evidence for the written hearing;

vii. That I made an error of law in failing to apply a legal test for causation; and

viii. That I made an error of law by applying the “beyond a reasonable doubt” standard of proof to the evidence rather than the “balance of probabilities”.

11The applicant submits that had these errors not been committed, I would have reached a different result.

12The respondent submits the alleged errors of fact and law are groundless and the applicant is attempting to relitigate the issues and have the Tribunal reweigh the evidence in the hearing to his favour. The respondent submits that the applicant has failed to satisfy the ground for reconsideration in 18.2(b) and the request for reconsideration should be dismissed.

13The reasons I find no errors of fact that are likely to change the result are as follows.

Alleged Errors of Fact

14With respect to the alleged error in paragraph 10(i) above, insufficient evidence to demonstrate a fracture, at paragraph 19 of the decision, the applicant’s reconsideration submissions amount to a disagreement with my finding and they fail to identify any error of fact. He makes a general allegation that I erred in my factual findings (that there is insufficient evidence) but without specifics. The applicant fails to explain how the alleged error meets the ground in Rule 18.2(b).

15I find that the alleged error of fact in 10(ii), citing evidence of a previous likely remote fracture of the 4th right finger from records dated February 12, is an error of fact. The likely remote fracture referenced in paragraph 12 was from an x-ray report dated February 17, 2021, not February 12, 2021. However, this error of fact it is not likely to lead me to reach a different conclusion. The 5-day difference does not impact the weight of the evidence or my conclusion based on the evidence.

16The alleged error of fact in item 10(iii), not considering or mentioning that the applicant was referred for diagnostic imaging due to the accident, is essentially an allegation of an omission i.e. not considering or mentioning certain evidence. It does not constitute an error of fact. It is well-settled that decision makers do not have to consider every piece of evidence before them. Regardless, the decision makes no suggestion that the diagnostic imaging recommended by the applicant’s GP shortly after the accident was for reasons other than the accident. The omission alleged by the applicant is not an error of fact.

17The alleged error of fact in item 10(iv), paragraph 20 of the decision, in referring to Dr. Maizlin’s February 17, 2021 x-ray report as the “only” reference to the 4th finger being fractured, is not an error of fact. Even if it were, it would be unlikely to have led me to reach a different result. I agree that there are other references in the medical evidence to the February 17 x-ray, but it was the only diagnostic imaging report in evidence that described the 4th finger injury as a previous likely remote fracture.

18The alleged error of fact in item 10(v) above, at paragraph 22 of the decision, regarding ambiguity in the use of the word “only”, is not an error of fact that would lead me to reach a different conclusion.

19The applicant objects to the lack of clarity in the wording of paragraph 22. The statement in question is, “The clinical notes of Dr. Wu, in regard to the November 15, 2021 x-ray reports, refer to the 4th finger injury only as a post-traumatic deformity with no reference to the motor vehicle accident.” The aforementioned clinical notes describe the subject injury as a post-traumatic deformity, wording that is lifted from the associated x-ray report itself. The only reference to the accident in the x-ray report is the acronym “MVA” listed next to the title of “History”.

20The wording of paragraph 22 could have been clearer, but it does not change the result. As I noted at paragraphs 19, 21, 22, 23, and 24 of the decision, the applicant failed to convince me that the likely remote fracture, that was later described as a post-traumatic deformity, arose from the accident. It might have, but the applicant’s hearing submissions did not convince me of it. As I stated in paragraph 24, “the medical evidence does not convince me to conclude that the trauma which caused the 4th finger injury was the result of trauma or the moderate osteoarthritis that afflicts the applicant’s right hand.”

21There was a reference to the MVA in the associated x-ray report, but Dr. Wu’s clinical notes did not reiterate or reflect on it. Regardless, missing the MVA note on the x-ray report would not have changed the decision result.

22I find no error of fact in relation to any ambiguity with the use of the word “only” in paragraph 22.

23I find no error of fact in failing to recognize the OCF-18s in evidence alleged in paragraph 10(vi) above.

24The applicant argues that at paragraphs 52, 57 and 65, I wrongly stated that the OCF-18s associated with disputed treatment plans were not filed with the Tribunal. The applicant refiled them with his reconsideration submissions. The OCF-18s were not part of the 208-page document book the applicant submitted, nor did his written submissions for the hearing direct me to their location. His written submissions gave a brief commentary on how the treatment plans described the applicants’ injuries, treatments recommended, and the plans’ goals.

25According to the applicant’s reconsideration submissions and confirmed by the Tribunal’s case management system, the applicant filed the OCF-18s as part of his Applicant’s Document Brief for the vacated videoconference (“videoconference brief”) hearing.

26The respondent submits in its reconsideration submissions that the applicant’s argument [that the OCF-18s have already been submitted and therefore should have been considered by the Tribunal] should be rejected. It submits there was no notice that the applicant would be relying on anything in the videoconference brief, and the motion order for this written hearing was clear in setting out the dates by which the parties were to file their submissions and evidence.

27I find that my citing of the applicant’s failure to include the OCF-18s in his document book for the written hearing is not an error of fact. The OCF-18s were not included in the evidence submitted for the written hearing. While I agree with the applicant that the OCF-18s were submitted for the vacated videoconference hearing, I did not err when I stated that they were not in evidence before me for the written hearing.

28The Motion Order dated September 22, 2023, which converted the videoconference hearing to a written hearing, set out the process and timeline for written hearing submissions. At paragraph 10, the Motion Order indicated that the applicant’s submissions and evidence were due 30 calendar days before the hearing. The applicant filed and served his submissions along with seven tabs of evidence and an authority book for the written hearing in keeping with the Motion Order. He did not submit the OCF-18s. I also agree with the respondent that the applicant did not reference evidence submitted for the vacated videoconference hearing in his written hearing submissions or in his reply, and therefore the respondent did not have notice that the applicant intended to rely on evidence submitted for the vacated videoconference hearing.

29Furthermore, even if I did err, which I find I did not, the alleged error is not one that would likely have changed the result. While the applicant referenced the treatment plans in his written hearing submissions, in my view he did not meet his onus to establish that the treatment plans were reasonable and necessary. He did not articulate how the physiotherapy treatment plan goals were reasonable, how they were being met to a reasonable degree or how the overall costs of achieving the goals were reasonable.

30For the reasons set out above, I find that the applicant has not met the threshold for reconsideration in relation to the OCF-18 evidence.

31For the reasons described above, I find the applicant’s alleged errors of fact do not meet the ground for reconsideration in Rule 18.2(b).

Alleged error of law - causation

32I find no error of law for not applying a causation test to my finding.

33The applicant submits that I considered the facts and evidence without applying any legal tests for causation and in so doing, reached a conclusion that there was insufficient evidence to conclude the fracture was caused by the accident. The applicant directs me to Charlery v. Economical Insurance Company, 2023 CanLII 50613 (ON LAT) for the test establishing causation in accident benefits cases, referred to as the “but for” test. The test was set out in a decision by the Divisional Court in Sabadash v. State Farm, 2019 ONSC 1121 (Ont. Div. Ct.).

34The applicant submits that had I applied the “but for” test, I would have determined that the applicant would not have suffered the fracture to his 4th finger but for the motor vehicle accident.

35The respondent submits that the Tribunal is not required to cite case law to support its positions on causation, especially when neither party submitted and relied on any case law to support their respective positions on causation. The respondent refers me to the Tribunal’s decision in Applicant v. Royal Sun Alliance Insurance Company, 2019 CanLII 101503 (ON LAT) at paragraph 20 which states that, “Although the respondent is correct that the Tribunal did not cite case law … this does not amount to an error.”

36I find there is no error of law in not citing case law because the applicant did not raise causation in his hearing submissions and the respondent did not reference causation in its submissions. In this case, as I found in paragraph 24 of the decision, the totality of the medical evidence did not convince me that the applicant met his burden to establish that he should be removed from the MIG. I find no error of law in my analysis or this finding.

37Accordingly, I find no error of law in not applying the causation test.

Alleged error of law – standard of proof

38I find no error of law in applying the standard of proof to the evidence in this decision.

39The applicant submits that despite my declaring in paragraph 46 that I applied the correct “balance of probabilities” standard, the decision employed a “beyond a reasonable doubt” standard. The applicant submits that my reliance on one piece of evidence, that the finger fracture was “likely remote”, to place doubt on the cause of the injury, and that I gave no consideration to the absence of intervening events or records of previous issues or complaints about the finger injury, I effectively employed the wrong standard of proof.

40The respondent submits the applicant is merely disagreeing with my analysis of the evidence and that he failed in getting convincing evidence of a fracture to allow me to actually weigh the medical evidence on a balance of probabilities.

41I find the applicant fails to meet the ground for reconsideration on this alleged error of law. As I stated in paragraph 24 of the decision, the totality of the medical evidence did not convince me that the trauma that caused the finger injury was accident related or whether the deformity in the finger was the result of trauma or the moderate osteoarthritis afflicting the applicant’s right hand.

42The totality of medical evidence being referred to includes: a) the absence of any mention of the 4th finger fracture in Dr. West’s orthopaedic assessment nor Dr. Naiman’s IE assessment (paragraph 23), b) the uncertainty of the cause of the fracture by being described as “previous, likely remote” (paragraph 21), and c) the November 15 x-ray report referring to the injury as post-traumatic deformity (at paragraph 22). I found that the applicant did not prove or demonstrate that it was more likely than not that he suffered a 4th finger fracture in the accident, which is the balance of probabilities standard. The evidence was not convincing.

43Accordingly, I find no error of law in the standard of proof applied to the decision.

CONCLUSION & ORDER

44For the reasons noted above, I dismiss the applicant’s request for reconsideration and confirm the Tribunal’s decision.

Bruce Stanton

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal