Leung v. Economical Insurance Company, 2024 CanLII 94129

Citation: Leung v. Economical Insurance Company, 2024 ONLAT 22-000489/AABS-R

RECONSIDERATION DECISION

Before: Lisa Holland, Adjudicator

Licence Appeal Tribunal File Number: 22-000489/AABS

Case Name: Serena Leung v. Economical Insurance Company

Written Submissions by:

For the Applicant: Tal Eshel, Counsel

For the Respondent: Kayly Machado, Counsel

OVERVIEW

1On July 16, 2024, the respondent requested reconsideration of the Tribunal’s decision released on June 25, 2024 (“decision”).

2In its decision, the Tribunal determined that the applicant had demonstrated removal from the Minor Injury Guideline (“MIG”) was warranted and that she was entitled to the treatment plan for psychological services in dispute and 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 respondent seeks reconsideration pursuant to Rule 18.2(a) and (b). The respondent submits that the Tribunal committed a material breach of procedural fairness and made several errors of fact, such that the Tribunal would likely have reached a different result had the errors not been made. The respondent further seeks a finding that the applicant’s injuries fall within the MIG and that she is not entitled to the disputed treatment plan and interest. Alternatively, the respondent seeks a rehearing of all the issues.

5The applicant submits that the respondent’s request for reconsideration should be dismissed, and that the decision should be upheld.

RESULT

6The respondent’s request for reconsideration is dismissed. The applicant is also not entitled to her costs of the reconsideration.

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.

Rule 18.2 (a): The Tribunal did not act outside its jurisdiction or commit a material breach of procedural fairness

8I find that the respondent has not established that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness such that a reconsideration should be granted under Rule 18.2(a).

9The respondent submits that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness for the following reasons:

a. The Tribunal did not acknowledge the respondent’s evidence on the issue of chronic pain. The respondent states that the Tribunal did not consider the respondent’s evidence regarding 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;

b. The Tribunal did not provide its reasons for how it weighed evidence set out by the respondent under the Guides, and;

c. The Tribunal did not consider or agree with the respondent’s interpretation of the evidence under the Guides. The respondent submits that the Tribunal did not consider that the applicant continues to work, she has not experienced any changes to her social functioning, she denies any depression or anxiety and she is not taking any medication for pain.

10I find that the respondent is attempting to relitigate the Tribunals’ findings that the applicant’s accident-related injuries fall outside the MIG which is not a purpose of reconsideration.

11At first instance, the respondent argued that the applicant fails to meet 3 of the 6 criteria for functional impairment set out in the Guides, regarding her ability to work, changes in social functioning, denial of depression, and the type of medication the applicant takes for pain. In addition, the Tribunal is not restricted to only considering the 6 factors enunciated in the Guides in its determination of whether the applicant suffers from chronic pain.

12Although the Guides are not binding on this Tribunal to determine if someone suffers from chronic pain.

13It was within the Tribunals’ 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 applicant’s evidence that she suffers from chronic pain as a result of the accident, as discussed in paragraphs 13 and 14 of the decision, does not amount to a material breach of procedural fairness in the circumstances.

14Accordingly, I find that the Tribunal did not commit a material breach of procedural fairness. As such, I find that the respondent has not established grounds for reconsideration of the decision under Rule 18.2(a).

Rule 18.2 (b): The Tribunal did not make an error of law or fact

15I find that the respondent has not established that the Tribunal made an error of law or fact in its determination that the applicant’s injuries fall outside the MIG limits.

16The respondent submits the Tribunal made an error of law in not properly applying the test to determine if the applicant has chronic pain with a significant functional impairment. The respondent states that the Tribunal failed to interpret the evidence properly in finding the applicant has limitations with work, driving and housekeeping. These submissions are closely tied to the argument made for reconsideration under Rule 18.2(a) set out above.

17The respondent submits the Tribunal misinterpreted the records of Dr. Kwok and placed significant weight on the note of Dr. Kwok in reaching its conclusion that the applicant has functional restrictions in driving, housekeeping and working. The respondent further submits the Tribunal misstated the evidence of Dr. Kwok regarding the applicant’s ability to perform light housekeeping which is stated in paragraph 14 of the decision as her inability to do heavier housekeeping.

18Although the respondent disagrees with the Tribunals’ interpretation and the weight given to Dr. Kwok’s records, this does not establish an error of fact or law.

19However, at paragraph 13 of the decision, the opinion of Dr. Sirota was also considered in arriving at the Tribunal’s decision. In her report, Dr. Sirota mentions the applicant’s irritability with pain, vehicular anxiety and inability to do housework, grocery shopping, prepare meals or do laundry.

20The respondent further submits the Tribunal made an error of fact in paragraph 13 of the decision in stating that the applicant’s family doctor and Dr. Basile has diagnosed the applicant with complex chronic pain. The Tribunal further states in paragraph 13 that the applicant was referred to a multidisciplinary chronic pain program and psychological counselling. The applicant submits that her family physician, Dr. Eunice Lam requested that Dr. Judith Kwok, a specialist in chronic pain at Women’s College Hospital review her file and provide an opinion. Dr. Kwok diagnosed the applicant with complex chronic pain. Despite the fact that Dr. Kwok is not the applicant’s family physician, the consultation with Dr. Kwok was made at Dr. Lam’s office. In addition, Dr. Lam also referred the applicant to Dr. Basile who recommended a referral of the applicant to a chronic pain clinic. The diagnosis of chronic pain and recommendation for referral to a chronic pain program was made through Dr. Lam’s treatment of the applicant and her consultation with specialists. Regardless, whether Dr. Kwok is a family physician or a specialist it does not change the outcome of the decision.

21The respondent further argues that the Tribunal made an error of fact in paragraph 14 of the decision in stating that Dr. Kwok and Dr. Basile are qualified physicians to make a diagnosis of chronic pain. The Tribunal does not state that Dr. Kwok and Dr. Basile are qualified specialists in the treatment of chronic pain. Dr. Kwok referred the applicant to chronic pain specialist, Dr. Imratpal Sohanpal and the applicant received treatment from Dr. Sohanpal. The respondent’s arguments on reconsideration involve the weighing of evidence rather than raising issues that warrant reconsideration.

22I do not agree with the respondent’s submission, and I find no error of law or fact in the Tribunal’s decision.

23The fact that the respondent 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.

24The 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 respondent 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 does not amount to proving an error in law or fact.

25Accordingly, I find that the Tribunal did not make an error of law or fact in finding the applicant’s injuries fall outside the MIG. The fact that the respondent does not agree with the Tribunals’ decision is not ground for reconsideration under Rule 18.2(b).

COSTS

26The applicant’s reconsideration submissions seek costs in the amount of $500.00. The applicant submits that the respondent’s request for reconsideration is frivolous, vexatious, unreasonable and/or in bad faith.

27Rule 19.1 of the Tribunal Rules provides that a party may request costs when it believes another party has acted unreasonable, vexatiously, or in bad faith. Rule 19.6 sets a limit of $1,000.00 on costs.

28I find the applicant is not entitled to costs. Although I understand that the applicant is frustrated with the respondent’s decision to seek reconsideration of my original decision, choosing to seek reconsideration is a procedural right afforded to any party under the LAT Rules, and does not amount to unreasonable, frivolous, vexatious, or bad faith conduct. Therefore, costs will not be awarded.

CONCLUSION & ORDER

29The respondent has not established grounds for reconsideration under Rule 18.2(a) or (b).

30The respondent’s request for reconsideration is dismissed.

31The applicant’s request for costs is dismissed.

Lisa Holland Adjudicator Tribunals Ontario – Licence Appeal Tribunal