RECONSIDERATION DECISION
Before:
Ulana Pahuta, Adjudicator
Licence Appeal Tribunal File Number:
24-010001/AABS
Case Name:
Bharat Sharma v. Western Assurance Company
Written Submissions by:
For the Applicant:
Delaney McCartan, Counsel
For the Respondent:
Lori J. Sprott, Counsel
OVERVIEW
1On October 8, 2025, the applicant requested reconsideration of the Tribunal’s decision dated September 17, 2025 (“decision”).
2In this decision, the Tribunal determined that the applicant remained within the Minor Injury Guideline (“MIG”). The Tribunal further found that the applicant was not entitled to attendant care benefits (“ACB”), six treatment plans, an OCF-6 claim form, an award, 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.
4The applicant relies on Rules 18.2(b) and (c) to support his request for reconsideration. He requests an order reversing the decision and finding that he is removed from the MIG, and that he is entitled to the treatment plans in dispute, (together with interest and an award). The applicant did not request a reconsideration of the Tribunal’s findings with respect to the OCF-6 claim form, or ACBs.
5The respondent asks the Tribunal to dismiss the request.
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 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.
8The applicant alleges that the Tribunal erred in law and fact by finding that he remains within the MIG, and correspondingly, that he is not entitled to the treatment plans in dispute, interest or an award. He submits that the Tribunal ignored the full medical record, including key testimony and the report of Dr. Irina Valentin, neuropsychologist, establishing that he had sustained a neurocognitive disorder. Rather, the adjudicator had improperly narrowed the scope of the hearing to whether the applicant had sustained a psychological impairment. In doing so, the Tribunal made significant errors in fact and law in finding that the applicant did not sustain a concussion, and keeping him within the MIG.
9The applicant also relies on Rule 18.2(c) to argue that there is evidence that was not before the Tribunal when rendering its decision, and could not have been previously obtained, which establishes his concussion and post-concussion syndrome. Finally, the applicant submits that the Tribunal erred in law and fact in finding that he should not be removed from the MIG due to a psychological condition.
Rule 18.2(b) - Removal from the MIG on the grounds of a neurocognitive disorder
10I find that the applicant has not established grounds for reconsideration with respect to his removal from the MIG on the basis of a neurocognitive disorder.
11The applicant alleges a number of errors of law and fact in the Tribunal’s analysis of his submissions and evidence relating to a neurocognitive disorder. He argues that the adjudicator:
a. Misrepresented his submissions by stating at paragraph 28 of the decision the “applicant submits that psychological impairments he is suffering were caused by a concussion received during the subject accident”. The applicant argues that he did not make this submission, rather, at the hearing he had argued that he should be removed from the MIG since he had sustained a neurocognitive disorder, likely due to a minor traumatic brain injury (“mTBI”).
b. Erred in fact and law by failing to properly assess the testimony and report of Dr. Valentin. The applicant submits that Dr. Valentin was the only doctor who had assessed him for cognitive impairments, and that the respondent did not call any witnesses to rebut her testimony. He argues that the adjudicator erred in fact at paragraph 31 of the decision by stating that he did not receive a diagnosis of a concussion, given Dr. Valentin’s findings. Further, at paragraph 36 of the decision the adjudicator erred in stating that Dr. Valentin had improperly relied on Dhinat Khan’s, an occupational therapist’s, diagnosis in forming her opinion. Finally, the applicant submits that the adjudicator erred in fact at paragraphs 37 and 38 of the decision when he stated that Dr. Valentin placed too much weight on the Glasgow Coma Scale (“GCS”) score, and incorrectly stated that he was “relatively awake, alert, and oriented when tested by ambulance personnel between 10 and 20 minutes following the subject accident.”
c. Erred in fact and law in failing to consider the cognitive impairments noted by the applicant’s treating doctor, Dr. Vyas.
12The respondent submits that the applicant is attempting to re-litigate his case and is asking the Tribunal to reweigh the evidence, which are not the functions of reconsideration.
13I find that the applicant has not established errors of fact or law that would likely have led to a different outcome had the errors not been made, pursuant to Rule 18.2(b).
14With respect to the adjudicator’s handling of Dr. Valentin’s evidence, the adjudicator considered Dr. Valentin’s testimony and report at paragraphs 28, and 35-40 of the decision. As part of the adjudicator’s analysis, he considered a wide range of factors before coming to the conclusion that he was not persuaded by Dr. Valentin’s testimony and report. I note the applicant’s submissions that there were factual errors at paragraphs 36 and 38 of the decision where the adjudicator stated that Dr. Valentin had improperly relied on OT Ms. Khan’s diagnosis and that the applicant was awake and alert within 10 to 20 minutes following the accident.
15I agree with the applicant that these statements did not appear to be reflected in the evidence presented at the hearing. On the evidence before me, I do not see a reference in the hearing record to Dr. Valentin relying on Ms. Khan’s findings of mild cognitive disorders in formulating her opinion. I further agree with the applicant that the ambulance call report and hospital records state that the applicant was alert and his GCS score was 15 within 10 minutes of the paramedics’ arrival, rather than within 10 minutes of the accident. However, even if these statements were factually incorrect, I do not find that these errors would have likely led to a different result had they not been made.
16The adjudicator provided a number of additional reasons as to why he was not persuaded by Dr. Valentin’s diagnosis of a neurocognitive disorder due to a mild TBI. He noted at paragraph 35 of the decision that Dr. Valentin had not been qualified as an expert and instead testified as a treating neuropsychologist. The adjudicator also disagreed with Dr. Valentin’s assumption that the applicant’s GCS score would have been “much lower” in the 10 minutes before the ambulance arrived, since the bystander reports were not evidence before the Tribunal. He further noted at paragraph 39 that the report was issued more than two years post-accident and Dr. Valentin did not reconcile how the applicant attended and graduated from a “difficult program at college”, or how he has worked “multiple jobs” while suffering from a neuro-cognitive disorder in the time between the accident and assessment. Finally, at paragraph 40 of the decision the adjudicator provided examples as to how Dr. Valentin had appeared to ignore evidence contrary to her opinion.
17Accordingly, even if I accept that the applicant is correct that there were factual misstatements at paragraphs 36 and 38 of the decision, given the multiple reasons supporting the adjudicator’s finding, the applicant has not shown how amending these errors would likely have affected the final result.
18I similarly find that the applicant has not established grounds for reconsideration with respect to his argument that the adjudicator failed to consider the cognitive impairments noted by the applicant’s treating doctor, Dr. Vyas. It is well-settled that an adjudicator is not required to address every piece of evidence raised by the parties. However, even if Dr. Vyas’ records were considered, I agree with the respondent that, in the entry cited by the applicant, i.e. the note dated November 12, 2024, accident-related cognitive impairments are not established. Dr. Vyas noted that the applicant had only reported memory issues over the past three months, and found that the applicant’s memory was “(i)ntact as manifested by the patient’s ability to furnish a complete and lucid medical history”. Therefore, even if Dr. Vyas’ records were considered at the initial hearing, I do not find that it would likely have led to a different outcome.
19With respect to the applicant’s argument that the respondent did not conduct its own assessment for neurocognitive disorders, and as such, Dr. Valentin’s diagnosis should have been accepted by the adjudicator, I agree with the respondent that the onus rests with the applicant to establish his case. It is not the respondent’s onus to disprove the applicant’s claim by way of a rebuttal report. In the decision, the adjudicator considered Dr. Valentin’s report and the fact that it had been issued more than two years post-accident (at paragraphs 28, and 35-40), together with inconsistencies in the applicant’s self-reports of limitations versus his post-accident functioning (at paragraph 30, 33, 34, 39 and 40), the ambulance call report and emergency room records (at paragraphs 31-32) and found that the applicant had not met his onus to prove a concussion or a neuro-cognitive disorder. The adjudicator’s reasons show he engaged in a comprehensive analysis of the evidence in coming to his findings.
20Finally, I find that the applicant has not established grounds for reconsideration on the basis that the adjudicator had misrepresented the applicant’s submissions. The applicant argues that at paragraph 28 of the decision the adjudicator stated that the “applicant submits that psychological impairments he is suffering were caused by a concussion received during the subject accident”, but that in fact, he had submitted that he should be removed from the MIG as a result of a neurocognitive disorder caused by an mTBI. However, even if the applicant’s submissions were not accurately described in paragraph 28, I do not find that this would have likely changed the outcome. Throughout the decision, the adjudicator had considered and addressed the very question of whether the applicant had sustained a neurocognitive disorder caused by an mTBI.
21Accordingly, I do not agree with the applicant that the Tribunal erred in law and fact by failing to remove him from the MIG due to a neurocognitive disorder.
Rule 18.2(c) - New evidence of a concussion/post-concussion syndrome
22The applicant submits that there is new evidence supporting a concussion diagnosis that was not before the Tribunal when it rendered its decision. This evidence is a referral from Dr. Vyas to iScope Concussion and Pain Clinic (“iScope”) dated March 18, 2025, where Dr. Vyas selected “yes” that this client sustained a concussion, and an initial consultation report dated March 31, 2025 from iScope where the applicant was diagnosed with, inter alia, post-concussion syndrome. The applicant submits that this evidence could not have been obtained previously, since it was created after the production deadline stipulated in the Case Conference Report and Order (“CCRO”).
23I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(c).
24Firstly, the applicant argues that both documents were obtained after the February 15, 2025 production deadline stipulated in the CCRO. However, the referral and consultation still took place almost two months before the hearing. The applicant has not explained why these documents could not have been produced prior to the hearing, nor did he make any submissions at the hearing to either request admittance of the new evidence, or to indicate that new, relevant evidence was forthcoming. Further, the March 18, 2025 referral to iScope by Dr. Vyas was made for the first time almost three years post-accident. The applicant has not provided submissions as to why such a referral could not have been made previously. Finally, even if the new evidence was considered, I agree with the respondent that in his reconsideration submissions, the applicant has not made any substantive submissions on the consultation report, and as such, has not established that the new evidence would likely have impacted the result.
25The onus is on the applicant to establish grounds for reconsideration. I find the applicant has not met the test for granting a reconsideration under Rule 18.2(c).
Rule 18.2(b) - Removal from the MIG on the grounds of a psychological condition
26I find that the applicant has not established an error of fact or law with respect to the Tribunal’s consideration of the applicant’s psychological impairment.
27The applicant argues that the Tribunal erred in fact and law when it did not accept Dr. Valentin’s psychological diagnoses due to her purported reliance on an invalid test result. The applicant argues that the only instruments that presented invalid test results related to Positive Impression Management (“PIM”) testing, and that these test results only indicated that the applicant minimized his symptoms. The applicant also submits that the Tribunal further erred in fact and law by failing to take into account the fact that the respondent’s psychological assessor, Dr. Gooden, had corroborated the applicant’s mild depression.
28I do not find that the applicant has established grounds for reconsideration pursuant to Rule 18.2(b).
29With respect to Dr. Valentin’s psychological diagnoses, I note that, in paragraph 39 of the decision, the adjudicator did not solely base his findings on the possible minimization of symptoms. Rather, he also noted that the applicant had denied any psychological problems during the structured interview and that the report had been issued more than two years post-accident. Further, in paragraph 40, the adjudicator expressed concerns that Dr. Valentin appeared to ignore evidence contrary to her opinion. From my review of the decision and the evidence presented, the applicant has not met his onus to establish an error in law or fact in the adjudicator’s finding that the applicant had not established removal from the MIG on psychological grounds.
30Finally, I do not agree with the applicant’s reconsideration submission that the respondent’s s. 44 psychological assessor had corroborated an accident-related psychological impairment. The applicant argues that the adjudicator had noted in paragraph 41 of the decision that Dr. Gooden had found that the applicant had “mild depression”. However, in the same paragraph, the adjudicator further noted that Dr. Gooden went on to say that the symptoms were “within the normal range and therefore not an impairment to his function and not diagnosable”. Accordingly, I do not find that Dr. Gooden’s findings supported the applicant’s removal from the MIG on psychological grounds. I further find that the applicant is requesting the Tribunal to re-weigh evidence considered at first instance, which is not the proper use of the reconsideration process.
31I find that the applicant has not established an error of fact or law as a result of the Tribunal’s failure to address the treatment plans in dispute. Given that the adjudicator found that the applicant remained in the MIG, a finding that the applicant has not successfully challenged with this reconsideration, it was not necessary to consider the reasonableness and necessity of the treatment plans.
Award and interest
32I find that the applicant has not established grounds for reconsideration with respect to the adjudicator’s finding that the applicant was not entitled to a s. 10 award or interest. Given that no benefits were found to be overdue or unreasonably withheld or delayed, correspondingly, the applicant would not be entitled to interest or an award.
CONCLUSION & ORDER
33The applicant’s request for reconsideration is dismissed.
___________________
Ulana Pahuta
Adjudicator
Released: December 15, 2025