RECONSIDERATION DECISION
Before: Harouna Sidibé
Licence Appeal Tribunal File Number: 22-009436/AABS
Case Name: Yaw v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Anna Rezaei, Counsel
For the Respondent: Danielle Ralph, Counsel
OVERVIEW
1On November 25, 2024, the respondent, Allstate Insurance Company of Canada, requested reconsideration of the Tribunal’s decision dated November 5, 2024 (“decision”).
2In the decision, I found that:
a. The applicant's injuries warranted treatment beyond the Minor Injury Guideline (MIG) limits; and
b. The applicant was entitled to the disputed treatment plans and interest; and
c. The applicant was entitled to an award of 30% plus interest of the disputed treatment plans.
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 is seeking reconsideration pursuant to Rule 18.2 (b) of the Rules, as it submits that I erred in law or fact, which would likely have led to a different result had the error not been made. The respondent seeks to vary the decision under Rule 18.4 such that the applicant’s injuries would be found to fall within the MIG, and the applicant would not be entitled to the disputed treatment plans, interest, or an award.
5The applicant submits that reconsideration should be dismissed, and the decision should be upheld.
RESULT
6The respondent'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 when it disagrees with the Tribunal’s decision or 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.
8In this matter, the respondent submits that I erred in fact and/or law:
a. By relying on Dr. Singh's assessment rather than Dr. Spivak’s assessment in determining that the applicant's psychological impairments were caused by the accident;
b. By determining that the applicant has sustained chronic pain with functional impairments caused by the accident; and
c. By awarding 30% along with interest on the contested treatment plans.
9The respondent has not proven on a balance of probabilities that I erred in fact. I also find that even if I had made any errors of fact, a different decision would not likely have been reached but for the error.
Psychological condition
10I find that I have not made an error of fact by finding that the applicant has sustained a psychological impairment.
11The respondent argues that I erred in fact in relying on Dr. Singh's assessment rather than Dr. Spivak’s and contends that the evidence was insufficient to support the conclusion that the applicant's psychological impairments were caused by the accident. The respondent relies upon the Tribunal’s decision in R.N. v. Aviva General Insurance, 2021 CanLII 111178 (ONLAT), to support its position that when two conflicting medical opinions exist, and any other evidence does not corroborate one assessor's findings, the Tribunal cannot establish a conclusion of psychological impairment.
12The applicant argues that his case differs from R.N. v. Aviva General Insurance, 2021 CanLII 111178 (ONLAT), as he was diagnosed with the psychological condition of depression and anxiety.
13Previous Tribunal decisions do not bind me. Based on a balance of probabilities, I determined that Dr. Singh performed a thorough assessment, which included a clinical interview and five psychometric tests. His report strongly aligns with the applicant’s self-reports regarding persistent psychological distress, functional impairments, and avoidance behaviours. On the other hand, Dr. Spivak’s report highlights the lack of comprehensive prior medical records concerning the applicant’s functional limitations, which may lead to an underappreciation of the severity of impairments.
14Accordingly, I do not find that I made an error of fact, as I have demonstrated reasoned justification for assigning weight to the evidence put before me by the parties. The respondent essentially disagrees with the weight I have accorded to the psychological evidence. As the primary trier of fact, I had the responsibility to evaluate the evidence presented and, based on that evaluation, determine whether the applicant sustained a psychological injury that placed his injuries outside of the MIG. In paragraphs 12 and 13 of the decision, I explained the reasons for giving less weight to Dr. Spivak's report and placing greater emphasis on Dr. Singh's report.
15The respondent submitted that the Tribunal did not address its concerns that the applicant did not report psychological symptoms to his family doctor until June 3, 2023, three and a half years after the accident and that the June 2023 record references a 2020 accident.
16While I acknowledge a timeline discrepancy, I have properly considered all the evidence presented to me and found that I made no error of fact. In rendering my decision, I considered all the evidence available to me, finding that the reference to 2020 was a clerical error and that other clinical notes and records showed that the record in question should have referred to the 2019 accident. I made no error of fact, and I agree with the applicant that the respondent made submissions citing the clerical error for the first time in its reconsideration request. I need not consider this new argument not included in the respondent’s initial submissions.
17A reconsideration is not the appropriate forum for a party to relitigate its stance when it disagrees with the Tribunal’s decision or the weight assigned to the evidence. Instead, a reconsideration serves as a limited, error-correcting process. It is neither an appeal nor a hearing de novo.
18Consequently, I did not make an error of fact by choosing to assign greater weight to Dr. Singh’s medical assessment. Instead, it was open to me to give more importance to Dr. Singh’s report after thoroughly analyzing the evidence submitted by the parties.
Chronic Pain
19I find that I made no error of fact concerning my findings on chronic pain.
20The respondent argues that I erred in fact when I determined that the applicant suffers from chronic pain because, according to the respondent, there was a lack of sufficient evidence to support such a finding. The respondent asserts that the applicant did not provide any evidence demonstrating a chronic pain disorder or chronic pain syndrome. Furthermore, the respondent claims that the applicant failed to present any evidence indicating that the pain adversely affected his life beyond his own statements, which are not evidence.
21The applicant asserts that he has reported ongoing pain resulting in functional impairment from the date of the accident through September 2023.
22As stated in paragraph 13, a reconsideration is not an appropriate venue for a party to relitigate its position when it disagrees with the Tribunal’s decision or the weight assigned to the evidence. When rendering my decision, I considered all the evidence submitted by both parties and found that the applicant sustained chronic pain with functional impairment. The applicant complained of ongoing pain that limits him from participating in activities such as soccer, among others. The respondent’s arguments emphasize the weight assigned to the evidence and identify no error of fact that would likely have led me to a different outcome if the error had not occurred.
23Accordingly, I find that I did not err in fact regarding chronic pain in the decision. I was entitled to assess and weigh the evidence, and I reached the conclusion that the applicant sustained chronic pain for the reasons expressed in paragraphs 16 and 17 of the decision.
Award and Interest
24I find that I did not make an error of fact while granting interest and an award.
25The respondent asserts that the weight of the medical evidence presented at the hearing did not support a conclusion of psychological impairment resulting from the accident. It further argues that since the treatment plans are considered unreasonable and unnecessary, neither an interest nor an award is warranted. The respondent also contends that I made an error of fact by concluding that the respondent’s conduct was unreasonable and met the stringent criteria for receiving an award.
26As stated in paragraphs 30, 31, and 32 of the decision, I found that the respondent’s conduct was excessive and imprudent, as it overlooked significant medical evidence and unreasonably withheld payment. It is settled law that s. 10 of Regulation 664 affords the Tribunal broad discretion to order payment of an award.
27In paragraph 34 of the decision, although I find that the respondent unreasonably withheld payment, I concluded that the highest allowable award would be excessive. Therefore, I considered all the evidence and made no error of fact when warranting an award. The interest awarded on overdue payments aligns with the statutory provisions for delayed benefits.
28For all these reasons, the respondent’s request for reconsideration under Rule 18.2(b) is dismissed.
CONCLUSION AND ORDER
29The respondent's request for reconsideration is dismissed.
Harouna Sidibé
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 24, 2025