Reconsideration Decision
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 22-000240/AABS
Case Name: Poonammah Samaroo v. The Commonwell Mutual Insurance Group
Written Submissions by:
For the Applicant: Michael H Hazan, Counsel
For the Respondent: Cecil Jaipaul, Paralegal
OVERVIEW
1On October 7, 2024, the respondent requested reconsideration of the Tribunal’s decision dated September 17, 2024 (“decision”).
2In this decision, on the preliminary issue I found that the applicant was barred from proceeding with the issue of the payment of an invoice. With respect to the substantive issues, I found that the applicant was entitled to an income replacement benefit, and that she was entitled to payment of certain treatment plans in dispute. I found that the applicant had not established that the remainder of the treatment plans were reasonable and necessary, or that an award was warranted.
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 Rules 18.2(a) and (b). It submits that I erred in law in not applying a robust causation test for the applicant’s psychological impairments and in failing to address causation for the applicant’s physical impairments. The respondent further argues that I erred in law and fact in finding that the applicant was entitled to income replacement benefits as a result of her psychological impairment. With respect to the treatment plans for a functional abilities examination, chronic pain assessment and psychological services the respondent submits that I exceeded my jurisdiction or committed a material breach of fairness, and erred in law or fact by not appropriately considering the evidence, misapprehending the law and failing to provide adequate reasons.
5The applicant submits that none of the criteria under Rule 18.2 have been met, and that the respondent’s request for a reconsideration should be dismissed.
6The respondent seeks a finding that the applicant is not entitled to income replacement benefits, or the treatment plans for a chronic pain assessment, functional abilities evaluation or psychological services. Alternatively, the respondent requests a rehearing of these issues.
RESULT
7On the issue of causation with respect to the applicant’s physical impairments, the respondent’s request for reconsideration pursuant to Rule 18.2 is granted. However, pursuant to Rule 18.4, the decision of September 17, 2024 is confirmed.
8The respondent’s request for reconsideration on the remaining issues is dismissed.
ANALYSIS
9The 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(b) – Error of law with respect to the issue of causation of the applicant’s physical impairments has been established
10The respondent submits that I erred in law by failing to address the issue of causation of the applicant’s physical impairments and chronic pain. It also raises additional issues with respect to my analysis of causation of the applicant’s psychological impairments, which will be addressed later in my analysis.
11I agree with the respondent that the decision does not address the issue of causation with respect to the applicant’s physical impairments and chronic pain. Rather, it solely addresses the issue of causation with respect to the applicant’s psychological impairments. I further find that this error meets the second part of the test in Rule 18.2(b). The failure to consider causation of the applicant’s physical impairments and pain, is an error of the type that would likely have led to a different result, had the error not been made. As such, I find this error constitutes grounds for reconsideration pursuant to Rule 18.2(b).
Reconsideration is not granted for the remaining grounds
12The respondent also submits that I erred in law and/or fact, acted outside of my jurisdiction or committed a material breach of procedural fairness with respect to my consideration of the applicant’s entitlement to income replacement benefits and the treatment plans for a chronic pain assessment, functional abilities evaluation or psychological services. I find that the respondent has not established a basis for reconsideration with respect to these issues.
Rule 18.2(b) – No error of law or fact with respect to the issue of Income Replacement Benefits (“IRBs”)
13I find that the respondent has not established an error of law or fact in my determination that the applicant is entitled to IRBs.
14The respondent submits that I erred in fact and law, when I found that the applicant had met the substantive entitlement test for IRBs as a result of her psychological impairments. It refers to paragraph 25 of my decision, where I state that the respondent’s s. 44 assessor Dr. Syed had diagnosed the applicant with “major depressive episode and an adjustment disorder with anxiety”. It argues that there was no DSM diagnosis of Major Depressive Disorder, but rather, that Dr. Syed had diagnosed the applicant with “a” major depressive episode, which is a single event. While I agree with the respondent that I did not use the word “a” before the words “major depressive episode and an adjustment disorder with anxiety”, I find this error to be minor. The phrase I used at paragraph 25 of my decision contains the word “episode”, which is clearly a singular event.
15Further, I do not agree with the respondent that I misapprehended Dr. Syed’s finding of “a major depressive episode” or that I conflated this diagnosis, with a DSM diagnosis of Major Depressive Disorder. Rather, in paragraphs 25 and 26 of my decision, I state that the applicant had been diagnosed with “major depression” by her treating psychiatrist Dr. Zakaria. The respondent further argues that I erred in fact and law in placing significant weight on Dr. Zakaria’s reporting letter dated February 12, 2020. I find that the respondent’s submissions on this point amount to a request to re-weigh the evidence which was considered at the hearing. Re-weighing and re-litigating are not grounds for reconsideration.
16Finally, the respondent submits that the applicant did not refer to the “needed skills” in her job description, and that my findings that the applicant had established that her psychological impairments rendered her unable to complete her workplace tasks exceeded my role as a neutral arbiter. I am not persuaded by the respondent’s argument. My reference in paragraph 27 to the applicant’s job description and accident-related impairments, stemmed directly from the applicant’s submissions and evidence. In paragraphs 24 of the applicant’s initial hearing submissions, she summarized the needed skills of employment and referred the Tribunal to her formal job description. In rendering my decision, I considered all the submissions and evidence of the parties. I find that the respondent has not established grounds for reconsideration with respect to the applicant meeting the substantive test for IRBs.
Rule 18.2(a) and (b) – No error of law or breach of procedural fairness with respect to OCF-18 for a functional abilities assessment
17I find that the respondent has not established that I erred in law, acted outside of my jurisdiction or committed a material breach of procedural fairness in finding that the applicant was entitled to the functional abilities assessment.
18The respondent submits that I erred because the functional abilities assessment was requested after the period of entitlement to pre-104 week IRBs. It further argues that my findings were based solely on the applicant’s self-reports of being unable to return to work and that there were no contemporaneous reports to support functional impairments or an inability to return to work at the time the treatment plan was prepared.
19I agree with the applicant that the respondent is raising new arguments about why the applicant is not entitled to the proposed assessment. As noted in the decision cited by the applicant, Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT), it is well-settled that a reconsideration is not an opportunity for a party to put forth new arguments that should have been raised at first instance. I find that the respondent has not established a basis for reconsideration with respect to this new argument.
Rule 18.2(b) – No error of law with respect to the issue of OCF-18 for a chronic pain assessment
20The respondent submits that I erred in law in finding that the applicant was entitled to a chronic pain assessment, since in my decision, I had misapprehended the law with respect to s. 47(2) of the Schedule and the decisions Wolf v Pembridge Insurance, 2023 CanLII 96332 (ON LAT) (“Wolf”), McIntyre v Economical Insurance Company, 2023 CanLII 19913 (ON LAT) (“McIntyre”), and G.T. v Unifund Assurance Company, 2017 CanLII 81567 (ONLAT).
21I find that the respondent has not established an error of law with respect to s. 47.
22In its reconsideration submissions, the respondent references two Tribunal decisions it had raised at first instance, Wolf and McIntyre. In these decisions it was found that the proposed services were not reasonable and necessary due to s. 47(2) of the Schedule and the fact that the services were reasonably available under OHIP. While I did not expressly reference these decisions in my findings, I did consider these decisions, but found that they were distinguishable from the present matter. In both Wolf and McIntyre, the proposed services were diagnostic imaging and scans, which in my view are very different than a comprehensive chronic pain assessment report. The report in question included an assessment, recommendations and opinions on the applicant’s impairments and the IRBs in dispute. The respondent did not establish that such a report would have been reasonably available under OHIP.
23I further am not persuaded by the respondent’s argument that the applicant had already been referred to a chronic pain clinic and received treatment from February 2021 to March 21, 2023. It argues that this referral and treatment began before the date of Dr. Brown’s s. 25 chronic pain report of July 15, 2021. However, I note that despite the date of the actual s. 25 report, the OCF-18 itself had been prepared and submitted prior to the applicant’s treatment at a chronic pain clinic.
24Moreover, in its reconsideration submissions, the respondent summarizes various referrals and treatment of specialists from 2016 to 2020 and beyond. I find that this summary supports my finding at paragraph 37 of the decision that “given the complex nature of the applicant’s ongoing pain complaints”, the proposed chronic pain assessment was reasonable and necessary. Although the respondent argues that I ultimately found that Dr. Brown’s report was of limited persuasive value, I do not find that this is relevant as to whether the OCF-18 was reasonable and necessary at the time the OCF-18 was submitted.
25I find that the respondent did not prove on a balance of probabilities that I erred in law regarding this treatment plan.
Rule 18.2(b) – No error of fact with respect to the issue of OCF-18 for psychological services
26I find that the respondent has not established that I erred in fact in finding that the treatment plan for psychological services was reasonable and necessary.
27The respondent submits that there was no supporting evidence that the plan was reasonable and necessary, given my findings at paragraphs 10-11 of the decision. In these paragraphs I was considering the respondent’s preliminary issue argument that the applicant could not move forward with a different psychological treatment plan. It had argued that pursuant s. 46.2 of the Schedule, it had reasonably requested information from the psychological treatment provider, which had not been provided. In my decision I found that the respondent’s request for Dr. McDowell’s supervision notes was reasonable, since the psychological treatment records did not contain evidence that Dr. McDowell had been supervising the treatment sessions.
28As such, the respondent is arguing that there was no contemporaneous evidence from the treating clinic. From this, I infer that the respondent is claiming that the clinic notes should be disregarded in full, as it is unclear whether the sessions were supervised by Dr. McDowell. I am not persuaded by the respondent’s argument. At the initial hearing, the respondent had raised the issue of s. 46.2 and the supervision notes because it was questioning the hourly rate being charged by the treating psychological practitioner, if Dr. McDowell had not been supervising. In my view, the fact that I agreed with this argument does not mean that all treatment records should be disregarded.
29In its reconsideration submissions the respondent further provides submissions as to why its evidence should have been preferred over that of the applicant’s. The respondent may disagree with my finding, however, the reconsideration process is not an opportunity for a party to re-litigate their position where they disagree with the decision. I find that the respondent has not established a basis for reconsideration with respect to this treatment plan.
Rule 18.4 – Outcome of Reconsideration
30Given that the respondent has established grounds for reconsideration with respect to the issue of causation of the applicant’s physical impairments, I will now turn to the outcome of the reconsideration.
31Rule 18.4 provides that upon reconsidering a decision of the Tribunal, the Tribunal may dismiss the request, or, after providing the responding parties with an opportunity to make submissions, confirm, vary or cancel the decision or order, or order a rehearing on all or part of the matter.
32For the reasons that follow, I confirm the decision that the applicant is entitled to income replacement benefits, and the treatment plans for a functional abilities examination, chronic pain assessment and psychological services.
33Pursuant to Rule 18.4, I will reconsider the parties’ medical evidence submitted at the hearing. While my reconsideration of the evidence confirms the result from the initial decision, I have provided reasons for why the applicant has met the test of causation with respect to her ongoing pain.
Causation and the applicant’s physical impairments and ongoing pain
34As set out in the initial decision, the test for causation is found in Sabadash v. State Farm et al, 2019 ONSC 1121 (Sabadash). In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be “a necessary” cause. There is no need for the applicant to prove that the accident alone caused her impairment. In its initial hearing submissions, the respondent argued that the applicant suffered from pre-existing low back pain as well as a pre-accident history of arthritis in both knees and meniscus damage in both knees.
35I find that the evidence demonstrates that the accident was a “necessary cause” of the applicant’s neck pain.
36While I acknowledge the respondent’s evidence that the applicant suffered from pre-existing low back pain and impairments in the knees, at the initial written hearing the applicant led medical evidence of neck strain and pain as a result of the accident.
37The applicant reported neck and shoulder pain to her family physician Dr. Eng immediately after the accident. She continued to report neck pain and stiffness and shoulder pain in the years post-accident. Dr. Eng provided three Disability Certificates (“OCF-3s”). In the three OCF-3s dated June 13, 2018, October 31, 2018, and January 25, 2019, Dr. Eng diagnosed the applicant with neck strain as a result of the accident. The OCF-3s also noted the applicant’s reports of shoulder strain. Although Dr. Eng acknowledged the applicant’s pre-accident knee arthritis, he did not refer to the applicant’s neck or shoulder strain as pre-dating the accident.
38In paragraph 36 of my decision, I further note that in November 2020, the applicant was referred by Dr. Eng to Dr. Jing at Athlete’s Care to assess her bilateral shoulder and elbow pain. As part of the assessment of the applicant’s shoulder strain, Dr. Jin queried whether it was caused by radiculopathy from the cervical spine. The respondent’s s. 44 assessor Dr. Oshidari noted in his January 3, 2020 physiatry report the applicant’s reports of neck pain with any movement of the neck, radiating to the right shoulder. Although Dr. Oshidari found that there was no specific structural abnormality to account for the applicant’s symptoms, he also noted that “initially, as a result of the accident, she experienced sprain/strain of the cervical and lumbar spine and contusion of the upper and lower extremities”.
39From my review of the medical evidence submitted at the initial written hearing, I find that the applicant has established that the accident was a “necessary cause” of her ongoing neck pain. Accordingly, the decision that the applicant is entitled to income replacement benefits, and the treatment plans for a functional abilities examination, chronic pain assessment and psychological services is confirmed.
CONCLUSION
40The respondent’s request for reconsideration is granted, in part. On the issue of causation with respect to the applicant’s physical impairments, the respondent’s request for reconsideration pursuant to Rule 18.2 is granted.
41The respondent’s request for reconsideration on the remaining issues is dismissed.
42Pursuant to Rule 18.4, I confirm the decision of of September 17, 2024.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 14, 2025