RECONSIDERATION DECISION
Before: Roderick D. Walker
Licence Appeal Tribunal File Number: 23-000535/AABS
Case Name: Daud Mohammad Akbari v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Saloumeh Baghbani, Counsel
For the Respondent: Simran Walia, Counsel
OVERVIEW
1On January 8, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 18, 2024 (“decision”).
2As a result of an accident on April 30, 2020, the applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). Following a written hearing, I issued the decision, where I found that the applicant’s injuries were predominately minor and can be treated under the Minor Injury Guideline (“MIG”), as defined under section 3 of the Schedule. I further found the applicant was not entitled to the disputed treatment plan. As a result, I dismissed the application.
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 submitted that a reconsideration is warranted in this matter, because the Tribunal made errors of fact or law such that the Tribunal would likely have reached a different result had the errors not been made.
5The respondent’s position is that the applicant’s request for a reconsideration is an attempt to relitigate the evidence that was before the Tribunal at the original hearing and, therefore, the reconsideration request should be denied.
RESULT
6The applicant’s request for a reconsideration is granted. I find the applicant has established an error in law under Rule 18.2(b), as I did not address the applicant’s claim that he be removed from the MIG based on a psychological impairment. Pursuant to Rule 18.4, I will vary the decision. Specifically, I have considered the evidence, and I find that the applicant will not be removed from the MIG based on a psychological impairment.
7The remainder of the applicant’s 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.
The Tribunal did make an error of law or fact, pursuant to Rule 18.2(b), by not considering the report from Dr. Loftalizadeh as a ground to remove the applicant from the MIG.
9I find that the applicant has met his burden on a balance of probabilities that I committed an error of law or fact in the decision, pursuant to Rule 18.2(b). The applicant submitted that 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. Specifically, the applicant submits that I did not consider whether he should be removed from the MIG on the basis of a psychological impairment. He also claims I never considered the psychological evidence of Dr. Fazeli and Dr. Lotfalizadeh.
10The respondent’s position is that the Tribunal provided adequate reasons in the decision setting out why it arrived at the result that it did. The respondent submitted that, while the applicant may not agree with the decision, this does not make the Tribunal’s reasons “inadequate.”
11Further, in paragraph 12, I note that “no contemporaneous complainants of physical pain in the clinic notes of the family doctor, and Dr. Fazeli’s notes that would persuade me from his removal from the MIG”. Although not specifically focused on psychological pain in this paragraph (as the main issue of being removed from the MIG was for chronic pain), I did consider the evidence of Dr. Fazeli and made the conclusions from that evidence.
12However, I did not consider Dr. Lotfalizadeh’s psychological consultation report of the applicant. The applicant was noted to be suffering from fear, anxiety, depressed mood, irritability, lack of appetite, sleep issues and inability to focus as a direct result of the accident.
The Tribunal will vary the original decision, pursuant to Rule 18.4.
13By finding that the applicant has established that an error of law or fact under Rule 18.2(b), I order that the decision is varied, pursuant to Rule 18.4. Specifically, the following paragraphs shall be added to the decision, in accordance with the guidance provided in the Order section below.
14Turning to the applicant’s claim that he should be removed from the MIG on the basis of a psychological impairment, I find that Dr. Loftalizadeh indicated that the provisional diagnosis is insufficient to determine the severity of the psychological impairments or offer a complete understanding of the applicant’s psychological injuries that are attributable to the accident. Therefore, he suggests a complete and through psychological assessment.
15I find that this report by Dr. Loftaizadeh was done almost three years post-accident, and he was unsure whether the psychological injuries of the applicant were caused by the accident. He recommends more contemporaneous evidence to determine that the psychological injuries are accident related and to confirm his medical conclusions. I also find that there is no medical evidence, including in both Dr. Loftaizadeh’s psychological consultation report and Dr. Fazeli’s CNRs, that would persuade me that the applicant’s psychological injuries are caused by the accident and/or that his injuries are treatable within the MIG. Once again, I find the applicant has not established, on a balance of probabilities, that the applicant sustained a non-minor injury meriting removal from the MIG.
CONCLUSION & ORDER
16The applicant’s request for a reconsideration is granted. Pursuant to Rule 18.4, the decision is varied to add paragraph 14, 15 of the decision.
Roderick D. Walker
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 24, 2025