Nadine Wilson v. Intact Insurance Company, 2025 CanLII 28445

Citation: Wilson v. Intact Insurance Company, 2025 ONLAT 23-000005/AABS-R

RECONSIDERATION DECISION

Before: Harry Adamidis

Licence Appeal Tribunal File Number: 23-000005/AABS

Case Name: Nadine Wilson v. Intact Insurance Company

Written Submissions by:

For the Applicant: Sherilyn Pickering, Counsel Rachel Andrews, Counsel Mark Elkin, Counsel

For the Respondent: Darrell March, Counsel

OVERVIEW

1On November 21, 2024, the applicant requested reconsideration of the Tribunal’s decision dated November 1, 2024 (“decision”).

2In the decision, I found that the applicant is not catastrophically impaired. I also found that the applicant is not entitled to attendant care, the treatment plans in dispute, housekeeping, or costs.

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 submits that I materially breached procedural fairness. The applicant further submits that I made errors of fact and law such that I would likely have reached a different result had the errors not been made.

5The respondent submits that the request for reconsideration should be dismissed.

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.

Rule 18.2(a) – Material breach of procedural fairness

8I find there was no material breach of procedural fairness.

9In paragraph 62 of the decision, I disagreed with the 6% Whole Person Impairment (WPI) rating for the “relationship of impairment of the upper extremity to the impairment of the whole person” in the respondent’s Catastrophic Impairment Determination Executive Summary Report dated November 1, 2023 by Dr. David Mula, physician. I made this finding because there is no nexus between the impairment and the table used to rate that impairment. According to the applicant, it was procedurally unfair to make this finding without hearing evidence to address the ratings or receiving submissions on this issue.

10The respondent submits that it was appropriate to give little weight to this WPI rating and that this is not a basis for reconsideration.

11I agree with the respondent. I cannot review and assess the complex medical evidence in this case before the hearing takes place because no documents are entered into evidence. Instead, I rely on parties to navigate and explain the evidence to me in their submissions. After the hearing, I consider those submissions as I assess the evidence and the case before me.

12The applicant had a fair opportunity to clarify any problems in the evidence through witness testimony during this 11-day hearing. The applicant had a further opportunity to clarify the evidence in her submissions. Post hearing, I reviewed the evidence and considered the applicant’s submissions before finding that the evidence being referenced by the applicant is confusing and should be given little weight.

13I considered the evidence and the submissions of the applicant, and then decided the case. In my view, this is procedurally fair because the applicant had a meaningful opportunity to present her case and clarify the evidence. For this reason, I find that there was no material breach of procedural fairness and this does not constitute a basis for reconsideration under Rule 18.2(a).

Errors of fact

Dr. Mustafa’s incorrect citation of tables to rate the applicant’s upper extremity

14I find that I did not make an error of fact when I disagreed with Dr. Mustafa’s upper extremity rating.

15The applicant argues that I misunderstood the evidence and made an error of fact when I found that Dr. Mustafa’s upper extremity rating was confusing. The applicant acknowledges that the medical report of Dr. Mustafa, dated November 1, 2023, shows multiple incorrect table numbers. However, she submits that Dr. Mustafa cites the sections of the Guides which indicate he is assessing impairments under section 4.4 of Chapter 4 of the Guides. According to the applicant, on page 20 of his report, Dr. Mustafa was rating “Muscular and Peripheral Nervous System (right upper limb) and “Muscular and Peripheral Nervous System (left upper limb)” which relate to the upper extremity.

16The ratings on page 20 of Dr. Mustafa’s report, which includes the ratings referenced by the applicant, are under the heading of section “4.4D” of Chapter 4 of the Guides. However, there is only one table in section 4.4d which deals with blood pressure and the loss of consciousness. This has no relation to the upper extremity, which is the impairment being rated.

17It is not possible to understand a WPI rating without referencing the correct table used to make that rating. Consequently, I find that I did not fail to appreciate the evidence, and therefore, did not make an error of fact that would have resulted in a different outcome.

Mental status impairment

18I find that I made an error of fact by finding that Table 2 of Chapter 3 of the Guides rates impairments with psychological features. However, I further find that this does not constitute a basis for reconsideration because it is unlikely that I would have reached a different result had this error not been made.

19According to the applicant, I made an error of fact in paragraph 56 of the decision by determining that Table 2 of Chapter 3 addresses psychosocial impairments, as this table does not rate emotional or behavioral limitations. Consequently, the applicant submits that I erred by disagreeing with Dr. Farhadi’s Table 2 WPI rating because there was no medical evidence of a psychological impairment.

20I agree that Table 2 only rates neurological impairments related to cognitive functioning. This table does not rate limitations with psychological features. Thus, I agree that it was an error to reject Dr. Farhadi’s Table 2 WPI rating because it was not supported by evidence of a psychological impairment.

21Even so, Dr. Farhadi incorrectly used Table 2 to rate headaches and sleep disturbances. This table only rates cognitive impairments resulting from neurological issues. Headaches and sleep disturbances are not cognitive impairments and cannot be rated under Table 2. Therefore, the finding in paragraph 56 of the decision, that Dr. Farhadi incorrectly uses Table 2 because there is no nexus between the impairment and the table used to rate that impairment, is correct despite my error.

22As such, I erred by requiring psychological evidence to rate an impairment under Table 2. However, this error this does not constitute a basis for reconsideration because a different outcome would not have resulted.

Diplopia (double vision)

23I find that I did not make an error of fact by rejecting Dr. Quaid’s rating for diplopia.

24The applicant submits that I made an error of fact by not accepting Dr. Quaid’s 24% WPI rating for diplopia because he did not follow the method of rating this impairment in section 8.3 of the Guides. She argues that Dr. Quaid’s rating is valid because he found that she can experience diplopia on the line of sight.

25As noted in paragraph 68 of the decision, the Guides provide instructions for how to use a visual field chart to calculate the percentage loss of ocular motility of one eye in the diplopia field. This calculation is then used to rate the impairment. Dr. Quaid did not do this. In my view, raters must follow the standardized method in the Guides to ensure consistency with the rating system. Consequently, it was not an error to find that his WPI rating is flawed because his rating method is inconsistent with how diplopia is measured and rated in the Guides.

26The applicant further argues that I should not have given weight to Dr. Breslin’s testing which confirmed that the applicant does not have diplopia because other medical experts reported complaints of double vision and also because the applicant herself testified to having double vision.

27In paragraph 71 of the decision, I found that Dr. Breslin’s testing did not confirm Dr. Quaid’s observations regarding the instability of her left eye and that this is inconsistent with the applicant having an ongoing impairment. The applicant disagrees with how I weighed the evidence. In her view, I should have given more weight to the older medical evidence as opposed to the more recent testing of Dr. Breslin. She disagrees with how I weighed the evidence, but this is not a basis for reconsideration. Consequently, I find that the point raised by the applicant does not constitute an error of fact that would have changed the outcome of the decision.

Other vision impairment ratings

28I find that I did not make an error of fact by not accepting Dr. Quaid’s rating for other visual impairments.

29The applicant submits that I erred by failing to consider various reports that identified visual impairments that were rated by Dr. Quaid. Instead, according to the applicant, I only relied on the test results of Dr. Breslin. In the applicant’s view, more weight should have been given to Dr. Quaid and other reports that support Dr. Quaid’s ratings.

30In my view, the evidence before me did not establish, on a balance of probabilities, that the applicant has these ratable impairments. Again, the applicant disagrees with how I weighed the evidence but this does not amount to an error of fact, nor a basis for reconsideration.

31The applicant further submits that it was an error to not address the 5% WPI rating made by Dr. Quaid for photophobia.

32I disagree. Dr. Quaid’s report states: “…we could also apply photophobia for another 5%, but as the maximum is 10% combined for issues of diplopia, the maximum addition to the 24% WPI from diplopia remain 10%, therefore making a total of 34% under Chapter 8…” As such, Dr. Quaid did not use photophobia to rate other visual impairments.

33Consequently, I find that there was no basis for me to consider a rating that was not utilized in his assessment. In my view, this does not constitute an error of fact.

34If I am wrong, and I should have considered an additional 5% WPI rating for photophobia, then this still would not be a basis for reconsideration because an additional 5% WPI rating would result in a 39% WPI rating under Criterion 6 and a 51% rating under Criterion 7. Neither rating results in a finding that the applicant is catastrophically impaired. Consequently, I find that this does not constitute a basis for reconsideration because a different result would not have been reached.

Medications

35I find that I did not make an error of law when I assessed the ratings for medications under section 2.2 of the Guides.

36According to the applicant, I made an error of law when I determined that Dr. Gallimore’s analysis of the WPI rating for medications is incomplete and that the applicant could not be rated under section 2.2 of the Guides. According to the applicant, I focused solely on the evidence of Dr. Gallimore and ignored the evidence of Dr. Farhadi. She submits that ignoring evidence constitutes an error of law.

37In her submissions, the applicant did not direct me to the evidence of Dr. Farhadi regarding medications. These are new submissions being made for the first time. A request for reconsideration is not an opportunity to re-ligate the case with new arguments. For this reason, I disagree with the applicant’s position and find that she has not raised an error of law.

Otolaryngology

38I did not make an error of law by finding that the applicant has no ratable impairments under chapter 9 of the Guides.

39The applicant submits that I made an error of law by finding that the applicant does not have a Class 2 impairment under 9.1c of the Guides. According to her, I only considered evidence of how the applicant functions on a good day and ignored other evidence which showed poorer functioning. In her view, ignoring this evidence was an error of law.

40Class 2 impairments apply to persons with objectively verifiable signs of disequilibrium, and who can perform activities of daily living without assistance, except for complex activities such as riding a bicycle.

41Paragraph 75 of the decision notes that there is objective medical evidence establishing that the applicant has equilibrium issues. However, paragraph 75 of the decision also notes that there is evidence that the applicant can perform complex activities requiring good balance. For example, she was able to ride a motorcycle over long distances from Ontario to Nova Scotia. Consequently, I determined that her functional abilities exclude her from Class 2 and, therefore, her equilibrium deficits are not ratable.

42The applicant disagrees with my finding, but this is not mean that I ignored evidence of her impairment. I am not required to reference all the evidence related to a particular issue. What I must do is reference evidence that I found persuasive and ensure that the decision is transparent and easily understood. This was done, and as such, I see no error of law, nor a basis for reconsideration.

Social functioning

43I find that I did not make an error of fact in my assessment of the applicant’s social functioning.

44I found that the applicant has a Class 3, Moderate impairment, in the domain of social functioning. The applicant submits that I made an error of fact by failing to analyze the overall degree of interference with a particular aspect or combination of aspects of the applicant’s social functioning and by focusing on the few things that the applicant can do well on a good day instead of on the things that she is no longer able to do, especially on bad days.

45In paragraphs 26 to 34 of the decision, I reviewed various expert opinions and examples of both good and impaired social functioning. The negative impact of the accident is discussed and considered. For example, at paragraph 29 of the decision, I state:

The applicant testified that she was a popular person in her social circle and had a very active social life before the accident. Post-accident, her ability to go out and socialize has become greatly diminished. According to the applicant, she is embarrassed by her inability to effectively engage in conversations. She does not wish to have people see her in this way and this is something which makes her socially withdrawn.

46I disagree with the applicant’s submission that I did not consider how the accident affected her social functioning. Consequently, I find that I did not make an error of fact when I assessed the area of social functioning.

Concentration, persistence, and pace (CPP)

47I find that I did not make an error of fact when I assessed the area of CPP.

48In the decision, I found that the applicant had a Class 3, Moderate impairment, in the CPP domain. In doing so, the applicant submits that I erred by failing to analyze relevant evidence of her inability to concentrate.

49I disagree. In paragraphs 36 and 37 of the decision, I reviewed the reports of a psychiatrist and a neuropsychologist who assessed CPP. These reports included numerous examples of the applicant’s inability to function in the area of CPP, including the need to take breaks and decompress in order to complete the activities of daily living (ADL).

50The decision also notes at paragraph 39 that the applicant demonstrated good functioning by being able to drive long distances on her motorcycle. For example, she was able to complete three long distance road trips on her motorcycle to South Dakota, Halifax, and Mont-Tremblant.

51The applicant argues on reconsideration that these road trips are irrelevant. I disagree. These are clear examples of the applicant being able to sustain focus for a lengthy period of time to complete the task of operating a motorcycle, which can be considered as a work task or an ADL. In the Guides, both types of tasks, work and ADLs, can be considered when assessing CPP.

52Likewise in paragraph 38 of the decision, I note the applicant’s ability to sustain focus while watching movies on her computer. This is a leisure activity which is also an ADL. Consequently, I disagree with the applicant’s position that this evidence is irrelevant because these activities can be considered when assessing CPP.

53For these reasons, I find that the applicant has not established that my finding on CPP is the result of errors of fact such that reconsideration is warranted under Rule 18.2(b).

CONCLUSION & ORDER

54The applicant’s request for reconsideration is dismissed.

Harry Adamidis Adjudicator Tribunals Ontario – Licence Appeal Tribunal