RECONSIDERATION DECISION
Before: Lisa Holland, Adjudicator
Licence Appeal Tribunal File Number: 23-004047/AABS
Case Name: Ronit Eli v. Definity Insurance Company
Written Submissions by:
For the Applicant: Steven Sieger, Counsel
For the Respondent: Veronica Gorrell, Counsel
OVERVIEW
1On April 21, 2025, the applicant requested reconsideration of the Licence Appeal Tribunal (“Tribunal”) ‘s decision dated April 10, 2025 (“decision”).
2In its decision, the Tribunal determined that the applicant had not demonstrated that her removal from the Minor Injury Guideline (“MIG”) was warranted and that she was not entitled to the disputed treatment plans for a chronic pain assessment and physiotherapy services, 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 seeks reconsideration pursuant to Rule 18.2(a) and (b). The applicant submits that the Tribunal committed a material breach of procedural fairness and made several errors of fact and/or law, such that the Tribunal would likely have reached a different result had the errors not been made. The applicant further seeks a finding that the applicant’s injuries fall outside the MIG and that she is entitled to the disputed treatment plans, an award and interest. Alternatively, the applicant seeks a rehearing of all the issues.
5The respondent submits that the applicant’s request for reconsideration should be dismissed, and that the decision should be upheld.
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): The Tribunal did not act outside its jurisdiction or commit a material breach of procedural fairness
8I find that the applicant has not established that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness such that a reconsideration should be granted under Rule 18.2(a).
9The applicant submits that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness for the following reasons:
a. The Tribunal did not consider the totality of the evidence before it, which consisted of a s. 25 report by Dr. Rahul Pathak, neurologist and pain specialist, and a treatment plan by Dr. Simon Rom, chiropractor;
b. The Tribunal made its own medical findings in the absence of contradictory or other medical evidence submitted by the respondent;
c. The Tribunal must defer to the applicant’s evidence in the absence of an Insurer Examination (“IE”) report, or other contradictory evidence offered by the respondent;
d. The applicant states that the Tribunal did not consider or agree with the applicant’s evidence, including the opinion of Dr. Pathak and the treatment plan by Dr. Rom for establishing chronic pain in the absence of contradictory or other evidence submitted by the respondent, (I note that treatment plans are not medical evidence), and;
e. The Tribunal provided its own reasons for how it weighed the applicant’s evidence in the absence of contradictory evidence provided by the respondent.
10I find that the applicant is attempting to relitigate the Tribunals’ findings that her accident-related injuries fall within the MIG which is not the purpose of reconsideration.
11At first instance, the applicant argued that Dr. Pathak diagnosed her with post-concussive symptoms and a chronic pain condition which affects her ability to work and perform activities of daily living. On reconsideration, the applicant argues that the Tribunal failed to consider the opinion of Dr. Pathak.
12The respondent submits that the applicant had an opportunity to argue her case at first instance, and she has made no specific submissions to explain how there was a breach of procedural fairness.
13It was within the Tribunals’ jurisdiction to make a determination regarding the severity of the applicant’s accident-related injuries and whether her injuries can be treated within the MIG. In paragraphs 13 and 14 of the decision, the Tribunal considered Dr. Pathak’s report and found that he assessed the applicant over two years after the accident, and that he relied heavily on the applicant’s self-reports, without referencing the medical records in rendering his diagnosis. Further, the fact that the Tribunal placed little weight on Dr. Pathak’s report without other medical evidence in support of the applicant’s submissions that she suffers from chronic pain as a result of the accident does not amount to a material breach of procedural fairness because the Tribunal gave reasons for rejecting the uncontradicted evidence of Dr. Pathak.
14A Tribunal is free to accept all, some, or none of the evidence tendered and assign appropriate weight, see Paesano v. Coseco Insurance Company, 2025 ONSC 3245. There is no authority to support that an adjudicator must accept an applicant’s evidence simply because it is uncontroverted, as it is the applicant’s burden to demonstrate that removal from the MIG is warranted, not for the opposing party to disprove it.
15Accordingly, I find that the Tribunal did not commit a material breach of procedural fairness. As such, I find that the applicant has not established grounds for reconsideration of the decision under Rule 18.2(a).
Rule 18.2(b): The Tribunal did not make an error of law or fact
16I find that the applicant has not established that the Tribunal made an error of law or fact in its determination that the applicant’s injuries fall within the MIG limits.
17The applicant argues that the Tribunal made an error of law or fact in failing to consider the diagnosis of chronic pain in Dr. Pathak’s report, and his recommendations to remove her from the MIG and allow her to receive additional physical therapy.
18However, at paragraph 10 of the decision, the opinion of Dr. Pathak was considered in arriving at the Tribunal’s decision. The Tribunal considered Dr. Pathak’s diagnosis of chronic pain and his recommendation for treatment but found that the medical evidence did not support Dr. Pathak’s diagnoses of post-concussive syndrome, chronic pain syndrome and psychological impairment because there are no corroborating medical records. Although the applicant disagrees with the Tribunal’s interpretation and the weight given to Dr. Pathak’s report, this does not establish an error of law or fact. I find that the Tribunal did not fail to consider the opinion of Dr. Pathak, or substitute its own medical findings, it just arrived at a different conclusion than the one put forward by the applicant based on the available medical information. This is not an error of law that would have changed the outcome of the decision.
19The applicant further argues that the Tribunal made an error of law or fact in failing to consider the treatment plan by Dr. Rom in listing the applicant’s serious symptoms of chronic back pain with radiculopathy, affecting her ability to perform employment tasks and other activities of daily living.
20As a starting point, it is well established that a treatment plan is not medical evidence. Further, at paragraph 17 of the decision, the Tribunal considered the notes of Dr. Rom which indicate the applicant suffers from headaches, and pain involving her neck, right shoulder and back, with some radiculopathy into her legs, and found a neurological assessment is not reasonable and necessary based on the available medical evidence. The applicant’s arguments on reconsideration involve the weighing of evidence rather than raising issues that warrant reconsideration because although the Tribunal considered the evidence of Dr. Rom and Dr. Pathak, it was not persuaded that the applicant requires a neurological assessment.
21The applicant also submits the Tribunal made an error of law in not properly applying the test to determine if the applicant has chronic pain with functional impairment sufficient to meet the threshold as applied in Superior Court decisions of Hartwick v. Simser, 2004 CanLII 34512 (ON SC), and Tulloch v. Akogi, 2007 CanLII 58408 (ON SC). I note that the applicant did not raise these cases at first instance.
22I find that these cases are unpersuasive in determining whether the applicant’s injuries fall outside the MIG under the Schedule. The applicant’s submissions do not explain how the cited cases can be used to interpret the Schedule, or why the Tribunal’s application of the test was an error. Further, it was not an error of law for the Tribunal not to apply caselaw that was not raised by a party.
23Finally, in any event, I do not agree with the applicant’s submission, and I find the Tribunal has consistently applied the chronic pain with functional impairment test and on review of the evidence, my finding does not change on reconsideration. I find that the applicant did not meet her burden to demonstrate that she falls outside the MIG on the basis of chronic pain based on the evidence provided.
24Accordingly, I find that the Tribunal did not make an error of law or fact in finding the applicant’s injuries fall within the MIG.
CONCLUSION & ORDER
25The applicant has not established grounds for reconsideration under Rule 18.2(a) or (b).
26The applicant’s request for reconsideration is dismissed.
Lisa Holland
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: August 21, 2025