RECONSIDERATION DECISION
Before:
Ulana Pahuta
Licence Appeal Tribunal File Number:
22-008834/AABS
Case Name:
Junnsin Banyamen v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant:
Kelisa Reyes, Paralegal
For the Respondent:
Peter A.B. Durant, Counsel
OVERVIEW
1On October 24, 2024, the applicant requested reconsideration of the Tribunal’s decision dated October 4, 2024 (“decision”).
2In this decision, I found that the applicant’s injuries did not remove him from the Minor Injury Guideline (“MIG”), but that he was entitled to the outstanding balance of one treatment plan as a result of the respondent’s non-compliance with s. 38(8) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). I further found that the applicant was not entitled to the remaining treatment plans in dispute, or an award.
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(b). He submits that 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. The applicant submits that the Tribunal erred in its consideration of the respondent’s s. 44 psychological assessment report. He further argues that for three of the treatment plans, the Tribunal erred in law in finding that the denial notices were compliant with s. 38(8) of the Schedule. The applicant requests an order that he be removed from the MIG and that all of the treatment plans in dispute be found to be reasonable and necessary.
5The respondent submits that the Tribunal did not err in law or fact and that the applicant’s 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(b): Error of Law or Fact
8I find that the applicant has not established grounds for reconsideration.
9The applicant’s submits that I erred in law or fact by ascribing any weight to the respondent’s s. 44 psychological assessment report. He argues that had this error not been made, the respondent’s s. 44 report would have been discounted, and the applicant’s evidence would have been preferred. The applicant further submits that I erred in law in finding that the August 9, 2022 denial notice was compliant with s. 38(8) of the Schedule.
No error of law or fact with respect to the respondent’s s. 44 psychological assessment report
10The applicant submits that the s. 44 psychological assessment report of Dr. Gerry Dancyger should not have been ascribed any weight by the Tribunal. He argues that unlike the report of his own s. 25 assessor, Dr. Dancyger’s report used outdated DSM-IV criteria rather than the current DSM-V version. The applicant submits that this reliance on outdated criteria is a breach of Principle 10 of the College of Psychologists of Ontario Standards of Professional Conduct, 2017, in that Dr. Dancyger failed to render an opinion based on only current, reliable, adequate and appropriate information.
11The applicant further submits that I erred in placing any consideration on the fact that Dr. Dancyger’s assessment was conducted in person. He relies on the Tribunal decision Bossio v Intact Insurance Company, 2023 CanLII 110937 (ONLAT) to argue that a thorough assessment can still be conducted virtually, and argues that telemedicine was required in this instance due to the COVID pandemic.
12The respondent submits that no evidence has been led in support of the applicant’s argument that the use of DSM-IV criteria is a breach of the Ontario Standards of Professional Conduct. Rather, the respondent argues that this is a “bald assertion” with no merit. It further submits that the applicant mischaracterizes Dr. Dancyger’s s. 44 report as wholly relying on DSM-IV criteria, when in fact, there was only one reference to the DSM-IV in relation to the Personality Assessment Inventory test. The respondent argues that the applicant is requesting that the Tribunal disregard Dr. Dancyger’s report on the basis of one reference to the DSM-IV. However, the applicant’s s. 25 assessor, Dr. Steiner, also administered a test incorporating DSM-IV criteria, the Patient Health Questionnaire (PHQ-9).
13I find that the applicant has not established an error of law or fact in my consideration of Dr. Dancyger’s s. 44 report.
14With respect to the applicant’s argument that Dr. Dancyger’s reference to DSM-IV criteria is a breach of the Ontario Standards of Professional Conduct, I agree with the respondent that the applicant has not led any evidence in support of this submission. Further, the applicant’s s. 25 assessor similarly administered a test where DSM-IV depression diagnostic criteria was considered. Given that both assessors used tests referencing DSM-IV criteria, I am not persuaded by the applicant’s argument that only Dr. Dancyger’s report should have been disregarded on this basis.
15Finally, with respect to the applicant’s argument that it was an error to prefer Dr. Dancyger’s report because the assessment was conducted in person, I agree with the respondent that in my decision I did not base my findings on whether an assessment was conducted in person or virtually. The applicant refers to paragraph 11 of my decision, where I note that Dr. Dancyger met with the applicant in person. However, in this paragraph, I am summarizing the respondent’s arguments. Rather, in paragraphs 13 to 16 of the decision I provide my reasons for finding that the applicant did not sustain a psychological impairment and why I preferred the respondent’s report. The fact that the respondent’s assessment was conducted in person was not a factor in my analysis.
16As such, I find that the applicant has not established an error of law or fact in my consideration of the respondent’s s. 44 psychological assessment report.
No error of law or fact in s. 38 analysis
17The applicant submits that I erred in law and fact in finding that the respondent’s denial letter dated August 9, 2022 was compliant with s. 38(8) of the Schedule. The applicant argues that the letter failed to provide sufficient “medical and any other reasons” for the denial, since it only sets out the opinions of the respondent’s s. 44 assessors as the basis for the denial. The applicant relies on the Tribunal decision G.P. v Wawanesa Mutual Insurance Company, 2022 CanLII 45306 (ONLAT) to argue that while opinions of s. 44 assessors can be one of the reasons for a denial, it cannot be the only reason for the denial.
18I do not find that the applicant has established a basis for reconsideration on this ground.
19As noted in paragraph 31 of my decision, the August 9, 2022 letter included copies of the s. 44 assessment reports and provided a detailed summary of the assessors’ findings. I found that clear medical reasons for the denial were provided. The applicant 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.
20I further find that the decision cited by the applicant, G.P. v. Wawanesa, is distinguishable. Although in this decision it was found that sufficient medical reasons were not provided, it was also noted that the only reason provided for denying some of the proposed CAT assessments was that the number of assessments proposed was “excessive” and that the claimant was instructed to read the entire s. 44 report for the complete results. The Tribunal found that finding something excessive was not a medical and any other reason. In contrast, in the August 9, 2022 letter not only were the s. 44 reports included, but detailed medical opinions were summarized within the denial letter.
21The applicant relies on a portion of a paragraph in G.P. where the Vice Chair states that the “results of a s. 44 assessment could be one of the reasons for a denial, but not the only one…” However, in the context of the entire paragraph of the decision, I do not find that G.P. stands for the proposition that the opinions of s. 44 assessors cannot be the only reason for a denial. To the extent that this is the finding in G.P., I do not agree with this reasoning, nor am I bound by it.
22As such, I find that the applicant has not established an error of law or fact in my finding that the respondent’s August 9, 2022 denial was compliant with s. 38(8) of the Schedule.
CONCLUSION & ORDER
23The applicant has not established grounds for reconsideration under Rule 18.2(b).
24The applicant’s request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 21, 2025