Ishwor Thapa v. Economical Insurance, 2025 CanLII 39275

Thapa v. Economical Insurance, 2025 CanLII 39275

RECONSIDERATION DECISION

Before: Robert Rock, Adjudicator

Licence Appeal Tribunal File Number: 22-011542/AABS

Case Name: Ishwor Thapa v. Economical Insurance

Written Submissions by:

For the Applicant: Frank Comella, Counsel

For the Respondent: Veronica Gorrell, Counsel

OVERVIEW

1On January 24, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 24, 2024 (“decision”).

2In the decision, I found that the applicant was not removed from Minor Injury Guideline (“MIG”), was not entitled to the disputed treatment plans, and was not entitled to 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(b). The applicant requests the decision be varied or cancelled. In the alternative, he asks for a determination that he is out of the MIG and entitled to the disputed treatment plans, award, and interest.

5The respondent submits that the applicant has no legitimate grounds for reconsideration, and 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.

8I find the applicant has not proven on a balance of probabilities that I made an error of law or fact such that I would likely have reached a different result had the error not been made. As a result, the applicant has not established grounds for reconsideration under Rule 18.2(b).

9The applicant submits that I made the following errors of law or fact in the decision:

a. a significant error of law and fact in determining that the applicant’s chronic pain syndrome fits the definition of “minor injury” as defined under section 3(1) of the Schedule;

b. a significant error of law in ruling that the applicant was restricted to the MIG limits for medical and rehabilitation, after concluding the applicant suffered from a diagnosis of chronic pain;

c. a significant error in law by treating the MIG as a treatment protocol or guide as suggested by its name;

d. a significant error of law in distinguishing T.S v. Aviva General Insurance Canada from this matter, and by not giving persuasive weight to authority and case law that was before me, specifically 17-007825 v. Aviva Insurance Canada;

e. a significant error of law and fact in finding that the applicant’s chronic pain syndrome is a “clinically associated sequelae” that should be treated under the MIG;

f. a significant error of law by giving the interpretation of the MIG an overly broad interpretation against the interests of the applicant;

g. a significant error of law by failing to consider authorities and cases that found that applicants who suffer from chronic pain syndrome arising from injuries sustained in a motor vehicle accident are deemed to be entitled to benefits beyond the MIG.

10In review of the alleged errors above, I am not satisfied that the applicant has identified specific errors for me to review in accordance with Rule 18.2(b), but he is instead asking me to reweigh evidence that has already been determined and introduced new caselaw that was not raised at first instance. This is not the purpose of a reconsideration request.

11All cases are highly fact specific, and, while I have reviewed all of the associated cases provided, I determined that the fact pattern in this case did not match those provided in rendering my decision.

12An applicant’s evidence must bear the burden of proof on its first pass, and a reconsideration is not a process to introduce new evidence, arguments, and case law to prove a case. In the applicant’s reconsideration submission, he has introduced several new cases to argue a reweighing of my MIG determination.

13The crux of that applicant’s argument is that a person with chronic pain cannot be treated under the MIG. The premise of this statement, and other similar statements in the reconsideration, does not recognize the decision rendered. In this case, I evaluated all the medical evidence and did not find that the applicant proved, on a balance of probabilities, that he suffers from chronic pain with a functional impairment.

14For instance, the applicant challenges the weight I assigned to the expert evidence of Dr. Joseph Wong. At paragraph 22 of the decision, I provided my evaluation of Dr. Wong’s report, stating: “I placed little weight on the physiatry report completed by Dr. Wong, physiatrist, on December 1, 2022. The conclusions of the report are not corroborated by any of the other medical evidence available, specifically the CNRs of Dr. Farooq, the applicant’s family doctor”. I see no reason to interfere with this determination on assigning weight to the evidence. Assigning weight is the function of an adjudicator and the applicant has not demonstrated that a preference for certain evidence is an error or law.

15Then, in paragraph 27, I provided an analysis of the criteria from the AMA Guidelines for diagnosing chronic pain. I found that the applicant did not meet at least three of the six criteria to establish chronic pain. The applicant has not shown how these findings constitute an error in accordance with Rule 18.2(b) where the Tribunal has consistently recognized that the AMA Guidelines are a useful interpretive tool for evaluating chronic pain claims.

16The applicant also refers to documentation from Complete Rehab Centre, which determined that he required additional treatment for chronic pain, however I find that this treatment plan was not part of the evidence submitted in their original written submissions. Accordingly, it cannot be said that I erred in law in not considering it because it was not before me.

17The applicant’s alternative submissions for the treatment plans do not need to be reviewed, as they would require establishing, on a balance of probabilities, that the applicant should be removed from MIG. He did not meet this standard during the initial hearing.

18For all these reasons, I find that the applicant did not demonstrate any errors in law or fact in their submission. As a result, the applicant’s request for a reconsideration under Rule 18.2(b) is dismissed.

CONCLUSION & ORDER

19The applicant’s request for reconsideration is dismissed.

Robert Rock

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal