Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 23-001306/AABS
Case Name: Abdul Boateng (By their litigation guardian, Ayesha Boateng) v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Ramendeep Minhas, Counsel
For the Respondent: Gabrielle Nigro, Counsel
OVERVIEW
1On February 6, 2025, the applicant requested reconsideration of the Tribunal’s decision released January 16, 2025 (“decision”).
2Stemming from an automobile accident on April 1, 2019, the applicant requested accident benefits, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). Following a written hearing, the Tribunal issued the decision. The adjudicator found the applicant remained within the Minor Injury Guideline (“MIG”), and that he was not entitled to the eight disputed treatment plans. The adjudicator further determined that the applicant 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 relies on Rule 18.2(b). He is seeking an order to “reverse” the decision, or, in the alternative, set the matter down for a new written hearing.
5The respondent opposes the applicant’s request for reconsideration.
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.
8The applicant argues that the Tribunal erred in law and fact by finding that he remained within the MIG. Specifically, the applicant submits that the Tribunal erred in its application of s. 18(2) of the Schedule, and it erred by concluding that he did not sustain chronic pain. There is also a brief submission about the disputed treatment plans.
Section 18(2) and the MIG
9I find the applicant has not shown how the adjudicator’s assessment of s. 18(2) of the Schedule constitutes an error of law or fact.
10Section 18(2) of the Schedule states:
Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.
11Put another way, an insured person may be removed from the MIG if they can establish that they have a documented, pre-existing condition, along with evidence that this condition will prevent maximal recovery from a minor injury if they are kept within the treatment and funding limits of the MIG. This evidence must be “compelling evidence”.
12After accepting the applicant’s “pre-accident history of physical and psychological impairment” at paragraph 11, the adjudicator concluded that he did not satisfy the second step in the s. 18(2) test at paragraph 16:
… The Schedule requires that there must be compelling medical opinion that the applicant’s pre-existing conditions would prevent maximum medical recovery if kept within the MIG limits. In the present case, the applicant has not directed me to compelling medical opinion that speaks to same.
13The applicant challenges this conclusion, claiming that the adjudicator erred in her assessment of the medical evidence. Specifically, the applicant submits that “medical professionals do not have to specifically comment on if the Applicant would be prevented from reaching maximum medical recovery if kept within the MIG.” In support of this position, the applicant cites Koufis v. Intact Insurance Company, 2022 CanLII 4555 (ON LAT) (“Koufis”). The applicant also made a comment about the adjudicator’s interpretation of a report from Dr. Tajedin Getahun (dated June 13, 2023).
14First, I do not accept the applicant’s interpretation of s. 18(2). The wording of s. 18(2) is clear, there must be “compelling evidence” of both the pre-existing condition and the claim that this condition “will prevent the insured person from achieving maximal recovery from the minor injury” if held to the MIG. From paragraphs 12 to 16 of the decision, the adjudicator detailed her review of the medical evidence, repeatedly finding that there was no indication in this evidence whether the applicant’s pre-existing physical and psychological conditions would prevent recovery of his minor injuries within the MIG. This determination is an essential part of the s. 18(2) analysis. Therefore, while the applicant may claim there is no need for medical professionals to comment on maximal medical recovery and the MIG, I find the Schedule clearly states that there must be “compelling evidence” of this interaction. This “compelling evidence” will reasonably come from medical professionals.
15Turning to the applicant’s submission based on Koufis, I find this argument does not establish an error in the decision. The applicant claims that the facts of this prior case are “analogous” to the present dispute, as both applicants made ongoing, medical complaints long after their respective accidents. Aside from the fact that adjudicators are not bound by the rulings of their fellow Tribunal members, I find the applicant’s argument based on Koufis is largely an attempt to have the Tribunal re-weigh the evidence that was presented at first instance. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the weight an adjudicator assigned to the evidence.
16Finally, when discussing his reconsideration submissions about s. 18(2), the applicant also mentioned the adjudicator’s assessment of Dr. Getahun’s report:
It is also submitted that the Adjudicator erred… by finding the Applicant does not meet the second part of the legal test of section 18 (2) of the SABS, but in paragraph 35, finding that Dr. Getahun’s report was unclear which injuries are directly attributable to the subject accident. Dr. Getahun notes that the applicant was involved in a previous accident in 2014 where he suffered injuries to his neck, back, and shoulders, and that the applicant had not fully recovered when he was involved in the subject accident. It is submitted that these two findings are contrary to each other, and are thus an error.
17I am unclear on how this submission establishes an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. Rather, it appears to be another request to have the Tribunal re-weigh this evidence.
18Taken together, I find the applicant has not shown how the adjudicator’s assessment of s. 18(2) of the Schedule constitutes an error of law or fact.
Chronic Pain
19I find the applicant has not shown how the adjudicator’s assessment of his claim of chronic pain constitutes an error of law or fact.
20In addition to relying on 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (“Aviva”), the applicant takes issue with several findings made by the adjudicator regarding his claim of accident-related chronic pain. These issues include: finding at paragraph 33 that the family doctor did not distinguish between the subject accident and a prior accident; the little weight she assigned to Dr. Getahun’s report and chronic pain diagnoses; and an allegedly “inconsistent” finding she made regarding the expert evidence. On this last point, the applicant submits that there was inconsistency in how the adjudicator assessed Dr. Getahun’s report and a report from Dr. Sadiq Hasan (dated July 4, 2023): “If Dr. Hasan’s report is flawed for not considering the weight of the pre-Accident history, but Dr. Getahun’s report does factor it in (and gives Accident-related chronic pain diagnoses), it is submitted that it is an error… by not giving it more weight.”
21Similar to some of the submissions made above regarding the assessment of s. 18(2), I find these arguments amount to attempts to re-litigate the weighing of the evidence from the written hearing. Though the applicant may not agree with how she weighed the evidence from the family physician and the experts, the adjudicator was entitled to do so. Unless a requestor can show an error in how evidence was assessed at first instance (as opposed to mere disagreement with the resulting assessment), a reconsideration request will not be granted under Rule 18.2(b).
22Further, while Aviva does provide helpful guidance in adjudicating chronic pain claims, each chronic pain case must be assessed on the individual merits of the specific evidence before the adjudicator. I am satisfied that such an assessment took place in this matter.
23Taken together, I find the applicant has not shown how the adjudicator’s assessment of his claim of chronic pain constitutes an error of law or fact.
24Finally, the applicant briefly submits that “there was no mention of whether the OCF-18s in question were reasonable or necessary, especially the multidisciplinary CAT assessments.” He cites 17-003735 v Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT) (“Certas”) in support of this submission.
25At paragraph 42(i) of the decision, the adjudicator concluded: “The applicant remains within the MIG and is not entitled to the disputed OCF-18s”. Since she found the applicant was held to the funding and treatment limits of the MIG, I am satisfied that the adjudicator did not err in her choice not to perform the reasonable and necessary analysis of the disputed treatment plans. Without funding available to pay for these treatment plans, there was no need to conduct the reasonable and necessary analysis. Further, I note that the applicant in Certas had been removed from the MIG, so it was appropriate for the adjudicator to assess the reasonable and necessary nature of the disputed treatment plans.
26I find the applicant has not established an error in law or fact about how the treatment plans were addressed in the decision.
CONCLUSION & ORDER
27The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 9, 2025