RECONSIDERATION DECISION
Before: Harry Adamidis
Licence Appeal Tribunal File Number: 23-002855/AABS
Case Name: Victoria Maria Tenuta v. BelairDirect Insurance Company
Written Submissions by:
For the Applicant: Sherilyn Pickering, Counsel Rachel Andrews, Counsel
For the Respondent: Darrell March, Counsel
OVERVIEW
1On January 2, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 10, 2024 (“decision”).
2In the decision, I found that the applicant is not catastrophically impaired. I also found that the applicant is not entitled the treatment plans in dispute and interest. I further found that the respondent is not liable to pay an award, and not entitled to 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 law and fact such that I would likely have reached a different result had the errors not been made. The applicant seeks an order stating that she is catastrophically impaired.
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 the applicant has not met her onus to demonstrate that there was a material breach of procedural fairness.
9The Criterion 8 analysis in the decision assessed the spheres of the activities of daily living (ADL) and social functioning (SF). The decision did not assess the spheres of adaptation, nor concentration, persistence, and pace (CPP) as it was not possible for the applicant to be found catastrophically impaired under these circumstances.
10The applicant argues that not assessing two spheres of Criterion 8 is procedurally unfair because this limits her ability to appeal the decision. In particular, she argues she is prevented from making arguments on reconsideration or appeal that relate to impairments in the unaddressed spheres of functional activity in order to understand how they interact.
11The leading decision in Canada on procedural fairness is Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (“Baker”). Paragraphs 23 to 27 of Baker identify five factors used to determine whether a proceeding is procedurally fair:
i. The nature of the decision being made and the process followed in making it.
ii. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates.
iii. The importance of the decision to the individual or individuals affected.
iv. The legitimate expectations of the person challenging the decision may determine what procedures the duty of fairness requires in given circumstances.
v. The analysis of what procedures the duty of fairness requires. In particular, the choice of procedure made by the agency.
12The applicant’s submissions do not address any of these five factors.
13The five Baker factors are not an exhaustive list and other factors may be considered to determine if a proceeding is fair. Even so, I see no nexus between the ground raised by the applicant and procedural fairness. This is because the scope and manner in which the decision resolves the issue of catastrophic impairment is consistent with the requirements of the statute. In particular, 3.1(1)8 of the Schedule does not require and does not create the expectation of any further analysis beyond what is already in the decision. Consequently, the Tribunal does not have to address further elements of this case to ensure procedural fairness. This is especially true here, where the applicant failed to meet her burden on two of the spheres and would be unable to demonstrate entitlement even if I found that she was successful on the other two spheres.
14As such, I find that the applicant has not shown there was a material breach of procedural fairness.
Rule 18.2(b) – Errors of law
Diplopia
15In paragraphs 23 to 29 of the decision, I considered the findings of Dr. Quaid, optometrist. He found that the applicant has diplopia, commonly referred to as double vision, and rated this impairment. I did not accept this rating because I found he did not follow the testing instructions for diplopia in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (“Guides”). The applicant submits that this was an error of law because Dr. Quaid’s methods are sufficient to confirm that she has diplopia in various directions of gaze on an arc perimeter at 33cm or with a bowl perimeter as required by section 8.3 of the Guides. In the alternative, the applicant argues that I failed to consider the report of Dr. Lalonde, dated May 26, 2023, which shows that on some days her fusion breaks at 40 cm and on other days at 27cm, which is within the requirements of the Guides.
16The respondent submits that assessors are required to follow the instructions in the Guides, and that it was open to me to reject Dr. Quaid’s findings because of his non-compliance.
17As noted in paragraph 24 of the decision, the Guides provide instructions for how to measure and assess diplopia. In paragraph 25 of the decision, I determined that Dr. Quaid did not follow these instructions. He did not test the applicant’s vision with the standardized method in the Guides that ensures consistency with the rating system.
18As noted in paragraph 27 of the decision, Dr. Lalonde’s May 26, 2023 report states that the applicant finds that she can read for longer periods and holds her focus with more endurance. This is inconsistent with the applicant’s testimony that she can only focus on close objects for a few seconds. Consequently, in paragraph 27 of the decision, I gave little weight to the applicant’s testimony because it is inconsistent with the evidence of Dr. Lalonde which, over a three-year period, documented a greater ability to sustain near focus and read. As such, I gave clear reasons in the decision explaining why Dr. Lalonde’s May 26, 2023 report does not support a finding that the applicant has diplopia.
19Consequently, I find that the applicant has not established that not accepting Dr. Quaid’s whole person impairment (“WPI”) rating for diplopia was an error in law. Specifically, she has not shown how I erred in finding that his diplopia rating methods were inconsistent with the Guides.
Other visual impairments
20Next, the applicant argues that I failed to consider the evidence of other visual impairments. In particular, she claims I ignored Dr. Quaid’s 10% WPI rating. She submits that, if not for this error of law, she would have been found to be catastrophically impaired under Criterion 7.
21I disagree. The chart that follows paragraph 30 of the decision shows that I made a 15% WPI rating for “Visual Impairment”. Dr. Quaid’s ratings for other visual impairments were considered and incorporated into my rating of the applicant’s impairments under Criterion 7. As such, Dr. Quaid’s ratings were accepted at face value and it is incorrect to say these ratings were ignored. Therefore, the applicant has not demonstrated an error of law that would have changed the outcome of my decision.
Psychiatric Impairment Rating Scale (PIRS) rating of mental and behavioral disorders under Criterion 7
22The applicant submits that I committed an error of law by ignoring evidence when assessing the applicant’s ability to complete self-care, personal hygiene, and the activities of daily living under Table 14-11 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition (“Guides, 6th edition”). In particular, she claims that I solely focused on the evidence of Dr. Shahmalak. According to the applicant, if these errors had not been made, her rating under Table 14-11 would have been higher.
23The respondent submits that Dr. Shahmalak’s ratings under Criterion 7 cannot be accepted because he did not comply with the methodology in the Guides, 6th edition.
24Dr. Shahmalak is the applicant’s expert. She asked for him to be certified as an expert witness, and she submitted that I should accept his findings. In paragraph 37 of the decision, I noted the description of her functional abilities to complete self-care and personal hygiene tasks, and the activities of daily living. I relied on this description to find that she has a mild impairment under Table 14-11 of the Guides, 6th edition.
25I disagreed with Dr. Shahmalak’s finding that she has a moderate impairment. In testimony, he explained that his rating was based on her being a high functioning person before the accident who could no longer do things post-accident, like maintain a job, talk to clients, socialize, and put on make-up. In paragraph 36 of the decision, I explained that I did not accept his rating because it was based on factors that are unrelated to the impairment description.
26The applicant argues that I ignored the other evidence of impairment such as the applicant’s testimony on her ability to complete the ADL. I disagree. In my view, the applicant’s testimony is consistent with Dr. Shahmalak’s description of how she functions in the area of self-care, personal hygiene, and other activities of daily living. I agree that her testimony was not referenced in the decision. However, I would also note that it is well-settled that a decision does not have to mention all the evidence that was reviewed and considered in arriving at a determination. Rather, the findings in decisions must be transparent and properly justified with evidence that the Tribunal found persuasive. This was done in paragraphs 34 to 38. Consequently, I find there is no error of law because the evidence before me is consistent with Dr. Shahmalak’s description of her impairment.
27The applicant also argues that I made an error of law by exclusively focusing on the first sentence of the moderate impairment description in Table 14-11, and ignored the remaining parts of the description. Again, I disagree. In paragraph 35 of my decision, I cite Dr. Shahmalak’s testimony which confirms that the applicant’s functioning is not consistent with the first sentence of the moderate impairment description. Further, in paragraph 36, I determined that little weight should be given to Dr. Shahmalak’s moderate impairment rating under Table 14-11 because he used a rating method that is inconsistent with the instructions in the Guides, 6th edition. My analysis continues in paragraph 37 of the decision by listing six grooming and self-care tasks regularly performed by the applicant. I then cite Dr. Shahmalak’s comment where he opines that the applicant does not groom herself and shower as frequently as she did before the accident. Finally, I provide the entire mild impairment description and state that her ability to function is consistent with this description. When read in its entirety, my Table 14-11 analysis is fulsome and complete. It does not focus on just one element of the impairment description, as alleged. While the applicant may disagree with my weighing of the evidence, I see no error of law that would have changed the outcome of my decision.
28The applicant submits that I made an error of law by failing to consider or provide the rationale for ruling out a moderate impairment under Table 14-12 of the Guides, 6th edition. In paragraphs 39 to 45 of the decision, I assessed the applicant’s impairment in the area of role functioning, social and recreational activities. The applicant relied on Dr. Shahmalak’s finding that she has a severe impairment in this area. In paragraph 45, I explain why I found that the applicant has a mild impairment and not a severe impairment. Having made this determination, there is no need to address the other two levels of impairment under Table 14-12 because I provided reasons for my finding and reasons for why I disagreed with Dr. Shahmalak’s rating. For this reason, I find that the applicant has not shown how not addressing various levels of impairment is an error of law.
29The applicant submits that I made an error of law in my assessment of Table 14-12 by ignoring her testimony and only considering the evidence of Dr. Shahmalak.
30I disagree. Her testimony was cited at various points in my assessment of impairments under Table 14-12. For example, paragraph 40 states:
In testimony, Dr. Shahmalak agreed that there is no evidence which shows that the applicant never leaves her place of residence. He also testified that he gave a severe impairment rating based on the quality of the applicant’s social interactions which are impacted by her edginess, irritability, crying, and anxiousness. I agree that consideration of the quality of social interaction results in a more contextual and nuanced understanding of the applicant’s impairment. However, such factors must be tied to the description of impairment levels in Table 14-12. “Never leaves place of residence” describes an extreme type of social isolation that does not apply to the applicant. The applicant testified that since the accident she has visited friends in Barrie and goes out with them to different restaurants, although these interactions are less frequent since the accident. She also visits the nail salon with her mother and takes her daughter to the park where she says “Hi” to the other parents.
31I considered and cited the applicant’s testimony in the decision where I assessed her impairments under Table 14-12. Thus, I find the applicant has not shown that I made an error of law by allegedly ignoring her testimony.
Criterion 8, social functioning
32The applicant submits that I erred in law by requiring the applicant to inappropriately communicate with people outside the home in order to find that she has a marked impairment in social functioning.
33The decision does not state that poor communication with people outside the home is needed to have a marked impairment. Instead, paragraph 63 of the decision states that her ability to communicate and behave appropriately with people outside the home is an indication that her impairments are compatible with some useful functioning. Accordingly, I did not require the applicant to communicate inappropriately, nor increase her burden of proof. Instead, I found that the evidence demonstrates that she has some useful functioning. For these reasons, I find that the applicant has not shown that I made an error in law by creating a new legal test for assessing social functioning under Criterion 8.
Rule 18.2(b) – Error of fact
34The applicant submits that I made an error of fact by finding that she appears to have communicated effectively and acted appropriately with all assessors. She cites various instances to illustrate this alleged error. For example, the applicant highlights when she became agitated and ended an assessment early; refused having an assessment at her home; asked one assessor repetitive or clarifying questions; and having a “flat or constricted affect” during an assessment. In her view, my finding is inaccurate, and therefore, an error of fact.
35The applicant’s social functioning was assessed in paragraphs 60 to 63 of the decision. Various opinions of experts and examples of functioning were reviewed and considered before her impairment level was rated. The applicant disagrees with my finding, however, the reconsideration process is not an opportunity for a party to re-litigate its position and seek a redetermination of the weight assigned to the evidence. Additionally, the applicant has not explained why this one finding of fact, if incorrect, would result in a different impairment rating or change the outcome of the decision if it were not made.
36As such, I find that the applicant has not established a basis for reconsideration, pursuant to Rule 18.2(b).
CONCLUSION & ORDER
37This applicant’s request for reconsideration is dismissed.
Harry Adamidis Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: May 12, 2025