RECONSIDERATION DECISION
Before: Tyler Moore, Vice-Chair
Licence Appeal Tribunal File Number: 23-005480/AABS
Case Name: Louise Sgambelluri v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Kristen Hamilton, Counsel
For the Respondent: Nicholas Mester, Counsel
OVERVIEW
1On March 6, 2025, the applicant requested reconsideration of the Tribunal’s decision dated February 13, 2025 (“decision”).
2In that decision, the Tribunal found that the applicant sustained a minor injury as a result of the accident and was not entitled to treatment plans for chiropractic services, interest, 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 under Rule 18.2(b) on the basis 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.
5The applicant seeks an order granting her request for reconsideration. The respondent opposed the applicant’s reconsideration request.
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.
Did the Tribunal make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made?
8I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
9The applicant submits that the Tribunal ignored the fact that the respondent relied on a Minor Injury Guideline position without a s. 44 insurer’s examination and made a significant error of fact in assessing the medical evidence from Dr. Trevisan.
10According to the applicant, the Tribunal misinterpreted Dr. Trevisan’s June 21, 2024 report. Specifically, at paragraph [23] of the decision, the Tribunal stated that Dr. Trevisan opined that the applicant should be removed from the Minor Injury Guideline (“MIG”) based on the fact that she had sustained a lumbar fracture, but that is not what Dr. Trevisan’s report says. The applicant submits that Dr. Trevisan considered all of the applicant’s pre-existing conditions in his determination that recovery within the MIG was unrealistic, and not just a lumbar fracture referenced in the medical records. The applicant also submits that Dr. Trevisan stated that the applicant had a “suspicious fracture at L4-L5” and not that she “had a lumbar fracture” as noted in the decision.
11The applicant further submits that there is no contradictory evidence to dispute Dr. Trevisan’s determination that the applicant should be removed from the MIG, and the respondent did not send the applicant for an insurer’s assessment related to the MIG issue.
12I find that s. 44 sets out that an insurer may request an insurer’s examination, but not that it is mandatory. Section 44(1) states that “an insurer may require an insured person to be examined under this section”, and not that an insurer must do so. An insurer may rely on existing medical evidence when making a MIG determination. I find that the applicant’s argument does not establish an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
13With respect to the interpretation of Dr. Trevisan’s report, the Tribunal accepted that the applicant has a pre-existing medical condition. The Tribunal’s analysis of Dr. Trevisan’s report can be found at paragraphs [17] and [21] to [24] of the decision where all considerations made in formulating the decision are outlined. Paragraph [24] also reflects the Tribunal’s analysis of collateral medical evidence from Drs. Reid and Clarke.
14At paragraph [21] of the decision, the Tribunal considered Dr. Trevisan’s opinion that “given the applicant’s previous injuries she is prone to relapses, recurrences, and exacerbations of her condition.” In the same paragraph, the Tribunal considered that “Dr. Trevisan also relied on an MRI of the applicant’s lumbar spine in 2023, which indicated the possibility of an L4-L5 fracture. Dr. Trevisan specifically noted that a lumbar fracture would require him to perform new treatment that would have a negative effect on the applicant’s healing process.” The wording used by Dr. Trevisan in his June 2024 report was “she (the applicant) has had numerous injuries of various degrees to her body, as well as knee replacements. With the 2024 MRI results, of a suspicious fracture at L4-L5, the treatment has to be altered. The new treatment will in turn have a negative effect on the healing process.”
15While acknowledging Dr. Trevisan’s opinion that keeping the applicant’s “treatments within the MIG’s $3,500.00 limit does not seem realistic”, the Tribunal provided reasons why it was not compelled by the report at paragraph [23] of the decision. The Tribunal noted that “Dr. Trevisan’s recommendation that the applicant’s pre-existing condition could have a potential impact on her recovery within the MIG does not automatically warrant her removal from the MIG”. At paragraph [22] of the decision, the Tribunal considered that a CT scan report dated February 17, 2024, which was not reflected in Dr. Trevisan’s report, confirmed that there was no evidence of any lumbar spine fracture following the MRI findings that Dr. Trevisan noted would require treatment to be altered and “the new treatment will in turn have a negative effect on the healing process”. At paragraph [24] of the decision, the Tribunal considered that “in the year leading up to the accident, there is no mention of back pain or knee pain in Dr. Reid’s clinical notes and records, and the applicant only visited Dr. Clark in early 2021 for routine yearly post-surgical follow-up.”
16Dr. Trevisan’s June 2024 report and recommendation also took into account that the applicant was “a mature woman with an endomorph body and a sedentary occupation”, which are not pre-existing medical conditions. He made no acknowledgement of the 2024 CT scan of the lumbar spine, subsequent to the MRI, that confirmed there was no evidence of any lumbar spine fracture.
17I find that the Tribunal correctly interpreted Dr. Trevisan’s report. It considered not only Dr. Trevisan’s June 2024 report, but the pre-accident medical records of Drs. Clarke and Reid in arriving at a finding that the totality of medical evidence was not compelling to warrant the applicant’s removal from the MIG pursuant to s. 18(2) of the Schedule.
18I find that the applicant’s submissions are an attempt to re-litigate her position and the weight assigned to the medical evidence because she disagrees with the Tribunal’s decision. The applicant has not established an error of law or fact in the decision such that the Tribunal would likely have reached a different result had the error not been made.
CONCLUSION & ORDER
19The applicant’s request for reconsideration is dismissed.
Tyler Moore
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: May 20, 2025