RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-003587/AABS
Case Name: Khrystyna Midak v. RSA Insurance Company
Written Submissions by:
For the Applicant: Ramendeep Minhas, Counsel
For the Respondent: Ken Yip, Counsel
OVERVIEW
1On April 10, 2025, the applicant requested reconsideration of the Tribunal’s decision released March 20, 2025 (“decision”).
2Stemming from an automobile accident on November 28, 2020 and a request for accident benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties attended a videoconference hearing from February 3 – 6, 2025. The adjudicator found the applicant was not catastrophically impaired, and that she did not establish entitlement to the outstanding amount from the treatment plan for a catastrophic assessment.
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) in her request for reconsideration. She is seeking either a reversal of the decision, or, in the alternative, a new 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.
Catastrophic Impairment
8I find the applicant has not established that the Tribunal committed an error of fact or law as it relates to catastrophic impairment.
9The applicant argues that the Tribunal committed several errors in its assessment of the evidence for three of the four domains of activity in its Criterion 8 analysis, i.e., activities of daily living, social functioning, and adaptation. Specifically, the applicant alleges that the Tribunal made erroneous findings about her report from Dr. Sadiq Hasan (dated February 28, 2023). The applicant also alleges that the Tribunal did not have a basis for accepting the surveillance investigator’s finding that she was speeding in excess of 140 km/h, namely, there is no mention of a radar speed-gun. She further argues that the Tribunal placed “undue weight” on the surveillance evidence. Finally, for the domain of adaptation, the applicant makes a comment about her income tax returns.
10Starting with the submissions involving Dr. Hasan’s report, I find these arguments do not establish an error that would engage Rule 18.2(b). Rather, the applicant is seeking a re-weighing of this central piece of evidence. A key finding in the decision was the adjudicator’s preference for the report from the respondent’s psychiatrist, Dr. Velan Sivasubramanian (dated February 21, 2024), over the report from Dr. Hasan. Part of this analysis involved the two assessors’ analyses of the applicant’s pre-accident condition, namely, her involvement in an earlier accident in 2019 (at paragraphs 27 and 28, emphasis added):
… Both Dr. Hasan and Dr. Sivasubramanian agree that the applicant presented with a mental and behavioural impairment; however, they disagree as to whether her presentation relates to the accident. Dr. Hasan diagnosed the applicant with somatic symptom disorder with predominant pain (persistent), major depressive disorder (moderate), specific phobia (situational, driving/vehicular), and unspecified trauma and stressor related disorder as a result of the accident.
In contrast, Dr. Sivasubramanian concluded that the applicant presented with an adjustment disorder with anxious and depressed mood (mild), specific phobia (driver and passenger anxiety with some degree of impairment, but no significant avoidance), and somatic symptom disorder with predominant pain (mild); however, he found that these conditions were pre-existing conditions. At the time of her assessment with Dr. Sivasubramanian, the applicant did not present with any impairments directly stemming from the accident. I prefer Dr. Sivasubramanian’s opinion.
11Similar comments are also made by the adjudicator at paragraphs 47 and 48 when discussing the domain of adaptation.
12The applicant takes issue with this assessment, claiming that the adjudicator incorrectly found the 2019 accident was not considered by Dr. Hasan. Or, as the applicant submits when discussing the domain of social functioning in her reconsideration submissions: “… Dr. Hasan mentions the 2019 accident in his report before making his conclusions and therefore he considered the impact or lack thereof, on the Applicant’s presentation.” The applicant also alleges that the adjudicator’s weighing of Dr. Hasan’s report is “inconsistent” with her acceptance of a s. 44 occupational therapy report (dated October 27, 2021) that found she was independent with self-care prior to the subject accident.
13I find these arguments rely on a narrow reading of the decision, as it is clear that the adjudicator was aware of these references to the 2019 accident in Dr. Hasan’s report. Rather, she ultimately found that his analysis did not indicate that this accident played a role in his conclusions (at paragraph 29):
The applicant reported to Dr. Hasan that she had been involved in a previous accident in 2019, that she suffered from depression as a result of the 2019 accident, and that she underwent psychological counselling sessions. However, there is no indication in Dr. Hasan’s report that he considered the applicant’s 2019 psychological impairments on her post-accident presentation.
14The applicant has not demonstrated how this analysis is erroneous. Rather, she appears to be asking for a different reading of Dr. Hasan’s report. As such, I find this argument effectively amounts to a request to re-weigh the evidence, which is not a proper use of the reconsideration process.
15I then find the applicant has not explained how the alleged error about the applicant’s speeding would likely have led the adjudicator to reach a different result. Even if I accepted that the adjudicator incorrectly reached this finding about the speed she was driving at during the surveillance investigation, this finding is a minor aspect of the overall conclusions reached about her travel under the domain of activities of daily living (at paragraph 31, emphasis added):
Prior to the accident, the applicant was unable to drive for a couple months because of her right wrist injury, and she eventually resumed driving. Since the accident, the applicant continues to drive. While she reportedly avoids highways during traffic and during heavy snow or rain fall, according to an investigation report from Xpera dated June 13, 2022, the applicant was observed speeding on the highway in excess of 140 km/h. Further, since the accident, the applicant has travelled on several occasions, including trips to her boyfriend’s cottage, Niagara on the Lake, Miami, and Mexico.
16Put another way, regardless of the speed she was travelling at, the key aspect of this part of the adjudicator’s reasons is that there appears to be an inconsistency in the applicant’s alleged avoidance of highway driving. Therefore, even if the reference to 140 km/h was removed from the adjudicator’s analysis, I cannot see how this would have impacted her finding that the applicant was seen driving on a highway.
17The applicant also challenges the adjudicator’s use of this surveillance in her findings about the domains of the activities of daily living and social functioning. For both domains, the applicant argues that the surveillance “only captured very specific instances in time”, so the adjudicator should not place “undue weight” on this evidence. There is no factual or legal error alleged by the applicant as it relates to the surveillance evidence (aside from the speeding issue addressed above). Rather, once again, the applicant is asking the Tribunal to re-weigh evidence that was considered at first instance.
18Finally, for the domain of adaptation, the applicant contends that she “testified that she had not worked since the April to August 2021 period, and it was her mother who did her taxes.” As such, the applicant could not “identify the sources of income.” This argument appears to relate to paragraph 49 of the decision:
Although the applicant claims that she did not work after the accident, except for the period of April to August 2021, the applicant’s assertion is not consistent with her Income Tax Returns. Based on the applicant’s financial records, she reported to the Canada Revenue Agency that in 2021, she earned $5,000.00 in commission income, in 2022, she earned $6,000.00 in commission income and $3,600.00 in employment income, and in 2023, she earned $9,500.00 in commission income and $1,150.00 in employment income. She was unable to identify the source of this income on cross-examination, and her explanation that the funds may be related to babysitting her younger brother was unsubstantiated.
19I am unclear on how this submission establishes an error. Even if the adjudicator had addressed the mother’s assistance with the income tax returns, I am unclear as to where an error could be found in the decision. Further, it is unclear how this alleged error would likely have impacted the result of the decision, as the main point the adjudicator makes in this paragraph is that the applicant had records showing income that appear to contradict her testimony about her work history.
20Taken together, I find the applicant has not established that the Tribunal committed an error of fact or law as it relates to catastrophic impairment.
21I find the applicant has not established that the Tribunal committed an error of fact or law in the decision as it relates to its conclusion regarding the partially approved treatment plan for a catastrophic assessment.
22The applicant relies on two arguments to challenge this part of the decision. First, the applicant contends that, as the respondent did not make any submissions about this treatment plan (as noted at paragraph 56 of the decision), it “should have been approved as it was uncontested”. Second, the applicant claims that the decision goes against the Tribunal’s ruling in 17-003735 v Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT) (“Certas Direct”).
23First, as stated at paragraph 53 of the decision, the applicant has the onus of demonstrating entitlement to a treatment plan. The applicant has not presented any authority or argument to demonstrate that this well-accepted legal principle is incorrect. Further, the adjudicator laid out clear and concise reasons for why she determined the applicant did not meet this onus at 58 of the decision:
I find that the evidence does not support a finding that the unapproved balance of the treatment plan is reasonable and necessary. Pursuant to s. 25(5)(a) of the Schedule, an insurer is not required to pay more than $2,000.00 plus any applicable tax for fees and expenses for conducting an assessment and for preparing the corresponding report. The applicant does not explain how the unapproved testing, report preparation, assessments, and file reviews differ from the approved assessments, nor does she explain why assessments in an amount greater than $2,000.00 plus HST are reasonably required. Further, the applicant does not explain why an amount greater than $200.00 is reasonably required for the completion of the OCF-19.
24Despite having the onus on reconsideration, the applicant does not explain how or why this conclusion constitutes an error of fact or law.
25Additionally, I find the applicant’s reliance on Certas Direct does not help her meet her onus on reconsideration. Beyond the fact that each case must be evaluated on the individual merits of the parties’ evidence, there is no argument provided by the applicant to explain how the holding from Certas Direct challenges the reasoning used in the decision. Instead, the applicant states that the adjudicator went “against” this earlier ruling. The applicant has the onus to show how one of the criteria under Rule 18.2 has been engaged, and I conclude that she has not met this onus.
CONCLUSION & ORDER
26The applicant’s request for reconsideration is dismissed.
Craig Mazerolle
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: June 17, 2025