Okafor-Ogbujiagba v. TD General Insurance Company
RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 20-005105/AABS
Case Name: Anthony Okafor-Ogbujiagba v. TD General Insurance Company
Written Submissions by:
For the Applicant: Georgiana Masgras, Counsel
For the Respondent: Matthew Nieuwland, Counsel
OVERVIEW
1This request for reconsideration was filed by Anthony Okafor-Ogbujiagba (“the Applicant”). It arises out of a decision, dated December 20, 2024 (‘the decision”). In the decision, I found that the Applicant was not entitled to attendant care benefits (“ACBs”), treatment and assessment plans/OCF-18s (“plans”) proposing vision rehabilitation, rehabilitation support worker assitance, physiotherapy, occupational therapy, assistive devices, and case management services. I also found that he was not entitled to interest, or an award.
2The Applicant’s reconsideration submissions focus primarily on the reweighing of evidence. This was noted by the Respondent in responding submissions, and, in reply submissions, the Applicant submits that I made material legal and factual errors that, had they not been made, would likley have led the Tribunal to a different result.
RESULT
3The Applicant’s request for reconsideration is dismissed.
THE LAW
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “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;
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.
5Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.
6The 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.
BACKGROUND
7The Applicant was a passenger of a vehicle which was struck from behind while slowing down in traffic on a highway. He sought no medical attention at the scene of the accident and followed up with his family physician about a week later with reports of neck and body pains. He has a health history which includes a diskectomy/lumbar fusion in 1972, motor vehicle accidents in 1996 and 2013, right knee osteoarthritis which led to total knee replacement surgery in August 2020, and suffers from type 2 diabetes and hypertension.
8In the decision, I found that the Applicant was a poor historian when recalling his health history to medical professionals. My conclusion was based on the various discrepancies within the Applicant’s reports to various assessors, as noted in paragraphs [8] through [12] of the decision.
9A component of the decision was the issue that counsel for the Applicant addressed issues at the hearing that were not slated to be heard, such as whether the Applicant sustained a catastrophic impairment as a result of the accident. At paragraph [17] of the decision, I noted that the Applicant was presented with this issue by the Respondent, but never asked to issue fresh submissions or make submissions on the issues he failed to address in his initial submissions. At paragraph [18] of the decision, I noted that I applied the Applicant’s submissions to the issues, where possible. I found it to be an extremely difficult task because the Applicant’s initial and reply submissions mostly neglected to address the reasons why he is entitled to the benefits claimed.
10Despite the difficulty, I reviewed the Applicant’s evidence in the areas I was directed and throughout his document brief and concluded that he had not met his onus to demonstrate entitlement to the benefits claimed.
11As I will outline, the Applicant’s submissions are largely an attempt to relitigate the initial hearing. Reconsideration is not an opportunity to relitigate or re-weigh evidence, and the time to seek leave to issue additional or new submissions is during the initial hearing.
ANALYSIS
12Overall, the Applicant submits that the decision turns on my analysis of causation and that the reasons relied on do not contain any reference to the appropriate legal test for causation. To him, this is an error which, taken cumulatively with my purported disregard and/or mischaracterization of evidence at the hearing, affected the outcome such that a different decision would have been reached. He submits that the evidence convincingly establishes that the subject accident was a necessary cause of his physical impairments and psychological decomposition. To him, this is enough to establish causation in the application of the “but for” test, on a balance of probabilities.
13To the Respondent, the Applicant’s submissions only belatedly address causation and fail to meet the but for test, which demands proof on a balance of probabilities that the injuries or exacerbation of pre-existing injuries resulted from the accident. It submits that the Applicant failed to link his treatment needs to the accident rather than his extensive pre-existing medical history, and that the reports it submitted address causation or distinguish pre- and post-accident conditions and were rightly emphasized in the decision.
14For the following reasons, I agree with the Respondent and find no error of fact or law such that the Tribunal would have reached a different decision had the error not occurred.
It is not an error of law to omit reference to the causation test
15On the issue of causation, I find that no error of fact or law occurred in the decision that would cause the Tribunal to reach a difference decision had the error not occurred. Specifically, I find that it is not an error of law to omit reference to the causation test.
16I disagree with the Applicant’s assertion that the decision turned on causation, and that a full causation analysis was required. The Applicant’s submissions never addressed causation and he never provided submissions on why his medical reports should have been preferred over the Respondent’s when assessing his entitlement to the benefits claimed. Instead, the Applicant let the reports speak for themselves and it was left for the decision maker to choose which was preferred.
17I largely preferred the insurer’s examination (“IE”) reports offered by the Respondent and concluded that a separate analysis on causation was unnecessary, which is not an error of law. My preference arose mostly on the basis that the Respondent’s reports included reference to the Applicant’s extensive medical history and assessed the impact of this history on his current presentation. In paragraphs [7] through [12], I found that the Applicant was a poor historian, leading me to prefer the Respondent’s IE reports on the basis that they never relied on the Applicant’s inconsistent reporting of the accident and his injuries, and compared his reports to records from the actual events, if they even occurred. I see no reason to depart from this finding on reconsideration.
18The weighing of evidence is the core of adjudicative deliberation. Preferring certain reports over others falls within this realm. Further, my purported failure to outline the legal test for causation, in a hearing where the Applicant tendered no submissions addressing causation, is not an error of law that would have changed the result because it was unnecessary in light of my analysis of the evidence. Accordingly, I find no error of fact or law in my weighing of the evidence or in my omission of a separate causation analysis.
Attendant Care Benefits (“ACBs”)
19I find no error of fact or law in my assessment of the Applicant’s entitlement to ACBs.
20The Applicant is critical of my findings regarding his entitlement to ACBs. He submits that his occupational therapy (“OT”) report documents his functional limitations and that those limitations arose or were worsened by the accident. He also requests that ACBs be deemed incurred, pursuant to section 3(8) of the Schedule, because the Respondent denied them solely on the basis of its own OT IE report. The Respondent submits that this is an attempt to relitigate the issue and that it was noted in the decision that the Applicant provided no evidence or submissions on whether ACBs should be deemed incurred due to unreasonable withholding. It submits that the Applicant is precluded from raising the argument on reconsideration.
21I find that the Applicant is attempting to reweigh the evidence at the hearing. At paragraphs [23] and [24] of the decision, I outlined my preference for the report of OT A. Kaur, over the report of OT R. Zakrzewski. The Applicant has not identified any error of fact or law in my analysis of the OT reports. Accordingly, I find that he is attempting to relitigate issues in the decision, which is not permitted on reconsideration.
22Moreover, I find that the Applicant is attempting to advance a new argument on reconsideration that was not raised at first instance. Whether the Applicant incurred ACBs was a live issue at the hearing. Yet, he made no submissions in the initial hearing on whether he incurred the goods and services. At paragraph [25] I explained this and concluded that there was no evidence of unreasonable withholding of ACBs in order for me to deem them incurred. Advancing the argument now is improper. Accordingly, I find no error of fact or law in my determination that the Applicant never incurred ACBs and found no sign of unreasonable withholding or delay by the Respondent when it denied entitlement to ACBs.
Vision therapy
23I find no error of fact or law in my analysis of whether ongoing vision care is reasonable and necessary as a result of the accident and conclude that the Applicant is attempting to relitigate the issue presented in the initial hearing.
24The Applicant submits that the Report of Dr. T. Polonenko, optometrist, dated March 24, 2022, provides a basis to find ongoing vision therapy to be reasonable and necessary. He submits that the report highlights how beneficial the services were, in that he experienced measurable improvement after completing 10 in-office sessions and that information demonstrates a continued need for vision therapy. The Respondent submits that this is an attempt to reweigh the evidence and submits that the expert evidence was assessed correctly in the decision and concluded that the plans were not reasonable and necessary.
25I agree with the Respondent and find that this is an attempt to relitigate an issue that was addressed at the initial hearing. I assessed the evidence at paragraphs [28] and [29] of the decision, and preferred the opinion of Dr. G. Moores, neurologist, over that of Dr. Polonenko. Reconsideration is not an opportunity to reweigh evidence. Accordingly, I find that the Applicant had not met his onus to demonstrate that an error of fact or law occurred such that the Tribunal would have reached a different decision had the error not been made.
Rehabilitation Support Worker (“RSW”) Plan
26I find no error of fact or law in determining that the Applicant never met his onus to demonstrate entitlement to the RSW plan.
27The Applicant submits that I reconsider a clinical note of August 26, 2020, where his RSW outlined what he considers to be the essential nature of the services provided, including assisting him with physical exercises, community integration, organizing appointments, and addressing functional limitations arising directly from the accident. To the Applicant, the evidence indicates that his injuries and resulting limitations were exacerbated by the accident, necessitating the RSW support. The Respondent submits that the Applicant’s request regarding the RSW plan is meritless. It submits that the Applicant never addressed RSW services in the initial hearing, and no error of fact or law is alleged, but merely a request to reevaluate evidence.
28I find that the Applicant is attempting to relitigate an issue from the initial hearing and that reconsideration is not an invitation to reweigh evidence. The Applicant had an opportunity to address RSW services in the initial hearing and neglected to do so in both his initial and reply submissions. It is trite law that the Applicant must put his best foot forward at first instance. Thus, his failure to address the plan in the initial hearing is fatal to his argument. Accordingly, I dismiss the Applicant’s request for reconsideration on his entitlement to the RSW plan as an attempt to relitigate the issue, as there is no error of law or fact that would change the outcome.
Physiotherapy plans
29I find that the Applicant is attempting to relitigate issues from the initial hearing and that no error of law or fact has been identified.
30The Applicant submits that the clinical note by J. Vander Veen, physiotherapist, dated November 25, 2020, indicates that he experienced improvement in knee and hip function and that ongoing physiotherapy contributed to this progress, supporting that the plans are reasonable and necessary. The Respondent submits that the Applicant’s submissions fail to address any error of fact or law, and instead re-argue his case.
31I agree with the Respondent and find that the Applicant has not identified an error of fact or law such that the Tribunal would likely have reached a different decision had the error not occurred. The Applicant’s submissions on this issue are an attempt to reweigh the evidence and import submissions which he ought to have made at first instance. At paragraphs [35] and [36] of the decision, I noted that the physiotherapy plans in dispute related to his total knee replacement, which I concluded was not as a result of the accident. Thus, I found the plans to be not reasonable and necessary. This remains the case to-date. Accordingly, I find that the Applicant has not demonstrated that an error of fact or law occurred such that the Tribunal would reach a different result had the error not been made.
Assistive devices
32I find that the Applicant has not identified that an error of fact or law occurred such that the Tribunal would reach a different result had the error not been made.
33The Applicant submits that the denial of these devices was unjustly restrictive and suggests that the recommendation for devices stems from his accident related injuries. The Respondent points out again that the Applicant is attempting to relitigate the issue and that the expert evidence at the initial hearing confirmed that his ongoing symptoms were unrelated to the accident.
34I agree with the Respondent and find that the Applicant is attempting to relitigate an issue from the initial hearing. As with the majority of the goods and services at issue in this reconsideration, the Applicant never made submissions directly addressing why these plans are reasonable and necessary as a result of the accident, despite it being his burden to do so. At paragraph [40] of the decision, I concluded that having never made submissions on the issue, and having never led any evidence to support the claim, the Applicant never met his onus to demonstrate entitlement to the plan. It was incumbent upon him to make submissions on the issue at first instance. Reconsideration is not the venue to remedy deficiencies in one’s arguments that ought to have been made in the initial hearing. Accordingly, I find that the Applicant has not demonstrated that an error of fact or law occurred such that the Tribunal would reach a different result had the error never occurred.
Case management services
35I find that the Applicant has not identified an error of fact or law occurred such that the Tribunal would reach a different result had the error never occurred.
36Similar to his submissions regarding the assistive devices plan, the Applicant submits that the denial of case management services was inconsistent with the available medical records. He directs me to a progress report, dated June 23, 2020, which he submits indicates he requires a multidisciplinary approach which justifies case management services. The Respondent again submits that the Applicant is attempting to relitigate the issue and introduce new submissions.
37I agree with the Respondent and find that the Applicant is attempting to relitigate an issue from the initial hearing. The Applicant never made submissions directly addressing why case management services are reasonable and necessary as a result of the accident. Moreover, at paragraph [44] of the decision, I noted that case management services are restricted to people who sustained a catastrophic impairment as a result of the accident. I concluded that, having withdrawn his claim for a determination that he sustained a catastrophic impairment as result of the accident, he would not be entitled to case management services.
38To-date, the Applicant has not demonstrated that he is catastrophically impaired as a result of the accident. Accordingly, it follows that he is not entitled to case management services. Thus, I find no error of fact or law occurred such that the Tribunal would reach a different result had the error never occurred in determining that the Applicant is not entitled to the case management services claimed.
CONCLUSION & ORDER
39The Applicant’s submissions are largely an attempt to relitigate the issues determined in the decision and do not identify that an error of fact or law occurred such that the Tribunal would reach a different result had the error never occurred.
40Accordingly, I dismiss the Applicant’s request for reconsideration.
Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: June 20, 2025