Zihua Jiang v. Co-operators General Insurance Company, 2025 CanLII 62719

RECONSIDERATION DECISION

Before: Harry Adamidis, Adjudicator

Licence Appeal Tribunal File Number: 21-003797/AABS

Case Name: Zihua Jiang v. Co-operators General Insurance Company

Written Submissions by:

For the Applicant: Aline Avanessy, Counsel Zoe Meditskos, Paralegal

For the Respondent: Jamie R Pollack, Counsel Serena Gohal, Counsel

OVERVIEW

1On January 13, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 19, 2024 (“decision”).

2Following a videoconference hearing, I issued the decision. In the decision, I found that the applicant was in an accident, and that she sustained injuries that are not predominantly minor as defined by section 3 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). I also found that the applicant is not entitled to an Income Replacement Benefit (“IRB”), various treatment plans, the reimbursement of an expense claim, attendant care, nor interest. I further found that the respondent is not liable to pay 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 bases her reconsideration request on Rule 18.2(b), arguing that I made errors in law in my assessment of various benefits, and that I would have reached a different result had these errors not been made. The respondent submits that the applicant has failed to establish the grounds for reconsideration and that the request for reconsideration should be denied.

5The applicant asks the Tribunal to find that she is entitled to all the benefits that were denied in the decision.

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(b) – Errors of fact or law

Income Replacement Benefit

8I find that the applicant has not met her onus of establishing that I made an error of law when I found that the applicant is not entitled to an IRB.

9The respondent denied the IRB based on its view that an accident had not occurred. In the decision, I found that an accident had occurred. Consequently, the respondent’s reason for denying the IRB was no longer in place.

10The applicant submits that she completed all the legal requirements under the Schedule to be found eligible to receive an IRB when she submitted the Employer’s Confirmation Form (“OCF-2”) and the Disability Certificate (“OCF-3”) to the respondent. She argues that once this is done, the IRB is payable until an insurer provides medical reasons or other justifications under the Schedule to cancel the IRB payments. Once the Tribunal found that an accident had occurred, there was no reason in place to deny the IRB, and, as such, she would now be entitled to IRB payments. She argues that it was an error in law to find that she is not entitled to an IRB because I misinterpreted the requirements for receiving an IRB. She further argues that I did not give appropriate weight to the OCF-3 and her testimony, which establish that she was unable to work after the accident.

11The respondent argues that the applicant mistakenly believes she is automatically entitled to an IRB once she submits the required forms to the insurer. In its view, the applicant must establish her entitlement to an IRB, and this task cannot be accomplished by merely providing forms to the insurer.

12As noted in paragraph 58 of the decision, the applicant did not address the fundamental elements needed to establish her entitlement to an IRB:

The applicant’s submission seems to be that she cannot work because of her accident related injuries and is automatically entitled to an IRB until the respondent obtains a medical report that says otherwise. I disagree. Entitlement requires the applicant to establish that she was working prior to the accident, which is not disputed, and to also establish that the accident caused her to suffer a substantial inability to perform the essential tasks of her pre-accident employment. The applicant has not done this. She made no submissions on what the essential tasks of her employment are, nor did she refer to any evidence which shows that her accident related injuries caused a substantial inability to perform those essential tasks. The applicant has also not made any submissions on the extent to which she is unable to perform the essential tasks of her employment. On this basis, I find that she is not entitled to an IRB.

13The applicant argues that if an insurer provides no reasons to deny the payment of an IRB, then the insured must be found entitled to an IRB at a hearing and that it is an error of law to find otherwise.

14I disagree. The insured’s burden of establishing entitlement to an IRB at a hearing remains even if the insurer provides no reasons for denial. In paragraph 56 of the decision, I note that the applicant made general submissions on her inability to work because of her accident related depression and anxiety. However, she made no submissions to address the IRB eligibility criteria in section 5 of the Schedule. In my view, it was not an error of law to find that the applicant is not entitled to an IRB because she did not meet the burden of establishing her case.

15The applicant also argues that more weight should have been given to her evidence. As noted above, a request for reconsideration is not an opportunity for a party to re-litigate or re-weigh the evidence. Consequently, I see no error of law, as a request for reconsideration is not a forum where the applicant can re-argue her position from the hearing.

16I find that the applicant has not met her onus of establishing that I made an error of law when I found that the treatment plans were not payable.

17The applicant argues that, after I determined that an accident took place and that her injuries were outside the Minor Injury Guideline, I made an error of law by not considering whether the treatment plans were reasonable and necessary under sections 15 and 16 of the Schedule. In particular, she cites PM v. Aviva General Insurance, 2020 CanLII 80284 ON where the Tribunal determined that an insurer’s failure to comply with section 38(8) creates a presumption that the treatment plan is reasonable and necessary. In her view, this presumption applies here as well.

18I agree that I did not assess whether the treatment plans are reasonable and necessary. However, as noted in paragraph 60 of the decision, the applicant did not argue that the plans were reasonable and necessary. Instead, she argued for entitlement under section 38 of the Schedule. The decision has a section 38 analysis and, while I found that the respondent did not meet its obligation to provide medical reasons with the denials, I ultimately concluded that the plans are not payable as there is no evidence that they were incurred. This is an essential element needed to order payment.

19If the applicant believes that she is entitled to the treatment plans because they are reasonable and necessary, then it was necessary for her to make these submissions at the hearing. She did not make these submissions, and she now argues that it was an error of law for the Tribunal to have not engaged in a reasonable and necessary analysis without these submissions. I disagree. The applicant had the opportunity to provide submissions on her entitlement to the treatment plans. Thus, I find not engaging in a reasonable and necessary analysis is not an error of law, because the applicant made no submissions to demonstrate that the plans are reasonable and necessary.

20The applicant further argues, for the first time in her request for reconsideration, that the treatment plans are reasonable and necessary and cites evidence supporting this position. A request for reconsideration is not an opportunity to introduce new arguments that could have been put forward during the hearing. As such, I will not consider the applicant’s new arguments.

21Additionally, I find that the presumption of a treatment being reasonable and necessary, as set out in PM v. Aviva General Insurance, only applies under s. 38 of the Schedule. The applicant’s treatment plans are not payable under s. 38 because they were not incurred. This ends the analysis under s. 38. The same plans do not continue to be “reasonable and necessary” outside of the scheme of s. 38, as suggested by the applicant, as there is no provision in the Schedule to allow for this.

CONCLUSION & ORDER

22The applicant’s request for reconsideration is dismissed.

Harry Adamidis Adjudicator Tribunals Ontario – Licence Appeal Tribunal