MacDonald v. Co-operators General Insurance Company, 2025 CanLII 66353

Citation: MacDonald v. Co-operators General Insurance Company, 2025 ONLAT 23-002840/AABS-R

RECONSIDERATION DECISION

Before: Lisa Holland, Adjudicator

Licence Appeal Tribunal File Number: 23-002840/AABS

Case Name: Stacey MacDonald v. Co-operators General Insurance Company

Written Submissions by:

For the Applicant: Sherilyn Pickering, Counsel

For the Respondent: Julianne Brimfield, Counsel

OVERVIEW

1On March 18, 2025, the applicant requested reconsideration of the Tribunal’s decision dated February 25, 2025 (“decision”).

2Following a written hearing, I determined that the applicant was not entitled to attendant care benefits (“ACB”) or the treatment plans for an occupational therapy assessment, occupational therapy services, physiotherapy services, an optometry assessment, social worker counselling, a driving evaluation, a neurological assessment and a psychological assessment. I also found the applicant was not entitled to 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 pursuant to Rule 18.2(a) and Rule 18.2(b). The applicant submits that I committed a material breach of procedural fairness and made several errors of law and/or fact, such that the Tribunal would likely have reached a different result had the errors not been made. The applicant further seeks a finding that an ACB is reasonable and necessary and that she is entitled to the disputed treatment plans, interest and an award. Alternatively, the applicant seeks a rehearing of all the issues.

5The respondent submits that the applicant’s request for reconsideration should be dismissed.

RESULT

6The applicant’s request for reconsideration is granted in part.

7The decision is varied because an error of law was made in paragraph 28 of the decision when I did not address the applicant’s claim for physiotherapy services in the treatment plan (“plan”) dated April 1, 2021 for $2,274.02; the plan dated May 14, 2021 for $2,789.03; and the plan dated June 15, 2022 for $2,059.02. I have considered the evidence on reconsideration, and I find that the applicant is entitled to these plans for physiotherapy services.

8The decision is varied such that an error of law was made when I failed to address the applicant’s claim for ACB in the amount of $277.13 per month from May 11, 2021 to date and ongoing, based on whether attendant care is reasonable and necessary. I have considered the evidence and find that the applicant has not established that ACB are reasonable and necessary.

9The remainder of the applicant’s request for reconsideration is dismissed.

ANALYSIS

10The 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(a).

Rule 18.2(a): The Tribunal did not act outside its jurisdiction or commit a material breach of procedural fairness

11I find that the applicant has not established that the Tribunal committed a material breach of procedural fairness such that a reconsideration should be granted under Rule 18.2(a).

12The applicant submits that the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness for the following reasons:

a. The Tribunal made references to contradictory statements by the applicant regarding her vision before and after the accident, which were not mentioned by either party;

b. The Tribunal stated that the applicant does not point to any medical evidence from a treating physician which concludes that a driving evaluation is reasonable and necessary, which was not raised by either party;

c. The Tribunal focused on comments by Insurer’s Examination (“IE”) assessors - Dr. Michael Angel, neurologist, and Cindi Goodfield, psychologist, regarding the applicant’s stress in caring for her mother and sons, which was not mentioned by the parties; and,

d. The Tribunal made references to the applicant’s irritability and stress in working from home with her children, which was not raised by the parties.

13I find that I did not consider evidence which was not referenced by the parties.

14At first instance, the applicant argued that Dr. Angel diagnosed the applicant with post-traumatic migraine headaches and associated blurred vision. Likewise, the respondent’s initial submissions mention the applicant’s complaints to Dr. Tomonori Yokogawa, family physician, regarding her pre-existing migraine headaches, blurred vision and her doctor’s referral to an optometrist. I was directed to evidence in the respondent’s document brief at Tab 7 - a consultation report dated August 21, 2020, by Dr. Alex Jahangirvand, neurologist, in which Dr. Jahangirvand describes the applicant’s pre-accident vision symptoms. Therefore, contrary to the applicant’s submission, I find both parties referenced the applicant’s vision symptoms before and/or after the accident in their initial submissions, and the applicant had an opportunity to address her pre-existing vision symptoms during the hearing.

15Next, at paragraph 41 of the decision, I stated that the applicant did not point to any medical evidence from a treating physician in support of a driving evaluation since her submissions only refer to self-reports of reduced driving. I find there is no breach of procedural fairness, since the applicant did not refer to corroborating evidence. However, it is unclear how this amounts to a material breach of procedural fairness because this is not the only evidence that was considered on this issue. For example, I considered other medical evidence at paragraph 43 of the decision, including the report of Cindi Goodfield, which does not support the need for a driving evaluation, as mentioned by the respondent.

16Further, I see no breach in my consideration of the applicant’s stress as I find I was also directed to the reports of Cindi Goodfield, Naro Hussaini, case manager, and Dr. Angel by the parties. In addition to the selected portions of the reports referenced by the parties, I considered these reports in their entirety when weighing this evidence. All of these assessors mention the applicant’s irritability and/or stress associated with her ill mother and disabled sons. The applicant has not provided authority to support her contention that the Tribunal cannot consider evidence put before it in its entirety for context and accuracy. The applicant has not shown how this review constitutes a material breach of procedural fairness.

17Finally, it was within the Tribunal’s jurisdiction to make a determination regarding the severity of the applicant’s accident-related injuries and whether the proposed plans for treatment and assessments are reasonable and necessary. The applicant has not shown how my preference for medical evidence other than that of the treatment providers, as discussed in paragraphs 30, 34, 36, 41, 49, 60 and 61 of the decision, amounts to a material breach of procedural fairness.

18Accordingly, I find that the applicant has not shown that I committed a material breach of procedural fairness. As such, I find that the applicant has not established grounds for reconsideration of the decision under Rule 18.2(a).

Rule 18.2(b): The Tribunal made an error of law regarding the applicant’s claim for ACB

19I find that the applicant has established that the Tribunal made an error of law in failing to make a determination on whether ACB in the amount of $277.13 per month from May 11, 2021 to date and ongoing are reasonable and necessary.

20The applicant submits the Tribunal made an error of law in not properly applying the test to determine whether an ACB is reasonable and necessary, should the applicant incur attendant care expenses in the future.

21At first instance, the applicant sought ACB from May 11, 2021 to date, and ongoing, based on a Form 1 dated May 11, 2021, completed by Taylor Peart, occupational therapist, and the report of Nari Hussaini. I found at paragraph 12 of the decision that the applicant did not meet the test for entitlement to an ACB, under s.19 of the Schedule, because she did not incur the expense of an aide or attendant. I agree with the applicant’s submissions that there was an error of law in not deciding whether ACB are reasonable and necessary, despite the finding that ACB are not payable to date because there is no evidence that attendant care expenses were incurred.

22Therefore, I will consider whether ACB are reasonable and necessary under section 19 of the Schedule since the test is whether there are reasonable and necessary expenses incurred on behalf of the applicant.

23Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for ACBs provided by an aide or attendant. The monthly amount of attendant care that an applicant is entitled to is determined in accordance with a form called an Assessment of Attendant Care Needs (“Form-1”).

24Section 3(7)(e)(i) and (ii) of the Schedule establish that an insured person has incurred an expense if the person has received the goods or services to which the expense relates, paid the expense, promised to pay the expense, or is otherwise legally obligated to pay the expense. Section 3(7)(e)(iii) of the Schedule sets out two categories of attendant care providers: professional service providers, who provide services in the course of the employment, occupation, or profession in which they would ordinarily be engaged but for the accident; and non-professional service providers who have sustained an economic loss as a result of providing goods or services to the injured person.

25At first instance, in paragraph 27 of their submissions, the applicant argues that attendant care is reasonable and necessary for her functional impairments, including falls due to her balance difficulties. In paragraph 28, the applicant refers to the report of Taylor Peart in recommending assistance to shave her legs, and in paragraph 31, Taylor Peart recommends bathing assistance and washing her hair. In paragraphs 30 and 31, Taylor Peart recommends that the applicant receive assistance with bathroom hygiene and bedmaking. In her conclusion at paragraph 33, the applicant claims that ACB are reasonable and necessary.

26The applicant claims that she is entitled to ACB of $277.13 per month from May 11, 2021 to date and ongoing for her functional impairments, including shaving her legs, bathing, washing her hair, bathroom hygiene and bedmaking. The applicant relies on a Form 1 dated May 11, 2021, completed by Taylor Peart, occupational therapist, and a report dated December 12, 2022, by Naro Hussaini, case manager.

27The respondent submits at first instance that the evidence does not support the need for attendant care. The respondent submits that Taylor Peart made limited observations of the applicant’s functional abilities during the virtual assessment on April 28, 2021, and the applicant reported independence in her personal care and ability to perform housekeeping tasks. The respondent further submits that the applicant submitted a Form 1 despite her reports of no functional impairments.

28The respondent submits that the applicant has not provided any evidence in support of her significant balance issues that cause functional impairments, and the applicant has reported to assessors that she is independent in her personal care, and she has resumed light housekeeping duties.

29I find that Naro Hussaini indicates in her report, that the applicant has occasional dizziness washing her hair, although she is able to shave her legs and make the bed. I also find that Cindi Goodfield indicates in her report dated May 1, 2023, that the applicant is independent in her personal care.

30I find that the applicant was unable to persuade me that ACB are reasonable and necessary for her accident-related injuries. The order is to be varied to include my analysis on the issue of whether ACB are reasonable and necessary.

Rule 18.2(b): The Tribunal made an error of law or fact regarding the applicant’s claims for physiotherapy services

31I find that the applicant has established that the Tribunal made an error of law or fact in its determination that the applicant is not entitled to the treatment plans for physiotherapy services, plus applicable interest.

32The applicant states that the Tribunal failed to consider the evidence from the applicant’s treatment providers, Taylor Peart and Dr. Yokogawa, in finding the applicant has returned to her activities of daily living and vocational activities. The applicant submits the Tribunal did not consider whether physiotherapy services were reasonable and necessary when they were proposed, and it preferred the evidence from the s. 44 assessments. The applicant argues the error impacted the final determination, because she was making progress toward reaching the goals of the treatment, but the goals were not yet achieved when the plans were submitted.

33The respondent argued that the other medical evidence which was available at the time these plans were submitted was insufficient to remove the applicant from the MIG. The respondent further argues that there was no contemporaneous evidence in support of the plans for physiotherapy services. The respondent submits that the applicant has not pointed to any evidence or errors of law that would support a different conclusion on the same evidence.

34I find that I did make an error of law and fact in paragraph 28 of the decision in finding that the applicant had achieved the goals of the proposed treatment, and I did not consider whether she was making progress toward the stated goals when the plans were submitted. I find that had the error of law and fact not occurred, I would have reached a different conclusion had the error not been made.

35At first instance, the applicant sought payment of plans for physiotherapy and massage therapy, submitted by Rupinder Kaur, physiotherapist of Barrie Core Wellness Inc., as follows:

a. OCF-18 dated April 1, 2021, in the amount of $2,274.02, for 16 physiotherapy sessions and 4 massage therapy sessions;

b. OCF-18 dated May 14, 2021, in the amount of $2,789.03, for 22 physiotherapy sessions and 6 massage therapy sessions; and,

c. OCF-18 dated June 15, 2022, in the amount of $2,059.02, for 16 physiotherapy sessions and 4 massage therapy sessions.

36I find that the plans for physiotherapy and massage therapy were denied because the applicant was in the MIG when the plans were submitted. However, the applicant was subsequently removed from the MIG based on the diagnosis of a mild concussion by Dr. Angel, neurologist, in the IE report dated May 1, 2023. I find that there is medical evidence, in addition to the treatment providers, which was not considered at first instance in support of the plans. I find that in the consultation report dated May 5, 2022, the applicant’s treating neurologist, Dr. Johann Micallef, recommended a cognitive occupational therapy assessment and physiotherapy for the applicant’s accident-related persistent post-concussive symptoms.

37In my view, the error that was made in the original decision was based on evidence regarding the applicant reaching the goals of the proposed treatment after she was removed from the MIG, and overlooking earlier medical evidence which recommended physiotherapy while the applicant was in the MIG. I find that the plans for physiotherapy services are reasonable and necessary, because the applicant’s treating neurologist recommended physiotherapy for her concussion symptoms.

38The first plan dated April 1, 2021, submitted by Rupinder Kaur, physiotherapist, at Barrie Core Wellness sought 16 one-hour physiotherapy sessions; 4 one-hour massage therapy sessions; an assessment; and completion of the OCF-18, totaling $2,274.02. The plan lists the applicant’s accident-related injuries to include neurological signs in addition to sprain/strain type injuries to the neck, shoulder, back and knee. The goals of the plan are for pain reduction, increase strength and range of motion and return the applicant to pre-accident work activities, functional level and activities of normal living.

39The second plan dated May 14, 2021, submitted by Rupinder Kaur, sought 22 one-hour physiotherapy sessions; 6 one-hour massage therapy sessions; and completion of the OCF-18, totaling $2,789.03, and the plan indicates that despite improvement, the stated goals have not been met.

40The third plan dated June 15, 2022, submitted by Rupinder Kaur, sought 16 one-hour physiotherapy sessions; 4 one-hour massage therapy sessions; and completion of the OCF-18, totaling $2,059.02. The plan also indicates that the stated goals have not been achieved.

41I find that the clinical notes and records (“CNR’s”) of Dr. Tomonori Yokogawa, family physician, indicate that the applicant was initially diagnosed with a concussion on March 6, 2021, for which Dr. Yokogawa referred her for concussion management on May 28, 2021. I find that as previously stated, the applicant’s treating neurologist, Dr. Micallef, recommended physiotherapy to reduce the applicant’s neck and back symptoms. I further find that Dr. Yokogawa also recommended physiotherapy on June 8, 2022, after receiving Dr. Micallef’s consultation report dated May 2, 2022.

42I find that the Tribunal made an error of law or fact in finding that the applicant is not entitled to physiotherapy services, plus any applicable interest.

Varying the Decision – Rule 18.4

43Rule 18.4 provides that upon reconsidering a decision, the Tribunal may:

a. Dismiss the request; or

b. After providing responding parties an opportunity to make submissions,

i. Confirm, vary, or cancel the decision or order; or

ii. Order a rehearing on all or part of the matter.

If the Tribunal orders a rehearing of the matter, the Tribunal may issue procedural and administrative directions and any such further orders as the Tribunal deems necessary.

44As I have found the applicant has established grounds for reconsideration with respect to ACB and the treatment plans for physiotherapy services, I find that the Order section of this reconsideration decision varies the Order section of the initial decision with respect to the plans for physiotherapy services.

Rule 18.2(b): The Tribunal did not make an error of law or fact regarding the applicant’s claims for an occupational therapy assessment, occupational therapy services, an optometry assessment, social worker counselling, driving evaluation, a neurological assessment and a psychological assessment

45I find that the applicant has not established that the Tribunal made an error of law or fact in its determination that the applicant is not entitled to an occupational therapy assessment, occupational therapy services, an optometry assessment, social worker counselling, a driving evaluation, a neurological assessment and a psychological assessment.

46The fact that the applicant would have preferred that the Tribunal reach a different conclusion based on its review of the evidence does not render the reasons provided insufficient, nor does it demonstrate that the Tribunal made an error of law or fact.

47The purpose of reconsideration is to identify if the adjudicator made an error in law or fact that meant the Tribunal would likely have reached a different result had the error not been made. It is not an opportunity to re-try the facts because a party does not agree with the ruling. The applicant re-submitted evidence that was presented at the hearing, and she is requesting that the Tribunal consider re-weighing this evidence. Disagreeing with the adjudicator’s interpretation of the evidence does not amount to an error in law or fact. I will now address each of these plans individually.

a) Occupational therapy assessment

48The applicant submits the Tribunal made an error of law when it did not consider whether an occupational therapy assessment was reasonable and necessary when it was proposed, and it did not consider the evidence of the applicant and treatment providers. The applicant submits that the Tribunal preferred s. 44 assessments, which were two years later, that indicated the goals to identify her occupational performance and participation issues had been reached. The respondent argued that the other medical evidence available at the time this plan was submitted was insufficient to remove the applicant from the MIG.

49I find that, in paragraph 19 of the decision, the Tribunal considered other medical evidence in addition to the s. 44 assessments, including the applicant’s self-reports to Dr. Micallef that she returned to work one week after the accident, and her self-reports to Cindi Goodfield that she did not take any time off work.

50Although the respondent took the position that the applicant remained in the MIG at the time the plan was submitted, the Tribunal weighed all the evidence available at the time of the hearing. Therefore, I find it was not an error of law to consider the applicant’s self-reports to treating physicians and assessors, in addition to treatment providers, when determining whether an occupational therapy assessment was reasonable and necessary.

b) Occupational therapy services

51The applicant submits the Tribunal made an error of law when it did not consider whether occupational therapy services were reasonable and necessary when they were proposed, and it instead focused on the s. 44 assessments that were prepared later. The respondent argued that the other medical evidence which was available at the time these plans were submitted was insufficient to remove the applicant from the MIG.

52I find that, in paragraph 23 of the decision, the Tribunal considered other medical evidence in addition to the s.44 assessments, including a return to work form dated March 6, 2021 completed by Dr. Anzel Hennop, which indicates the applicant has no functional limitations, except she needs to change positions every 15-20 minutes.

c) Optometry assessment

53The applicant submits the Tribunal made errors of fact in paragraphs 30, 34 and 36 of the decision by finding that the applicant made inconsistent statements to treating and assessing physicians regarding her vision symptoms before and after the accident. The applicant submits that she did not deny her symptoms of blurred vision and seeing wavy lines before the accident to Dr. Angel. These submissions are closely tied to the argument made under Rule 18.2(a), as set out above.

54The respondent submits that, in its initial submissions, it identified the applicant’s pre-accident referral to an optometrist for her visual disturbances.

55I find there was no error of fact in relying on the applicant’s self-reports to Dr. Angel that she did not have vision problems associated with her pre-existing migraine headaches before the accident. I find that the applicant’s reports to Dr. Angel contradict her complaints to Dr. Jahangirvand of increased headaches with blurred vision and flashing yellow zigzags from six months before the accident. Therefore, I find that despite the applicant’s submissions that she did not make inconsistent statements to treating and assessing physicians regarding her vision problems, this would not change the result since she did have vision problems with increased headaches before the accident.

d) Social worker counselling

56The applicant submits that the Tribunal made an error of law in paragraph 47 of the decision in stating that the applicant does not point to any medical evidence from a treating physician in support of social worker counselling. The applicant submits that there is evidence from treatment providers. The applicant further submits that a medical opinion from a treating physician is not required, and the evidence of treatment providers is sufficient.

57The applicant then submits that the Tribunal made errors of fact in paragraph 49 of the decision in finding that the report of Cindi Goodfield indicates that, for over two years after the accident, the applicant denied depression, she remains in a supportive relationship with her partner, and that the applicant is under stress in caring for her ill mother and children with special needs. The applicant has not shown how the Tribunal erred in its references to Cindi Goodfield’s report. Even though the applicant refers to other factors in the report, such as her declining mood after the accident, and increased emotional distress, I am not satisfied that this is an error because although Cindi Goodfield mentions that the applicant has an irritable mood at times, she concluded the applicant is coping overall, and there is no psychological impairment. In addition, the plan for social worker counselling coincides with the date of Cindi Goodfield’s report, and the applicant’s psychological condition at that time.

58The applicant submits that the Tribunal made an error in paragraph 48 of the decision in reference to a clinical note, by Dr. Yokogawa, which indicates that the applicant’s mood is good (dated July 6, 2021). The applicant refers to the Disability Certificate (“OCF-3”), completed by Dr. Yokogawa nearly three years later, dated March 12, 2024, which lists anxiety and depression as an accident-related injury. I find that there was no error of law or fact that would change the result, because it is unclear if there was a change in circumstances in the applicant’s situation, as there was no diagnosis of anxiety or depression in the three years after the accident.

59Although the applicant submits that an opinion from a treating physician is not required, I find that there was no error of fact or law in considering the opinions and observations of treating physicians in their records as persuasive sources of information.

e) Driving evaluation

60The applicant submits that the Tribunal made an error of law in paragraph 41 of the decision in stating that the applicant does not point to any medical evidence from a treating physician in support of a driving evaluation, where there is evidence from treatment providers. I find that although there is no requirement for evidence from a treating physician, there is no error of law that would change the result in considering all the available evidence in addition to the plan itself in paragraph 43 of the decision. The applicant further submits that the Tribunal made an error of law in paragraph 49 in preferring the evidence of the report of Cindi Goodfield to the evidence from treatment providers. I find that there is no error of law in weighing evidence and in considering the applicant’s reports to assessors.

61The applicant submits that the Tribunal made an error of fact in paragraph 40 of the decision in stating that the applicant works from home due to anxiety, despite COVID-19 restrictions and her children attending virtual schooling. The applicant submits that when the disputed plan for a driving evaluation was submitted in January 2023, the applicant was working from home, and there were no COVID-19 restrictions, and her children had returned to school in-person. I find there was no error of fact that would change the result, since there is evidence that the applicant denied vehicular anxiety to assessors as stated in paragraph 43 of the decision.

62The applicant submits that since her driving anxiety increased after the accident, the Tribunal made an error of fact in paragraph 43 of the decision in finding that the proposed plan for a driving evaluation, submitted on January 13, 2023, contradicts the report, dated December 12, 2022 by Naro Hussaini, which indicates that the applicant had a pre-existing driving anxiety. However, the Tribunal also found at paragraph 43 of the decision that the plan contradicts the report, dated May 1, 2023 by Cindi Goodfield, in which the applicant denied vehicular anxiety. Therefore, I find there is no error of fact that would change the result since the applicant continued to drive after the accident.

63The applicant’s arguments on reconsideration about the plan for a driving evaluation involve the weighing of evidence. I considered all the evidence and assigned weight to evidence which I preferred. Again, the purpose of reconsideration is not to relitigate how evidence was weighed at first instance.

f) Neurological assessment

64The applicant submits that the Tribunal made an error of law in finding that the applicant is not entitled to a neurological assessment and a psychological assessment, because the respondent has IE reports by a neurologist and a psychologist. However, the Tribunal found that since the medical evidence suggests that the applicant is under the care of a treating neurologist, a further neurological assessment was not reasonable and necessary.

65The applicant submits that the Tribunal made errors in paragraph 51 of the decision in finding that because the applicant is currently under the care of Dr. Micallef (consultation dates are in May 2022 and July 18, 2022), she is not entitled to a neurological assessment. The applicant submits that she was not under this doctor’s care at the time the plan for a neurological assessment (dated March 24, 2022), since it was not submitted until two months later on June 2, 2022. The applicant submits that the assessment is reasonable and necessary because a treating specialist does not prepare an expert report to provide an opinion on the applicant’s prognosis. However, I find that the applicant’s neurologists, Dr. Micallef and Dr. Jahangirvand, have provided opinions regarding her diagnosis, treatment, and they are able to opine on the outcome of treatment.

66The applicant further submits that the Tribunal made errors in paragraphs 55 and 56 of the decision in finding that Dr. Angel did not indicate how the applicant’s headaches changed after the accident, and that the applicant was under the care of Dr. Jahangirvand before and after the accident. The applicant submits that she did not receive treatment for a traumatic brain injury, which was diagnosed by Dr. Angel in his report dated May 1, 2023, despite receiving treatment from a neurologist a year earlier. I find that it is unclear how the applicant’s headaches changed after the accident, since she reported increased headaches to Dr. Jahangirvand six months before the accident.

67I find that there was no error of fact or law in not considering whether the applicant requires a neurological assessment to address her future needs because her treating neurologists, Dr. Jahangirvand and Dr. Micallef, have provided their opinions and as noted above, the reconsideration process is not a venue to challenge the weighing of evidence made at first instance.

g) Psychological assessment

68As stated above, the applicant submits that the Tribunal made an error of law in finding that the applicant is not entitled to a psychological assessment because the respondent has an IE psychological report.

69The applicant submits that in paragraph 49 of the decision, the Tribunal misinterpreted the report of the applicant’s treating neurologist, Dr. Micallef, in reference to the applicant’s stressful job, and, in paragraph 50 of the decision, in finding there is no evidence of a psychological impairment. The applicant submits that Cindi Goodfield, Dr. Micallef, Dr. Yokogawa, Taylor Peart and Naro Hussaini confirm the applicant’s symptoms may be associated with a psychological impairment as a result of the accident. However, I find the applicant does not point to an actual psychological impairment and see no error of law or fact as a result.

70The applicant submits that the Tribunal made an error of law in finding there is no evidence of a psychological impairment in support of the plan, dated April 13, 2022, for a psychological assessment, where two years later, the OCF-3, dated March 12, 2024, lists anxiety and depression as an accident-related injury. The OCF-3 includes an addendum, dated April 9, 2024, by Dr. Yokogawa, which mentions that the applicant took a medical leave on October 13, 2023, after she was laid off on September 15, 2023.

71I find that there was no error of law in considering the applicant’s stressful circumstances that are unrelated to the accident, in addition to medical evidence before and after the accident, in making a determination whether a psychological assessment is reasonable and necessary, and, as noted above, the reconsideration process is not a venue to challenge the weighing of evidence made at first instance.

72In sum, I find that the Tribunal did not make an error of law or fact in finding the applicant is not entitled to the disputed treatment plans for an occupational therapy assessment, occupational therapy services, social worker counselling, a driving evaluation, a neurological assessment and a psychological assessment.

CONCLUSION & ORDER

73The applicant’s request for reconsideration is granted in part.

74The decision is varied to include the following:

a. Paragraphs [5], [6], [67] and [68] ii and iii of the decision shall be varied as follows:

5I find that the applicant has demonstrated that the proposed treatment plans (OCF-18’s) for physiotherapy services dated April 23, 2021, May 14, 2021 and June 22, 2022 are reasonable and necessary for her accident-related injuries. The remainder of the OCF-18’s in dispute are not payable.

6The applicant is entitled to any applicable interest for physiotherapy services, and an award is not payable.

67The applicant is entitled to any applicable interest on the plans for physiotherapy services dated April 23, 2021, May 14, 2021 and June 22, 2022.

68For the reasons set out above, I find that:

ii. The applicant is entitled to the treatment plans for physiotherapy services dated April 23, 2021, May 14, 2021 and June 22, 2022; and

iii. The applicant is entitled to any applicable interest.

75The remainder of the applicant’s request for reconsideration is dismissed.

Lisa Holland

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal