RECONSIDERATION DECISION

Before: Craig Mazerolle, Vice-Chair

Licence Appeal Tribunal File Number: 22-007785/AABS

Case Name: Amit Missra v. Security National Insurance Company

Written Submissions by:

For the Applicant: Ian Drong, Counsel

For the Respondent: Anju Sharma, Counsel

OVERVIEW

1On April 23, 2025, the applicant requested reconsideration of the Tribunal’s decision released April 2, 2025 (“decision”).

2Stemming from an accident on February 3, 2020 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”), the parties participated in a written hearing.

3In the resulting decision, the adjudicator found the applicant met the entitlement test for the pre-104 week income replacement benefit (“IRB”), but he did not meet the test for the period following the 104-week mark post-accident. The adjudicator ultimately ordered at paragraph 30 that no IRB payment (or interest) was owing: “While I find the applicant is entitled to pre-104 IRBs, I find that based on the information and evidence given, I cannot determine a quantum.”

4The 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.

5The applicant relies on Rule 18.2(b) and Rule 18.2(c) to support his request for reconsideration. He is seeking an order to vary the decision to find that he is entitled to ongoing payment of the IRB. In the alternative, the applicant requests a rehearing for the post-104 week IRB.

6The respondent claims the applicant has no basis for requesting a reconsideration.

RESULT

7The applicant’s request for reconsideration is granted, in part.

8The part of the decision involving entitlement to the post-104 week IRB is varied, pursuant to Rule 18.4. Specifically, I am varying this section to find the applicant has established entitlement to the IRB in the post-104 week period. However, as the finding concerning quantum remains from the initial decision, no benefit is currently payable.

ANALYSIS

9The 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.

10The applicant’s arguments on reconsideration can be divided into two categories: i.e., those arguments related to the IRB quantum and those focused on entitlement to the IRB during the post-104 week period. I will deal with these two categories in turn.

Rule 18.2(c) – IRB Quantum

11I find the applicant has not established how the new evidence he seeks to admit for determination of the IRB quantum meets the test under Rule 18.2(c).

12Once again, the adjudicator concluded that the applicant met the entitlement test for the pre-104 week period, but, “based on the information and evidence given”, he could not determine the quantum. The applicant asks the Tribunal to consider updated tax returns from 2020 to 2023 as part of the reconsideration process.

13To meet the criteria under Rule 18.2(c), the requesting party must establish:

a) There is “evidence that was not before the Tribunal when rendering its decision”;

b) This evidence “could not have been obtained previously by the party now seeking to introduce it”; and,

c) This evidence “would likely have affected the result”.

14I am satisfied that these tax returns were not before the Tribunal at first instance, especially as they were not provided to the respondent until April 2025. I am also satisfied that these records “would likely” have impacted the result, due to the reasons provided by the adjudicator for not ordering payment of the pre-104 week IRB. However, where I find the applicant has not met his onus is that he has not explained why this evidence “could not have been obtained previously”.

15According to paragraph 9 of the case conference report and order (released March 24, 2023), the applicant agreed to exchange “Income tax returns from 3 years pre-accident to date” with the respondent by no later than July 20, 2023. The parties were then expected to exchange “all documents not previously disclosed upon which they intend to rely at the hearing” by no later than August 21, 2023.

16The applicant contends that he could not have provided these income tax returns prior to the hearing, as “they could not have been filed at that time.” The applicant supports this submission with an affidavit, where he explains that there was an “erroneously filed T4” that created issues with his 2019 tax return—an error that he was unable to resolve until April 2024. Part of this delay was also brought on by the impacts of the subject accident, as well as his concerns that he had incurred a “financial burden” during the period when he was not filing his taxes. The applicant also highlights the impact of the COVID-19 pandemic.

17While I recognize the struggles that the applicant faced in and around the time of his accident, I do not find these issues demonstrate that he “could not” have obtained the 2020 to 2023 tax returns before the Tribunal rendered its decision. Briefly, while I accept that there may have been difficulties with obtaining these records, including the fear of potential financial ramifications from the “erroneously filed T4”, I do not find that these struggles meet the high threshold needed to establish a ground for reconsideration under Rule 18.2(c). There is a difference between facing difficulty with obtaining a document vs. being unable to obtain a document, and I find the applicant has not shown how his circumstances fall into the latter category. Instead, it appears that there were inconvenient roadblocks that hindered his ability to obtain these documents in a timelier fashion.

Rule 18.2(b) – Post-104 Week IRB

18For substantive entitlement to the post-104 week IRB, the applicant relies on both Rule 18.2(b) and Rule 18.2(c) to support his request for reconsideration. I find the applicant has shown an error that satisfies Rule 18.2(b). In light of this finding, along with my substantive analysis under Rule 18.4 below, I conclude it is not necessary for me to consider the applicant’s arguments about the post-104 week IRB under Rule 18.2(c).

19The applicant argues that the decision lacks “any analysis into whether [he] suffered a complete inability to return to work”. Specifically, the applicant alleges that the adjudicator’s analysis is limited to whether medications assisted with his pain levels, and whether he had returned to some of his activities of daily living. He also contends that the Tribunal did not address his psychological concerns. Taken together, the applicant submits that the Tribunal committed an error of law.

20The respondent contends that the adjudicator considered the applicant’s expert evidence, including the psychological assessments, and he concluded that the applicant did not meet his onus. According to the respondent, the applicant is asking for a re-weighing of the evidence—a similar request to the one the Tribunal denied in D.D.D. v. RBC Insurance Company, 2017 CanLII 63631 (ON LAT) (“D.D.D.”).

21At paragraphs 14 – 21 of the decision, the adjudicator conducted a detailed analysis of the parties’ expert evidence as it relates to the pre-104 week IRB. Ultimately, the adjudicator determined that the applicant met this entitlement standard, based, in large part, on his preference for the applicant’s expert evidence. The adjudicator stated at paragraph 20:

I prefer the applicant’s evidence and give more weight to their expert finding than those of the respondent. It is clear that the applicant suffered from a substantial inability to return to pre-accident employment. The applicant has been able to show that they suffered from chronic pain and was struggling with activities of daily living. At the very least, the applicant suffered from Adjustment Disorder with Depressed Mood, as opined by the respondents assessor Dr. El-Hage, which combined with the consistent reporting of pain by the applicant, warrants a finding of a substantial inability to return to work within 104 weeks of the subject motor vehicle accident.

22Turning to the post-104 week IRB, the adjudicator’s analysis is captured at paragraphs 25 and 26:

I agree with the respondent. The applicant has not been able to meet the test that based on the balance of probabilities “that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience”.

The medical records available for the post-104 week period are not as comprehensive as the pre-104 period. From the records available, it seems the applicant has had some success in managing his pain with limited medication and has been able to return to some activities of daily living. There is little medical evidence shows [sic] the applicant suffers from a complete inability to engage in employment that he is reasonably suited for.

23Considering the centrality of the parties’ expert evidence to the pre-104 week test, I find the adjudicator’s lack of explicit engagement with this evidence for the post-104 week period constitutes an error of law. While I recognize that the entitlement tests are different, I find it was an error to not explicitly engage with the expert evidence for this part of the claim. At the very least, the adjudicator should have indicated why the reports that met one entitlement test did not then satisfy the other. This absence is especially crucial, as—according to paragraph 24—the parties relied on “the same evidence and reports” for both entitlement tests.

24I can then conclude that, had this error not been committed, it is likely that the Tribunal would have reached a different result about the IRB. Due to the importance of this evidence to the parties’ cases, it is likely that an explicit appraisal of the reports would have led to a different result.

25I accept the respondent’s position that the reconsideration process is not meant to be a venue for re-weighing evidence considered at first instance, a point established in D.D.D. However, I find this characterization does not apply to this present request. Rather, the applicant has identified an error in the Tribunal’s handling of the evidence, and he is seeking to have it remedied.

Rule 18.4 – Varying the Decision

26Having found the applicant established a ground for reconsideration as it relates to the post-104 week IRB analysis, I must now determine the appropriate remedy under Rule 18.4. I find it is appropriate for me to vary the part of the decision involving entitlement to the post-104 week IRB. Specifically, based on the submissions and evidence presented during the written hearing, I find the applicant has established entitlement to the IRB in the post-104 week period. However, as the finding about quantum remains from the initial decision, no benefit is currently payable.

27To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. Considering the accident took place on February 3, 2020, the 104-week mark post-accident is January 31, 2022.

28The applicant argues his medical evidence shows he is incapable of performing any employment that he is suited to perform based on his education, training, and experience. In support of this position, the applicant highlights the reports of Dr. Igor Wilderman, chronic pain specialist (dated January 13, 2022); Dr. Ricardo Harris, psychologist (dated September 27, 2021); and Dr. Tajedin Getahun, orthopedic surgeon (report dated December 21, 2021; addendum dated May 9, 2022). He also submits that these opinions are corroborated by his treating practitioners’ records, including his family doctor, Dr. Eric Solway, and his social worker, Mahum Ahmed.

29The respondent opposes the applicant’s claim, arguing that he has not met his onus. It also contends that the applicant has a university education and experience as a computer programmer, and he has “not been assessed by a doctor regarding his post-104 ability to work”. In addition to records from treating practitioners, it relies upon the reports from Dr. Pravesh Jugnundan, general practitioner, and Dr. Monique Costa El-Hage, psychologist (both dated November 12, 2020), as well as the opinion of Dr. Chris Aldridge, general practitioner (report dated December 8, 2022).

30The analysis for the post-104 week period requires the Tribunal to first determine what employment or self-employment the insured person is “reasonably suited” to perform. This assessment involves an appraisal of one’s work history, education, and training. Descriptions of the applicant’s pre-accident job, along with details about his educational background, can be found in the reports from Drs. Jugnundan and El-Hage.

31Briefly, the applicant was employed as a full-time computer programmer for several years prior to being laid off in 2019. This pre-accident role involved software maintenance, report creation, and data management—tasks that involved processing large amounts of information in a fast-paced environment. It also required interacting with others, and there were limited physical tasks.

32The applicant has a university degree in computer science, as well as a college diploma in film.

33Considering his education and job experience, I am satisfied that the applicant is reasonably suited to employment or self-employment that involve a high level of concentration and attention to detail. I further find this employment is sedentary in nature, with a focus on technology and computers.

34Moving to his accident-related impairments, I note that most of the evidence relied upon by the applicant was produced prior to the 104-week mark post-accident. However, with several reports and records being produced in and around this date, I find the applicant’s evidence collectively satisfies me that he has met his onus on a balance of probabilities.

35First, I place significant weight on the social work progress report from Ms. Ahmed (dated November 30, 2022). This report details a series of ongoing physical, cognitive, and psycho-emotional complaints that appear to have significant impacts on the applicant’s ability to perform basic work-related and social functions. For instance, when describing her attempts to address his post-accident cognitive struggles, Ms. Ahmed wrote:

During our therapy sessions, [the applicant] and this therapist have discussed the possibility of returning to work. This therapist has helped [the applicant] break down the steps to return to work… Despite this therapist following up numerous times via text messaging, the client has not completed the first step of locating his resume and updating/editing it. This exemplifies the internal struggle [the applicant] faces regarding his cognitive abilities…

36She also detailed self-reported emotional struggles, as well as test results showing severe depression on the Beck Depression Inventory (though the Beck Anxiety Scale showed low anxiety).

37The respondent challenged the source of these psychological complaints by submitting that the applicant’s father passed away in May 2022, stating: “The loss of his father seems to be the chief trigger for his psychological symptoms throughout 2022.” Aside from the fact that there is no pinpoint reference to any evidence to support this statement, I accept the applicant’s position that this assertion “is unqualified and without basis from any treating or assessing medical practitioner.”

38Overall, I find Ms. Ahmed’s progress report is a compelling account of the applicant’s functional capacities during this key period. I place significant weight on this report, as it is not only detailed and well-founded, but I find there is significant value in having a treating practitioner provide insights from her sessions with the applicant. I do recognize the respondent’s position that the applicant has not been “assessed by a doctor regarding his post-104 ability to work”, but I find the treating relationship between Ms. Ahmed and the applicant still provides a comprehensive account of his functional capacities following the 104-week mark.

39Second, I place significant weight on the January 13, 2022 expert report from Dr. Wilderman. Diagnosing the applicant with chronic pain syndrome, the assessor detailed the significant impacts that this condition would have on his function: “The degree of his functional limitations is considered serious as it interferes with a substantial amount of his pre-accident activities of daily living, and risks being associated with permanent symptoms, such as severe pain and sleep disorder.”

40I find this opinion is compelling due to the significant basis of testing and analysis that the assessor used to reach his opinion, including: elevated results on psychometric testing; reduced range of motion measurements; and an assessment of the chronic pain criteria from the AMA Guides. Therefore, while the respondent may highlight some of the results from this assessment as being less serious (e.g., the applicant “reported taking no medication for his physical injuries”), I find Dr. Wilderman still had a solid basis for reaching his conclusions.

41Further, while his assessment took place several weeks before the 104-week mark, I note that some of the complaints cited by Dr. Wilderman are corroborated by the progress report from Ms. Ahmed. As such, I am satisfied that I can rely on Dr. Wilderman’s opinion to support my conclusions about the IRB. Specifically, I am satisfied that Dr. Wilderman’s expert report provides strong support for finding the applicant meets the post-104 week IRB standard.

42Third, the applicant provided two February 2022 treatment records from Focus Physiotherapy. In these post-104 week entries, the treating practitioner states the applicant is “Progressing slowly”. There is also an indication that, despite this being his 41st and 42nd visits with this clinic, the applicant was continuing to suffer from similar, ongoing complaints: “Pt reports no new complaints.” These records suggest that the applicant has continued to suffer from similar impairments to those from the pre-104 week period.

43Finally, though I accept some of the respondent’s criticism about this opinion, I still find Dr. Getahun’s IRB addendum provides corroboration for the chronicity and functional impact of the applicant’s impairments. In this May 2022 report, Dr. Getahun concluded that the applicant met the post-104 week standard, as he “would be unable to successfully obtain or maintain competitive employment in the workforce.” He also opined that the applicant’s “prognosis is poor considering the chronicity of his symptomology and response to treatment to date.”

44As argued by the respondent, I note that there is limited engagement with the post-104 week standard in this addendum. I also accept that there was no updated assessment of the applicant conducted for this report. However, despite these criticisms, I still find Dr. Getahun’s opinion supports the overall narrative put forward by the applicant, as he confirms the chronic nature of the impairments. I also note that, while brief, the assessor does provide a description of the applicant’s work history and education, an indication that this key part of the post-104 week IRB standard was considered.

45Taken together, I find the applicant’s expert evidence and treating records show that he suffers from significant pain and cognitive complaints. There are also emotional struggles that appear to impact his daily functioning. I can conclude that these symptoms would impact his ability to perform jobs that involve a high level of concentration and attention to detail. Since I have found these tasks play a major role in the employment he is reasonably suited to perform, I find, on a balance of probabilities, that the applicant has met his onus for the post-104 week IRB. Put another way, the applicant has shown he is suffering a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

46Turning to the respondent’s evidence, I do not find it successfully challenges my conclusion about the IRB.

47First, despite the respondent’s focus on the less pronounced symptomology reported by the applicant, I note that Dr. Aldridge’s December 2022 report largely supports my findings above. Specifically, even though the applicant stated that some of his accident-related pain had subsided and he could perform some of his pre-accident tasks, this assessor found there were still ongoing issues with pain: “It is my considered opinion that [the applicant’s] pain presentation is consistent with a combination of myofascial and joint-related pain pathology. This type of pain is known as a deep somatic type pain presentation.” As such, I find this opinion does not significantly detract from the findings above regarding the impact of pain on the applicant’s ability to engage in reasonably suited employment.

48Then, while the respondent continues to rely on the reports of Drs. Jugnundan and El-Hage, I note that these opinions are from 2020—well before the post-104 week mark. As such, I place limited weight on these opinions, especially considering the significant medical evidence I have been presented from in and around this key date.

49Overall, I find, on a balance of probabilities, that the applicant has met his onus for entitlement to the post-104 week IRB.

50As the finding about quantum remains from the initial decision, no IRB is currently payable.

CONCLUSION & ORDER

51The applicant’s request for reconsideration is granted, in part.

52Pursuant to Rule 18.4, paragraphs 10, 22 – 28, and 30 of the decision are varied to state that the applicant has established he is entitled to the IRB in the post-104 week period. Paragraph 32 is also varied to read as follows:

I order the following:

i. No IRB payment is owing at this time;

ii. No interest is due on overdue benefits; and

iii. The application is dismissed.

Craig Mazerolle Vice-Chair Tribunals Ontario – Licence Appeal Tribunal