RECONSIDERATION DECISION
Before:
Ulana Pahuta
Licence Appeal Tribunal File Number:
22-009954/AABS
Case Name:
Ali Vahdati v. Allstate Insurance
Written Submissions by:
For the Applicant:
Adesina John, Paralegal
For the Respondent:
Greg Specht, Counsel
OVERVIEW
1On November 8, 2024, the applicant requested reconsideration of the Tribunal’s decision dated October 18, 2024 (“decision”).
2In this decision, I found that the applicant’s injuries did not remove him from the Minor Injury Guideline (“MIG”), and that he was not entitled to the treatment plans in dispute, or interest.
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 Rules 18.2(a) and (b). He submits that the Tribunal committed a material breach of procedural fairness by excluding a psychological assessment report as evidence in the hearing. The applicant further submits that the Tribunal erred in law by incorrectly interpreting Parts 3 and 4 of the Minor Injury Guideline, and s. 18(1), s. 18(2) and s. 40(7) of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant also argues that the Tribunal erred in fact and law by failing to give appropriate weight to his evidence of a psychological impairment, in finding that the evidence failed to establish accident-related chronic pain and in finding that the respondent had complied with s. 38(8) of the Schedule.
5The applicant requests an order that he be removed from the MIG and that he be entitled to the treatment plans in dispute and interest.
6The respondent submits that the applicant has not established that any of the criteria under Rule 18.2 have been met, and that the applicant’s request for reconsideration should be dismissed.
RESULT
7The applicant’s request for reconsideration is dismissed.
ANALYSIS
8The 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(a) – No Material Breach of Procedural Fairness
9I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a).
10The applicant submits that I violated the rules of procedural fairness by excluding as evidence the s. 25 psychological assessment report dated July 26, 2023. In paras 4-10 of the decision, I address the respondent’s request to exclude the applicant’s s. 25 chronic pain assessment report and psychological assessment report, as both were purportedly submitted for the first time as part of the applicant’s written hearing submissions. In para 5 of the decision I granted the respondent’s request with respect to the psychological report, but denied the request to exclude the chronic pain assessment report.
11The applicant submits that there were sufficient grounds for him to reasonably believe that the psychological report had been received by the respondent. Namely, that in the explanatory notes of the OCF-18 dated July 31, 2023 a psychological assessment report had been referenced as being “sent via fax”. The applicant argues that the respondent failed to establish that it had properly investigated the existence of the report or made efforts to obtain it. Since the respondent had failed to exercise proper due diligence, the applicant argues he should not have been penalized and the psychological report should have been admitted.
12I find that the applicant is raising a new argument as to why the psychological assessment report should have been admitted, that had not been raised at first instance. The applicant did not argue in his initial hearing submissions that the respondent should have investigated the existence of the psychological report and obtain it, but rather, that there was sufficient evidence that it had already been provided to the respondent. As part of his evidence at the initial hearing, the applicant had submitted a fax confirmation showing that the s. 25 chronic pain assessment report had been faxed to the respondent. With respect to the s. 25 psychological report, the applicant referred to the notation in the OCF-18 as evidence that the report had been provided to the respondent.
13I find no error in my finding at para 7 of the decision that the notation in the explanatory note of the OCF-18 was not sufficient evidence that the report had been sent to the respondent, when compared to a fax confirmation. Further the applicant’s argument that the respondent failed to take appropriate measures to obtain the report is a new argument. It is well-settled that a reconsideration is not an opportunity for a party to put forth new arguments that should have been raised at first instance. I find that the applicant has not established a basis for reconsideration with respect to this new argument.
Rule 18.2(b): Error in Law re: s. 18(1), s. 18(2) and s. 40(7) of the Schedule and Parts 3 and 4 of the MIG
14I find that the applicant has not established an error of law in my consideration of these provisions.
15The applicant submits that I misinterpreted and misapplied s. 18(1) and (2) and s. 40(7) of the Schedule, and Parts 3 and 4 of the MIG. He argues that I erred in law in para 16 of the decision when I stated that an insured person “must establish a non-minor injury to be removed from the confines of the MIG.” In reconsideration, the applicant reiterates the argument raised at the initial hearing that s. 18(1) and (2) and s. 40(7) of the Schedule, and Parts 3 and 4 of the MIG should cumulatively be interpreted to hold that the MIG only applies during the acute and subacute phases of injuries (the 12-week timeline of the MIG). Once this 12-week timeline has passed, the injuries have transitioned into the chronic pain phase, and as such the MIG would no longer apply regardless whether the injuries meet the definition of a “minor injury”. The applicant therefore argues that an OCF-18 submitted outside of this 12-week timeline would be outside of the MIG.
16The respondent submits that the applicant is attempting to re-litigate the issue of the MIG. It argues that the applicant conflates the timelines for submission of a non-MIG form, with the removal of the applicability of the MIG, and that it is well-settled that an applicant bears the onus to prove that their injuries do not fall within the MIG. The respondent further submits that the applicant has not provided any binding authority to support his interpretation of the Schedule.
17I find that the applicant has not established grounds for reconsideration. I agree with the respondent that the applicant is attempting to relitigate his position with respect to the applicability of the MIG. It is not grounds for reconsideration that the applicant does not agree with the Tribunal’s decision. Moreover, I find no error of law in my consideration of the referenced sections of the Schedule and the MIG.
Rule 18.2(b): Error in Law and Fact re: s. 38(8) of the Schedule
18I find that the applicant has not established grounds for reconsideration with respect to my consideration of s. 38(8).
19The applicant submits that I erred in law and fact in paras 32 to 34 of the decision where I found that while the respondent’s initial Explanation of Benefits (“EOBs”) were non-compliant with s. 38(8), the final EOB dated April 19, 2021 cured the previous non-compliance. I found that the April 19, 2021 correspondence provided a clear denial to the various OCF-18s, with specific reference to the applicant’s medical condition and a summary of the assessor’s diagnosis.
20The applicant submits that since the prior EOBs were non-compliant with s. 38(8) of the Schedule, they were “invalid”. As such, anything stemming from such a non-compliant EOB, such as any subsequent s. 44 examination reports or the subsequent April 19, 2021 EOB are also “invalid’. The applicant also argues that the April 19, 2021 EOB was issued to comply with s. 38(14) of the Schedule, as it was provided after receipt of a s. 44 report. As such, the applicant submits that such an EOB cannot be used to cure non-compliance with respect to s. 38(8) of the Schedule.
21I find that the applicant has not established an error in law or fact in my consideration of s. 38(8) and the April 19, 2021 EOB. The applicant has not provided any authority for the argument that if an initial EOB is found to be non-compliant with s. 38(8) of the Schedule, such non-compliance cannot be rectified by a subsequent EOB. Similarly, the applicant has not provided any authority for his position that an EOB provided pursuant to s. 38(14) of the Schedule cannot cure a previously non-compliant EOB which had been issued pursuant to s. 38(8) of the Schedule.
Rule 18.2(b): Error in Law and Fact re: findings relating to psychological impairments
22I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
23The applicant submits that I erred in law and fact in failing to properly consider the evidence surrounding his psychological impairments. He summarizes the evidence submitted at the initial hearing and argues that I failed to give appropriate weight to the totality of evidence. In particular, the applicant references the fact that in Part 6 of the OCF-18 dated July 31, 2023, psychological diagnoses and symptoms were noted.
24I find that the applicant has not established an error in law or fact. I agree with the respondent that 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. Further, although in my decision I did not expressly reference the OCF-18 dated July 31, 2023, when rendering the decision I considered all of the evidence presented by the parties. I further note that an adjudicator is not required to refer to every piece of evidence or every argument put forward by a party when reaching a determination on the disputed issues.
Rule 18.2(b): Error in Law and Fact re: findings relating to chronic pain
25I find that the applicant has not established grounds for reconsideration relating to my findings on chronic pain.
26The applicant submits that the evidence he had presented at the initial hearing established accident-related chronic pain. He argues that I failed to properly consider the submitted evidence, including: the fact that he had been prescribed prescription medication, Dr. Gofeld’s findings in his s. 25 chronic pain assessment report, the fact that the respondent’s s. 44 assessor found restricted ranges of motion and reports of pain and that I had improperly assessed the applicant’s functionality.
27I find that the applicant is restating the same evidence that was presented at first instance and is attempting to re-litigate his position. In paras 23 to 27 of the decision I reviewed the evidence presented by the parties and provided reasons as to why the applicant had not met his onus to prove accident-related chronic pain. Such reasons included the fact that the applicant had not submitted family physician records past a month post-accident or any treatment records from a physiotherapy clinic to establish ongoing pain complaints, and that the applicant reported returning to working out and wrestling. With respect to Dr. Gofeld’s report I noted that the applicant’s self-reports of having received pain injections were not reflected in the medical record and that Dr. Gofeld had conceded that no records had been provided to corroborate the applicant’s verbal account. I find no error in law or fact in my assessment of the evidence. The fact that the applicant does not agree with the Tribunal’s decision is not grounds for reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
28The applicant has not established grounds for reconsideration under Rules 18.2(a) or (b).
29The applicant’s request for reconsideration is dismissed.
Ulana Pahuta
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: February 3, 2025