RECONSIDERATION DECISION
Before: Melanie Malach, Adjudicator
Licence Appeal Tribunal File Number: 23-011985/AABS
Case Name: Annunziata Cosentino-Amato v. TD General Insurance Company
Written Submissions by:
For the Applicant: Matthew Hyland, Counsel
For the Respondent: Katherine Dempsey, Counsel
OVERVIEW
1On June 2, 2025, the applicant requested reconsideration of the Tribunal’s decision dated May 12, 2025 (“decision”).
2Stemming from an accident on October 21, 2020, the applicant sought benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Following a written hearing, I found that the applicant was entitled to income replacement benefits (“IRBs”) from February 4, 2023 to date, plus interest. I further found that she was not entitled to the three treatment plans in dispute, including an orthopedic assessment, physical rehabilitation sessions and a general practitioner’s assessment.
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 criteria cited by the applicant in support of her reconsideration request is Rule 18.2(b).
5The applicant is requesting an order to vary my decision and order that IRBs are payable to date and ongoing. She further requests that an order be granted reversing my decision and ordering that she is entitled to the three treatment plans in dispute.
6The respondent opposes the applicant’s request for reconsideration.
RESULT
7The applicant’s request for reconsideration is granted in part.
8The applicant’s request for reconsideration with respect to IRBs is granted. Pursuant to Rule 18.4, I vary my decision at paragraphs 7, 16, 30, 31 and 59, to find that the applicant is entitled to IRBs to date and ongoing, along with any interest payable.
9The applicant’s request for reconsideration with respect to the three treatment plans 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.
IRBs – Rule 18.2(b) Error of Law or Fact
11I find that the applicant has established that I committed an error of law or fact, in accordance with Rule 18.2(b). I will vary this part of the decision, in accordance with Rule 18.4.
12The applicant submits that I made an error of fact in my decision in finding that she was entitled to an IRB from February 4, 2023 to date, rather than to date and ongoing. She submits that I made this error by not considering the opinion of Dr. Amena Syed, psychologist, which concluded that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.
13The respondent submits that the quantum of the weekly IRB amount was in dispute, not entitlement. The respondent argues that I clearly identified the quantum of IRB owing to the applicant based on the evidence before me. The respondent argues that due to my finding about the annual CPP indexing, and the fact that the IRB issue was limited to quantum, I could only rule on the IRB payable to date.
14Upon review of my decision and the initial submissions of the parties, I find that only the quantum of IRBs was in dispute, which was addressed in my decision. I do not find that I ignored the significance of Dr. Syed’s report in addressing her entitlement to IRBs, because I was only dealing with the issue of quantum.
15However, the issue in dispute as set out in the Case Conference Report and Order, was entitlement to IRBs to date and ongoing. Upon reflection, and after reading the parties’ initial submissions and reconsideration submissions, I am persuaded by the applicant’s position. I find that I made an error in fact by not addressing the full scope of the issue in dispute. Having only dealt with the quantum of IRBs payable in my decision, entitlement was not at issue. Therefore, it follows that my order would read “to date and ongoing”, not “to date”. Specifically, as I have found that Rule 18.2(b) is engaged, it is necessary to vary my decision, pursuant to Rule 18.4.
16For these reasons, I find that I erred in my decision. As a result, the applicant’s request for reconsideration under Rule 18.2(b), as it relates to the IRB, is granted. I vary my decision and find that the applicant is entitled to IRBs to date and ongoing.
17I find that the applicant has not established grounds for reconsideration based on the treatment plans in dispute, as she has not demonstrated how this part of the decision constitutes an error of law or fact.
18The applicant submits that I erred in law and fact in my assessment of whether the disputed treatment plans for an orthopaedic assessment, physical rehabilitation sessions and a general practitioner’s assessment are reasonable and necessary. With respect to the treatment plans in dispute, the applicant submits that I did not assess her treatment needs comprehensively in light of the diagnosis of Somatic Symptom Disorder (“SSD”) made by Dr. Syed, in her IE report, dated May 10, 2024, as required by sections 15 and 16 of the Schedule. The applicant submits that I misunderstood how psychological and physical factors interact in an SSD diagnosis and misapplied the “reasonable and necessary” test for medical benefits. The applicant further submits that the treatment plans in dispute were essential as these interventions were reasonable and necessary in light of her diagnosis of SSD.
19The respondent submits that I correctly interpreted and reviewed the expert evidence before me. It submits that I provided cogent reasons in support of my decision to prefer its expert evidence over the applicant’s. In addition, the respondent submits that the applicant in her initial submissions emphasizes the findings of Dr. Syed in respect to the tests for pre- and post-104 IRB. The respondent submits that the test for entitlement to treatment plans is different, as it speaks to the “reasonableness and necessity” of the treatment plans in dispute. The respondent argues that Dr. Syed was retained to assess entitlement to IRBs, not entitlement to the treatment plans in dispute.
20I find the applicant has not directed me to any legal authorities stating that my analysis was legally incorrect, nor has she shown how this analysis constitutes a factual error. Instead, the applicant appears to be requesting a reweighing of the evidence and a reassessment of her arguments at first instance. She is also making new arguments in her reconsideration submissions that were not before me at the initial hearing. These requests are not proper uses of the reconsideration process.
21In my decision, I concluded that the three treatment plans in dispute were not reasonable and necessary based on the submissions of the parties and what I found to be insufficient evidence in the medical file. I reviewed all of the arguments made by the applicant and the respondent in reference to each treatment plan. I note that subheadings were used by the applicant to divide the issues in dispute and she made specific submissions about the subject treatment plan under these subheadings. In reaching my decision, I referred to each of the reports relied upon by the parties in support of the applicant’s entitlement to each specific treatment plan in dispute.
22I note that the report of Dr. Syed was not referred to by the applicant in her initial submissions in respect to any of the three treatment plans in dispute. She relied upon the report of Dr. Syed only in respect to her entitlement to IRBs. The applicant first raised submissions about the applicability of Dr. Syed’s report to the treatment plans in dispute in her reconsideration submissions. I find that if the applicant had wanted to rely on this report in reference to the treatment plans in dispute, she had an obligation to do so in her initial submissions. Parties are expected to present their best case at first instance.
23With respect to the treatment plan for an orthopaedic assessment, the records of Dr. Jennifer Black, family physician; Dr. Beverly Chow, physiatrist; and Dr. D.J. Ogilvie-Harris, orthopaedic surgeon, that were referred to by the applicant in her submissions, were all reviewed in my decision. Upon review of these records and the IE reports of Dr. Jennifer Gordon, physiatrist, and Dr. David Berbrayer, physiatrist, I preferred the reports of the IE assessors and concluded that there was insufficient evidence in the medical file to support the need for an orthopaedic assessment. My detailed reasons for this finding are included at paragraphs 37 to 45 of my decision. I find that, while the applicant disagrees with my findings and how the medical documentation was weighed, this is not an error of law or fact that warrants a reconsideration of my findings.
24With respect to the treatment plan for physical rehabilitation sessions, I found at paragraph 48 of my decision, that the applicant had improperly listed the issue in dispute, and, by extension, I found that she has not provided submissions on what is at issue before the Tribunal. I further find that the applicant has not specifically addressed this treatment plan in her reconsideration submissions and, therefore, my findings on this issue have not changed. I find that making a blanket statement that the applicant is entitled to “treatment” does not meet the test of being reasonable and necessary without further particulars.
25With respect to the treatment plan for a general practitioner’s assessment, I found at paragraph 55 of my decision that the applicant had provided limited submissions and evidence in support of the reasonableness and necessity of this plan. I further noted at paragraph 56 of my decision that, while the applicant has attached a number of records in her submissions, she has not directed the Tribunal to the records and excerpts from any reports that support the necessity and reasonableness of the assessment proposed in this plan. Similarly, the applicant has not specifically addressed this treatment plan in her reconsideration submissions, and, therefore, my findings on this issue have not changed.
26In my decision, I concluded that the applicant did not deal with the key elements to establishing entitlement to the disputed treatment plans in her submissions. I found that the applicant did not establish whether and how the assessment or the services proposed in the disputed treatment plans were necessary. Despite making new submissions about her entitlement to the treatment plans in dispute in her reconsideration submissions, I find that the applicant has still not dealt with these key elements to establish entitlement.
27For these reasons, I do not find that the applicant has demonstrated that I erred in fact or law in my decision such that I would likely have reached a different result had the error not been made. As a result, the applicant’s request for reconsideration under Rule 18.2(b), in respect to the three treatment plans, is dismissed.
CONCLUSION & ORDER
28For the reasons set out above, the applicant’s request for reconsideration is granted, in part.
29The applicant’s request for reconsideration with respect to IRBs is granted. Pursuant to Rule 18.4, I vary my decision at paragraphs 7, 16, 30, 31 and 59, to find that the applicant is entitled to IRBs to date and ongoing, along with any interest payable.
30The applicant’s request for reconsideration with respect to the three treatment plans is dismissed.
Melanie Malach
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: August 11, 2025