RECONSIDERATION DECISION
Before:
John Mazzilli, Adjudicator
Licence Appeal Tribunal File Number:
23-014159/AABS
Case Name:
Patricia Black v. Western Assurance Company
Written Submissions by:
For the Applicant:
David Donnelly, Counsel
For the Respondent:
Anju Sharma, Counsel Marko Radulovic, Counsel
OVERVIEW
1On May 9, 2024, the applicant requested reconsideration of the Tribunal’s decision dated April 24, 2025 (“decision”).
2In the decision, I determined that the applicant is not catastrophically impaired under criterion 8. I further found that the applicant is not entitled to the disputed treatment plans and expenses, because she has exhausted the non-catastrophic limit. Finally, I found that the respondent’s denial letters are compliant with s. 38 of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
3The applicant’s assessor Dr. Miller, neuropsychologist, and the respondent’s assessor Dr. Jwely, psychiatrist, both agree that the applicant suffered from a long standing pre-existing medical condition of IBS and depression, and appropriately neither assessor factored causation in their impairment ratings in the four domains in accordance with the 4^th^ edition of the AMA Guides .
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 makes her request for reconsideration based upon Rule 18.2(a) and Rule 18.2(b). She requests that:
(i) I make a finding that she has suffered a catastrophic impairment in accordance with criterion 8, and, therefore, further find she is entitled to the disputed treatment plans and outstanding expenses, or
(ii) The matter be submitted back to the Tribunal for a new hearing.
5The respondent opposes reconsideration, submitting that the request should be dismissed, because the applicant has failed to demonstrate any error of fact or law sufficient to warrant a reconsideration. It further claims there was no breach of procedural fairness throughout the proceedings.
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(a) – Pre- and post-accident levels of function
8I find the applicant has not established grounds for reconsideration, pursuant to Rule 18.2(a). The applicant has not proven, on a balance of probabilities, that I committed a material breach of procedural fairness by considering the applicant’s pre- and post-accident levels of function.
9The applicant submits that my analysis of her pre- and post-accident impairments in the four domains was neither reasonable or necessary, and, as such, the applicant considers it to be a breach of procedural fairness. The applicant submits that, since both the applicant’s assessor Dr. Miller, neuropsychologist, and the respondent’s assessor Dr. Jwely, psychiatrist, relied on chapter 14 of the 4^th^ edition of the AMA Guides, my analysis of the applicant’s pre- and post-accident levels of function was unwarranted, because both parties’ catastrophic impairment assessors had already considered causation in the four domains when assigning their respective ratings.
10The respondent argues that the applicant demonstrates a fundamental misunderstanding to the concept of causation as it relates to chapter 14 of the AMA Guides, 4^th^ edition. The respondent argues that both assessors did consider causation in their diagnoses of the applicant, and, appropriately, they did not consider causation as a factor in their impairment ratings. The respondent further argues that the applicant made identical arguments regarding causation at the hearing, and that the applicant is now improperly attempting to re-litigate the issue of causation under the same misguided premise.
11I find that the applicant has not proven that I committed a material breach of procedural fairness, because she has not shown that I misinterpreted the AMA Guides by comparing her pre- and post-accident levels of function. I also find that the assessors appropriately did not consider the applicant’s pre-accident impairments when deriving their impairment ratings in accordance with the AMA Guides, 4^th^ edition as noted in my decision at paragraph 43:
Both Dr. Miller and Dr. Jwely did not consider causation in their ratings in the four domains, as their evidence shows that there is no mechanism for causation in the Guides.
12It is important to note that the applicant has pre-existing medical conditions which have caused her to be unable to be employed since the age of eighteen. I thoroughly outline the applicant’s pre- and post-accident medical diagnosis as opined by both assessors at paragraphs 36 to 44. Given both medical assessors’ diagnoses of the applicant’s pre-accident medical condition, I appropriately considered this as outlined at paragraph 44 of my decision.
Therefore, as both Dr. Miller and Dr. Jwely agree that the applicant’s long standing medical condition of IBS and depression are pre-existing, I will consider the evidence of the applicant’s pre-accident and post-accident function in the four domains and the effect if any that her pre-existing conditions are attributable to her post-accident level of function.
13My finding at paragraph 44 of my decision aligns with instructions in the AMA Guides 4^th^ Edition as the assessors are instructed not to consider causation in their impairment ratings, and they did not. The applicant has not shown why this analysis amounts to a breach of procedural fairness. Rather, I find the applicant has misconstrued the 4^th^ edition of the AMA Guides with the 6^th^ edition of the AMA Guides. The 4^th^ Edition does not provide a mechanism for the medical assessors to consider causation in the impairment ratings in the 4 domains of function, which is the test before the assessors in accordance with the Schedule. Causation is considered by the assessors in their impairment ratings in the 6^th^ Edition, which is not part of the criterion 8 analysis as I described in paragraphs 29 to 30 of my decision.
14Finally, the hearing was rife with comparisons of the applicant’s pre-accident level of function compared to her post-accident level of function from both the applicant and the respondent. Therefore, the parties had sufficient notice given their arguments at first instance that my decision would be based on an exhaustive review of the evidence that took into consideration the applicant’s pre- and post-accident levels of function. While the applicant argues that engaging in this analysis was improper, I find not doing so would have amounted to procedural unfairness.
15I find the applicant has not established grounds for reconsideration, pursuant to Rule 18.2(a), because the applicant has not proven on a balance of probabilities that I committed a material breach of procedural fairness by considering the applicant’s pre-and post-accident levels of function.
Rule 18.2(b) – Error of fact and/or law and weighing of evidence
Criterion 8 onus
16I find that the applicant has not shown that 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. Specifically, I find the applicant has not shown I committed an error because I applied the proper impairment ratings in my decision in accordance with chapter 14, 4^th^ edition of the AMA Guides.
17The applicant submits that, in finding that she does not suffer a class 4 marked impairment in the domains of activities of daily living (“ADL”), social functioning (“SF”) and concentration, persistence and pace (“CPP”), I erroneously and unfairly used a higher test than is required by the AMA Guides, 4^th^ edition. The applicant submits that the respondent’s assessor Dr. Jwely and I conflated the criterion for a class 4 marked impairment with a class 5 extreme impairment. As such, I placed a higher onus on the applicant that is not required in accordance with the AMA Guides, 4^th^ edition. The applicant submits this is an error of law.
18The respondent argues that the applicant’s arguments reflect a disagreement with the outcome and not a legitimate legal error. The respondent argues that the applicant is fundamentally misguided in her interpretation of the criteria needed to establish a catastrophic impairment under criterion 8. The respondent argues that a class 4 marked impairment is an “impairment level that significantly impedes useful functioning.” However, under the Schedule, the applicant must demonstrate that a class 4 impairment in three or more areas of function preclude useful functioning.
19I find that my decision clearly distinguishes between the distinct levels of impairment, ranging from class 1 (no impairment) to class 5 (extreme impairment). I further find that I thoroughly applied criterion 8, in accordance with the AMA Guides, in my analysis of the applicant’s accident-related impairments. In addition, I properly applied the legal test when considering the totality of the evidence, including the applicant’s pre- and post-accident levels of function. The tests I relied upon are found at paragraphs 28 to 30, 46, 75 and 94 of my decision.
20The applicant has failed in her onus to prove entitlement to catastrophic impairment because my analysis did not constitute an error in fact or law. I find that I did not make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made, because I applied the proper impairment ratings in my decision in accordance with chapter 14 of the AMA Guides, 4^th^ edition.
21I will further address the applicant’s submission regarding Rule 18.2(b) in the three domains separately below in my decision. However, I will first address her argument about my assessment of the evidence from her occupational therapist, Christine Farrell.
Weight of Christine Farrell’s evidence
22In the absence of an in-home situational assessment from Ms. Farrell, I find I did not commit an error in law or fact that would likely have led me to a different conclusion. I find that I did not make an error of law or fact by placing less weight on the evidence of Ms. Farrell, such that the Tribunal would likely have reached a different result had the error not been made.
23The applicant argues that, by placing less weight on the evidence of Ms. Farrell, this finding has left my decision to be undeniably flawed. The applicant submits my entire analysis comes into question when I erroneously placed less weight on Ms. Farrell’s evidence based on the incorrect fact that she has never visited or assessed the applicant in her home. The applicant submits that this fact alone is sufficient to have this decision reconsidered.
24The respondent argues that rejection of medical evidence is not an error in law or fact, and that adjudicators are entitled to consider and weigh evidence as they see fit. It argues that Ms. Farrell failed to conduct an in-home assessment, which is an essential component of a credible functional evaluation. Instead, it contends that Ms. Farrell sought to cut corners and produced a report that lacked objectivity and independence as a neutral expert, because she was the applicant’s treating occupational therapist, therefore making her an advocate, rather than a neutral assessor.
25I find that, on a balance of probabilities, I did not err by placing less weight on the report of Ms. Farrell. Both Dr. Miller and Dr. Jwely testified that they heavily rely on occupational therapy reports. Dr. Miller testified that she relies heavily on occupational therapy intervention, because it shows how the patient is in the community. She further testified that both a situational and in-home occupational therapy acts as collateral information.
26Similarly, Dr. Jwely testified that occupational therapy assessments are extremely important, as they provide a window on how the person is doing in real life. He testified that he relies on in-home occupational therapy assessments, as they are important to summarize the patient’s real life into the four domains.
27It is my understanding from the hearing that Ms. Farrell did not visit the applicant’s home, however, even if she had, this is not an error that would likely have led me to reach a different result, as she did not conduct an in-home assessment. As detailed above, Dr. Miller and Dr. Jwely both found this type of assessment to be an integral part of the collateral information they rely upon, as it is a window into how one is doing in the real world.
28In the absence of an in-home situational assessment from Ms. Farrell, I did not commit an error in law or fact that would likely have led me to a different conclusion, pursuant to Rule 18.2(b). I find that I did not make an error of law or fact by placing less weight on the evidence of Ms. Farrell, such that the Tribunal would likely have reached a different result had the error not been made.
Concentration, persistence, and pace
29I find that the applicant has not shown that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made by finding that the applicant has a class 3 moderate impairment in CPP.
30The applicant submits that I committed an error of law in finding she does not suffer a class 4 marked impairment in the domain of CPP. She submits that I have incorrectly and improperly imposed a higher obligation/onus on her than is required. Specifically, she contends that I found her impairment must result in a complete inability to function, as opined by Dr. Jwely, thereby conflating the standards for marked impairments with extreme impairments.
31She further submits that I placed more weight on the respondent’s evidence at paragraph 86 of my decision, because I found that Dr. Jwely’s report was inclusive of both an occupational situational assessment and an occupational in-home assessment conducted by Mr. Habash, occupational therapist without providing an analysis of the evidence given by Dr. Jwely in this domain. The applicant further submits that I committed an error of law by not addressing page 22 of Mr. Habash’s report in my decision. She relies on Bayford v. Bosese, 2021 ONCA 442 (“Bayford”).
32The respondent submits that the applicant is fixated on the perceived deficiencies in Dr. Jwely’s report. The respondent argues that I evaluated, in the broader context, all the evidence available, and that the applicant’s criticisms appear to center on Dr. Jwely’s alleged misapplication of law and fact. According to the respondent, this argument is misplaced in the context of a reconsideration request, and it relies on D.D.D v. RBC Insurance Company, 2017 CanLII 63631, for this position.
33I find that I did not err in law or fact by finding that the applicant has a class 3 moderate impairment in the domain of CPP, because I found her impairment levels are compatible with some, but not all, useful functioning.
34My analysis of the evidence is documented in the 18 paragraphs that I dedicated to considering the applicant’s accident-related impairments within the domain of CPP. I not only considered the assessors’ reports/testimony, but I also relied on corroborating CNRs from the applicant’s family doctor, social worker, and treating physiatrist, Dr. Vaidyanath.
35The applicant’s arguments are highly focused on the impairment level and the wording used by Dr. Jwely in his report. Yet, there is no objection to his credentials as an expert in psychiatry and as a qualified catastrophic impairment assessor at the hearing. Further, the applicant did not argue her dissatisfaction in relation to Dr. Jwely’s perceived conflation of the levels of impairment at first instance.
36As already noted above, both Dr. Miller and Dr. Jwely testified that they heavily rely on occupational therapy reports as collateral information, which underscored a major factor in my considerations for my decision as to the vital role that in-home and situational assessments play when assigning ratings under criterion 8.
37In addition, the applicant’s submission at paragraph 31 above is not a complete paraphrase of the language used in my decision at paragraph 86. Paragraph 86 states that:
I placed more weight on the respondent’s evidence, as Dr. Jwely’s report was inclusive of both an occupational situational assessment and an occupational in-home assessment conducted by Mr. Habash on the same day.
38While I did not specifically comment on Dr. Jwely’s findings in my decision as it relates to CPP, I did consider them as I extensively reference Mr. Habash’s reports and the corroborating evidence. This evidence is included in Dr. Jwely’s report at pages 41 through 43 of his report, and I considered the totality of the evidence when arriving to my conclusion in the domain of CPP, SF and ADL.
39Finally, the applicant’s reliance on Bayford and the principle that “misapprehension of evidence is palpable and overriding, such that it is plain to see or obvious and goes to the very core of the outcome of the decision” in my view is an accurate depiction of an adjudicator’s responsibility. However, the applicant in her reconsideration request is attempting to reargue her case by questioning the weight and reasons I opined and assigned. In addition, it is well established that I need not mention every piece of evidence or argument that I considered when arriving at my final decision.
40I find that the applicant has not shown that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made by finding that the applicant has a class 3 moderate impairment in CPP.
Social Functioning
41I find that the applicant has not shown that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made by finding that the applicant has a class 3 moderate impairment in SF.
42The applicant submits that in finding she did not suffer a class 4 marked impairment in the domain of SF, Dr. Jwely imposed a higher obligation/onus on her than is required. Specifically, she argues that this report incorrectly found that her impairments must severely limit her capacity to maintain social relationships or interact effectively with others.
43The respondent argues that the applicant is too focused on perceived deficiencies in Dr. Jwely’s report. The respondent argues that the applicant’s criticisms appear to center on Dr. Jwely’s alleged misapplication of law and fact, an argument that is misplaced in the context of a reconsideration. According to the respondent, reconsiderations are not the proper forum for relitigating factual disputes or challenging expert methodology absent legal error.
44I find that I did not make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The applicant continues to take issue with a word like “severe” in Dr. Jwely’s report, without considering the totality of his report, including both subjective reports and objective findings.
45Further, the evidence was thoroughly analyzed in the nineteen paragraphs that I dedicated to SF in my decision. This analysis allowed me to conclude that the applicant’s limitations in this domain are, in part, consistent with her pre-accident level of function, and that her subjective reports do not entirely align with the totality of the evidence before me. 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.
46I find that the applicant has not shown that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made by finding that the applicant has a class 3 moderate impairment in SF.
Activities of daily living
47I find that the applicant has not shown that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made by finding that the applicant has a class 3 moderate impairment in domain of ADL.
48The applicant submits that I erred in law by not considering the correct legal principles in determining whether the applicant suffered a class 4 marked impairment in the domain of ADL. The applicant submits that, at paragraph 72 of my decision, I imposed a higher obligation/burden of onus on her than is required by the AMA Guides. Specifically, she contends that I incorrectly found her impairments must severely impede useful functioning.
49The applicant further submits that I failed to provide sufficient reasons and failed to provide evidence that she had abandoned her gardens and property/volunteer positions prior to the accident, or that she had poor sleep pre-accident. According to the applicant, this is an error of law, and she relies on Hordo v. CAA Insurance Company, 2024 ONSC 6064 (“Hordo”) in support of her position.
50The respondent argues that it is perplexed by the applicant’s assertion that I applied a threshold higher than that prescribed in the AMA Guides. The respondent argues that I meticulously reviewed and weighed all pertinent evidence before arriving at my conclusions. The respondent argues that the applicant’s disagreement with the outcome does not equate to a legal error, and it is, at best, a misrepresentation of my reasoning.
51The applicant’s assertion that I imposed a higher obligation/burden of onus on her than is required by the AMA Guides is unfounded. I dedicated twenty-eight paragraphs in my decision to the applicant’s ADL with the AMA Guides in the forefront. Furthermore, the evidence that I relied upon regarding her volunteer activities/home gardens and sleep are supported by the applicant’s own document brief, pages 715, 718, 764, 493, 507, 738, 734, 846, 852,765,770,732.
52In addition, I thoroughly considered the applicant’s ability to drive, manage her finances, her physical impairments that started in 2017 and 2018, her ability to groom herself and shower bath independently, volunteer, tend to her gardens, and cook. I also relied upon corroborating evidence to support my findings, not only self-reports from the applicant.
53The applicant relies on paragraph 24 of the Divisional Court’s decision in Hordo v CAA, 2024 ONSC 6064, to describe what counts as an error of law, and argue that I committed an error of law in my decision. On the one hand, ignoring items of evidence that the law requires to be considered counts as an error of law. Making a finding of fact on a material point based solely on irrelevant or no evidence, or making an irrational inference does too. Further, a “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle. On the other hand, challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law.
54While at paragraph 72 of my decision I did use the word “severely” impede useful functioning, and I should have used the word “significantly” instead, I am satisfied that my overall analysis underscores that my ultimate considerations about ADL were based on the 5 levels of impairment found in the AMA Guides. My conclusion was not based on the word “severe.” I further note that Dr. Miller has also used the word “severely” in her description of the applicant’s ADL’s which can be found at paragraph 47 of my decision. Therefore, I find the applicant has not shown that I committed an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
55The applicant appears to opine that I ought to only compare the catastrophic impairment reports, and, in doing so, then disqualify Dr. Jwely’s findings because he and I allegedly imposed a higher burden/onus than required by the AMA Guides. The applicant also requests that I ought not diminish weight to Ms. Farrell’s report, even though an in-home assessment was not conducted. The applicant also appears to suggest that I ignore the evidence regarding her pre- and post-accident levels of function. I find that the applicant is attempting to re-litigate the weight I assigned as part of the hearing, while the reconsideration process is not an opportunity for a party to re-litigate its position.
56I find that the applicant has not shown that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made by finding that the applicant has a class 3 moderate impairment in the domain of ADL.
CONCLUSION & ORDER
57The applicant’s request for reconsideration is dismissed.
John Mazzilli
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 4, 2025