RECONSIDERATION DECISION
Before:
Melissa Shea, Adjudicator
Licence Appeal Tribunal File Number:
22-011658/AABS
Case Name:
Kevin Lara v. Co-operators General Insurance Company
Written Submissions by:
For the Applicant:
Michael Yermus, Counsel
For the Respondent:
Julianne Brimfield, Counsel
OVERVIEW
1On January 10, 2025, the respondent requested reconsideration of the Tribunal’s decision dated December 19, 2024 (“decision”).
2Stemming from an automobile accident on June 23, 2018, I found, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), that the applicant was removed from the Minor Injury Guideline (“MIG”), was entitled to the treatment plans in dispute, and that interest was payable on any overdue payment of benefits. I further found that the respondent was not liable to pay an award under s. 10 of Regulation 664.
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 respondent relies on Rule 18.2(a) and Rule 18.2(b) in its request for reconsideration. The respondent is asking that the Tribunal find the applicant did not sustain a psychological impairment that removes him from the MIG, that no OCF-18s are payable, and that no interest is owing. Alternatively, the respondent is asking the Tribunal to “order a rehearing” before a new adjudicator.
5The applicant opposes the respondent’s request for reconsideration.
RESULT
6The respondent’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) – Material Breach of Procedural Fairness
8I find the respondent did not establish a material breach of procedural fairness.
9The respondent submitted that I ignored relevant evidence it put forward, and, in turn, I committed a breach of procedural fairness. It bases its argument under Rule 18.2(a) on the following:
a. That my decision was wrong in removing the applicant from the MIG based on psychological impairment, that the applicant did not meet his onus of proof, and that the conclusions reached in the decision were not based on the arguments of the applicant, namely, the applicant did not argue that he should be removed from the MIG based on psychological impairment (and no evidence was provided in support of this ground).
b. That in removing the applicant from the MIG based on psychological impairment, I preferred the s. 25 report and ignored the s. 44 report, specifically:
i. That the s. 25 report was not supported by corroborative evidence, particularly the family doctor, and that I ignored case law in support of this;
ii. That jurisprudence would assign little weight to the s. 25 report, because there is no medical evidence to substantiate the diagnosis and that the mild complaints in the s. 25 report corroborated the s. 44 report complaints;
iii. That the s. 25 report’s lack of psychometric testing is an evidentiary issue, whereas the s. 44 report had psychometric testing which concluded the applicant’s symptoms were subclinical/mild/moderate, described no evidence of psychological condition, and didn’t warrant a diagnosis; that I preferred the s. 25 report and therefore did not follow relevant jurisprudence, as the s. 25 report was akin to a pre-screen interview; and
iv. That, in the s. 44 report of Dr. McCutcheon, the applicant stated he had no wish to receive psychological treatment, and that there was no evidence to contradict the statement, and no evidence that he ever attended psychological treatment.
c. In regard to the treatment plans, the respondent argued:
i. These forms were not included or referenced in the applicant’s submissions, nor were they pinpoint referenced as allegedly required in the Case Conference Report and Order (“CCRO”), such that I made the applicant’s case for him;
ii. That both the applicant and I failed to identify how the goals of increase in strength and return to activities of normal living were supported by the treatment plans;
ii. That I ignored evidence of functionality and the applicant’s “ongoing ability to work” from the s. 25 report and ignored the s. 44 report when addressing the goals of the plans; and the only plan seeking psychological treatment is 3.5 years post-accident.
10I find that the respondent did not establish a material breach of procedural fairness.
a. In regards to the applicant’s onus of proof and arguments:
i. The applicant submissions included an argument for removal from the MIG based on psychological impairment at paragraph 49: "Mr. Lara's injuries do not fall within the Minor Injury Guideline as he is suffering from [an] ongoing... psychological condition because of the subject accident." Therefore, I find the respondent’s submission on this ground is unconvincing. The respondent’s submissions also state at paragraph 24: “he is arguing that psychological impairment removes him from the MIG”. Therefore, I find the respondent’s argument that the applicant did not argue this ground to be unconvincing. I further find the respondent had notice that this argument was made;
ii. The applicant’s submissions on psychological impairment included paragraphs 5, 12-15, and 35, and he provided evidence of psychological impairment, including a s. 25 report. Specifically, at paragraph 14 and 15 of his submissions, the applicant quoted psychological associate, Ms. Gronkowska:
Mr. Lara's depressed mood, anxiety and stress regarding his injury and future functioning, ongoing pain, fatigue, and fear of re-injury have compromised his ability to engage in activities he used to perform prior to the accident. This includes house, social, and recreational activities.
I find that the respondent’s argument that I made the applicant’s argument for him is not convincing. I made my decision based on the evidence before me. Both parties had an opportunity to make their case, and provide evidence and arguments, and I made my decision based on the evidence presented;
b. In regards to the s. 25 report and s. 44 report:
i. I find that, at paragraph 12 of my decision, I noted:
self-reported symptoms and a diagnosis of the impairments of post-traumatic stress disorder, moderate major depressive disorder, and somatic symptom disorder, as per the report of Ms. Gronkowska; and corroborated by self-reported depression and anxiety in the report of Dr. McCutcheon. Ms. Gronkowska reports related functional impairment affecting his ability to function reduced socializing, and not engaging in housekeeping activities.
I therefore find I addressed evidence of psychological impairment. The respondent argues that psychological impairment must be corroborated by other records, but, as quoted above, I found that there was corroboration between the s. 25 and s. 44 reports. The respondent submitted case law in support of its argument, however, I am not bound by my colleagues’ decisions at the Tribunal, and the respondent recognized this point at paragraph 11 of its submissions. I used my discretion in reviewing these cases, and the respondent has not shown how my handling of these cases constitutes a material breach of procedural fairness;
ii. I addressed the respondent’s argument that jurisprudence would assign little weight to the s. 25 report because there is no medical evidence to substantiate the diagnosis, at paragraph 13: “I find that this speaks to weight only and is not dismissive, and find the report to retain significant weight.” I further find I addressed the respondent’s argument that the “mild” complaints in the s. 25 medical report corroborated the s. 44 medical report complaints, at paragraph 27 and 28 of my decision, and will now quote from paragraph 27:
sufficient evidence has been presented to convince me on the balance of probabilities that the applicant is entitled to psychological services because of self-reported depression, anxiety, and post traumatic stress disorder, as per the report of Ms. Gronkowska, and self-reported depression and anxiety in the section 44 report of Dr. McCutcheon.
In regards to the argument that I did not follow relevant jurisprudence concerning my weighing of the s. 25 report, I find I am not bound by my colleagues’ decisions at the Tribunal, and that I based my decision on the specific evidence provided by the parties. As I noted at paragraph 13: “though Dr. McCutcheon found the symptoms subclinical, both reports contained similar self-reported psychological symptoms,” and though the conclusions of both experts differed, the reporting of symptoms in the s. 44 report were similar to the s. 25 report. At paragraph 28, I found that “In regards to the argument that little weight should be given to the psychological report if the assessor did not review medical records, further arguing that Ms. Gronkowska must not have reviewed medical records because she did not refer to them, I find that this speaks to weight only and is not dismissive, and find the report to retain significant weight.” Therefore I find that I addressed the respondent’s argument in regards to lack of medical records in the s. 25 report. Further, the s. 25 medical report corroborated the s. 44 medical report complaints, and the s. 44 report contained psychometric testing, I therefore find unconvincing, the respondent’s argument that I relied only on self-reported symptoms.
iii. I addressed the applicant’s wish to receive psychological treatment at paragraph 13 of my decision: “the applicant expressed to Dr. McCutcheon that he didn’t want counselling, I find that his appeal to the Tribunal spoke to his desire to receive psychological treatment, and further find this conflicting evidence speaks to weight only.” I also addressed it at paragraph 28: “find Dr. McCutcheon to have stated that the reason she did not find the OCF-18 to be reasonable and necessary due to this reason alone, to not be sufficient in weight to dismiss.” In regards to the respondent’s argument that there is no evidence that he ever attended psychological treatment, I find this is a new argument, and, as the reconsideration process is not an opportunity for a rehearing, I will not address it here.
c. In regards the OCF-18s:
i. Concerning the respondent’s argument about the inclusion of the OCF-18s in the applicant’s submissions, as I said in paragraph 21 of my decision: “I do not find the respondent’s argument convincing that no OCF-18s were submitted, as I find that the applicant submitted OCF-18s in the application to the Tribunal.” I further find that the OCF-18s are referenced at paragraphs 1, 9, 11, 36, and 50 of the applicant’s submissions. The goals of the OCF-18s were referenced in the applicant’s submissions at paragraph 36. Therefore, I find that the applicant made submissions on the goals of the OCF-18s in dispute, which I noted at paragraphs 23, 24, and 25 of my decision.
ii. The CCRO at paragraph 11 states: “Submissions shall make specific reference to the evidence… by tab and page number. The hearing adjudicator may choose not to review evidence not so referenced.” I will note that the wording used is “may not” and not “shall not”. Therefore, the respondent has not demonstrated how relying on the discretion provided to me from the CCRO constitutes a material breach of procedural fairness. I find that the OCF-18s were properly before me as evidence, and that the applicant made arguments about this evidence as noted above, and therefore the respondent’s claim that I sought out evidence and came up with my own arguments was unconvincing. I find that I did not make the applicant’s submissions for him.
iii. In regards to the respondent’s argument that I ignored evidence of functionality and the applicant’s “ongoing ability to work” from the s. 25 report and ignored the s. 44 report when addressing the goals of the plans, I note that the applicant had the onus. I found sufficient evidence provided by the applicant, and addressed the reasons for entitlement to the treatment plans at paragraphs 21 and 27 of my decision. I further find that, at paragraph 18, I addressed the applicant’s post-accident “modified work activities.”
iv. I find that the treatment goals were addressed in my decision:
a. In regards to the physiotherapy services plan, at paragraph 18, I identified the goals of the treatment plan. At paragraph 19, I identified the evidence provided by the applicant in support of this treatment plan, “would achieve the goal of relieving pain and therefore improve function… that pain relief is a legitimate goal of treatment.” I disagreed with the respondent’s argument that the applicant had not provided evidence, finding: “the applicant has provided medical expert evidence and self-reported symptoms to medical professionals for 4 years, as well as supporting case law.” I therefore find that my decision identified how the goals of increase in strength and return to activities of normal living were supported by the treatment plan.
b. In regards to the goals of the treatment plans for psychological services, the applicant submitted reasons for the assessment and treatment plan at paragraph 16: “treatment plans and assessment… are for… increase in strength, to prevent pain from controlling activities of daily living and lifestyle, and return to activities of normal living.” At paragraph 15 of the applicant’s hearing submissions, he indicated “Ms. Gronkowska further noted that, ‘Mr. Lara's depressed mood, anxiety and stress regarding his injury and future functioning, ongoing pain, fatigue, and fear of re-injury have compromised his ability to engage in activities he used to perform prior to the accident. This includes house, social, and recreational activities.’ " The applicant referred to a legal argument at paragraph 28 of his submissions. At paragraph 23 of the decision, I identified “increase in strength and return to activities of normal living”. Then, for the psychological assessment, at paragraph 24 I identified “increase in strength and a functional goal of a return to activities of normal living.” At paragraph 25, I identified the evidence provided by the applicant in support of the psychological assessment and treatment plan:
Ms. Gronkowska noted in her report that the applicant’s psychological injuries as a result of the accident have compromised his ability to function, including house, social and recreational activities, and noted that the section 44 examiner Dr. McCutcheon also noted self-reported psychological injuries, and states that the OCF-18s submitted contained treatment goals to address this.
c. At paragraph 27, I found “sufficient evidence has been presented to convince me on the balance of probabilities that the applicant is entitled to psychological services because of self-reported depression, anxiety, and post traumatic stress disorder, as per the report of Ms. Gronkowska, and self-reported depression and anxiety in the section 44 report of Dr. McCutcheon.” I found “the OCF-18 for psychological treatment had legitimate goals such as return to activities of normal living.” On review of the argument and evidence, I found that the goals were supported by the plans. I find I did not explicitly state the reason that I found this to be a legitimate goal, however, the respondent has not shown how not explicitly stating the reasons for my finding constitute a breach of procedural fairness.
d. In regards to the argument that the plan seeking psychological treatment is 3.5 years post-accident, I find this is a new argument not presented at the time of the hearing. As a reconsideration is not a rehearing, I will not consider this new argument.
11Given the onus in a reconsideration is on the respondent, and the threshold was not reached, I have not moved on to consider the applicant’s arguments.
12I find that the respondent did not establish a material breach of procedural fairness, pursuant to Rule 18.2(a).
Rule 18.2(b) – Errors of Law or Fact
13I find the respondent did not establish any errors of law or fact.
14Many of the respondent’s arguments are attempts to have me re-weigh the evidence, however, the re-weighing of evidence is not a proper use of the reconsideration process. The respondent submitted that I made the following errors of law or fact:
a. That the applicant did not provide evidence in support of psychological impairment in his submissions;
b. That I did not acknowledge that the applicant continued working in a physical labour job post-accident;
c. That the applicant only included case law addressing chronic pain;
d. That the respondent included case law that supports the applicant didn’t meet the onus of proof that he had an accident-related impairment, that I distinguished only one case in my decision and the basis for which it was distinguished was “questionable.” That I did not comment on the lack of corroborating family physician records, despite respondent’s case law submissions;
e. That in B.M. vs. Aviva Insurance, 2020 ONLAT 18-009182/AABS (“B.M. vs. Aviva”), a reconsideration was granted where the treatment plan was not shown to increase function. That in regards to the psychological services treatment plan, the applicant did not make submissions on the reasonableness or necessity of the plan;
f. That Dr. McCutcheon’s report contained no evidence of psychological condition;
g. That the s. 25 report was not supported by corroborative evidence, that there was no evidence the applicant requested a referral from the family doctor for psychological treatment; and
h. That the s. 25 report was not accompanied by a CV or an Acknowledgement of Expert’s Duty form.
15I find no error of law or fact for the following reasons:
a. The applicant provided evidence in support of psychological impairment in his submissions, which I summarized at paragraph 10 of my decision, and found sufficient to prove that he should be removed from the MIG due to psychological impairment at paragraph 12;
b. I addressed the applicant’s return to work on modified duties at paragraph 18 of my decision;
c. Though the respondent argues that the applicant only submitted case law in regards to chronic pain, case law is not evidence. The decision is based on the evidence the parties provided, and I found the applicant’s evidence was persuasive;
d. I reviewed the case law submitted by the respondent in regards to:
i. The applicant bearing the onus of establishing an accident-related impairment, I found I addressed the applicant’s onus of proof at paragraph 12, 13 and 28 of my decision;
ii. The requirement for corroborating family physician records in regards to psychological complaints, and I find I addressed corroborative evidence of the psychological complaints in paragraph 13; and
iii. The weight of the s. 25 report’s lack of medical evidence, and I find I addressed the weight of the s. 25 report’s lack of medical evidence at paragraph 28.
e. I find that B.M. vs. Aviva is a LAT decision, and I am not bound by my colleagues’ decisions at the LAT. I find that the applicant made submissions at paragraph 14, 15, 35, 36, and 49 in regards to the psychological services treatment plan, and the reasonableness and necessity of the plan. At paragraph 27 of my decision I considered the evidence before me and found the plan to be reasonable and necessary. I therefore find no error of fact or law;
f. I reviewed Dr. McCutcheon’s report, as I reviewed all evidence submitted, and made my decision based on the evidence provided;
g. I reviewed the s. 25 report, as I reviewed all evidence submitted. Although the s. 25 report was not corroborated by a referral from the family doctor, I found that the s. 25 report was evidence, and further, as I noted at paragraph 13 of my decision, “both reports contained similar self-reported psychological symptoms,” I found it was corroborated by similar symptoms found in the s. 44 report;
h. The qualifications of the expert were included in the applicant’s submissions. I find that a s. 25 report need not be accompanied by a CV or an Acknowledgement of Expert’s Duty form in a written hearing. As per Rule 10.2, an expert witness is required to provide qualifications, however, in a written hearing, the s. 25 assessor is not a witness, and, therefore, no qualifications are required to be submitted.
16Given the onus in a reconsideration is on the respondent, and the threshold was not reached, I have not moved on to consider the applicant’s arguments.
17I find that the respondent did not establish any errors of law or fact, pursuant to Rule 18.2(b).
CONCLUSION & ORDER
18The respondent’s request for reconsideration is dismissed.
Melissa Shea
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 25, 2025