RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
24-009992/AABS
Case Name:
Domenico De Leo v. Jevco Insurance Company
Written Submissions by:
For the Applicant:
Michael Giordano, Counsel
Leila Shimi, Paralegal
For the Respondent:
Yasar Saffie, Counsel
Dale Stuckless, Counsel
OVERVIEW
1On December 29, 2025, the respondent requested reconsideration of the Tribunal’s decision released December 11, 2025 (“decision”).
2Stemming from an accident on December 9, 2019 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a videoconference hearing. In the decision, the Tribunal found the applicant was entitled to an income replacement benefit (“IRB”) in the amount of $1,000.00 per week from August 8, 2022 to November 1, 2024. It also concluded that the applicant was entitled to a treatment plan for a vocational assessment (plan submitted January 17, 2025). The remaining seven treatment plans were denied. The applicant was entitled to interest, and his award request was denied.
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(b) to support its request. It is seeking an order finding the applicant is not entitled to the IRB, vocational assessment, or interest.
5The applicant is asking the Tribunal to dismiss the respondent’s request.
RESULT
6The respondent’s request for reconsideration is granted, in part.
7Pursuant to Rule 18.4, the parties shall participate in a re-hearing before a different adjudicator. Aside from interest and an award, the only issue in dispute in the re-hearing is whether the applicant is entitled to the treatment plan for a vocational assessment.
PROCEDURAL ISSUE – PAGE MARGINS
8The applicant claims the respondent’s reconsideration submissions do not conform with the 1.5-inch margins requirement from the Tribunal’s reconsideration order (released January 5, 2026). According to the applicant, this breach “allowed for more lengthy reconsideration submissions.”
9The respondent did not address this argument in its reply.
10I find the applicant has not explained how his ability to adequately respond to the respondent’s request was prejudiced by this alleged breach. Therefore, while I accept that the respondent used narrower margins than the applicant in its submissions, I find any impact from this difference is minimal. As such, I have reviewed the respondent’s reconsideration submissions in whole.
ANALYSIS
11The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. 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.
12The respondent has demonstrated that the Tribunal erred in its decision to find the applicant is entitled to the vocational assessment treatment plan. The respondent has not met its onus to show that the Tribunal erred by finding the applicant is entitled to the IRB.
Income Replacement Benefit
13First, the respondent claims the Tribunal erred in its assessment of the clinical notes and records from the applicant’s family doctor, Dr. Kristen Reeves. Specifically, the respondent claims that the Tribunal incorrectly interpreted a record from January 23, 2020 by finding it referenced the subject accident, when it, in fact, referred to a prior accident in October 2019. The respondent also contends that neither Dr. Reeves, nor another family doctor, Dr. Ashleigh Higgs, have ever mentioned the subject accident from December 9, 2019 in their records.
14Paragraph 29 of the decision reads as follows:
I reject the respondent’s theories around causation. There is clear evidence from the doctors treating the applicant and CNRs from health providers like the applicant’s family physician, Dr. Kristen Reeves (January 23, 2020) that the applicant had ongoing shoulder issues that included pain and difficulty with range of motion. And all of the expert’s reports and examinations show that the applicant had prior shoulder injuries and ongoing right shoulder pain that became much worse after the subject accident.
15I find this argument is an attempt to have the Tribunal re-weigh evidence that was considered at first instance. As detailed above, the reconsideration process is not a venue for re-litigation of arguments and evidence presented at the hearing. Rather, the party requesting reconsideration based on Rule 18.2(b) must show the Tribunal committed an error of fact or law.
16The Tribunal assessed the relative merits of the respondent’s causation arguments at several points during its discussion of the applicant’s accident-related impairments, i.e., paragraphs 16 – 29 of the decision. This analysis involved the consideration of several different sources of information, including the cross-examination of experts who treated or assessed the applicant. Though I accept that there is a reference to a prior accident in the January 23, 2020 note from Dr. Reeves, I am not satisfied that the respondent’s reading of this paragraph in the decision is an accurate appraisal of the Tribunal’s chain of reasoning. It appears the Tribunal was aware of the applicant’s prior shoulder injuries, and yet it still concluded that causation was established between the subject accident and his impairments. The respondent may disagree with the outcome of this analysis, but disagreement alone will not trigger Rule 18.2(b).
17In a similar vein, the respondent challenges the basis of the Tribunal’s causation findings by highlighting how both the applicant’s treating orthopaedic surgeon, Dr. Mehdi Sadoughi, and the respondent’s assessor, Dr. James Delaney, opined that multiple dislocations and subluxations “can cause a tear”. Therefore, since the family doctor records show “there were two dislocations before the accident”, the respondent claims (emphasis in original) “there was sufficient evidence to show that the accident was not the precipitating factor that caused the applicant’s shoulder injury and subsequent tear”.
18As noted above, the Tribunal conducted an extensive review of the parties’ medical evidence, including the opinions of Drs. Sadoughi and Delaney. For instance, at paragraph 28, the Tribunal summarized Dr. Delaney’s evidence:
The respondent’s expert witness and insurance examiner, Dr. James Delaney, an orthopedic surgeon, examined the applicant on July 9, 2024. He noted in his report and testimony that the applicant had a number of different issues and prior incidents with his right shoulder prior to the December 2019 index accident. Dr. Delaney did not believe the majority of damage to the applicant’s shoulder, including a dislocation, was caused by the subject accident. He opined that the issues and complaints from the subject accident had resolved and what he saw at the examination was the applicant’s baseline status. Accordingly, he said, the applicant’s surgery was not required for the injuries he sustained in the accident.
19In reviewing this summary, I am satisfied that the Tribunal understood the scope of this expert’s opinion, including his contention that the applicant’s accident-related injuries did not necessitate surgery. The respondent may disagree with its reading of this evidence, but the Tribunal is entitled to assign weight to the evidence as it sees fit. I see no error in this approach.
20Next, the respondent challenges the Tribunal’s reliance on the applicant’s expert evidence to conclude he met the post-104 week entitlement test for the IRB. According to the respondent, none of these experts “considered or answered the exact wording of the Post-104 IRB test”, and so the Tribunal should not have found the applicant met his onus. The respondent expanded on this point in its reply, claiming that several of the applicant’s expert witnesses went outside the four corners of their reports by opining on his entitlement to this benefit.
21After assessing the parties’ medical and vocational evidence, the Tribunal provided its summary of the post-104 week IRB analysis at paragraphs 33 and 34 of the decision:
Following my finding the applicant sustained a shoulder impairment, I am also satisfied that this impairment caused a substantial inability to perform the essential tasks for which the applicant was qualified based on his experience: serving customers, carrying and lifting food and beverages, moving restaurant supplies, etc. He would also be unable to perform an alternative occupation like food delivery for the same reasons.
Accordingly, I believe that, on a balance of probabilities, the applicant has shown that, based on physical and psychological evidence and testimony, he had an inability to engage in any employment during that post-104 week time period that he would be reasonably suited for by education, training or experience.
22Once again, the respondent is disagreeing with the outcome of this analysis, as opposed to identifying an error committed by the Tribunal. Even if none of the applicant’s experts specifically commented on the post-104 week entitlement test, the Tribunal’s assessment of the medical and vocational evidence still allowed it to find that his accident-related impairments met the test under the Schedule. There is a clear rationale provided for this conclusion, namely, his right shoulder impairment left the applicant unable to do any of the physical tasks that are associated with the kind of employment he is reasonably suited to perform. The Tribunal has the ultimate say on the application of this test to the applicant’s impairments, not the experts.
23Finally, the respondent claims the Tribunal “forbid the Respondent to ask questions about inconsistencies found in medical records by various authors about the Applicant’s employment status”. Citing the importance of an applicant’s credibility and employment timeline to the post-104 week IRB analysis, the respondent argues that the Tribunal did not allow it “to ask about the employment inconsistencies found in multiple different medical records”. The respondent also takes issues with a comment made by the Tribunal at paragraph 27 of the decision, where it stated that medical records “are not always accurate when discussing non-medical matters”.
24Aside from the unspecified nature of the claim that the Tribunal “forbid fulsome cross examination” (which is not supported with any specific examples of questioning being stymied), I find the respondent’s read of paragraph 27 is too narrow in scope. In this paragraph, the Tribunal explained why it did not agree with the respondent’s argument about inconsistencies in the medical records regarding the applicant’s employment timeline:
The respondent argued that the applicant was inconsistent in his testimony and history he provided to examiners and treating providers. I cannot put significant weight on this inconsistency. Medical records, especially notations around whether the applicant was working or not working as noted in CNRs are not always accurate when discussing non-medical matters. Medical records are intended for treatment purposes and not to be record of employment, and I place little value on notations in CNRs about whether an applicant may or may not have been working. The majority of inconsistencies are within the CNRs of Eikonic Health, and these fall outside of the period of dispute and are not materially relevant.
25By considering and then explaining why it did not find this argument was persuasive, I see no error in this approach. Rather, the respondent is taking issue with the Tribunal’s rejection of a position it took during the hearing.
26Taken together, I find the respondent has not demonstrated any grounds for reconsideration as it relates to the IRB.
Vocational Assessment Treatment Plan
27Turning to the vocational assessment, the respondent raises one alleged error with the Tribunal’s approval of this plan. It then challenges the Tribunal’s reliance on the resulting report from this plan in its approval of the IRB claim. While I accept that the respondent has shown an error in the approval of the treatment plan, I again conclude that it has not established an error as it relates to the approval of the IRB.
28First, the respondent submits that—while the other disputed medical benefits were dismissed for a lack of supporting evidence and submissions—the Tribunal reached a contradictory finding when it found the applicant met his onus for the vocational assessment treatment plan. Specifically, the respondent alleges that the Tribunal did not explain what evidence and submissions helped the applicant to show this plan was reasonable and necessary.
29The Tribunal’s assessment of this treatment plan is found in paragraphs 51 and 52 of the decision (emphasis added):
The applicant is entitled to $2,486.00 for a vocational assessment proposed [by] Capital Vocational Specialists in a plan submitted January 17, 2025.
One of the issues in dispute in this hearing has been the determination of entitlement to post-104 week IRBs for the applicant. As set out above, I have found that the applicant is entitled to post-104 week IRBs. I further find that the vocational assessment is relevant, reasonable and necessary for the determination of the applicant’s IRB entitlement. Therefore, I find on a balance of probabilities that the applicant is entitled to this assessment.
30I find the respondent has highlighted a legal error in this analysis. Though the Tribunal correctly laid out the test for assessing entitlement to medical and rehabilitation benefits at paragraph 36 (i.e., “reasonable and necessary as a result of the accident”), the analysis used for this specific plan did not follow this standard. Specifically, the Tribunal does not explain why this assessment is necessary for the applicant’s recovery from his accident-related impairments, but rather it focused on how this assessment will help the applicant with “the determination of [his] IRB entitlement.” By focusing on this other benefit, as opposed to his recovery, I find the Tribunal committed a legal error. Further, since this analysis did not follow the correct legal test, I am satisfied that this error would likely have impacted the outcome of the decision.
31The applicant disputes the respondent’s position by claiming that this “assessment addressed the employability, transferable skills, and functional capacity of the Applicant, all of which are directly relevant to the [Schedule] eligibility criteria for post-104 IRBs.” I do not dispute the highly relevant role that vocational assessments play in determining entitlement to the IRB. However, the applicable legal test for medical and rehabilitation benefits requires an insured person to show a connection between the proposed assessment and the recovery of their impairments. Without establishing this connection, I find the Tribunal has committed a legal error in accordance with Rule 18.2(b).
32Second, the respondent claims the resulting vocational assessment report (dated February 26, 2025) was completed several months after his entitlement to the IRB ended on November 1, 2024. As such, the respondent further challenges the Tribunal’s IRB findings due to its reliance on what it sees as an untimely report.
33The Tribunal’s review of this report is found at paragraph 31 of the decision:
The vocational assessment report and the vocational assessor, Mr. Remedios, testified that the applicant was not academically inclined and noted that the physical issues with his shoulder would compromise his ability to return to work after his surgery and post-104 weeks after the accident. His lack of any formal academic post-secondary credentials meant that he would be limited in any alternative type of employment. The assessor also noted that it would be unlikely that the applicant could work in another restaurant as the applicant’s family restaurant could accommodate his demands, and that the applicant would be a liability to a potential employer.
34Though there is a reference to “the physical issues with his shoulder”, most of the information that the Tribunal gleaned from this report involved the applicant’s academic credentials and the likelihood of finding an accommodating employer in the restaurant industry. I do not see how the timing of Mr. Remedios’ assessment would, therefore, have impacted the veracity of this information.
35In sum, while it has established grounds for reconsideration related to the vocational assessment treatment plan, it has again not established any grounds for reconsideration related to the IRB.
Rule 18.4 – Rehearing via Written Submissions
36Having found the respondent established a ground for reconsideration, I find it appropriate to use my authority under Rule 18.4 to order a re-hearing for the vocational assessment treatment plan (and the related claims for an award and interest). The respondent has demonstrated that the Tribunal did not properly assess the applicant’s entitlement to this plan, so I am satisfied that the only appropriate remedy is to have the Tribunal conduct a re-hearing on this issue.
37Due to the limited scope of the remaining dispute, I am satisfied that this matter can be re-heard by way of a written hearing. The need for an efficient conclusion to this proceeding leans in favour of allowing this remaining treatment plan to be decided in a focused and expeditious manner. I am also satisfied that one treatment plan can be adequately addressed through written submissions and documentary evidence. Taken together, I see no prejudice facing the parties from ordering a written hearing, as it is an appropriate balance between the need for an efficient conclusion to this proceeding and the parties’ right to procedural fairness.
CONCLUSION & ORDER
38The respondent’s request for reconsideration is granted, in part.
39Pursuant to Rule 18.4, the parties shall participate in a written re-hearing before a different adjudicator. The only issues in dispute for the re-hearing are:
a. Is the applicant entitled to $2,486.00 for a vocational assessment proposed by Capital Vocational Specialists in a plan submitted January 17, 2025?
b. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant (as it relates to Issue a. only)?
c. Is the applicant entitled to interest on any overdue payment of benefits (as it relates to Issue a. only)?
40The parties shall file with the Tribunal and serve on the other party their written submissions, evidence, and authorities according to the following timetable:
Submissions:
Due Date:
Page Limit:
Applicant’s submissions, evidence and authorities:
30 calendar days following the release of the reconsideration decision
5 pages
Respondent’s submissions, evidence and authorities:
45 calendar days following the release of the reconsideration decision
5 pages
Applicant’s reply submissions or written notice that no reply submissions will be filed:
50 calendar days following the release of the reconsideration decision
2 pages
41No new evidence (including affidavits) may be relied upon by the parties. Only evidence that was exchanged between the parties in accordance with the deadlines set out in the Case Conference Report and Order (released January 14, 2025) may be relied upon by the parties.
42All submissions filed with the Tribunal must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively paragraph and page numbered. Submissions must make specific reference to the evidence and authorities by tab and page number.
43The page limits are exclusive of evidence and authorities. The hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the filing requirements.
44Unless specifically modified in this reconsideration decision, all prior orders of the Tribunal remain in effect.
45I am not seized.
Craig Mazerolle
Vice-Chair
Released: March 12, 2026```