Oliver Gorman-Asal

The applicant disputed his entitled to non-earner benefits and three treatment plans arising out of an accident that took place on October 22, 2019. The applicant tendered two section 25 reports in support of his position but no other medical records. The Tribunal found in favour of the respondent, preferring its s. 44 reports and noting that the s. 25 assessors did not retain the services of a Somali interpreter even though the applicant was only fluent in Somali, nor did they provide Acknowledgment of Expert Duty forms as required by Rule 10.2(b) of the Tribunal’s Rules.

In this case, the applicant disputed her entitlement to income replacement benefits, two treatment plans and claimed a special award under Regulation 664. At the outset of the hearing the applicant moved to exclude all documentary evidence and rely entirely on her own testimony. The Tribunal dismissed the Application, finding that though there are cases in which oral testimony alone is sufficient, the majority require documentary evidence.

In this case, the applicant relied on DMX/Digital/Dynamic Motion X-Ray technology in support of her position that her injuries fell outside the MIG. The Tribunal preferred the respondent’s expert evidence, which was prepared by a general practitioner and neurologist and relied on common diagnostic imaging. Also, the applicant argued that she had sustained a “disc injury” which is not an existing category of injury.

The applicant was involved in a motor vehicle accident that took place on September 20, 2018, in which she sustained soft tissue injuries. In December 2018, the applicant contracted meningitis resulting in myriad impairments including loss of hearing, loss of memory and other cognitive impairments. The respondent requested a preliminary issue hearing to determine whether the subject accident was a direct cause of the applicant’s brain impairments. Vice-Chair Gregory Flude concluded that the applicant did not satisfy her onus of proving that, on a balance of probabilities, the subject accident was a “necessary cause” of her meningitis and associated sequelae, and that, but for the accident, she would not have developed meningitis.

The applicant challenged the respondent’s determination that her injuries fell within the Minor Injury Guideline (MIG). The applicant argued that she suffered from chronic pain and developed psychological problems as a result of the subject accident and that those injuries should remove her from the MIG. The Tribunal found in favour of the respondent, preferring the respondent’s expert evidence and finding that the applicant had not met the evidentiary onus required to remove her from the MIG.

The applicant submitted a Request for Reconsideration on the grounds that the Tribunal’s decision contained a significant error of fact or law. The Tribunal dismissed the applicant’s request since it had not made a significant error of fact or law, reiterating that the reconsideration process is not an opportunity to re-weigh the evidence.