Reconsideration is not a second hearing - and Aviva's failed attempt to reopen a catastrophic impairment finding proves it.
The reconsideration decision, released July 7, 2026, traces back to an accident on December 31, 2021. The claimant sought statutory accident benefits under Ontario's Statutory Accident Benefits Schedule. After a videoconference hearing, the Tribunal ruled on February 23, 2026 that she was catastrophically impaired under Criterion 8, while denying her claims for a non-earner benefit, attendant care, treatment plans and interest.
Aviva, the respondent insurer, filed for reconsideration on March 16, 2026, relying on Rule 18.2(b) of the Licence Appeal Tribunal Rules, 2023. It asked the Tribunal to find the claimant was not catastrophically impaired. Vice-Chair Craig Mazerolle dismissed the request.
The catastrophic designation turned on four domains of function set out in the AMA Guides. The claimant argued she had a Class 4 (Marked) impairment in all four; Aviva said the evidence showed only Class 3 (Moderate) impairments in three of them. The original decision sided with the claimant across all four. Aviva did not challenge the finding on the Adaptation domain.
On causation, Aviva argued the Tribunal overlooked the claimant's pre-accident history, including a reported long-standing history of anxiety, a disability leave from her bank job dating to 2015, and accommodations at university. Mazerolle found these were disagreements with how the evidence was weighed, not identifiable errors. He noted the Tribunal had relied on the overlap between the parties' experts - a neuropsychiatrist for the claimant and a section 44 psychiatrist for the insurer - who agreed her pre-existing psychological symptoms were exacerbated by the accident, differing only on the extent.
Aviva also complained that the Tribunal never addressed its request for an adverse inference over undisclosed pre-accident records. Mazerolle accepted the point was not explicitly addressed, but said correcting it would not likely have changed the result.
On the disputed domains - activities of daily living, social functioning, and concentration, persistence and pace - Mazerolle repeatedly found Aviva was trying to re-weigh evidence already considered. He acknowledged that one sentence about housekeeping appeared inconsistent with other findings, but concluded that, read in full, the analysis held.
Aviva further argued the Tribunal's own denial of the non-earner benefit was inconsistent with its catastrophic finding. Mazerolle disagreed, noting the two tests apply different legal standards. A significant impact on function, he explained, does not necessarily amount to a "complete inability to carry on a normal life".
For claims professionals, the sharper lesson lies in the detail. An insurer hoping to draw an adverse inference from missing pre-accident records must first have actually sought them. There was no indication Aviva had asked the claimant for the documents before the hearing, or pointed to any order requiring their disclosure - and without that, the Vice-Chair was not persuaded it had done enough to trigger one.
