J.M. v. Wawanesa Mutual Insurance Company, 2017 CanLII 144647

Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3 In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260 1-800-255-2214 TTY: 416-916-0548 1-844-403-5906 Fax: 416-325-1060 1-844-618-2566 Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis Service d'aide relative aux indemnités d'accident automobile Adresse postale : 77, rue Wellesley Ouest, Boîte n^o 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2 Tél. : 416 314-4260 1 800 255-2214 ATS : 416 916-0548 1 844 403-5906 Téléc. : 416 325-1060 1 844 618-2566 Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: April 7, 2017

File: 16-000258/AABS

Case Name: J.M. v. Wawanesa Mutual Insurance Company

Written Submissions By:

For the applicant: James Armstrong, Trianta Longo LLP

For the respondent: Kevin Mitchell, Samis + Company

Introduction

1. On January 31, 2017, the Licence Appeal Tribunal (the “Tribunal”) released its final decision in this matter. The Tribunal’s decision dealt with a number of benefits that the applicant claimed under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The Tribunal held that the applicant was not entitled to most of these benefits.

2. On February 21, 2017, the applicant requested a reconsideration of the Tribunal’s decision. The applicant argues that the Tribunal committed a number of errors in fact or law that, if corrected, would have lead the Tribunal to decide this matter otherwise.

3. For the reasons that follow, I deny the respondent’s request.

The Facts

4. On August 22, 2011, the applicant was injured in a motor vehicle accident. As a result, he sought a number of benefits under the Schedule.

5. The sole benefit at issue is the cost associated with a Treatment and Assessment Plan completed by Dr. Valda Lopo, Psychologist. In April 2016, Dr. Lopo examined the applicant, after which she submitted to the respondent a Treatment and Assessment Plan dated May 5, 2016. This Treatment and Assessment Plan recommended that the applicant receive 12 sessions of psychotherapy, at a cost of $3,588.18, in order to assist him with his post-accident symptoms. The respondent refused to pay for these services on the basis that, in March 2014, it had conducted its own psychological insurer examination, one that did not result in any recommendations for psychological treatment.

6. The Tribunal agreed that this was not, as is required by s. 15(1) of the Schedule, a reasonable and necessary expense. The Tribunal’s reasons are discussed in more detail below.

Issues

7. The applicant now asks that I reconsider various aspects of the Tribunal’s decision. More specifically, the applicant argues that the Tribunal committed the following six errors:

(a) it erred in fact by incorrectly characterizing the Treatment and Assessment Plan completed by Dr. Lopo as one for an “assessment” and not “psychological treatment;”

(b) it erred in law and fact by rejecting Dr. Picard’s opinion;

(c) it erred in fact by not properly considering Dr. West’s opinion;

(d) it erred by unfairly comparing Dr. Lopo’s pre-screening report to Dr. West’s full assessment;

(e) it erred by disregarding the affidavit evidence of the applicant, his mother, and his father; and

(f) it erred in law by failing to consider the Schedule’s remedial nature.

Decision

The mischaracterization of Dr. Lopo’s Treatment and Assessment Plan

8. First, the applicant argues that the Tribunal erred by mischaracterizing the issue in dispute as whether the applicant was entitled to “the cost of a psychological assessment by Dr. Lopo in the amount of $3,588.18:” see para. 2. The applicant points out that Dr. Lopo’s Treatment and Assessment Plan recommended psychological treatment, not an assessment. Given this mischaracterization, the applicant argues, the Tribunal failed to consider whether the treatment recommended in the plan, as opposed to an assessment, was reasonable and necessary.

9. I disagree. Part of the confusion might be the result of Dr. Lopo’s wording. While the Treatment and Assessment Plan she completed recommends a course of psychotherapy (i.e., treatment), she states her purpose in submitting the plan as “writing to request authorization to conduct a psychological assessment with [the applicant].” At any rate, despite its repeated use of the word “assessment” as opposed to “treatment” in its analysis, the Tribunal explicitly appreciated that the applicant’s case involved “an application for psychological counselling:” see para. 26.

10. Moreover, insofar as the Tribunal’s analysis is concerned, there is no difference between “treatment” and “assessment.” Regardless of whether the plan recommended an assessment or treatment, the Tribunal was required under s. 15 of the Schedule to determine whether the associated cost was “reasonable and necessary.” I agree that, in order to conduct this inquiry, one must appreciate the nature of the services at issue. In this case, however, the Tribunal’s reasoning for finding that the “assessment” was not a reasonable and necessary expense applies equally to the plan’s recommended treatment.

11. The Tribunal’s decision is premised on several key determinations. It had “no difficulty” accepting Dr. West’s report and thus, his conclusion that “the applicant has achieved maximum medical recovery and does not currently suffer from a generally recognized psychological disorder:” see paras. 19 and 24. It gave little weight to the applicant’s evidence from other psychologists about his condition, see para. 25. And it found that the applicant’s affidavit evidence about his condition was unreliable or should also be given little weight: see paras. 27-31.

12. Based on these findings, the Tribunal held that it was “not convinced that the assessment is a reasonable and necessary expense” (see para. 30). Critically, each of these findings, both individually and cumulatively, enunciates the same underlying point: the Tribunal rejected the applicant’s claim about his psychological condition. That same underlying point applies just as equally, if not more forcefully, to a claim for “treatment” as it would to a claim for an “assessment.” Put another way, if the Tribunal held that an assessment for the claimant’s alleged condition was not a reasonable and necessary expense, it follows that a course of treatment for that same condition is also not a not a reasonable and necessary expense.

13. For these reasons, I see no error in the Tribunal’s analysis that, if corrected, would have led it to a different conclusion.

The Tribunal’s assessment of Dr. Picard’s evidence

14. The applicant also takes issue with the Tribunal’s use, or rather lack thereof, of Dr. Picard’s evidence. Specifically, he highlights the Tribunal’s finding that it “[did] not consider a neurologist’s diagnosis of psychological disorders to merit much consideration:” see para. 26. The applicant suggests that this finding amounted to the Tribunal outright “rejecting” Dr. Picard’s evidence.

15. Again, I disagree. The Tribunal clearly considered Dr. Picard’s clinical notes, records, and conclusions. It simply found that they were “not helpful:” see para. 26. In this respect, this case is distinguishable from the one in Westerhof v. Gee Estate, 2015 ONCA 206, upon which the applicant relies. In that case, the trial judge incorrectly precluded Dr. Rathbone, a neurologist, from testifying about the plaintiff’s psychological condition. In this case, the same type of evidence from Dr. Picard was admitted – it was just not given “much consideration:” see para. 26.

16. The applicant may be correct that the Tribunal had a reservation about a “neurologist’s diagnosis of psychological disorders.” However, the Tribunal was also evidently troubled by the quality of Dr. Picard’s evidence, in particular the fact that it was not produced specifically for this proceeding. Hence the Tribunal’s observation that “[in] fairness to Dr. Picard, when he made his note it is unlikely he knew that it would be part of an evidentiary record for an application for psychological counselling:” see para. 26. For these reasons, the Tribunal gave the evidence little weight.

17. The Tribunal was entitled to weigh Dr. Picard’s evidence as it saw fit. I see no basis for interfering with the Tribunal’s exercise of that discretion.

The Tribunal’s treatment of Dr. Ward’s evidence

18. The applicant argues that the Tribunal also failed to properly consider Dr. West’s evidence. In particular, the applicant highlights several observations in Dr. West’s report of July 18, 2016 that, he argues, support his case. The applicant argues that the failure to properly consider these observations was an error of fact that should be reconsidered.

19. I have two problems with this submission.

20. First, the applicant focuses on a select number of Dr. West’s observations to the exclusion of the report’s ultimate conclusion. Based on his review of the applicant, Dr. West ultimately concluded that there was an “absence of clinically significant accident-related symptomatology,” and that the applicant had “achieved maximum medical recovery” following the accident. Dr. West affirmed his conclusions in his Addendum of September 9, 2016. The Tribunal accepted Dr. West’s conclusions as “reasonable:” see para. 24.

21. Second, the applicant’s submission on this point essentially invites me to reweigh Dr. West’s evidence. As mentioned above, the Tribunal is entitled to weigh the parties’ evidence as it sees fit. I see no error in the manner in which the Tribunal did so with Dr. West’s evidence.

The Tribunal’s comparisons of Dr. Lopo and Dr. West’s assessments

22. Next, the applicant adds that it was unfair for the Tribunal to compare Dr. Lopo’s psychological pre-screen of the applicant to Dr. West’s full assessment and report. The applicant points out that Dr. West’s report was done over a greater period of time and at a much larger expense, which the insurer paid. Failure to acknowledge or compensate for the parties’ disparate resources, he argues further, amounts to procedural unfairness. In his words, “[p]rocedural fairness and natural justice cannot allow Applicants to be penalized for their lack of financial resources to have full psychological assessments conducted because insurers have unlimited financial resources.” For these reasons, he suggests, it was unfair for the Tribunal to expect him to obtain a full report to respond to the insurer’s report.

23. I see no merit to this submission.

24. The applicant had the onus of proving on a balance of probabilities that the medical benefit he requested was reasonable and necessary.¹ In order to meet this onus, he was entitled to adduce whatever admissible evidence he felt was relevant and proved his case. This includes evidence from any medical practitioner of his choosing. Indeed, the applicant adduced evidence from various doctors to attempt to prove his claim.

25. For its part, the respondent had the limited right under s. 44 of the Schedule to require the applicant to undergo an examination by its chosen regulated health professional. The respondent exercised that limited right, which resulted in Dr. West’s report. In exercising that right, the respondent did not “usurp” his ability to conduct an assessment with the psychologist of his choosing or interfere with his ability to access treatment, as the applicant argues. He could still do all of those things.

26. The Tribunal received and considered the parties’ evidence. In doing so, it did not require or expect the applicant to obtain a full report to respond to the Dr. West’s evidence. Rather, it weighed the evidence before it.

27. In comparing Dr. Lopo and Dr. West’s assessments, the Tribunal noted the similarities in their methodologies. The critical difference between the two was that, unlike Dr. Lopo’s screening form, Dr. West’s report “describes the actual tests that were used to provide a basis for his medical opinion:” see para. 22. It was this “difference in the way the methodologies are explained” that caused the Tribunal to prefer Dr. West’s report. This difference is not a function of the parties’ relative resources. Nor is it a function of the difference in the length or cost of the two examinations. Rather, it is function of two different medical practitioners adopting two different approaches to explaining their conclusions.

28. I see no deficiency in procedural fairness or natural justice of the kind that the applicant alleges.

The affidavit evidence

29. The applicant also argues the Tribunal failed to properly consider his affidavit evidence. In particular, the applicant submitted an affidavit from himself, as well as from each of his parents, to support his case. He argues that the Tribunal erred in finding that “the medical opinion of non-experts cannot be relied upon to infer, soundly, that the applicant is in need of psychological treatment.”

30. In fact, the Tribunal thought this evidence was “helpful” since it evidenced “an observable change in the applicant’s cognitive ability since the motor accident:” see para. 27. However, the Tribunal held that this evidence “[fell] short of proving the applicant’s case, both individually and alongside the other evidence:” see para. 27 [emphasis added].

31. Much of the Tribunal’s difficulty with this evidence, which it detailed between paras. 28-30, was that other evidence undermined its reliability. This included the contrast between, on one hand, the “bleak picture of existence” painted by the affidavits and, on the other hand, the applicant’s medical history and the respondent’s surveillance footage. For this reason, the Tribunal gave the evidence little weight, again something it was entitled to do. For that reason, I would not give effect to the applicant’s submission.

The Tribunal’s interpretive approach

32. Lastly, the applicant argues that the Tribunal was bound to consider the Schedule’s remedial nature. The applicant also suggests that the Tribunal should have referenced this approach explicitly.

33. I agree that the Schedule should be interpreted to reflect its remedial and consumer protection focus. However, this approach does not need to be explicitly referenced in every Tribunal decision under the Schedule. It also does not give the Tribunal carte blanche to ignore the plain and ordinary meaning of the Schedule’s text, including s. 15’s requirement that a medical benefit be a “reasonable and necessary” expense. The Tribunal applied that test. In doing so, the Tribunal offered no reason to suggest that it misapprehended the Schedule’s fundamental goals.

Conclusion

34. I therefore deny the applicant’s request for reconsideration.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: April 7, 2017

Footnotes

1. 1See, for example, 16-000393 v. Pembridge Insurance Company, 2017 CanLII 12600 (ON LAT) at para. 5; J. C. v Certas Direct Insurance Company, 2016 CanLII 96161 (ON LAT) at para. 12.