Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal Automobile Accident Benefits Service
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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
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RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
File: 16-001934/AABS
Case Name: 16-001934 v Aviva Insurance Company of Canada
Written Submissions By:
For the Applicant: Volha Vinahradava and Domenic Pellegrino
For the Respondent: Michal Baura and Michelle Friedman
Overview
- On March 15, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter arising under the Statutory Accidents Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The main issues before the Tribunal were whether the applicant was entitled to certain medical benefits, specifically chiropractic and massage therapy treatment, as well as the cost of an examination for a chronic pain assessment. The Tribunal determined that the applicant was not entitled to any of the claimed medical benefits, but found that the applicant should receive the chronic pain assessment. The respondent asks me to reconsider the Tribunal’s decision. For the reasons that follow, I grant that request.
The Facts
The applicant, A.T., was injured in a motor vehicle accident in May 2014. As a result, he sought a number of benefits under the Schedule from his insurer, Aviva Insurance Company of Canada (“Aviva”). These benefits were listed in two Treatment and Assessment Plans (OCF-18).
The first Treatment and Assessment Plan, completed by Dr. S.J. Baur and dated January 29, 2016, included a course of both chiropractic and massage therapy treatment at a cost of $2,554.27. Aviva informed A.T. that it was unable to consider the plan given that, as it stated, A.T.’s impairment was a predominately minor injury, the maximum amount payable under the Minor Injury Guideline for such impairment was $3500, and that Aviva had already provided him with benefits in this amount. (Aviva later conceded that the Minor Injury Guideline does not apply.) It also sent A.T. a notice of insurer’s examination scheduling him for two examinations, one with Dr. M. Hanna. Following that examination, Dr. Hanna issued a report in which he opined that A.T.’s injuries were minor and that the services recommended in the Treatment and Assessment Plan were not reasonable and necessary. On that basis, and by letter dated March 17, 2016, Aviva denied A.T. these benefits.
The second Treatment and Assessment Plan, completed by Dr. J. Mazzarella and dated March 22, 2016, included a chronic pain assessment at a cost of $1950. Aviva informed A.T. that it was also unable to accept this plan, noting that a chronic pain assessment did not appear consistent with A.T.’s diagnosis. Once again, Aviva turned to Dr. Hanna, who, after conducting a paper review, opined that A.T. did not have chronic pain and, therefore, that the assessment included in the plan was not reasonable and necessary. For that reason, and by letter dated April 15, 2016, Aviva denied A.T. this benefit.
Eventually, in August 2016, A.T. commenced this application to dispute his entitlement to the benefits included in both plans.
The matter was heard by way of written hearing on January 10, 2017, following which the Tribunal rendered its decision on March 15, 2017. In its decision, the Tribunal denied A.T. the chiropractic and massage therapy treatment recommended in the first plan, but held that he should receive the cost of the chronic pain assessment recommended in the second plan.
Aviva now asks me to reconsider the Tribunal’s decision with respect to the cost of the chronic pain assessment.
Discussion and Reasons
Why the Tribunal erred
Aviva’s principal argument is that the Tribunal made a significant error in law by applying the wrong standard of proof when considering A.T.’s entitlement to the cost of a chronic pain assessment.
The civil standard of proof is one based on a balance of probabilities.2 Accordingly, in determining whether an injured person is entitled under the Schedule to the cost of an assessment, this Tribunal3 and the Financial Services Commission of Ontario4 have routinely asked the same question: whether the injured person can establish on a balance of probabilities that the assessment is reasonable and necessary. Ontario courts have also applied the same standard of proof to the question of one’s entitlement to a benefit under the Schedule.5
In this case, Aviva submits that the Tribunal applied a different standard. Rather than apply a standard based on a balance of probabilities, the Tribunal appeared to apply one based on a balance of possibilities. The relevant portion of the Tribunal’s reasons addressing the standard of proof it applied, paras. 29-30, reads as follows:
I take Dr. Hanna’s point that the applicant has not exhibited behaviour indicative of a person with chronic pain syndrome. I assume without deciding that it is within Dr. Hanna’s expertise to provide an opinion on what steps a person with chronic pain syndrome would take for treatment. Even with all of this considered, Dr. Hanna’s initial report indicates that the applicant has degrees of physical pain about his spine. The nature of the applicant’s injuries indicates that there is a reasonable possibility that he may have chronic pain syndrome.
When assessing the reasonableness and necessity of an assessment as opposed to rehabilitative treatment, one must look at reasonable possibilities rather than probabilities. Otherwise, one risks assuming the answer to the question underlying the assessment. The purpose of the applicant’s assessment is to determine whether he has chronic pain syndrome. He should not be denied the opportunity to answer this inquiry simply because, with the information available to him at this point in time, chronic pain is not a probable answer.
Aviva submits that the above passage demonstrates that the Tribunal created two different standards of proof: a balance of possibilities used to determine whether an assessment is reasonable and necessary, and a balance of probabilities used to determine whether a course of treatment is reasonable and necessary. Aviva highlights that a standard based on a balance of possibilities has no legal foundation. I agree.
In order to determine whether the assessment was reasonable and necessary, the Tribunal was not required to find it more probable than not that A.T. has chronic pain syndrome. That puts the onus too high and, as the Tribunal explained, would defeat the assessment’s purpose. Nevertheless, the Tribunal’s finding that it was reasonably possible that A.T. has chronic pain syndrome does not alone satisfy the applicable evidentiary burden.
The Tribunal’s finding that there is a reasonable possibility that A.T. has chronic pain syndrome may be an important or even necessary part of the analysis. After all, if there is no reasonable possibility that A.T. has chronic pain syndrome, then an assessment to investigate the condition further is, barring exceptional circumstances, neither reasonable nor necessary. In this sense, the Tribunal’s finding that an assessment is reasonable and necessary is ordinarily predicated upon its finding, at least impliedly, that there is a reasonable possibility that the insured person has the condition that the assessment will then investigate. However, although a large part of the inquiry, that is not the end. The Tribunal must still determine whether, on a balance of probabilities, the evidence demonstrates that the assessment claimed is reasonable and necessary. There may still be situations in which, despite the reasonable possibility of a suspected condition existing, an assessment is neither reasonable nor necessary, say for example where the insured person recently had the same assessment. At any rate, the ultimate question that the Tribunal must answer is whether, on a balance of probabilities, a claimed assessment is reasonable and necessary.
In this case, the Tribunal did not complete this analysis. More troublingly, it explicitly applied the wrong standard of proof. Given these errors, I grant Aviva’s request for reconsideration and remit this matter back to the same Tribunal member to determine whether, on a balance of probabilities, the assessment at issue is reasonable and necessary.
Why a redetermination is not precluded
Despite being successful on this point, Aviva may still take issue with this outcome. On this request for reconsideration, it argues that, even if the Tribunal applied the correct standard of proof, it could not have found that the assessment was reasonable and necessary given its observation that “chronic pain is not a probable answer.” Based on this submission, Aviva would also likely argue that, given the same finding (i.e., that “chronic pain is not a probable answer”), the Tribunal is now logically precluded from finding that the assessment is reasonable and necessary and, thus, that remitting the matter back to the Tribunal is pointless. I disagree.
Again, the relevant test is whether, on a balance of probabilities, the assessment (i.e., an examination to determine whether in fact the possible or suspected condition exists) is reasonable and necessary. As explained above, the Tribunal was not required to determine that it is more probable than not that A.T. has chronic pain syndrome in order to satisfy that threshold. For the same reason, its observation that “chronic pain is not a probable answer” does not necessarily preclude its ability to find the assessment reasonable and necessary. It may not be “probable” that A.T. has chronic pain syndrome, but the Tribunal may nonetheless find that, in the circumstances, it is reasonable and necessary that A.T. be assessed further.
Likewise, I do not give effect to two other arguments Aviva raises here that, I anticipate, it would also suggest makes remitting the matter back to the Tribunal pointless.
First, Aviva highlights the fact that the Tribunal denied A.T. the chiropractic and massage therapy treatment he claimed given his reliance on psychological reports, lack of credibility, and failure to adduce important objective medical documentation. Aviva suggests that, given these concerns and the Tribunal’s resultant conclusion that A.T. was not entitled to chiropractic and massage therapy treatment, the Tribunal could not then – or could not now, I suspect – find that there was an evidentiary basis for finding the chronic pain assessment reasonable and necessary.
The short response to this argument is that the evidentiary bases for these determinations can be different. In determining that A.T. was not entitled to chiropractic treatment and massage therapy, the Tribunal was ultimately left to observe that there was no objective evidence as to whether these benefits would be an effective remedy for A.T.’s physical injuries or, instead, whether his recovery has plateaued: see para. 21. Put another way, while the Tribunal was convinced that A.T. sustained an injury as a result of the May 2014 accident, it could not conclude from the evidence before it that chiropractic treatment and massage therapy were reasonable and necessary to treat A.T.’s injury. Nevertheless, there might still be an evidentiary foundation supporting a finding that it is reasonable and necessary that A.T. receive a chronic pain assessment. I leave that for the Tribunal to determine.
Similarly, Aviva also argues that, despite relying on Dr. Hanna’s evidence, the Tribunal ignored Dr. Hanna’s conclusion that A.T. did not suffer from chronic pain syndrome. In Aviva’s view, all that can be drawn from Dr. Hanna’s evidence to support A.T.’s case is evidence of soft tissue injuries which, taken alone, cannot establish entitlement to a chronic pain assessment.
As the trier of fact, the Tribunal is entitled to weigh the evidence as it sees fit. Although it is required to consider Dr. Hanna’s evidence, it is not bound to accept it wholesale. There is other medical evidence in the record upon which the Tribunal might reasonably rely to conclude that it is reasonable and necessary that A.T. receive a chronic pain assessment. Again, I leave it to the Tribunal to evaluate and weigh this evidence, and draw the conclusion that it deems most appropriate.
In sum, I do not see anything in the Tribunal’s reasons or the record suggesting that this issue should not be redetermined in accordance with the appropriate principles.
Costs
Lastly, A.T. asks for costs. He argued that Aviva’s request for reconsideration involves multiple unreasonable or bad faith interpretations of the Tribunal’s decision. For that reason, he asks that I invoke Rule 19 of the Tribunal’s Rules of Practice and Procedure to award costs against Aviva.
Aviva has done nothing unreasonable or in bad faith. Indeed, I obviously agree with Aviva that the Tribunal appeared to apply the wrong standard of proof in determining A.T.’s entitlement to a chronic pain assessment. I therefore refuse to make any costs order.
Decision
- I grant the request for reconsideration and remit this matter to the same Tribunal member to determine, in accordance with these reasons, A.T.’s entitlement to the assessment recommended in the Treatment and Assessment Plan dated March 22, 2016.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: August 14, 2017
Footnotes
- O. Reg. 43/10.
- F.H. v. McDougall, 2008 SCC 53.
- See, e.g., 16-002818 v. Unifund Assurance Company, 2017 CanLII 39709 at paras. 25-7; 16-003165 v. Unifund Assurance Company, 2017 CanLII 39702 at para. 4; 16-001985 v. Aviva Insurance Company of Canada, 2017 CanLII 22323 at para. 40.
- See, e.g., Hashi v. Certas Direct Insurance Company, A13-014953; Batuzskin v. TD General Insurance Company, FSCO A12-004216.
- See, e.g., Scarlett v Belair Insurance, 2015 ONSC 3635 at para. 27; Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 6069 at para. 201.```