Safety, Licensing Appeals and Standards Tribunal 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: March 29, 2018 File: 16-002861/AABS Case Name: F.P. v. Pilot Insurance Company

Written Submissions By: For the Applicant: Adam Romain For the Respondent: Kevin Griffiths

Overview

1On September 8, 2017, the Licence Appeal Tribunal (“Tribunal”) issued its final decision in this matter arising under the [Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996]¹ (“Schedule”). The main issues before the Tribunal were whether the applicant, F.P., was entitled to physiotherapy services, orthopaedic and psychiatric assessments, an award under s. 10 of Regulation 664,² and interest on any overdue payment of benefits from his insurer, Pilot Insurance Company (“Pilot”).

2The hearing adjudicator found that F.P. was entitled to medical benefits for physiotherapy services in the amounts of $1,877.80 and $998 to manage his pain, expenses for orthopaedic and psychiatric assessments at $2,486 each to determine whether he requires more treatment, an award in the amount of 50 per cent of the value of the approved treatment plans because Pilot unreasonably withheld or delayed payments, and interest.

3On October 11, 2017, Pilot brought a motion asking me to reconsider the decision on the basis that the hearing adjudicator made several significant errors of law such that the Tribunal would likely have reached a different decision.³

4For the reasons that follow, I allow Pilot’s request in part, specifically on the issue of an award.

Discussion and Reasons

5I find that the hearing adjudicator erred in granting F.P. an award because she failed to assess whether Pilot unreasonably withheld or delayed payments as required by s. 10 of Regulation 664 and, further, that she failed to provide adequate reasons for her decision on the quantum of the award.

6On the remaining issues, I am not satisfied that the adjudicator made any significant errors of law such that the Tribunal would likely have reached a different decision.

7Accordingly, I allow Pilot’s request for reconsideration solely on the issue of the award.

Medical benefit for physiotherapy services

8Pilot first argues that the Tribunal’s order that F.P. is entitled to physiotherapy (treatment plans dated July 23, 2014 and November 2, 2015) was based on significant errors in law, including the following:

i. the adjudicator's analysis as to whether the proposed treatment was reasonable and necessary failed to consider “the transitory benefit of the treatment”;

ii. the adjudicator's analysis as to whether the proposed treatment was reasonable and necessary failed to consider “less costly alternatives”; and

iii. with respect to the November 2015 treatment plan, the adjudicator erred in law when she failed to dismiss the claim for want of jurisdiction.

9I am not satisfied that the hearing adjudicator made a significant error of law on the issue of F.P.’s entitlement to physiotherapy services. The adjudicator properly applied the correct law to her findings of fact and, ultimately, found that F.P.’s claims for physiotherapy were reasonable and necessary.

10In the course of that decision, the hearing adjudicator acknowledged that F.P. “cannot expect to make a full recovery”. She also considered the insurer’s examination (“IE”) evidence from physiotherapist Ms. Serah Park that F.P.’s symptoms were consistent and that physiotherapy provided only temporary benefits. Nevertheless, she reasoned that “pain management rather than recovery is a realistic objective”.

11It is apparent that the hearing adjudicator was keenly aware of and gave due consideration to “the transitory benefit of the treatment,” though not using that exact wording, given her approval of the physiotherapy which she explicitly noted was aimed at helping lessen F.P.’s persistent pain rather than accomplishing his full recovery. Inherent in this is the adjudicator’s acknowledgement that the physiotherapy’s effects would be “transitory” in nature as opposed to permanently resolving F.P.’s chronic pain syndrome.

12Pilot further argues that the hearing adjudicator failed to consider “less costly alternatives” to the disputed physiotherapy treatments. However, the hearing adjudicator was not required to contemplate any and all possible alternative or cheaper treatments, but rather whether the claimed physiotherapy treatments at issue were reasonable and necessary. She did just that, finding that the physiotherapy treatments were reasonable and necessary to reduce and manage F.P.’s chronic pain.

13Pilot cautioned that prolonged or indefinite treatment may risk promoting dependency or interfering with other aspects of rehabilitation for F.P. However, there was no compelling evidence that the pain relief F.P. experienced from physiotherapy or the additional treatment sought would improperly encourage his dependence or interfere with his overall rehabilitation such that he should not benefit from further therapy.

14Pilot also argues that the Tribunal lacked jurisdiction over the dispute about the November 2015 treatment plan because F.P. failed to attend an IE. The hearing adjudicator specifically considered this argument. She held that it was not reasonably necessary for Pilot to have required F.P. to undergo another IE when one had been done the previous year for the same type of treatment plan. She accordingly determined that F.P.’s absence from the IE was justified and further found that the treatment plan was reasonable and necessary.

15I see no error in the hearing adjudicator’s determination on the November 2015 treatment plan. It is the role of the adjudicator hearing the merits of an application to consider and weigh the evidence presented, and apply her findings of fact to the law. The hearing adjudicator was within her discretion in determining that the Tribunal had jurisdiction over the dispute because it was not reasonably necessary for Pilot to have required F.P. to be examined again so soon. I am not satisfied that her determination of that issue or her determination that F.P. was entitled to the disputed physiotherapy services involved any error.

Treatment plans for orthopaedic and psychiatric assessments

16In the next portion of its request for reconsideration, Pilot argues that the Tribunal’s order that F.P. is entitled to orthopaedic and psychiatric assessments (treatment plans dated February 2, 2016) was based on significant errors in law, including the following:

i. with respect to the claim for an orthopaedic assessment, the adjudicator's analysis as to whether the assessment was reasonable and necessary failed to consider that an earlier orthopaedic assessment of F.P. found no orthopaedic injuries;

ii. with respect to the claim for a psychiatric assessment, the adjudicator's analysis as to whether the assessment was reasonable and necessary failed to consider that F.P. failed to attend a chronic pain assessment that Pilot had agreed to fund; and

iii. the adjudicator's analysis as to whether the proposed assessments were reasonable and necessary considered irrelevant facts (e.g. that the IEs relied on by Pilot did not include reports from earlier assessments).

17Again, I see no error. The adjudicator properly applied the correct law to her findings and, ultimately, found that F.P.’s claims for assessments were reasonable and necessary.

18Although required to consider all of the evidence, the hearing adjudicator is not obliged to refer in her decision to every aspect of each piece of evidence put to her or that she relied upon in ultimately rendering her order. The adjudicator discussed her consideration of F.P.’s earlier orthopaedic assessment by Dr. Michael West in 2012. She noted that Dr. Gianni Maistrelli assessed the 2014 orthopaedic treatment plan not to be reasonable and necessary based on an IE paper review. She also considered Pilot’s reliance on Dr. Maistrelli’s IE in denying the new treatment plan because it was duplicative of the 2012 assessment. However, the adjudicator found that Dr. Maistrelli’s paper review was inadequate to accurately assess F.P.’s orthopaedic condition because he was not provided with Dr. West’s report and did not personally examine F.P.

19Pilot appears to be contesting the hearing adjudicator’s analysis of the evidence regarding the 2012 orthopaedic assessment. The adjudicator carefully weighed all of the orthopaedic evidence and made clear findings based on a balance of probabilities. In assessing the evidence, she found some evidence more persuasive than others and gave weight to the evidence accordingly. She noted Dr. West’s diagnosis that F.P. was suffering from chronic pain syndrome related to a myofascial strain of the lumbosacral spine and post traumatic and post concussive cervicogenic headaches. She also observed that F.P. continued to suffer from chronic pain and noted the medical evidence that his pain would persist.

20Ultimately, the hearing adjudicator found that the treatment plan for an orthopaedic assessment was reasonable and necessary because Dr. West’s assessment was dated and F.P.’s chronic pain was persistent. She determined that an updated assessment would facilitate F.P.’s rehabilitation by assessing what treatment might be best at that stage of his chronic pain. Based on those findings, the adjudicator ultimately found that F.P. was entitled to an updated orthopaedic assessment. That determination was within her discretion.

21With respect to the claim for a psychiatric assessment, the hearing adjudicator specifically notes at para. 37 of the decision:

I do not accept the respondent’s argument that the psychiatric assessment in particular was not reasonable and necessary given that it had approved a chronic pain assessment, which the respondent states that the applicant did not attend. I find it irrelevant whether or not the applicant attended the chronic pain assessment and the approval of that treatment plan has no bearing on whether the other assessments are reasonable and necessary.

22Clearly, the adjudicator gave specific consideration to Pilot’s argument that the costs of a psychiatric assessment should not be covered because F.P. failed to attend the approved chronic pain assessment. She ultimately found that fact to be irrelevant to the application for a psychiatric assessment and the reasonableness and necessity of that separate plan.

23Having reviewed the order, it is clear that the hearing adjudicator turned her mind to the issues raised by Pilot in its grounds for reconsideration of the orders approving the assessments. The hearing is meant to be a final determination of a matter, subject to the rights of review. A request for reconsideration is not an opportunity to have a different adjudicator rehear the evidence or to re-litigate the matter, which is essentially what Pilot is asking me to do. Thus, I am not prepared to interfere with the adjudicator’s exercise of discretion regarding the assessments.

Award

24Lastly, Pilot argues that the Tribunal’s order that F.P. is entitled to an award was based on significant errors in law, including the following:

i. the adjudicator applied the wrong legal test in granting an award;

ii. with respect to the claim for physiotherapy, the adjudicator misstated Pilot’s reason for refusing the treatment;

iii. although the adjudicator concluded that the four claims were improperly denied and provided reasons for same, she provided no reason as to why the denials were unreasonable; and

iv. the adjudicator's analysis on the award considered irrelevant facts (e.g. the financial impact of the denials on F.P.).

25I agree with Pilot that the hearing adjudicator erred by committing significant errors in law in her decision to grant F.P. an award.

26Most significantly, she decided to grant F.P. an award under s. 10 of Regulation 664 without giving due consideration to whether Pilot unreasonably withheld or delayed payments. This requires looking beyond the reasonableness of the insured’s conduct in seeking benefits, whether the adjudicator agrees with the insurer’s conduct, or even whether the adjudicator finds the insurer’s decision to have been wrong. Rather, it entails assessing whether the insurer exceeded the limits of what is reasonable.⁴

27The hearing adjudicator assessed the reasonableness and necessity of the four treatment plans and explained her findings that F.P. was entitled to the benefits as claimed. However, she was silent on the unreasonableness of Pilot’s denial of the claims to justify an award. A finding that a treatment plan is reasonable and necessary should not be conflated with the distinct issue of whether the insurer unreasonably withheld or delayed payments to the threshold contemplated in s. 10 of Regulation 664 to warrant an award.

28Based on my review of the evidence and submissions on the merits, I do not see Pilot as having withheld or delayed payments to the threshold of unreasonable conduct contemplated in s. 10 of Regulation 664. Pilot questioned F.P.’s entitlement and sought medical expertise from its assessors on the reasonableness and necessity of the claims made by F.P. It relied on those medical opinions in deciding that the services were not warranted. Although the hearing adjudicator found that F.P. was ultimately entitled to coverage for the services and I have upheld those findings on this request for reconsideration, that does not automatically equate to unreasonableness in Pilot’s conduct. Indeed, there is no evidence of unreasonableness in Pilot’s conduct to justify an award.

Conclusion

29Based on the above reasons, I allow Pilot’s request for reconsideration on the issue of an award under s. 10 of Regulation 664. There is no indication that Pilot unreasonably withheld or delayed payments for the benefits claimed by F.P. Accordingly, I overturn the hearing adjudicator’s order granting an award.

30I dismiss Pilot’s request for reconsideration on the remaining issues.

Linda P. Lamoureux Executive Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Footnotes

1. 1O. Reg. 403/96.
2. 2R.R.O. 1990, Regulation 664.
3. 3Pilot filed the request for reconsideration on October 11, 2017, which was within 21 days from September 25, 2017 when the Tribunal provided the parties with the decision dated September 8, 2017.
4. 4Graper v. Liberty Mutual Fire Insurance Co., [2001] O.F.S.C.I.D. No. 111 at para. 29 (“Graper”).