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 no 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
File: 16-002947/AABS
Case Name: R.P. v. Wawanesa Insurance Company
Written Submissions By:
For the Applicant: Matthew Wasserman
For the Respondent: N.A.
Overview
1R.P. applied to the Licence Appeal Tribunal (the “Tribunal”) to dispute his entitlement to various benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10, along with interest. The Tribunal denied his application. R.P. now requests a reconsideration of the Tribunal’s decision. The basis for his request is that the Tribunal allegedly made a significant error of fact and violated procedural fairness by failing to refer to, or consider, certain evidence he submitted before the Tribunal’s hearing. I disagree and, therefore, deny this request for the reasons below.
The Facts
2R.P. was injured in a motor-vehicle accident on January 14, 2015. As a result, he sought various benefits from his insurer, Wawanesa Insurance Company (“Wawanesa”). At issue before the Tribunal were the following benefits which Wawanesa denied:
attendant care benefits in the amount of $1,200.04 per month for the period of July 26, 2016 to date and ongoing;
medical benefits in the amount of $500.00 for chiropractic services recommended by Physiocore and Sports Rehab in a treatment plan dated December 24, 2015;
medical benefits in the amount of $1,087.64 for chiropractic services recommended by Physiocore and Sports Rehab in a treatment plan dated May 9, 2016;
payment for the cost of examinations in the amount of $1,300.58 for an in-home assessment recommended by Spinegroup Med Rehab in a treatment plan dated February 10, 2016;
payment for the cost of examinations in the amount of $303.90 for a psychological assessment recommended by Spinegroup Med Rehab in a treatment plan dated April 1, 2016;
expenses for prescription medicine, Vimovo, in the amount of $43.83; and
interest on any overdue payment of benefits.
3The Tribunal found that R.P. was not entitled to any the benefits he was seeking. As a result, there were no overdue payments on which he could be awarded interest.
4R.P. now challenges the Tribunal’s decision.
Decision and Reasons
5In his request for reconsideration, R.P. challenges the Tribunal’s decision only with respect to his entitlement to medical benefits from the Physiocore and Sports Rehab treatment plan dated May 9, 2016, expenses for the prescription medicine Vimovo, and interest on any overdue payment of benefits.
6R.P. contends that the Tribunal made a significant error of fact and violated procedural fairness by failing to either refer to, or consider the following specific evidence:
(a) the clinical notes and records of West Vaughan Medical Centre;
(b) the clinical notes and records of PhysioCore and Sports Rehab;
(c) the clinical notes and records of PhysioActive;
(d) the clinical notes and records of Dr. Stefano Chiozza;
(e) the prescription summaries of ProCare and DrugCare Pharmacy;
(f) the in-home functional evaluation and attendance care assessment by Mr. James D’Astolfo, dated April 1, 2016;
(g) the psychological assessment of Dr. Mehrdad Pojhan, dated July 9, 2016;
(h) the clinical notes and records of Dr. Robin Richards; and
(i) the chiropractic assessment and progress report of Dr. Feng Li, dated February 28, 2017.
7R.P.’s request for reconsideration does not provide any arguments or reasons why any of the above-listed documents were relevant to the Tribunal’s consideration of his entitlement to either benefit at issue. It similarly fails to substantiate R.P.’s claim that the Tribunal did not consider these documents. All told, R.P.’s request for reconsideration is based entirely on the Tribunal simply not having explicitly referred to this evidence.
8Despite R.P.’s claim to the contrary, paragraph 24 of Tribunal’s decision explicitly refers to (d), the clinical notes of Dr. Chiozza. Therefore, Dr. Chiozza’s notes need not be addressed further.
9While the Tribunal’s decision does not explicitly refer to the rest of the above-listed documents, para. 6 of the decision clearly states that the Tribunal considered all of the submitted documents and summarized those that were relevant to its findings. R.P. takes issue with the Tribunal not providing reasons why some of his evidence was irrelevant to the Tribunal’s decision. However, R.P.’s original submissions for the hearing fail to outline the relevance of the majority of the above-listed documents.
10In fact, R.P.’s original submissions on the two benefits at issue now refer to only two of the above-listed documents – (h) and (i). Four of the other documents – (a), (b), (c), and (e) – are each referenced only once in the context of R.P.’s injuries and treatment history.1 Finally, the remaining two documents – (f) and (g) – are clearly not relevant to either benefit at issue now.2
Physiocore and Sports Rehab Treatment Plan, dated May 9, 2016
11Physiocore and Sports Rehab’s May 9, 2016 treatment plan recommended two chiropractic treatments, four massage treatments, and four sessions of exercise over six weeks. The Tribunal noted the treatment plan was too passive and infrequent to effectively assist R.P. resume his pre-accident activities, namely dancing, boxing, and cycling. For this reason, the Tribunal found the treatment plan was neither reasonable nor necessary and denied R.P. medical benefits. The Tribunal’s finding was based on a mismatch between the contents and objectives of the treatment plan.
12R.P. visited West Vaughan Medical Centre twice after his accident. The clinical notes and records of West Vaughan Medical Centre – (a) – are intake and follow up notes from those two visits. West Vaughan Medical Centre’s notes do not include any recommendations on the content of an ongoing treatment plan and therefore did not provide guidance for the Tribunal’s determination of the reasonableness and necessity of Physiocore and Sports Rehab’s May 9, 2016 treatment plan.
13R.P. started receiving treatment from PhysioActive in May 2015 and discontinued his treatment in November 2015 because he was not seeing any results. The document includes intake notes, treatment notes, and copies of two OCF-18s filed on July 14, 2015 and September 9, 2015. PhysioActive’s intake notes do not include recommendations on the content of an ongoing treatment plan. PhysioActive’s treatment notes lack context and are partially illegible. The legible parts of PhysioActive’s treatment notes (e.g., an entry dated August 7, 2015 on pg. 8) appear to focus on an active treatment regime. However, absent an accompanying medical opinion or proper context, these notes did not provide meaningful guidance and the Tribunal was correct not to take them into consideration.
14The clinical notes and records of Dr. Robin Richards – (h) – corroborate a reduction in the range of motion in R.P.’s right shoulder and suggest surgery as a potential treatment. R.P.’s shoulder impairment was not a contested issue, and the availability of surgery as a treatment option was completely irrelevant to the reasonableness or necessity Physiocore and Sports Rehab’s May 9, 2015 treatment plan. As a result, Dr. Richard’s notes were not relevant to the Tribunal’s consideration.
15The clinical notes and records of Physiocore and Sports Rehab – (b) – is a 189 page, unindexed document which includes duplicates of documents (a) (pp 48-61), (c) (pp 71-78), and (d) (pp 5-20), as well as copies of letters to or from Wawanesa, medical records release forms, and numerous other documents submitted by either party. Some pages (e.g., pp 123-124) that appear to contain Physiocore and Sports Rehab’s actual notes based on the dates are largely illegible due to poor copy quality. It is unclear what part of this document R.P. wished to be considered in relation to his entitlement to medical benefits, especially considering his original submissions reference it only once and in passing:
“[R.P.] began attending rehabilitative treatments initially at Physiocore and Sports Rehab. (See Tab “9”)” [Emphasis in original, Tab 9 of R.P.’s Brief of Productions contain Clinical Notes and Records from Physiocore from December 17, 2015 to March 7, 2017.]
16R.P had the opportunity to highlight the relevant parts of Physiocore and Sports Rehab’s notes or at least provide legible copies to support his case at the hearing and again in his request for reconsideration. His failure to have done so does not amount to a denial of procedural fairness.
17The chiropractic assessment and progress report of Dr. Feng Li – (i) – was similarly unhelpful to the Tribunal’s determination despite Dr. Li having also prepared Physiocore and Sports Rehab’s May 9, 2016 treatment plan. In his report, Dr. Li recommends continuing with a treatment plan that is similar to the May 9, 2016 treatment plan in content but differs in its frequency. However, Dr. Li’s report does not provide reasons to support the treatment plans he recommended or explain why he favors facility-based, passive, and infrequent treatment to help R.P. resume his pre-accident activities. As a result, Dr. Li’s report was a reiteration of Dr. Li’s opinion and did not provide further information or assistance to the Tribunal regarding whether Physiocore and Sports Rehab’s May 9, 2016 treatment plan was reasonable and necessary.
18It is well established that administrative decision makers are not required to include every argument in their reasons or to make explicit findings on each constituent element leading to their conclusion.3 In this case, R.P. submitted a large number of tangentially relevant documents without providing any explanation how they could guide the Tribunal’s consideration. Under the circumstances, the Tribunal not having referred to each document was neither a denial of procedural fairness nor an error of fact.
Medication Expenses for Vimovo
19The Tribunal denied R.P. the cost of the prescription medicine, Vimovo; because it was unable to link R.P.’s use of Vimovo to either his pre- or post- accident injuries.
20Two documents – (a) and (e) – indicate that R.P. was prescribed the non-steroidal anti-inflammatory drugs (“NSAID”) Naproxen and Vimovo following the accident.4 However, neither of these documents contains evidence of a prescription history that demonstrated R.P.’s use of NSAIDs was associated solely with the injuries caused by the accident. Consequently, neither document was able to provide guidance for the Tribunal’s reasoning on this issue.
Interest on Unpaid Benefits
21R.P. is not entitled to medical benefits from the Physiocore treatment plan or expenses for Vimovo. Therefore, his request for interest on unpaid benefits has no basis and cannot proceed.
Conclusion
22This request for reconsideration is denied.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: March 13, 2018
Footnotes
- The clinical notes and records of Dr. Stefano Chiozza – (d) – also falls under this group of documents but was excluded because unlike the others, it was referenced at paragraph 24 of the Tribunal’s decision.
- The in-home functional evaluation and attendance care assessment by Mr. J. D’Astolfo – (f) – was also not relevant to R.P.’s entitlement to attendant care benefits because R.P. was unable to prove he had incurred any expenses for attendant care. The psychological assessment of Dr. Pojhan – (g) – was also not relevant R.P.’s eligibility to receive the cost of the psychological assessment because it did not account for the time spent in preparation for and during the psychological assessment. The Tribunal accepted Wawanesa’s examiner’s, Dr. Kelly, opinion that the examination could have been completed within 10 hours, as opposed to 13.5 advanced by R.P., in denying the balance between the amount claimed by R.P. and that previously approved by Wawanesa.
- Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at 14-17.
- The clinical notes and records of Dr. Chiozza – (d) – also indicate R.P. was prescribed Vimovo; however, as noted above Dr. Chiozza’s notes were referenced in paragraph 24 of the Tribunal’s decision.