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: D. Stephen Jovanovic, Member
Date: October 4, 2018
File: 16-003997/AABS
Case Name: R.K. vs. Aviva Insurance Canada
Written Submissions By:
For the Applicant: Daniel J. Holland
For the Respondent: Michael J. L. White
Overview
Aviva requests reconsideration of an order by the Tribunal finding R.K. entitled to medical benefits for physical rehabilitation and acupuncture.
Aviva relies on Rule 18.2(b) to argue that the Tribunal made significant errors of law and fact in reaching unsupported conclusions that the costs of the treatment plans were incurred as well as reasonable and necessary.
I dismiss Aviva’s request because Aviva has failed to establish that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
Discussion & Analysis
Whether the expenses were incurred
Aviva’s position
Aviva argues that the hearing adjudicator’s finding that R.K. incurred the expenses claimed reflects a significant error of law.
Firstly, Aviva argues that R.K. has not satisfied her burden of proof to establish that the disputed expenses were incurred by merely pointing to the amount owing to the clinic or the residual value available in her medical and rehabilitation benefits. R.K. has not provided any invoices, receipts and/or direct evidence to show that the subject treatment plans were incurred.
Secondly, Aviva submits that the hearing adjudicator effectively reversed the burden of proof by stating in the decision: “I am not persuaded by the respondent’s suggestion that the Treatment Plan has not been incurred.”
Thirdly, Aviva argues that the hearing adjudicator interpreted the word ‘incurred’ outside of the ordinary meaning of the term as defined at s. 3(7)(e) of the Schedule, and in a manner that the regulation cannot support. Rather, Aviva submits that it is questionable whether R.K. ever received the treatments she claimed.
Analysis
The hearing adjudicator could have provided further explanation in the decision to more thoroughly illustrate his reasons for finding that R.K. incurred the expenses claimed. For instance, the hearing adjudicator did not explain what specific conduct by the insurer constituted unreasonable withholding or delay in payment to warrant deeming the expenses incurred pursuant to s. 3(8) of the Schedule.
Regardless, it is the role of the adjudicator hearing the merits of an application to consider and weigh the evidence presented and make findings of fact. The hearing adjudicator had the discretion to make determinations regarding the expenses R.K. incurred as the term is defined in the Schedule.
There is no merit to Aviva’s submission that the hearing adjudicator reversed the burden of proof. Indeed, paragraph 46 of the decision specifically states: “… it is the applicant’s onus to prove [her] case…”
A request for reconsideration is not an opportunity to have a different adjudicator rehear the evidence or to re-litigate the matter.
Whether the expenses were reasonable and necessary
Aviva’s position
Aviva argues that R.K.’s evidence that treatment was helpful is not sufficient to show reasonableness and necessity. Further, according to Aviva, the hearing adjudicator uncritically accepted R.K.’s affidavit evidence while refuting the medical findings reached in the IEs.
Aviva submits that the hearing adjudicator again effectively shifted the burden of proof to the insurer to show that the neither of the disputed treatment plans were reasonable and necessary.
Analysis
The adjudicator hearing the merits of R.K.’s application considered and weighed the evidence presented and made findings of fact which were well within his discretion to make.
The hearing adjudicator explained his reasoning for placing limited weight on the IE reports. This included concerns about the assessments by Dr. M. Goldstein and Dr. F. Abuzgaya involving inadequate review of R.K.’s medical records, reaching findings that were inconsistent with the medical evidence, and providing insufficient explanation for the findings made.
The hearing adjudicator accepted R.K.’s affidavit evidence that the treatments had helped with her ongoing recovery but explicitly noted that “notwithstanding that she may have found the treatments helpful, the proposed treatment must still be ‘reasonable and necessary.’”
The hearing adjudicator found R.K.’s evidence that treatment was helping her recovery to be consistent with the goals set out in the treatment plans. He was satisfied that the proposed treatment for R.K. would alleviate her pain, increase her strength, improve her range of motion, and assist with her depression, in other words, reasonable and necessary.
The hearing adjudicator’s findings as the trier of fact should not be interfered with lightly. There is no basis on which to reconsider this decision.
Conclusion
- Based on the above reasons, I dismiss Aviva’s request.
D. Stephen Jovanovic
Associate Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: October 4, 2018