[The Applicant] v. Royal Sun Alliance Insurance Company, 2019 CanLII 101503

RECONSIDERATION DECISION

Before: Heather Trojek, Vice Chair

Date: September 10, 2019

File: 17-006236/AABS

Case Name: [The Applicant] v. Royal Sun Alliance Insurance Company

Written Submissions by:

For the Applicant: Emily K. Foreman, Counsel

For the Respondent: Geoffrey L. Keating, Counsel

OVERVIEW

1This request for reconsideration was filed by the respondent. The respondent disputes the Tribunal’s finding that the applicant’s injuries are not subject to the treatment limits contained in the Minor Injury Guideline (MIG)¹ and that the six treatment plans in dispute are reasonable and necessary. The respondent did not request reconsideration of the other determinations made by the Tribunal².

2The respondent alleges that the Tribunal made several significant errors in law which had they not been made the Tribunal likely would have reached a different decision.

3The applicant opposes the respondent’s request for reconsideration and submits that the respondent has failed to provide any basis upon which the Tribunal’s decision should be reconsidered.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5The respondent’s request for reconsideration is dismissed for the reasons provided below.

BACKGROUND

6The applicant was involved in a motor vehicle accident which occurred on September 18, 2005. At the time of the accident, the applicant was 17 years old.

7The applicant submitted treatment plans to the respondent for occupational therapy, psychological treatment, optometric treatment and social rehabilitation counselling. The respondent denied the applicant entitlement to this treatment because he had already exhausted the $3,5000.00 available for treatment under the MIG.

8The applicant applied to the Tribunal disputing the respondent’s refusal to pay a variety of the benefits claimed.

ANALYSIS

9The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. The ground that the respondent argues applies to this case is as follows:

a. 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.

10More specifically, the respondent argues that the Tribunal erred because it:

a. failed to consider the applicant’s “predominate” accident related injuries when it determined that the applicant’s injuries fall outside the MIG;

b. made a decision, in favor of the applicant, despite the fact that the applicant failed to make any arguments to the Tribunal with regards to whether the treatment plans in dispute were reasonable and necessary; and

c. failed to consider case law submitted by the respondent regarding the test to determine if the treatment plans were reasonable and necessary.

11I was not persuaded by any of the arguments made by the respondent. The respondent’s submission contained no persuasive grounds upon which I should reconsider the Tribunal’s decision.

The Tribunal correctly found that Applicant’s injuries fell outside the MIG

12The respondent argues that the Tribunal’s decision should be overturned because it did not discuss whether the Applicant’s injuries are “predominately” minor. I do not agree. Contrary to the respondent’s submissions, the Tribunal specifically states in paragraph 2 (a) of its decision that it is tasked with determining whether the applicant’s injuries from the accident are “predominately minor injuries”. The respondent’s submissions on this point were not clear or well reasoned. As a result, I was unable to decipher what error in law the respondent alleges the Tribunal made. In its reconsideration submissions the respondent footnotes a decision rendered by the Tribunal³, but fails to explain why or how this decision supports its request for reconsideration.

13I find that the Tribunal provided clear, thorough and well-founded reasons for finding that the applicant’s injuries were not “predominately” minor [emphasis mine] as defined in the Schedule⁴. Based on the evidence before it, the Tribunal found that the applicant sustained a Mild Traumatic Brian Injury (MTBI) and psychological injuries⁵ which are not minor as defined the Schedule.

14In its analysis the Tribunal carefully reviews all the evidence and explains, in detail, the weight it gave to some evidence and not to others. For instance, in paragraphs 7-16 of its decision, the Tribunal explains why it preferred the opinion of Dr. Miles, neuropsychologist, in finding that the applicant sustained a MTBI over that of Dr. Desai, neurologist, who conducted an insurer’s examination (IE) on behalf of the respondent. I am satisfied that the Tribunal reviewed the totality of the evidence before it and correctly concluded that the applicant’s injuries are not predominately minor and not treatable under the MIG.

15The respondent has failed to direct me to any error in law that the Tribunal made in finding that the injuries the applicant sustained in the accident are not predominately minor. I therefore dismiss the respondent’s request for reconsideration on this ground.

The Tribunal’s decision was correctly based on the facts before it

16The respondent argues that the Tribunal erred because it found, despite the fact the applicant did not address the reasonable and necessary test in his submissions, that the applicant was entitled to the treatment plans in dispute⁶. I do not agree.

17The fact that a party makes no submissions or minimal submissions does not mean that the Tribunal should automatically find against that party. The Tribunal’s decision should be based first and foremost on the evidence that is before it. In this case the Tribunal found that the medical evidence alone was persuasive enough, without submissions from the applicant, to conclude that the treatment plans in dispute were reasonable and necessary. I find no error in the Tribunal doing so.

18In its decision, the Tribunal addresses each of the six treatment plans individually. It provides reasons, based on the medical evidence before it, why it found each treatment plan to be reasonable and necessary on a balance of probabilities. I agree with the applicant and find no reason to reconsider the Tribunal’s decision regarding the applicant’s entitlement to the treatment plans in dispute.

The Tribunal did not fail to consider the case law

19The respondent argues the Tribunal erred in law because it did not refer in its decision to any of the case law the respondent cited with respect the treatment plans in dispute and the test of reasonableness and necessity. Again, I do not agree.

20As stated above, the Tribunal provided reasons why it found each treatment plan in dispute to be reasonable and necessary. Its reasons were based on the medical evidence before it. Although the respondent is correct that the Tribunal did not cite any case law in relation to its assessment of the treatment plans, this does not amount to an error. It is well established in the case law⁷ and reconsideration decisions issued by the Tribunal⁸, that a decision-maker is not required to refer specifically to every piece of evidence it considered in rendering its decision. The same principle applies for parties’ references to case law, which must be considered by the Tribunal but not necessarily mentioned explicitly in the decision.

21I note in paragraphs 51-54 of its decision, the Tribunal reviewed in detail the case law submitted by the respondent in relation to the applicant’s entitlement to income replacement benefits. The Tribunal’s reference to the case law on this issue, reinforces my finding that the Tribunal carefully reviewed the submissions including the jurisprudence submitted by both parties in rendering its decision. I am therefore satisfied that the Tribunal made no error in law as alleged by the respondent in this regard.

CONCLUSION

22For the reasons noted above, I dismiss the respondent’s request for reconsideration. I find that the respondent has failed to establish that the Tribunal made any error in law or in fact such that its decision should be overturned.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2The Tribunal found that the applicant was entitled to income replacement benefits in the amount and for the duration claimed. The applicant was found to be entitled to interest but not to an award under s. 10 of Regulation 664.
3. 316-001732 v. Wawanesa Mutual Insurance, 2017 CanLII 81594 (ON LAT). In this case, the Tribunal found that the applicant was not subject to the MIG because he had a pre-existing medical condition that would limit his recovery if he was subject to the limits under the MIG.
4. 4Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
5. 5The Tribunal also found that even though 1.5 to 2 years had passed since the accident, the applicant continued to suffer from persistent headaches; pain; weight gain; sleep issues; fatigue; difficulties with concentration and mood issues/irritability/depression.
6. 6The respondent denied the treatment plans in dispute because the applicant had exhausted the treatment limits available under the MIG. In his hearing submissions, the applicant, in response, argued that he sustained injuries that fell outside the MIG and was therefore entitled to the treatment plans in dispute.
7. 7Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670
8. 816-002861 v. Pilot Insurance Company, 2018 CanLII 141006 (ON LAT)