AMENDED RECONSIDERATION DECISION
Before: Kate Grieves
File: 17-003692/AABS
Case Name: P.Y. v Aviva General Insurance company
Written Submissions by:
For the Applicant: Alina Kaganovich
For the Respondent: Ken Yip
OVERVIEW
1On August 23, 2018, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter arising under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The issues before the Tribunal were the applicability of the Minor Injury Guideline (the MIG”), and the applicant’s entitlement to three treatment plans for physiotherapy, three assessments, interest and an award. The Tribunal determined that the applicant’s injuries fell within the definition of a “minor injury”, and therefore did not consider the reasonableness and necessity of the disputed treatment and assessment plans.
2P.Y. requests reconsideration of an order by the Tribunal on the basis that there is new evidence that could not have reasonably obtained earlier by the applicant, which would have affected the result of the decision. The applicant submits that the respondent conceded that the MIG did not apply after the close of the proceedings, which constitutes new evidence that would have changed the outcome of the hearing.
3Pursuant 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
4The applicant’s request for reconsideration is granted. The matter shall be reheard by Adjudicator Daoud, or another adjudicator at the Tribunal if she is not available.
BACKGROUND
5The applicant was involved in an accident on January 13, 2016. She sought accident benefits from the respondent pursuant to the provisions of the Schedule.
6A dispute arose with respect to several treatment plans, with the respondent taking the position that the MIG applied. The applicant applied to the Tribunal for a determination. The applicant later sought to add IRBs as an issue in dispute. The respondent objected as examinations had not yet been completed. The Tribunal heard submissions and concluded that the IRB claim was premature at that time because the examinations had not been completed.1 The Tribunal ruled that IRBs would not be part of this hearing.
7Throughout the fall of 2017 – before the hearing on this matter -- the applicant was evaluated by the respondent for her entitlement to income replacement benefits (“IRB”) and attended a series of multidisciplinary assessments.
8An in-person hearing with respect to the applicability of the MIG and entitlement to the treatment and assessment plans took place on December 7, 8, and 20, 2017.
Written closing submissions were filed on December 22, 2017.2
9Both parties submitted volumes of evidence to the Tribunal in support of their cases, including contradictory medical reports and opinions. In its decision dated August 23, 2018, the Tribunal preferred the respondent’s evidence and found that the applicant’s injuries fell within the MIG. Given the conclusion that the MIG applied, the Tribunal did not evaluate whether the disputed treatment plans were reasonable or necessary.
NEW EVIDENCE
10The applicant submits that there is new evidence that could not have reasonably been obtained earlier by the applicant which would have affected the result of the subject decision by removing the applicant from the MIG.
11On January 5, 2018, the parties received a copy of a psychological assessment report prepared by Dr. Moshiri, dated December 18, 2017. The report was prepared on behalf of the respondent for the purposes of evaluating the applicant’s entitlement to IRB – which was not at issue at the hearing. Dr. Moshiri diagnoses the applicant with an Adjustment Disorder with Mixed Anxiety and Depressed Mood as well as Specific Phobia as a result of the accident. An addendum report by Dr. Moshiri, dated January 23, 2018, concludes that her opinion was unchanged.
12Some three months later, by letter dated the April 4, 2018, the respondent advised the applicant that it had determined that her injuries no longer fell within the MIG.
13The applicant submits that the report dated December 18, 2017 and letter dated April 4, 2018 constitute new evidence that could not have been reasonably obtained by the applicant in time for the hearing. The applicant submits that this evidence would have affected the result because the Tribunal would not have concluded that the applicant’s injuries fell within the MIG, because the MIG position was conceded by the respondent given the psychological impairment diagnosis.
14The applicant has requested that the Tribunal vary the Order of the adjudicator, or alternatively, order a rehearing on the treatment plans and cost of examinations in dispute and an award.
15The applicant has also requested costs on the basis that the report was available to the respondent prior to the close of the hearing and could have made the determination that the applicant was out of the MIG. This would have resulted in a different outcome at the hearing because the treatment plans in dispute would have been evaluated by the adjudicator on whether they were reasonable or necessary.
ANALYSIS
16The applicant is relying on the criteria described in Rule 18.2(d) of the Tribunal’s
Common Rules of Practice and Procedure (the “Rules”) with respect to its request:
The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met:
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
17The respondent submits that the delay in receiving the report of Dr. Moshiri was due to the applicant’s delay in submitting to insurer examinations, and therefore, it could reasonably have been obtained earlier but for the applicant’s conduct.
18The respondent also argues that the finding of Dr. Moshiri would not have affected the result. A MIG determination has no finality, and a current determination can change in the future based on new medical evidence.
19While I agree with the respondent that a MIG determination is not final, I find that this was new information that was not available to the applicant prior to the close of the hearing that would have affected the result.
20The respondent advises that the report dated December 18, 2017 was not received by it until January 5, 2018 – just after the close of the hearing. The respondent has not provided any evidence to show when the document was received.
21Had either party advised the Tribunal-- after the end of the hearing but prior to the issuance of the decision -- that the MIG was no longer in issue, then the result would have been different. Then the Tribunal would have completed the reasonableness and necessity analysis with respect to the disputed treatment plans.
22Regardless, I find that had the report dated December 18, 2017 was not reasonably available to the applicant at the time of the hearing and would have affected the result. Even if the respondent didn’t receive the document until January 5, 2018, given that this appears to be the impetus for the decision by the respondent to concede that the MIG didn’t apply, I find that it was in existence at the time that the proceedings took place, it is relevant to the issues in dispute, it was not reasonably available to the applicant, and it would have affected the result. I therefore find that the applicant has satisfied the criteria for reconsideration pursuant to Rule 18.2(d).
23Fairness dictates that this matter should be sent back to the Tribunal for consideration of the reasonableness and necessity of the disputed treatment plans. Adjudicator Daoud heard three days of in-person testimony with respect to the disputed treatment plans. The Tribunal did not complete the analysis of whether the treatment plans were reasonable or necessary simply because it found that the MIG applied.
COSTS
24The applicant requested costs in the amount of $1,000.00. The Tribunal’s authority to award costs in a hearing is set out in Rule 19 of the Common Rules of Practice and Procedure (the “Rules”). Rule 19.1 permits me to award costs where a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith. The impugned behaviour must occur during the proceeding.
25I find that the respondent’s conduct in the proceeding was not enough to attract an award for costs.
CONCLUSION
26For the reasons set out above, I grant the applicant’s request for reconsideration. The matter shall be sent back to the Tribunal, and preferably to Adjudicator Daoud for rehearing, if she is available.
27The Tribunal will contact the parties to arrange a Case Conference to take place within the next 60 days to schedule the rehearing.
Released: September 16, 2019
Kate Grieves
Adjudicator