S.B. v. Aviva General Insurance company, 2019 CanLII 110073

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Robert Watt

Date: November 21, 2019

File: 17-001414/AABS

Case Name: S.B. v. Aviva General Insurance company

Written Submissions by:

For the Applicant: Michael Yermus, Yermus and Associates

For the Respondent: Jason Frost/Jessica Green, Schultz Frost LLP

OVERVIEW

1This Request for Reconsideration arises from a decision of the Licence Appeal Tribunal (the "Tribunal") failure to look at whether the treatment plans are reasonable and necessary. The applicant now asks that I reconsider the Tribunal's decision and look at the issue of whether the treatment plans are reasonable and necessary.

2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive chair delegated to me, her responsibility to decide this matter.

3As explained below, the request for reconsideration is dismissed.

FACTS

4The applicant filed a Request for Reconsideration in this matter on March 15, 2019 in respect of a decision dated February 22, 2019.

5The applicant applied to the Tribunal on the issues of MIG, non-earner benefit (NEB) and medical benefits. The issue of MIG was mistakenly included in their application to the Tribunal. This error was then included in the case conference report and order. The matters proceeded to an in-person hearing with written submissions. The adjudicator's decision found the applicant to be in the MIG, denied the entitled to NEB and determined the applicant was not entitled to medical benefits. The decision is silent on the reasonableness and necessity of the treatment plans for medical benefits.

6The applicant requests that the decision be reconsidered on the basis that there is an error in fact and in law. The applicant was already removed from the MIG from a psychiatrist insurer's examination dated May 26, 2015. The applicant argues the adjudicator decided an issue that was not properly before him and therefore he failed to fully consider the evidence including the documents which resulted in an error of fact and law.

7The respondent argues that although it would have been preferable for the adjudicator to comment on reasonableness and necessity of the treatment plans, the result would have been the same. The adjudicator found that the applicant sustained minor injuries and was not adequately convinced of the ongoing need for medical benefits.

DECISION AND REASON

8Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under Rule 18.2.

9Under Rule 18.2, one or more of the following four grounds needs to be established

1. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
2. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
3. The Tribunal heard false evidence or misleading evidence from a party or witness, which was discovered only after the hearing and affected the result; or
4. There is new evidence that was not before the Tribunal when rendering its decision that could not have reasonably been obtained earlier by the party now seeking to introduce it and would likely have affected the result.

10The Rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions.

11Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake, preventing a just outcome, where false evidence has been admitted or where genuinely new and indiscoverable evidence comes to light after a hearing

ANALYSIS

Medical Benefits

12Sections 15 of the Schedule requires medical benefits to be paid if they are reasonable and necessary. Section 16 of the Schedule requires rehabilitation benefits to be paid, if they are reasonable and necessary for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person's reintegration into his or her family, the rest of society and the labour market.

13Caselaw sets out the criteria to use to determine whether treatment is reasonable and necessary is: (1) treatment goals as identified are reasonable;(2) the goals are met to a reasonable degree; (3) the overall costs of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.¹

Is the applicant entitled to receive a medical benefit in the amount of $2,045.95 for occupational therapy services recommended by Janice Kim in a treatment plan dated April 30, 2015, denied by the respondent on May 25, 2015?

Is the applicant entitled to receive a medical benefit in the amount of $829.30 for occupational therapy services recommended by Scarborough Physio & Rehab Clinic in a treatment plan dated April 7, 2015, denied by the respondent on April 24, 2015?

14These treatment plan goals were to assist with ADL's for the patient. The physiatry examination report by Dr. Bentley, dated June 9, 2015, found no neuromusculoskeletal impairments². The occupational Therapy assessment Report by Ms. Hameed dated June 10, 2015, found that the applicant had sufficient functional abilities, strength and range of motion to complete the activities without the assistance of these devices.³This was also confirmed by Janice Kim, another occupational therapist. In his report dated March 14, 2016, Dr. H. Aliyarzadeh, pain specialist, indicated that the applicant told him that she functioned mostly independently at home.

15I find based on the above, where the applicant has no or very little functional disability, that the treatment plans are not reasonable and necessary

Is the applicant entitled to receive a medical benefit in the amount of $1,489.00 for physiotherapy services recommended by Scarborough Physio & Rehab Clinic plan May 15, 2015, denied by the respondent on May 25, 2015?

Is the applicant entitled to receive a medical benefit in the amount of $1,452.00 for physiotherapy services recommended by Scarborough Physio & Rehab Clinic in a treatment plan October 6, 2016, denied by the respondent on October 17, 2016?

16Adopting the same facts as set out in paragraph [14] above, I find that the treatment plans are not reasonable and necessary. Additionally, the medical records show that the applicant's complaints relate to her degenerate issues which are exacerbated by her being very overweight.⁴ The orthopaedic surgeon was also of the opinion that additional facility- based treatment would not be effective and that the applicant should continue to pursue the gym and home exercise program.⁵

Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for psychological services recommended by Dr. Natasha Browne plan dated May 15, 2015, denied by the respondent on June 1, 2015?

17This benefit is not in dispute as it was funded by the respondent.

Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for an orthopaedic assessment, recommended by Scarborough Physio & Rehab Clinic in a treatment plan dated April 14, 2015, denied by the respondent on April 24, 2015?

18The Physiatry report of Dr. Bentley dated June 9, 2015, found no. neuromusculoskeletal impairments.⁶ The applicant has completed already various diagnostic tests (x-rays, ultrasounds, MRIS) on her cervical spine, lumbar spine, knees shoulders chest, foot and forearm, which revealed no significant injuries.⁷ Her family doctor did not refer her to an orthopaedic surgeon.

19I find that there is not enough evidence to show that another assessment would not be duplicating those assessments already taken place. I find therefore that the treatment plan is not reasonable or necessary.

Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a neurological assessment, recommended by Oshawa Physiotherapy and Rehabilitation clinic in a treatment plan dated December 3, 2016, denied by the respondent on February 11, 2016?

20The applicant has reported that she has seen a neurologist who found no neurological issues. The applicant has refused further treatment. ⁸

21I find that another assessment would be duplicative and therefore not reasonable and necessary.

INTEREST

22As no benefits are owing no interest is owing.

CONCLUSION

23For the reasons noted above, I dismiss the applicant's Request for Reconsideration.

Footnotes

1. 1Federico and Sate Farm FSCO a-12-005384
2. 2Insurer's Book of Documents p225-226 Tab 7
3. 3Occupational Therapy Report Ms. Hameed dated June 10, 2015 Insurer's Book of Documents Tab 9
4. 4Report of Dr. David D'Souza dated October 4, 2016 and report of Dr. Aliyarzadeh dated Match 14, 2016 Insurer's Book of Documents Tab 24
5. 5Orthopaedic Surgery Assessment Report dated November 21 2016, Insurer's Brief of Documents Tab 27
6. 6Ibid 2
7. 7Various Diagnostic Imaging Results Insurer's Brief of documents Tab 23
8. 8Physiatry Report Dr. Bentley dated June 9, 2015 Insurer's Brief of documents Tab 8;Neurology Assessment Report dated March 30,2016 Tab 12 insurer's Brief of Documents; Orthopaedic Assessment Report dated November 21 2016, Tab 13