S.A. v. Aviva Insurance Canada, 2019 CanLII 110110

RECONSIDERATION DECISION

Before: Lindsay Lake, Adjudicator

Date: October 30, 2019

File: 18-006278/AABS

Case Name: S.A. v. Aviva Insurance Canada

Written Submissions By:

For the Applicant: Rome Petricca, Paralegal

For the Respondent: Patrick Sinclair, Counsel

OVERVIEW

1The applicant, S.A., filed a request for reconsideration of the June 14, 2019 decision (the "decision")¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the "Tribunal"). In the decision, the Tribunal found that S.A. was entitled to the portion of a treatment plan for a multidisciplinary chronic pain program for a functional exercise program, but not to the remainder of this treatment plan. The Tribunal also found that S.A. was not entitled to a treatment plan for a bone growth stimulator and for an MRI of S.A.'s spine.

2S.A. submits that the Tribunal made errors of fact and law, and that the Tribunal's reasoning and appreciation of the evidence was erroneous and flawed.

3The respondent, Aviva Insurance Canada ("Aviva"), submits that the decision should be upheld and the request for reconsideration be dismissed.

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

RESULT

5S.A.'s request for reconsideration is dismissed.

ANALYSIS

6The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, Version I (October 2, 2017) (the "Rules"). The ground that S.A. submits applies in this matter is Rule 18.2(b), that the Tribunal made several errors of fact and law.

7In order to interfere with a decision under Rule 18.2(b), however, the Tribunal must not only have made an error of law or fact, but that error of law or fact must be enough that the Tribunal likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

8I find that S.A. has failed to establish that the Tribunal made an error of law or of fact such that the Tribunal likely would have come to a different decision regarding S.A.'s entitlement to the bone growth stimulator, the multidisciplinary chronic pain program (excluding the functional exercise program which does not form part of S.A.'s request for reconsideration) and the MRI of his spine.

Bone Growth Stimulator

9To support S.A.'s request for a reconsideration of the Tribunal's findings on the issue of his entitlement to a bone growth stimulator, S.A. argues that the Tribunal:

(i) supplanted its own opinion that the treatment plan for the bone growth stimulator was premature;

(ii) erroneously relied upon a February 9, 2017 note by Dr. Abdulmajid Ibrahim that S.A.'s fracture was healing well;

(iii) added its opinion that a bone growth stimulator was not reasonable or necessary as there was no evidence that S.A.'s fracture was a non-union fracture;

(iv) failed to appreciate that a bone growth stimulator would be beneficial in non-union fractures and that an accelerated recovery and rehabilitation was inherently reasonable and necessary; and

(v) preferred Aviva's position that was not supported by any evidence.

10I do not agree with S.A.'s position that the opinion of the Tribunal was that the treatment plan for the bone growth stimulator was premature. The Tribunal found that the treatment plan was submitted 7 days prior to S.A. being discharged from care at the Lakeridge Health Fracture Clinic and the completion of an x-ray showing good evidence of healing.³ At no time did the Tribunal find that that submission of the treatment plan was "premature." I find that S.A. failed to prove that the Tribunal made an error of fact regarding this evidence.

11I also find that S.A. failed to establish that the Tribunal made an error of fact or law in its reliance upon Dr. Ibrahim's February 9, 2017 note. As stated by Aviva, this note existed and was included in S.A.'s written hearing materials. S.A. also referred to Dr. Ibrahim's February 9, 2017 note in his written hearing submissions.⁴ It is unclear what error S.A. is alleging that the Tribunal made regarding its reliance upon Dr. Ibrahim's note.

12I also do not agree with S.A. that the Tribunal erred by considering the lack of evidence confirming that S.A.'s fracture was a non-union fracture. This was information that was open for the Tribunal to consider in making its determination on the issue as the Tribunal noted, "the OCF-18 describes bone growth stimulation as being very successful in treating non-union fractures."⁵ As a result, I also do not agree with S.A. that the Tribunal failed to appreciate that a bone growth stimulator would be beneficial in non-union fractures. Even if I am incorrect and it was not open to the Tribunal to consider and weigh the evidence on whether or not S.A.'s fracture was non-union in determining the issue in dispute, the Tribunal found that S.A. failed to meet his onus of proving that the bone growth stimulator was reasonable and necessary.

13Moreover, the argument that an accelerated recovery and rehabilitation was inherently reasonable and necessary is an entirely new submission made by S.A. The Tribunal's reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter.⁶ Further, while there may be exceptional circumstances in which a new argument should be permitted on a reconsideration, this is not such a case.

14Finally, I find that the Tribunal did not prefer Aviva's position over S.A.'s position; rather, the Tribunal found that S.A. did not meet his onus of proving that the bone growth stimulator was reasonable and necessary on a balance of probabilities.⁷ The onus is on S.A. to prove his entitlement to the treatment plan in dispute on a balance of probabilities⁸ and this onus never shifts to Aviva to disprove his entitlement. The Tribunal found that S.A. did not discharge his onus which was a finding that was open for it to make after weighing the evidence. Absent an error of the kind detailed in Rule 18, a request for reconsideration cannot be granted simply on the basis that one party would have preferred that the evidence be weighed or considered differently. The reconsideration process is not an opportunity to reweigh the evidence.

15For all of the reasons set out above, I find that S.A. has failed to establish that the Tribunal made any errors of fact or law in the decision regarding its determination on the issue of S.A.'s entitlement to the bone growth stimulator.

Multidisciplinary Chronic Pain Program

16S.A. argues that the Tribunal's analysis and treatment of his entitlement to the multidisciplinary chronic pain program in the decision was problematic in that it disclosed an underlying bias against S.A. S.A., however, does not provide any further analysis or discussion to substantiate any bias. In fact, the arguments advanced by S.A. to support his reconsideration of the treatment plan for the multidisciplinary chronic pain program address the Tribunal's weighing of expert reports, including the March 2, 2018 psychological assessment report and the December 4, 2017 orthopaedic assessment report. As stated above, a request for reconsideration cannot be granted simply on the basis that one party would have preferred that the evidence be weighed or considered differently. S.A. alleges no errors of fact or law, but rather argues that the two reports should have been weighed in a different way. This argument is not sufficient grounds to grant a reconsideration under Rule 18.2 and, as a result, S.A. has not met the threshold for reconsideration on this basis.

17S.A. also alleged that the Tribunal did not believe that it was sufficient that he continues to suffer from pain almost 2 years post-accident for him to suffer chronic pain. The portion of the decision referred to by S.A. in making this argument, however, stated, "the only submissions made by S.A. on the reasonableness and necessity of this treatment plan is that S.A. continues to experience pain almost 2 years post-accident."⁹ It is unclear what error S.A. is alleging that the Tribunal made regarding this statement.

18S.A. also alleged that the Tribunal made a palpable error by not providing reasons as to why it determined that S.A. was entitled to only the functional exercise program, but not to the remainder of the treatment plan for the multidisciplinary chronic pain program.

19In the decision, the Tribunal clearly stated that the onus was on S.A. to show that each individual component of that the multidisciplinary treatment plan was comprised of was both reasonable and necessary.¹⁰ The Tribunal found that S.A. was entitled to the functional exercise program solely based upon the recommendations set out in the April 3, 2018 physiatry insurer's examination (IE) assessment report by Dr. Dinesh Kumbhare,¹¹ which was relied upon by Aviva at the hearing. As a result, I disagree with S.A. that the Tribunal failed to provide reasons for finding that S.A. was entitled to the functional exercise program. S.A. also provided no authorities for its position that the Tribunal erred in finding that S.A. was not entitled to the remainder of the treatment plan as a result of finding that one component of the multidisciplinary treatment plan was reasonable and necessary. As a result, I find that the Tribunal made no palpable error with respect to its reasoning on this issue as alleged by S.A.

20For all of the reasons set out above, I find that S.A. has failed to establish that the Tribunal made any errors of fact or law in the decision regarding its determination on the issue of S.A.'s entitlement to the multidisciplinary chronic pain program.

MRI of S.A.'s Spine

21S.A. requests that the balance of his submissions be read mutatis mutandis regarding the Tribunal's findings in the decision regarding S.A.'s entitlement to an MRI of his spine.

22I agree with Aviva that it is unclear which of S.A.'s other reconsideration submissions are relevant to his reconsideration request of the MRI of his spine. The onus is on the party seeking a reconsideration to establish that the Tribunal mad an error of fact or law. I find that S.A. has failed to discharge this onus by relying on the balance of his submissions without any further particulars.

23S.A. also submits that the Tribunal erred by substituting its opinion in the face of evidence to the contrary, given by experts who completed the treatment plan in dispute, to support his reconsideration for the MRI of his spine.

24S.A. offers no further argument or analysis and fails to identify which "evidence to the contrary" S.A. is referring to in his reconsideration submissions. Disagreeing with the Tribunal's findings and characterizing such disagreement as the Tribunal substituting its opinion for an expert opinion is not a sufficient ground for reconsideration under Rule 18.2(b).

25For all of the reasons set out above, I find that S.A. arguments regarding the MRI of his spine do not meet the threshold for reconsideration.

Additional Submissions from S.A.

26On October 16, 2019, S.A. submitted correspondence to the Tribunal and to the respondent asking that the Tribunal's decision in R.V. vs. Aviva General Insurance,¹² which was released on July 19, 2019, be considered as part of his request for reconsideration. Specifically, S.A. asked the Tribunal to give attention to the following portion of R.V. vs. Aviva:

As R.V.'s pain complaints persisted after the time period of three to six months after the accident and she had accompanying reports of functional limitations, I find that it is reasonably possible that R.V. suffers from chronic pain or chronic pain syndrome. Therefore, the treatment plan for a chronic pain assessment is both reasonable and necessary as, in my opinion, it would meet the goals stated therein and be of assistance to R.V. in recommendations for future care and development of an appropriate treatment regime.¹³

27S.A. argues that the ratio in R.V. vs. Aviva with respect to chronic pain was relevant to his reconsideration. S.A., however, made no additional submissions to the Tribunal on how this decision should be applied to his request for reconsideration other than stating it was relevant.

28The portion of R.V. vs. Aviva cited by S.A. dealt with an applicant's entitlement to a treatment plan for a chronic pain assessment. The purposes of such an assessment, as stated in R.V. vs. Aviva, is to diagnose chronic pain syndrome.¹⁴ There is no treatment plan in dispute in this matter for a chronic pain assessment and, therefore, I find that the Tribunal's reasonings in R.V. vs. Aviva cited by S.A. are irrelevant to the issues in dispute in this matter. Furthermore, the portion of R.V. vs. Aviva cited by S.A. was a finding of fact made by the Tribunal in an unrelated decision after weighing the evidence before it in that decision. As a result, I find that R.V. vs. Aviva has no weight in determining S.A.'s reconsideration.

29While Aviva objected to S.A.'s submission of R.V. vs. Aviva for consideration by the Tribunal as part of his reconsideration request on several grounds, I do not need to make any determination on its admissibility because I afford it no weight in making my decision for the reasons stated above.

CONCLUSION

30For the reasons outlined above, I find that S.A. failed to establish any error of law or of fact by the Tribunal. Therefore, S.A.'s request for reconsideration is dismissed.

Lindsay Lake

Adjudicator

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 118-006278 v Aviva Insurance Canada, 2019 CanLII 72205 (ON LAT).
2. 2S.O. 2009, c. 33, Sched. 5.
3. 3Supra note 1 at paras. 13 and 14.
4. 4Applicant's Hearing Materials, page 7.
5. 5Supra note 1 at para. 10.
6. 6See I.K. v. Primmum Insurance Company, 2018 CanLII 13162 at para. 27.
7. 7Supra note 1 at para. 14.
8. 8Scarlett v. Belair, 2015 ONSC 3635, at para. 24 (Div. Ct.).
9. 9Supra note 1 at para. 20.
10. 10Ibid.
11. 11Respondent's Written Submissions, tab 10.
12. 122019 CanLII 94032 (ON LAT) ("R.V. vs. Aviva").
13. 13Ibid. at para. 54.
14. 14Ibid. at para. 49.