RECONSIDERATION DECISION
Before: Kimberly Parish, Adjudicator
File: 18-006313/AABS
Case Name: B.D.W. v. Aviva General Insurance Company
Written Submissions by:
For the Respondent: Kathleen E. Mertes, Counsel
For the Applicant: Jeton Memeti, Paralegal
OVERVIEW
1On June 24, 2019, the Licence Appeal Tribunal (the “Tribunal”) issued a decision in this matter pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent, Aviva General Insurance Company, has filed a request for reconsideration of the Tribunal’s decision which found that the applicant is entitled to a medical benefit in the amount of $4,086.68 plus interest owed in accordance with s. 51 of the Schedule.
2The respondent has requested the decision be varied and an Order be granted as follows:
- The applicant is not entitled to the medical benefit in the amount of $4,086.68 and applicable interest.
or
- A rehearing before another adjudicator.
3I was the original hearing adjudicator who issued the decision dated June 24, 2019 which forms the basis for this reconsideration. Pursuant 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 respondent’s request for reconsideration is dismissed.
ANALYSIS
5The criteria for granting a reconsideration is laid out within Rule 18.21 as follows;
a) The Tribunal acted outside of its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would have likely reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would have likely affected the result.
6The respondent’s Request for Reconsideration is based on the Rules pursuant to 18.2 (a) and (b).
DECISION AND REASONS
7The respondent submitted I made a significant error of fact by stating at paragraph 13 of the decision that the medical evidence submitted by and relied on by the respondent included a section 44 insurer’s examination (“IE”) income replacement benefit (“IRB”) report of Dr. Levine, General Practitioner, dated August 23, 2017. The report only assessed the applicant’s entitlement to IRBs which was not in dispute and is associated with a different legal test.
8The respondent concedes it obtained two separate IE reports, both issued by Dr. Levine on the same date of August 23, 2017. One report assessed the applicant for IRBs, and the other report assessed the applicant for the Minor Injury Guideline and a treatment plan (OCF-18) for psychological treatment.
9Paragraph 13 of my June 24, 2019 decision noted:
“I was not persuaded by the medical evidence submitted by the respondent.
The respondent relied on an IE report of Dr. Levine dated August 23, 2017. This IE report formed part of a multi-disciplinary assessment to assess the applicant’s entitlement to income replacement benefits. The treatment plan in dispute was not before Dr. Levine and as a result he did not assess this benefit. He assessed a different benefit which was associated with a different legal test. As a result, I afford little weight to his report in reaching my determination.”
10It is argued by the respondent that this IRB report was submitted as evidence by the applicant, and not the respondent. The respondent submits this is a clear and unequivocal error of fact which warrants a reconsideration under Rule 18.2 (b). Further, the respondent submitted I violated the rules of procedural fairness by importing the evidence submitted by the applicant as being the evidence submitted and relied upon by the respondent.
11The respondent is correct that the IE report of Dr. Levine addressing the applicant’s entitlement to IRBs, dated August 23, 2017 was contained within the applicant’s submissions, and was not included within the respondent’s submissions. This was an error of fact. In order for a reconsideration to be granted under Rule 18.2 (b), the error of fact would have likely led to a different result if the error had not been made. For this case, the error would not have led to a different conclusion.
12The main reasons the treatment plan was found to be reasonable and necessary were because:
The applicant was consistent in what she had reported to her treating practitioner, Dr. Sodhi and the subjective complaints relating to her pain which were noted within Dr. Levine’s report.
The treatment resulted in steady improvements in the reported areas she felt pain and the goals of the treatment plan aligned with the barriers to recovery.
13The respondent’s arguments pertained to an error of fact which noted the IRB report of Dr. Levine was submitted and relied on by the respondent and whether I had properly considered all the evidence submitted by the respondent. I found those arguments did not outweigh the reasons why I found the treatment plan to be reasonable and necessary. This is evidenced within my analysis in which I found the proposed active treatment submitted by Dr. Sodhi was also supported by the active therapy recommended by Dr. Czok.
14Where the respondent challenged components of the applicant’s evidence, this was addressed with reasons in my decision to support why I preferred the applicant’s evidence. For example, in paragraph 10 of my decision, I noted the referral note from the applicant’s family doctor to Dr. Czok which noted “physiotherapy did not help” and was referenced within the respondent’s written hearing submissions. However, I provided my reasons why I found the treatment plan to be reasonable and necessary. Further, in paragraph 12 of my decision I considered the applicant’s subjective pain complaints and the findings noted within Dr. Levine’s report. I provided my reasons regarding how this evidence supported that the treatment plan is reasonable and necessary. My decision allows for deference and as a result, to prefer some pieces of evidence over others.
15It has already been established by the Tribunal in prior reconsideration decisions that minor or inconsequential procedural or substantive mistakes do not qualify for reconsideration. Reconsideration is only warranted in cases where an adjudicator has either made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. The decision at issue was simply not the type of situation warranting review under Rule 18.
CONCLUSION
16The respondent’s request for reconsideration is dismissed.
Kimberly Parish Adjudicator Licence Appeal Tribunal
Released: October 16, 2019