RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
File: 18-005760/AABS
Case Name: B.E. v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Murad Huseynov, counsel
For the Respondent: Danielle Wilkinson, counsel
OVERVIEW
1The applicant was injured in a car accident on May 13, 2016. The applicant applied to the respondent, Aviva General Insurance Company, for benefits. The respondent denied those benefits based on the injuries sustained. The applicant filed an application for dispute resolution with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2The issues in dispute before the hearing adjudicator were: whether the applicant’s injuries fall within the Minor Injury Guideline (“MIG”); and whether she is entitled to seven treatment plans; expenses related to the accident interest and an award.
3In a decision dated April 24, 2019, the Tribunal determined that the applicant was removed from the MIG having been diagnosed with chronic pain and a psychological impairment, and that she was entitled to six treatment plans and interest. The Tribunal found that the applicant was not entitled to the remaining benefits.
4The respondent requested a reconsideration of the Tribunal’s decision. They claim the Tribunal’s decision violates the rules of procedural fairness and natural justice and includes serious errors of law and fact. The respondent requests that the Tribunal’s decision be cancelled.
5Pursuant 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
6The respondent’s request for reconsideration is dismissed.
LEGAL TEST
7The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.1 A request for reconsideration will not be granted unless one or more of the criteria are met. The respondent asserts that they are entitled to a reconsideration pursuant to Rules 18.2(a) and (b), in particular on the basis that:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
8More specifically, the respondent must prove on the balance of probabilities the Tribunal’s decision violates one of those criteria. This is a high onus to meet.
ANALYSIS
Did the Tribunal’s decision violate the rules of natural justice and/or procedural fairness?
9The respondent claims the Tribunal’s decision violates the rules of natural justice and/or procedural fairness:
i) by accepting and relying on submissions as if it were evidence, and
ii) by drawing conclusions not in the medical records.
Reliance on the Applicant’s Submissions
10The respondent argues that the Tribunal’s decision accepted and relied on the applicant’s submissions with no evidentiary basis. The applicant’s submissions state that the applicant was referred to a chronic pain clinic but did not follow through with the recommendation because “she saw another person screaming while getting the injections”. The respondent states that there was no evidence to support this submission. The clinical notes from the family doctor state that the applicant was encouraged to go to a pain clinic but declined. Therefore, there is no supporting evidence and the Tribunal relied upon those submissions in paragraph 17 of the decision.
11In reviewing the Tribunal’s decision in comparison to the applicant’s submissions and the clinical notes of the family doctor, it is true that the Tribunal’s decision relied upon submissions that were not substantiated in the evidence. There is no evidence to support that the applicant did not want to go to a pain clinic because she saw another patient screaming while getting injections. What is in the evidence is that the applicant saw her family doctor on two separate occasions regarding her ongoing pain and the doctor recommended on April 3, 2017 “encourage to go to pain clinic, declines”; and on October 30, 2017 “encouraged to see pain clinic”.
Reaching Unsupported Medical Conclusions
12The respondent argues that at paragraph 24 of the Tribunal’s decision, the adjudicator drew a medical conclusion that was not found in the medical records. The respondent claims this was also a violation of procedural fairness when the adjudicator exceeded her jurisdiction. The paragraph states that “In light of my finding with respect to the applicant’s continuing pain, I find that the applicant’s self-limitation was due to pain, which is consistent with what she continues to report to medical practitioners.” I agree that the adjudicator made a medical finding that was not in the medical records that the applicant’s self-limitation was due to pain.
Whether there was a violation of the rules of natural justice and/or procedural fairness
13The question is whether the above-mentioned two errors caused a violation of procedural fairness. The applicant states there has been no violation of the rules of natural justice or procedural fairness and that the decision was well reasoned based on the medical evidence.
14I find what the respondent claims are violations of procedural fairness are more like errors of fact. A violation of procedural fairness could include failure to give parties an adequate and equal opportunity to be heard, failure to give adequate notice of proceeding, failure to give the parties an opportunity to present their evidence or challenge opposing evidence, and failure to consider relevant evidence. I agree the adjudicator made two errors of fact which led her to certain conclusions. The question is whether those errors make a significant difference to the result.
Whether the errors are such that the Tribunal would likely have reached a different decision
15In reviewing paragraphs 17 and 18 of the Tribunal’s decision, the adjudicator removed the applicant from the MIG because she suffered from chronic pain. The adjudicator found the applicant made ongoing complaints of back pain to her family doctor, she was referred for a chronic pain assessment, the assessor found the applicant suffered from chronic pain and the applicant continued to use pain medications. Therefore, even though, the adjudicator relied on the submissions that the applicant did not want to go to a pain clinic because the applicant did not want to get injections does not change the fact that the adjudicator found the applicant suffered from chronic pain on the basis of the evidence before her. The adjudicator referred to at least four other reasons why she found the applicant suffered from chronic pain, therefore the error made does not impact the adjudicator’s conclusion.
16In review of paragraphs 23 and 24, the adjudicator made an error by making a medical finding not found in the medical records. If I were to remove the sentence containing the error in the decision, the adjudicator’s decision would still stand. The applicant’s assessor found that the applicant was not able to do her housework and had social, family, and recreational limitations in addition to other physical limitations. Even though the respondent’s assessor found the reasons the applicant had these limitations were due to self-limiting behavior, the adjudicator still found the applicant was entitled to an orthopaedic assessment in order to investigate the reasons why she continued to have pain and functional limitations. Again, this error was not significant enough to alter the result.
17In order to be entitled to reconsideration of a decision, the errors must be significant such that the Tribunal would likely have reached a different result. The respondent used these errors as an opportunity to re-argue the same submissions. The respondent must show that the errors were so grave that it would have overturned the other factors for the decision. In this case, they have failed to do so.
Did the Tribunal’s decision make an error of law or fact such that the Tribunal would likely have reached a different result?
Psychological Assessment Report
18The respondent argues the Tribunal’s decision relied on the applicant’s psychological assessment report that was performed by a psychotherapist and he is not capable of diagnosing psychological impairments. The respondent argues the report says a psychologist oversaw the assessment, but the report was not signed or dated by the psychologist. That led to an error of fact, which would have led to a different result. The Tribunal’s decision found the applicant out of the MIG because the applicant was diagnosed with chronic pain and a psychological condition. Had the error not been made, the applicant would not have been found to have a psychological impairment and would not be out of the MIG.
19The applicant argues that the original report sent to the respondent around August 29, 2018 (fax confirmation and report) showed that the psychologist, Dr. Kershner, signed and dated the report. There was no error committed.
20The copy of the report sent to the respondent on August 29, 2018 was a much clearer copy than the one that what was presented in applicant’s original submissions. That being said, the report sent to the respondent and contained in the applicant’s reconsideration submissions, supports that the report was signed and dated by the psychologist. The report expresses that parts of the assessment were conducted by the psychotherapist under the supervision of the psychologist. I do not see this as a significant error of law or fact. I find that the report is sound, the diagnosis was made by the psychologist, and may be relied upon as evidence.
Rates for Payment of the Treatment Plan
21The respondent also argues that since there is no evidence that the psychologist performed the assessment, the treatment plan should not be paid at the psychological hourly rate. Although the Tribunal’s decision does not specifically comment on this, I see no reason why the treatment plan should not be paid at the psychologist rate. As explained above, the report was signed by the psychologist, and the psychotherapist was being overseen by the psychologist.
The Chronic Pain Assessment Report
22The respondent claims the Tribunal’s decision contained another error of fact by relying on the chronic pain assessment of Dr. Robertus. That report heavily relies upon the diagnosis found in the applicant’s psychological assessment and since the psychological assessment report cannot be relied upon, neither can the chronic pain assessment.
23In review of the chronic pain assessment report conducted by Dr. Robertus, I find it may be relied upon and no error has been committed. The report does not heavily rely on the applicant’s psychological assessment, it merely reiterates the findings of the psychological assessment. The chronic pain assessment made its conclusions based on a review of medical records, an assessment of the applicant, symptom complaints and the doctor’s own expertise. The doctor diagnoses the applicant with chronic pain. I find the diagnosis is sound and may be relied upon.
Misquoting the Respondent’s Psychological Assessment
24The respondent argues the Tribunal’s decision at paragraphs 18, 22 and 25 misquoted the respondent’s psychological assessment by Dr. Nikkhou and that led to an error of fact and law. The respondent claims that paragraphs 18 and 22 found that Dr. Nikkhou’s report of persistent pain and impairment bolstered Dr. Robertus’ chronic pain finding. That led to an error of fact when the Tribunal elevated the reports of persistent pain to a diagnosis. The respondent argues that paragraph 25 of the decision ignores the fact that Dr. Nikkhou found subclinical features of adjustment reaction and incorrectly states the Dr. Nikkhou reported that the applicant has adjustment reaction to her persistent pain.
25In review of those paragraphs, I find no error in the Tribunal’s decision. In paragraph 18 of the Tribunal’s decision the adjudicator writes:
“Bolserting Dr. Robertus’ finding is the fact that Dr. Nikkhou in October 2018 also reported that the applicant continued to have persistent pain and impairment.”
26This paragraph was written comparing and contrasting the different reports and whether the totality of the evidence led the adjudicator to find on a balance of probabilities that the applicant suffered a condition that would bring her out of the MIG. In this case, the adjudicator found in various reports that the applicant continued to report and was found to have persistent pain. This is noted on page 15 of Dr. Nikkhou’s report. In no way did the adjudicator find that Dr. Nikkhou diagnosed to the applicant with a condition. On page 18 of Dr. Nikkhou’s report, the doctor was asked whether the applicant suffered from an impairment and the answer was yes. So, the Tribunal’s decision quoted the doctor’s report correctly and explained how the report supported other evidence despite not diagnosing the applicant with a condition. This line of reasoning is mimicked in paragraphs 22 and 25 of the Tribunal’s decision. I see no error in how the report was quoted. Paragraphs 22 and 25 of the decision was referring to why the adjudicator thought a chronic pain and psychological assessment was reasonable and necessary. A diagnosis of chronic pain or psychological impairment is not necessary in order to a find an assessment to be reasonable and necessary. As long as there is enough evidence to support that there is reason to believe that an investigation is warranted, an assessment would be considered reasonable.
Misinterpreting the IE Reports
27The respondent argues that the adjudicator again misinterpreted the findings of the IE assessors. The Tribunal’s decision at paragraph 21 states that the IE assessors confirmed impairments. The respondent indicates that Dr. Tepperman and Dr. Tu, their IE assessors, did not find that the applicant had sustained impairments as a direct result of the accident and therefore this is an error in the decision.
28In review of Dr. Tu’s report, it is clear that the assessor found an impairment as a result of the accident. This is outlined under the paragraph entitled “case summary and clinical impressions” and again confirmed in answering question 2, both located on page 7 of the report. The doctor found the applicant sustained a lumbar and left knee strain as a result of the accident. It appears when the doctor wrote under question 1 on page 7, that the applicant did not sustain an impairment as a result of the accident, it appears this was done in error and is not consistent with other findings in the report. Namely, the responses found under question 2 and 3.
29What the report does indicate, is on that day, it was the doctor’s impression that the applicant did not presently have an ongoing impairment and that was why he did not recommend a chronic pain or orthopaedic assessment.
30In Dr. Tepperman’s report, an assessment conducted by way of paper review, he found no substantial musculoskeletal impairment. What he did find was as a result of the accident, the applicant suffered a strain of the cervical, thoracic and lumbar paraspinal musculature and contusion of her left knee.
31I see no error in what was written in the Tribunal’s decision in paragraph 21. The Tribunal found these treatment plans were reasonable and necessary because the treatment goals were for impairments to the applicant’s mid and low back and neck pain. These impairments were also confirmed by the IE assessors as accident related impairments. Although it was both assessors’ opinions that on that specific day the applicant no longer suffered from those impairments, the assessment reports were written almost a year after the recommended treatment plans. So, at the time the treatment plans were written, it is reasonable to conclude that the recommendations were consistent with the impairments from the car accident. Just because the assessors may have determined she no longer suffered from impairments, does not mean the treatment plans were not reasonable or necessary at that time and that the applicant would be entitled to them.
The Clinical Notes and Records
32I agree that the clinical notes and records of the applicant’s family doctor did not recommend chiropractic treatment as written in paragraph 21 of the decision. This was an error of fact. However, I do not see this error changing the result because it was not the only reason that the treatment plans were found to be reasonable and necessary. The applicant was entitled to the treatment plans because the applicant continued to complain of pain in her back and neck to the family doctor, also, the treatment goals and recommendations by the chiropractor addressed the impairments resulting from the accident. The clinical notes from the family doctor recommended massage and physiotherapy as the recommended treatment for the continued back, shoulder and neck pain. I find the treatment plans to still be reasonable and necessary because the applicant continued to suffer from accident related impairments, the family doctor was still recommending therapy for those impairments, the treatment goals will assist in reducing those impairments, and the applicant reported in November 2016 that she had some improvement from the therapies. This error did not impact the result.
Whether the Treatment Plans were Incurred
33Lastly, the respondent argues that the order in the decision is in contravention of the Schedule. They claim that payment for medical and rehabilitation benefits is only made when the treatment plans have been approved or awarded and incurred. They argue the adjudicator erred at paragraph 7 of the decision by indicating that the applicant is entitled to payment for the various awarded treatment plans and at paragraph 36 the Tribunal ordered the respondent to pay for costs incurred plus interest in connection with the awarded treatment plans. The respondent argues there was no evidence that the disputed treatment plans were incurred or deemed incurred as per the provisions of subsection 3(8) of the Schedule.
34In review of the decision, paragraphs 7 and 36 respectively state:
“I further find that the is entitled to payment of the treatment plans set out in paragraph 5(ii), (iii), (iv), (vi), (vii), and (viii)”; and
“I order that the respondent shall pay for the costs incurred in respect of the following treatment plans, plus interest in accordance with the Schedule…”
35I find the respondent is splitting hairs with the wording found in the decision, in reading the entire decision, the adjudicator was not entitling the applicant to benefits that are not available in the Schedule. It is clear the adjudicator meant that the treatment plans are considered reasonable and necessary, and the applicant would be entitled to payment for those treatment plans, if they were incurred and interest would follow. In the same respects, if the applicant has not sought treatment in connection with those treatment plans, they may now incur those services or assessments as the treatment plans have been determined reasonable and necessary.
CONCLUSION
36For the reasons noted above, I dismiss the respondent’s request for reconsideration.
Chloe Lester Vice-Chair Licence Appeal Tribunal
Released: October 29, 2019