O.R.O. v. Aviva Insurance Canada, 2019 CanLII 126207

RECONSIDERATION DECISION

Before: S. Braun, Adjudicator

Date: December 27, 2019

File: 18-007650/AABS

Case Name: O.R.O. v. Aviva Insurance Canada

Written Submissions by:

For the Applicant: Jeton Memeti

For the Respondent: Patrick Baker

OVERVIEW

1The applicant requests a reconsideration of a May 21, 2019 decision in which I dismissed his application for medical benefits. I found he had not discharged his burden to prove the benefits claimed were reasonable and necessary and that he was not entitled to interest or an award under Ontario Regulation 664.

2In support of his request, it is submitted that I erred in law and in fact by failing to consider evidence; failing to provide reasoning on what “balance of profanities [sic]”¹ I relied upon; and failing to provide my definition of what “reasonable and necessary” is. The applicant seeks a reversal of the decision or, in the alternative, for the decision to be set aside along with an order for a new hearing before a different adjudicator.

3The respondent submits the applicant has failed to identify any error which would have led to a different outcome, and requests that the reconsideration be dismissed. It further requests an award of $500.00 for costs incurred to respond to what it considers a frivolous and vexatious request amounting to an abuse of the reconsideration function.

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

RESULT

5The request for reconsideration is dismissed.

ANALYSIS

6The grounds upon which a request for reconsideration can be granted are set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.³ The applicant submits that the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness,⁴ and that the Tribunal made a significant error of law or fact making it likely that a different result would have been reached had the error not been made.⁵

7The applicant made no specific submissions with respect to Rule 18.2 (a) and there is no evidence that I acted outside my jurisdiction or violated the rules of natural justice or procedural fairness in this case.

8Pursuant to Rule 18.2(b), the applicant submits I failed to consider objective supporting evidence that the medical benefits were reasonable and necessary; created and applied an incorrect test to the issues in dispute; and based my decision on a subjective, rather than an objective, opinion.

9With respect to the claim that I did not consider evidence, the applicant asserts that had I reviewed both parties’ materials, I would likely have found the applicant provided “sufficient documentation” to discharge his burden of proof.

10In finding the applicant was not entitled to the medical benefits claimed, I considered and weighed the totality of the evidence before me, but ultimately preferred the respondent’s evidence. The applicant’s evidence is addressed in detail at paragraphs 19 through 23 of the decision. At paragraphs 24 to 26, I discuss my findings with respect to the evidence, including a notation that, in my view, the evidence of the applicant’s healthcare providers tended to support the respondent’s position that he had “reached a plateau and further treatment would not provide any significant benefit.”

11The applicant does not point me to any piece of evidence which I failed to consider but rather, uses the reconsideration request as a vehicle to advance, for a second time, arguments which failed at the initial hearing, and essentially requests that I re-weigh the evidence. That is not the purpose of a reconsideration.

12I am not persuaded that an error of law was made, either with respect to the standard of proof to which the applicant was held or the legal test applied to determine the issues in dispute. It is clearly stated throughout the decision that the applicant’s burden is to establish, on a balance of probabilities, that the medical benefits claimed are reasonable and necessary.

13The applicant’s burden of proof goes beyond demonstrating that he has an injury which requires treatment. He must provide “sufficient detail explaining why the specific treatment requested is reasonable and necessary for [his] specific impairment.”⁶ As acknowledged in the original decision, it is not disputed that the applicant suffers from ongoing pain but, rather, that the evidence was not supportive of a finding that the specific treatment claimed was reasonable and necessary.

14The respondent submits that the applicant has put forth his own “made up version of the reasonable and necessary test” which “appears to be that, in his view, a benefit is ‘reasonable and necessary’ if the applicant continues to have injuries as a result of the accident, and that the insured has chosen the modality of treatment outlined in the disputed treatment plan.”

15The applicant does rely heavily on the treatment plan (OCF-18) and information therein suggesting that, with the proposed treatment, he would experience improvement. In my analysis of whether the medical benefits claimed were reasonable and necessary, I considered the OCF-18, but did so in the context of the rest of the evidence before me, which included notes of both his physician and psychologist stating that he was not improving in spite of the same treatment, as well as an IE report noting the applicant’s own reporting that his treatment had reached a plateau.

16Ultimately, I concluded that the specific treatment proposed was not reasonable and necessary, as the evidence before me suggested that this same treatment had not resulted in any appreciable improvement in the applicant’s condition, nor was it achieving or likely to achieve the goals as stated in the OCF-18. With respect, there is nothing subjective about the conclusion reached. The role of the adjudicator is to consider and weigh the available evidence, which was done in this case.

17The threshold for reconsideration is high and only warranted in cases where a significant legal or evidentiary error prevents a just outcome. It is not an opportunity to revisit failed arguments. In this instance, rather than pointing to a significant error of fact or law, the applicant requests that I revisit his original arguments, re-weigh the evidence and come to a conclusion which favours his position.

CONCLUSION

18For the reasons outlined above, I find the applicant has failed to establish any significant error of law or fact by the Tribunal and his request for reconsideration is dismissed.

19Although I acknowledge the applicant’s arguments were not successful, I do not find that the reconsideration request was frivolous or vexatious and therefore dismiss the respondent’s request for costs pursuant to Rule 19.

Footnotes

1. 1Applicant’s Submissions for Reconsideration, page 2, para. 6.
2. 22009, S.O. 2009, c. 33, Sched. 5.
3. 3Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended.
4. 4Rule 18.2(a).
5. 5Rule 18.2(b).
6. 6J.C. v. Certas Direct Ins. Co., 16-000940.