A.A. v. Aviva Insurance Company, 2019 CanLII 34598

RECONSIDERATION DECISION

Before: Heather Trojek, Vice Chair

Date: April 4, 2019

File: 17-008472/AABS and 17-004680/AABS

Case Name: A.A. v. Aviva Insurance Company

Written Submissions by:

For the Applicant: Sam Elbassiouni, Counsel

For the Respondent: Brian Yung, Counsel

OVERVIEW

1This request for reconsideration, filed by the applicant, arises out of a decision in which the Tribunal found that the applicant was entitled to all the benefits claimed with the exception of a chronic pain assessment and associated interest. The Tribunal also denied the applicant’s request for costs and to an award. The applicant submits that the Tribunal’s decision regarding her entitlement to a chronic pain assessment and to costs is incorrect and should be overturned. The relief sought by the applicant is an order entitling her to $2,260.00 for the chronic pain assessment recommended by Dr. Getahun in a treatment plan dated July 12, 2017 and an order for costs and disbursements.

2The respondent, Aviva, submits that the Tribunal’s decision is correct and the relief sought by the applicant should be denied.

3Pursuant 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 Tribunal’s Common Rules of Practice and Procedure.

RESULT

4The applicant’s request for reconsideration is dismissed.

BACKGROUND

5The applicant was involved in an accident on June 2, 2015. She claimed entitlement to benefits under the Schedule.¹ After being denied entitlement to certain benefits by the respondent, the applicant submitted an appeal to the Tribunal. The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a written hearing.

6The Tribunal found that the applicant was entitled to the cost of four treatment plans: one for psychological treatment, two for chiropractic treatment and one for a chronic pain program. The Tribunal found that because the applicant had already had two chronic pain assessments, that it was not reasonable and necessary for her to have another. Basically, the Tribunal denied the chronic pain assessment because it would result in a duplication of services being provided to the applicant. However, the Tribunal also found, based on the medical evidence submitted by the applicant, that her practitioners were focused more on her need for treatment and not on further assessments.

7The Tribunal’s reasons for denying the applicant’s entitlement to a chronic pain assessment are contained at paragraph 20 of its decision. In paragraph 20, the Tribunal states the following:

The applicant has failed to show me why, after chronic pain assessments by Dr. Al-Samak and Dr. Getahun in 2016 and 2018, yet another chronic pain assessment is reasonable and necessary. My reading of her medical evidence is that her practitioners were focused on her need for further treatment and not on further assessment. I find that further chronic pain assessment would not be reasonable at necessary at this time.²

8The grounds for a Request for Reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. The ground that the applicant argues applies to this case is Rule 18.2(b):

The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.

9More specifically, the applicant argues that the Tribunal erred:

a. in law, because one of the two chronic pain assessments that the Tribunal based its decision upon was an addendum report and not an actual assessment; and,

b. in fact, because the Tribunal failed to understand that the applicant was not seeking an additional chronic pain assessment to be completed after meeting with both Dr. El-Samak and Dr. Gethahun.

10Contrary to the submissions made by the applicant, I find that the Tribunal’s decision was factually correct and legally sound. As the applicant has failed to establish any grounds upon which the Tribunal’s decision should be overturned, her request for reconsideration is dismissed.

ANALYSIS

The Tribunal did not make an error in law – March 31, 2018 report of Dr. Gethahun

11I do not find, as the applicant alleges, that the Tribunal treated Dr. Gethahun’s report dated March 31, 2018 as a second chronic pain assessment instead of as an addendum report. I make this finding because in its decision the Tribunal:

i) carefully and methodically lists and describes the findings of all the medical evidence the applicant relies upon in support of her claim for a chronic pain assessment (paragraph 18 (i) to (iv));

ii) describes Dr. Getahun’s March 31, 2018 reports as commenting on the “flaws in the IE performed by Dr. Chris Boulia, including failure to fully account for the applicant’s pain and noted restrictions on shoulder range of motion.” Based on the Tribunal’s description of Dr. Getahun’s March 31, 2018 report, I find that the Tribunal was well aware of the fact that it was a rebuttal report to an insurer’s examination and not an actual chronic pain assessment.

iii) refers to the August 31, 2016, March 27, 2018 and September 2017 reports of Dr. El-Samak and Dr, Getahun as “pain or chronic pain assessments” but to the March 2018 report of Dr. Getahun simply as a report. The clear distinction the Tribunal makes between assessments and reports signifies that it was aware of the difference between the two.

12The applicant has failed to persuade me that the Tribunal erred in fact or law because it incorrectly characterized the March 31, 2018 rebuttal report of Dr. Gethaun as a chronic pain assessment. The applicant has provided no basis and no valid reason upon which to reconsider the Tribunal’s well-reasoned decision.

The Tribunal did not make an error in fact

13The applicant has failed to persuade me that there is any other ground upon which to reconsider the Tribunal’s decision. I found the applicant’s submissions regarding Dr. Getahun’s treatment plan and chronic assessment unclear.

14In her request for reconsideration, the applicant states that the Tribunal erred when it “understood that the Applicant is proposing an additional Chronic Pain Assessment to be completed after meeting with both Dr. El-Samak and Dr. Getahun.” The applicant argues that the Tribunal should have “realized that the insurer denied the treatment proposing a Chronic Pain Assessment to be completed by Dr. Getahun as confirmed in issue #4 of the Tribunal’s decision.” The applicant did not point me to any evidence or provide any reasons as to exactly what the Tribunal should have realized or why.

15Despite the applicant’s submissions, I find that the Tribunal was well aware of all the issues in dispute. This is evidenced by the fact that the Tribunal correctly lists in detail all the issues to be determined in paragraph 3 (i) – (vii) of its decision. The issue in question is set out as follows:

Is the applicant entitled to payment in the amount of $2,260.00 for a chronic pain assessment by Dr. Getahun dated July 12, 2017, submitted on August 28, 2017, denied by the respondent on September 13, 2017?

16My understanding of the applicant’s argument is that the Tribunal should have understood that Dr. Getahun’s “Independent Chronic Pain Assessment” dated September 16, 2017, was in fact the assessment that Dr. Getahun proposed in his treatment plan dated July 12, 2017. However, I found nothing in the hearing record which supports that the Tribunal erred with regards to Dr. Getahun’s chronic pain assessment. My finding is based on the following:

i) No reference to incurred – In her hearing submissions,³ the applicant never stated that Dr. Getahun’s chronic pain assessment had already been conducted or incurred;

ii) No invoice – There is no invoice in the hearing record for a chronic pain assessment in the amount of $2,260.00. This would indicate that the chronic pain assessment recommended in Dr. Getahun’s treatment plan had not in fact been conducted. Adding to the confusion is an invoice for a chronic pain assessment conducted by Dr. Badwall in the applicant’s hearing brief. This billing invoice, dated September 21, 2017, is for $270.00 from HealthMax Physiotherapy Clinics. Based on its inclusion in the brief, the applicant was obviously aware that this type of evidence was relevant. However, she did not submit similar evidence, if it existed, regarding the September 2017 chronic pain assessment completed by Dr. Getahun. As there was no evidence before the Tribunal to conclude that the denied assessment had been incurred, I find that it made no error in concluding that the applicant was seeking approval for a second chronic pain assessment to be conducted by Dr. Getahun;

iii) Dr. Getahun’s Treatment Plan was not in TAB 5 – At tab 5 of the applicant’s hearing brief, she includes Dr. Getahun’s September 2017 chronic pain assessment and Dr. Badwall’s September 21, 2017 treatment plan for a chronic pain program. If Dr. Getahun’s chronic pain assessment was the one that he recommended in his treatment plan dated July 12, 2017, one would have reasonably expected the applicant to include that treatment plan at tab 5 instead of Dr. Badwall’s treatment plan for a chronic pain program. The documents included in tab 5 of the applicant’s hearing brief do not naturally link Dr. Getahun’s July 12, 2017 treatment plan to his September 16, 2017 chronic pain assessment.

iv) Reference to “proposed” treatment plan – In her reply submissions,⁴ the applicant states that Dr. Ko drafted a paper-review assessment report, addressing the proposed [emphasis mine] treatment plan completed by Dr. Getahun for a chronic pain assessment. The fact the applicant referred to the assessment as “proposed” would not lead the Tribunal to conclude the chronic pain assessment submitted by the applicant was the one being recommended in Dr. Getahun’s July 12, 2017 treatment plan;

v) Assessment makes no reference to the July Treatment Plan – The “Independent Chronic Pain Assessment” completed by Dr. Getahun dated September 16, 2017 makes no reference to the Schedule or to his treatment plan dated July 12, 2017. In fact, in the second paragraph of Dr. Getahun’s September 2017 report, he states that the applicant was informed that the “examination will be used to collect information and provide options and answer question that may have been posed by the third party request of the evaluation.” In his report, Dr. Getahun notes that the applicant’s injuries do not fall within the Minor Injury Guideline and that, in his opinion, the applicant suffers a complete inability to carry on a normal life. As a result, I find it reasonable to conclude that Dr. Getahun’s assessment was obtained by the applicant at her own expense to support her claims for various accident benefits. I find no basis to conclude that the Tribunal “should have realized” that this report is in fact the chronic pain assessment that was being recommended by Dr. Getahun in his July 12, 2017 treatment plan, if in fact it was.

vi) Ambiguous submissions – On page 18 of her hearing submissions, the applicant states that Dr. Getahun indicated that, after speaking with the applicant, it was his professional opinion that a “more detailed” chronic pain assessment is required. Dr. Getahun indicated that the proposed assessment and evaluation “will help determine the applicant’s likeliness to respond to treatment and that a formal written assessment evaluation report will be written and given to the relevant party’s family doctor and insurance adjuster if required.”⁵ I find the applicant’s hearing submissions to be ambiguous. The applicant’s submissions make it difficult to determine how many chronic pain assessments were conducted by Dr. Getahun. The applicant’s reference to a “more detailed” chronic pain assessment could lead one to believe that Dr. Getahun had already done one assessment and was proposing another. The ambiguity of the applicant’s hearing submissions do not support the allegation that the Tribunal made an error and should have realized that she was not “seeking an additional chronic pain assessment to be completed after meeting with both Dr. El-Samak and Dr. Gethahun.”

vii) Dr. Getahun’s Rebuttal Report – The fact that Dr. Getahun completed a rebuttal report dated March 31, 2018 regarding the treatment plan submitted by Dr. Badwall for a chronic pain program again raises a question regarding the purpose of Dr. Getahun’s September 2017 chronic pain assessment. In his rebuttal report, Dr. Getahun refers back to and relies heavily on his September 2017 chronic pain assessment. The fact that Dr. Getahun prepared a rebuttal report to a treatment plan other than to his own leads me to conclude that the applicant incurred this expense on her own initiative in order to support her claim for a chronic pain program.

17The applicant has failed to persuade me that the Tribunal made an error in fact such that it would like have reached a different result had the error not been made. The submissions and the evidence filed by the applicant do not support a finding that the Tribunal should have realized that the applicant was not seeking a third chronic pain assessment. Moreover, there is no evidence before the Tribunal which would have led it to conclude that Dr. Getahun’s September 16, 2017 chronic pain assessment was in fact the one that was recommended in his July 12, 2017 treatment plan. For these reasons, I have no grounds to find that the Tribunal made an error in fact in reaching its decision.

Costs and Disbursements

18At the hearing, the applicant asked to be awarded costs. The Tribunal denied the applicant’s request for costs. In her request for reconsideration, the applicant argues that the Tribunal’s Rule⁶ regarding costs is unfair to applicants. As a result, the applicant advised that she intends to advance a constitutional challenge. The applicant has failed to direct me to grounds upon which the Tribunal’s decision on costs should be overturned under Rule 18 or 19. Accordingly, I see no basis to interfere with the Tribunal’s original decision on the matter of costs.

CONCLUSION

19For the reasons noted above, I dismiss the applicant’s request for reconsideration, pursuant to Rule 18.4(a).

Heather Trojek Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 1O. Reg. 34/10.
2. 2In her Reconsideration submissions, the applicant acknowledges, and I agree, that the Tribunal made a typographical error regarding the chronic pain assessment conducted by Dr. Getahun. Dr. Getahun’s assessment is dated September 16, 2017 and not September 16, 2018 as stated by the Tribunal. I will herein refer to Dr. Getahun’s assessment as being dated September 16, 2017. As the applicant acknowledges that this error was a typographical one, I will treat it as such.
3. 3Initial and reply submissions
4. 4Paragraph 18 of applicant’s reply submissions
5. 5Applicant’s hearing submissions dated April 20, 2018.
6. 6Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure.