RECONSIDERATION DECISION
Before: Christopher A. Ferguson, Adjudicator
File: 17-005427/AABS
Case Name: F.M. v. Wawanesa Insurance Company
Written Submissions By:
For the Applicant: Michael Ferrante, Counsel
For the Respondent: James Schmidt, Counsel
OVERVIEW
1The applicant F.M. was involved in an automobile accident on April 7, 2016 and applied to the Tribunal when the respondent Wawanesa refused to pay claimed benefits.
2The disputed issues were heard in writing on March 5, 2018. F.M.’s appeal was denied in its entirety: all of the benefits were denied. The Tribunal’s decision was released on June 1, 2018.
ISSUES
3The issues in dispute were decided by the Tribunal as follows:
i. F.M.’s claim for income replacement benefits (IRBs) from May 27, 2017 to the date of the hearing was denied because he did not prove that he met the test for IRB eligibility, which in this case is a substantial inability to perform the essential tasks of his pre-accident employment.
ii. F.M.’s claims for chiropractic treatment (two plans) were denied because he failed to meet the onus on him to prove that they were reasonable and necessary.
iii. F.M.’s claim for psychological treatment was denied as duplicative. F.M. claimed entitlement for three sessions in a partially-approved treatment plan that proposed 25 sessions.1 The Tribunal found that these three sessions were covered by a later, 10-session treatment plan approved by Wawanesa.
THE LAW
4The rules governing this proceeding are the Licence Appeal Tribunal Rules of Practice and Procedure, Version I (April 1, 2016) (the “Rules”). According to Rule 18.1, the applicant is required to identify the applicable criterion for this request for reconsideration.
5F.M. relies on s.18.2(a) and (b):
(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.
6Under Rule 18, the onus is on F.M. to prove that the Tribunal’s Decision meets either of the two criteria he asserts before the Tribunal will reconsider the decision. Accordingly, only if shown that the Adjudicator violated the rules or natural justice or procedural fairness, or that his application of the law is significantly in error should I interfere. Otherwise, then the Tribunal’s decision must be allowed to stand.
7There are no facts in dispute in the reconsideration submissions. The matter turns on questions of whether errors of fact or law were made by the Tribunal in deciding the issues in dispute or whether the rules of natural justice or procedural fairness were violated.
8Pursuant 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
9Having considered the parties’ submissions, I find that F.M. has failed to identify any significant error of fact or law in the Tribunal’s decision. F.M. has also failed to show any violation of the rules of natural justice or procedural fairness in this proceeding. The Tribunal carefully considered all of the arguments and evidence advanced by F.M. It clearly articulated valid reasons for his conclusions, based on the evidence before him.
10The request for reconsideration is dismissed.
ANALYSIS
11F.M. argues/asserts that:
i. “[…] the focus of the SABS process and of the requirements of the Respondent to the submission of these benefits, was lost at this Hearing. The focus however was solely placed on ensuring that the Applicant met its burden of proof with regards to the benefits in dispute, which lead to the violation of the rules of natural justice or procedural fairness.”
ii. The Tribunal made an error in law in finding duplication in the claim for psychological services when Wawanesa’s refusal to pay did not mention duplication. It made an error in fact by not recognizing that a later, approved treatment plan was meant to be in addition to [emphasis mine] the three refused sessions.
iii. With respect to claimed IRBs, the Tribunal violated the rules of natural justice and procedural fairness by failing to assign appropriate weight to his acknowledged psychological injuries in assessing his entitlement.
iv. With respect to claimed chiropractic treatments, the Tribunal violated the rules of natural justice and procedural fairness. F.M. says this violation occurred because the Tribunal failed to consider the following:
a. Wawanesa’s “non-compliance” with ss. 38 and s.44 of the Schedule: F.M. argues that Wawanesa was obliged to get IEs done in direct response to the disputed treatment plans. According to F.M., this factor should have been considered and weighed in his favour.
b. The “the flaws of the denial”, which F.M. describes as Wawanesa’s reliance on two IE reports, one that predated the treatment and another that “didn’t include a copy of the disputed treatment plan […] which the assessors would have needed to review.” According to F.M., these flawed denials should not be weighted heavily in determining this dispute.
12Wawanesa rebuts F.M.’s assertions as follows:
i. The Tribunal placed the burden of proof where it belongs: on F.M.
ii. The Tribunal’s finding of duplication in the claim for psychological services was factually correct.
iii. There was no non-compliance by Wawanesa. F.M. misunderstands the requirements of ss.38 and 44.
iv. Wawanesa’s denial, and its reliance on the specified IE reports, were proper and in any event it is the Adjudicator’s role and prerogative to weigh competing evidence as he sees fit.
13I find that F.M. has failed to meet the onus on him to show that the Tribunal made errors of fact or law or violated the rules of natural justice or procedural fairness. My reasons are as follows:
i. F.M.’s submissions include theoretical and unsubstantiated claims. These have no persuasive value. He has provided no evidence or case law to illustrate his claims of a violation of natural justice or procedural fairness
ii. F.M. complains of the page limit on written submissions and mused that he should have given oral evidence on his own behalf. Neither of these concerns were expressed at the case conference when he consented to the form of the hearing. These afterthoughts have no bearing on whether or not I should reconsider the Tribunal’s Decision in this matter.
iii. F.M. argues that the Tribunal should have balanced the applicant’s onus to prove entitlement to benefits against Wawanesa’s obligation to comply with the Schedule. I disagree on several grounds:
a. F.M.’s contention that Wawanesa failed to comply with s.38 or s.44 of the Schedule is groundless. His submissions provide no evidence of any non-compliance by Wawanesa. Wawanesa was entitled to rely on the s.44 reports2 it already had in hand when F.M.’s claims were submitted and was not required by the Schedule to investigate his claims further. In turn, the Tribunal was entitled to consider those reports and weigh their persuasive value the Adjudicator saw fit.
b. In my view, any failure by Wawanesa to comply with ss.38 and 44 of the Schedule would not in itself relieve F.M. of the burden of proof.
c. In any event, my reading of paragraphs 16-20 of the Decision clearly indicates that the Tribunal’s conclusions (except with respect to psychological treatment) were based on a thorough review of the medical evidence submitted by F.M. Indeed the Tribunal expressly stated that it was a lack of persuasive evidence and argument from F.M. that determined F.M.’s claims for chiropractic treatment. The weight of the IEs was not determinative in this case.
iv. With respect to F.M.’s claims for IRBs, I reject his argument that because the Tribunal acknowledged his ongoing psychological issues, a ruling in his favour was warranted. It was open to the Tribunal to decide, as it did, that F.M. had simply not shown that he was unable to work at his pre-accident occupation, notwithstanding his psychological issues. A finding of impairment does not, by itself, prove entitlement to IRBs. I found the Tribunal’s explanation of its decision on the IRB issue cogent and complete. It was based on the evidence before it, and the lack of expert evidence from F.M. on this issue – and consistent with the evidence before me in the parties’ submissions. F.M. points to no evidence that would persuade me that he met the eligibility test for IRBs.
v. F.M.’s assertion that the Tribunal ignored his sworn statement in an Examination Under Oath (EUO) is simply wrong. The Tribunal expressly references the EUO at paragraph 15, and explained why it found FM’s EUO statements unpersuasive on the issue of IRB eligibility. F.M.’s disagreement with the Tribunal’s assessment does not make that assessment an error of law.
vi. The parties agree that the Tribunal erred in stating that F.M. was working as a carpenter at the time of the accident: in fact, he had stopped working as a carpenter about a month before the accident. F.M. fails to explain how this error of fact would produce a result any different from the finding that would have been made had the error not been made. I consider it insignificant.
vii. F.M. has not persuaded me that the Arbitrator’s decision to deny three psychological sessions on the basis of duplication was a mistake of fact or law. F.M. directs me to no evidence for his claim that a second, approved treatment plan was expressly intended to exclude the disputed sessions. Without this evidence, the Tribunal’s finding that the disputed sessions would be covered by a subsequent, approved treatment plan was reasonable.
DECISION
14Having considered the submissions of the parties, I find that F.M. has failed to establish that the Tribunal made a significant error of fact or law such that it would likely have reached a different decision. I also find that F.M. has not shown that any violation of the rules of natural justice or procedural fairness occurred in the determination of the disputed claims in this matter.
15The request for reconsideration is dismissed.
Christopher A. Ferguson
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 17, 2019
Footnotes
- To be clear, Wawanesa approved 22 sessions out of the 25 sessions proposed in the disputed plan. It later approved a ten session treatment plan, which is asserts covers the three disputed sessions.
- That is to say, medical reports from practitioners conducting insurer’s examinations (IEs) under s.44 of the Schedule. The Schedule is clear that insurers may conduct IEs to assist them in determining claims for benefits, but it does not require them to do so.