RECONSIDERATION DECISION
Before: Kathryn Grieves, Member
File: 17-003450/AABS
Case Name: G.C. v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: N/A
For the Respondent: Amanda R.M. Faulkner, counsel
OVERVIEW
1On July 24, 2018, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter arising under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”. The issues before the Tribunal were the applicant’s entitlement to a chronic pain assessment, interest, and costs. The Tribunal determined that the applicant was entitled to the assessment with interest, but did not award costs. The respondent now asks that the Tribunal reconsider its decision, and determine that the chronic pain assessment is not reasonable or necessary.
2Pursuant 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
3The respondent’s Request for Reconsideration is dismissed.
BACKGROUND
4The applicant was involved in an accident on July 20, 2015 and sought benefits from the respondent under the Schedule. An OCF 18 completed by Rajanikant Patel, a physiotherapist from Promed, was submitted to the respondent on February 2, 2017. It proposed a chronic pain assessment, to be completed by Dr. Grigoropoulos, a chiropractor.
5The respondent denied the proposed chronic pain assessment on February 21, 2017 on the basis that the proposed treatment did not appear consistent with the diagnosis. At the respondent’s request, Dr. Oshidari – a physiatrist – conducted a paper review report to address the proposed assessment. Following receipt of Dr. Oshidari’s March 13, 2017 report, the respondent denied the chronic pain assessment on the basis that it was not reasonable or necessary as a result of the injuries sustained in the accident.
6Both parties submitted large volumes of evidence to the Tribunal in support of their cases, including contradictory medical reports and opinions. The Tribunal accepted the evidence of the applicant’s assessors and found that he was entitled to the chronic pain assessment.
ANALYSIS
7The respondent is relying on the criteria described in Rule 18.2(a) and (b) of the Tribunal’s Common Rules of Practice and Procedure (the “Rules”) with respect to its request:
The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met:
(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 result had the error not been made.
8Reconsideration is only warranted in cases where an adjudicator has 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.
9The respondent submits that the Tribunal made an error of law on the following three grounds:
Finding the proposed assessment was reasonable and necessary without considering whether the proposed assessor is qualified to perform a chronic pain assessment;
Not applying significant weight to the finding of Dr. Oshidari as a result of it being provided by of paper review; and,
Finding that the respondent had “waived” the requirement under s. 38(3) that the treatment plan must be signed by both the applicant and the treatment provider.
10I will address each in turn.
Did the Tribunal make an error of law by failing to consider if the proposed assessor was properly qualified?
11The respondent submits that the Tribunal made an error of law when it determined that the chronic pain assessment was reasonable and necessary but did not consider whether the proposed assessor – a chiropractor -- was a reasonable assessor to perform the assessment.
12However, having reviewed the parties’ submissions, it appears that the qualifications of the parties’ assessors, Dr. Oshidari and Dr. Grigoropoulos, were addressed in the context of which report should be granted more weight. At paragraph 15 the respondent submitted that more weight should be given to Dr. Oshidari’s opinion, and that Aviva believed a medical doctor was a more appropriate choice of assessor than a chiropractor for the proposed assessment. At paragraphs 4 to 7 of the reply submissions, the applicant discusses the qualifications and experience of their own experts, and pointed out that Dr. Oshidari’s determination was based on a paper review report – but he had never assessed the applicant in person.
13In paragraphs 19 through 21 of its decision, the Tribunal provides reasons why it chose to give less weight to the reports submitted by the respondent and more weight on the evidence submitted by the applicant. I find no error in how or why the Tribunal made this finding and thus have no reason to interfere with its assessment of the evidence or its decision. By accepting the content and findings of the chronic pain assessment report by Dr. Grigoropoulos, it can be assumed that the adjudicator accepted the qualifications of the assessor. Further, the Tribunal is not required to expressly address every piece of evidence and every argument made by a party. For the reasons set out above, the respondent has failed to persuade me that its decision should be overturned.
14I therefore reject the respondent’s submissions and find that no error was made by the Tribunal.
Did the Tribunal make an error of law by failing to apply significant weight to the paper review report of Dr. Oshidari?
15The respondent submits that the Tribunal made an error in giving the claimant’s chiropractor and physiotherapist more weight than a medical doctor, and that its report should have been given more weight despite the fact that it was conducted by paper review.
16As the first-level trier of fact, the Tribunal had the responsibility to weigh the evidence before it and, on that basis, render a decision. I find that the Tribunal discharged its duty without error.
17The respondent essentially disagrees with the weight that the Tribunal accorded to the report of Dr. Oshidari. In paragraphs 19 through 21 of its decision, the Tribunal provides reasons why it chose to give less weight to the reports submitted by the respondent and more weight on the evidence submitted by the applicant. I find no error in how or why the Tribunal made this finding and thus have no reason to interfere with its assessment of the evidence or its decision.
18Further, it is generally not my place on a reconsideration request to question the weight that an adjudicator assigns to the evidence. The adjudicator is entitled to prefer some pieces of evidence over others.
19Although the respondent may not agree with the Tribunal’s reasoning or finding, this is not a grounds upon which I can grant a request for reconsideration. I find that the Tribunal provided sufficient reasons and explanation for weighing the evidence the way that it did. It is not my role to re-weigh evidence that has already been properly considered by the Tribunal. My role is to determine if the Tribunal made an error in fact as alleged by the respondent, which in this case I find that it did not.
20Contrary to the argument made by the applicant, I find that the Tribunal carefully weighed the totality of the evidence before it and provided sound reasons for finding that the applicant’s was entitled to the chronic pain assessment.
Did the Tribunal make an error of law by finding that the Respondent had “waived” the requirement that the treatment plan be signed by the applicant and the provider?
21The respondent submits that the Tribunal made an error of law by finding that the respondent waived the requirements for the treatment plans to be signed by the applicant and the provider.
22Section 38(3) of the Schedule states that a treatment or assessment plan must be signed by the insured person unless the insurer waives that requirement. The Schedule does not set out what constitutes a waiver.
23Section 38(2) states that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit or an assessment or examination that was incurred before the insured person submits a treatment and assessment plan that satisfies the requirements of subsection (3) -- with some limited exceptions which are not applicable in this case.
24It is not disputed that the treatment plan at issue, submitted through HCAI, is not signed by either the applicant or the treatment provider. The respondent did not check off the box on the treatment plan which states that that the requirement for the applicant’s signature is waived.
25The respondent submitted that the signature requirement of s. 38(3) is critical to managing the claim, because it ensures that a health practitioner has verified the information to be submitted to the insurer, and confirms that the claimant is aware of and intends to use the goods or services being submitted on their behalf.
26The applicant submitted that the respondent never advised her that the treatment plan was unsigned, nor did it raise the issue when it scheduled insurer examinations. The applicant submitted that the insurer “implicitly waived” the signature requirement by performing an insurer’s examination in response to the OCF 18. Furthermore, the applicant also submitted that the purpose of s. 38(3) is to protect the claimant, who by signing the treatment plan, confirms that they are aware of what is being submitted on their behalf and intends to use the goods or services. In this case, the applicant was both aware of what was submitted on their behalf, and did in fact incur the proposed services.
27At paragraph 24 of the decision the Tribunal considered section 38(3) of the Schedule. The Tribunal agreed with the respondent regarding the purpose and importance of the section. However, because the applicant was both aware of the treatment plan proposed, and in fact incurred it, the Tribunal chose to reject the defense. The Tribunal agreed with the applicant that the respondent had for all intents and purposes, waived the requirements outlined in the relevant section of the Schedule when replying to an unsigned OCF-18 by scheduling a Section 44 examination. The Tribunal also found that the respondent further implied that the signature requirement was waived and the OCF 18 was “accepted as submitted” by advising the applicant that the treatment plan was denied on the basis of Dr. Oshidari’s findings. The Tribunal rejected the defense, considering that it was raised at this stage of the proceedings after the respondent took the aforementioned actions in responding to the OCF 18, and considering the consumer protection nature of the legislation. I find this reasoning to be sound.
28Furthermore, electronic submissions of treatment plans through HCAI became mandatory on February 1, 2011. Treatment plans submitted through HCAI require the provider to indicate that the treatment provider’s electronic signature is on file and that the treatment plan has been reviewed by the provider. Once completed, the OCF 18 is to be printed and physically signed by the provider, and a copy saved in the applicant’s file at the facility. The HCAI system simply does not allow for signed forms to be submitted to insurers at first instance. If the respondent was not consenting to an unsigned copy being received through HCAI and wanted to view the executed hardcopy on file at the clinic, it was incumbent upon it to request a copy upon receipt of the electronic version through HCAI. The respondent’s failure to do so, only to raise the issue at this late stage of the proceeding, is inappropriate. In any event, I agree with the Tribunal’s findings that the respondent’s conduct after receiving the treatment plan implies that the OCF18 was accepted as submitted, and the respondent waived the signature requirement. The Tribunal’s findings on this issue are consistent with the consumer protection nature of the legislation.
29In light of the foregoing, I find that no error was made by the Tribunal.
CONCLUSION
30For the reasons set out above, I dismiss the respondent’s Request for Reconsideration.
Kathryn Grieves
Member
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 30, 2019