RECONSIDERATION DECISION
Before: Dawn J. Kershaw, Vice-Chair
File: 17-004020/AABS
Case Name: S.B. v. Wawanesa Mutual Insurance Company
Written Submissions By:
For the Applicant: Christopher D.J. Hacio, Counsel
For the Respondent: Katie Commisso, Counsel
INTRODUCTION
1The applicant’s request for reconsideration, filed on July 23, 2018, arises from the Tribunal’s July 10, 2018 decision. The decision dismissed the applicant’s claim for payment for the cost of examination for an in home /attendant care assessment in the sum of $2099.75 and a treatment plan for chiropractic treatment in the sum of $755.00 because she has not established that they were reasonable and necessary.
2Both the respondent and the applicant filed submissions.
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 applicable rules of the Tribunal.
4As explained below, the applicant’s request for reconsideration is denied.
THE LAW
5There are limited grounds upon which a person can request a reconsideration. In this case, the applicant asserts that the Tribunal made a significant error of law and of fact such that the Tribunal would likely have reached a different decision had the error(s) not been made. The respondent asserts that it therefore is entitled to a reconsideration pursuant to section 18.2(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”).
DISCUSSION AND REASONS
6I am not satisfied in this case that the Tribunal made a significant error of law or facts such that the Tribunal likely would have reached a different decision if it had not made the error.
Error of Law
7The applicant asserted that the Tribunal ignored its case law, specifically the case of Pedisic v. State Farm Mutual Insurance1 thereby committing an error of law.
8The applicant asserted that the Tribunal ignored the legal principles in that case, specifically the factors that ought to be considered in determining whether a treatment plan is reasonable and necessary, as follows:
(i) Credibility of the insured person and whether they are sincerely motivated to pre-accident level of functioning;
(ii) Whether the treatment plan takes a consistent approach, recommending a reasonable progression of treatment;
(iii) Whether the insured person and treatment team use a variety of treatment modalities and adjust the type and frequency of treatment based on the person’s current needs; and
(iv) Whether passive modalities are relied upon to the exclusion of other treatment alternatives.
9The respondent submitted that even if there is an error of law, which it denies, then it must be significant enough that the Tribunal would have reached a different decision.
10It further submitted that Pedisic, a FSCO decision, is not binding on the Tribunal. In addition, even if it was applied, the respondent submitted that the first step in the test is that the treatment proposed in the treatment plan must be reasonable and necessary. Pedisic sets out some potential factors to be considered in determining whether the proposed treatment is reasonable and necessary. However, it provides a non-exhaustive, non-binding list.
11I agree with the respondent that the FSCO decision is not binding on the Tribunal but in any event, the Tribunal clearly reviewed the medical and other evidence in order to arrive at the determination that the treatment plan was not reasonable and necessary. As such, I find no error of law.
Errors of Fact
12In this case, the applicant submitted that the Tribunal made errors of fact by ignoring evidence, as set out below.
13I note at the outset that the applicant included in her request for reconsideration a list of the Tribunal’s findings. I have not referred to these except as they are relevant to the errors of facts and law the applicant asserts the Tribunal made.
14The applicant asserts that the Tribunal ignored the applicant’s evidence that the chiropractic treatment reduced her pain and discomfort, increased her mobility and improved her activities of daily living, and that she has difficulty performing her in-home activities. In fact, however, the Tribunal referred to the applicant’s evidence, along with evidence about her reduction in pain. In addition, the Tribunal specifically referred to the applicant’s evidence that she has difficulty performing her household tasks, and specifically found that this was not sufficient to find that the treatment plan proposing an in home/attendant care assessment was reasonable and necessary. As such, I find no error of fact.
15The applicant further asserted that the Tribunal failed to recognize the applicant’s geographic location in determining whether the proposed treatment was reasonable and necessary. She submitted that the Tribunal ignored the fact that the applicant lives between 4 and 6 hours away from a centre where other treatment is available. However, in paragraph 28, the Tribunal took into account the applicant’s geographic location and concluded that despite her location, it did not mean that the treatment plan and cost of examination were reasonable and necessary. I agree with the respondent that the onus on the applicant remains the same – she must prove that the proposed treatment is reasonable and necessary. The Tribunal considered her evidence and concluded she had not done so. I find no error of fact.
16The applicant also asserted that the Tribunal ignored the evidence of the applicant’s medical practitioners in favour of that of the respondent’s. I disagree. The Tribunal made specific reference to the evidence of the applicant’s orthopaedic surgeon when weighing the evidence. The Tribunal did not ignore evidence or facts but simply preferred certain evidence over others. Again, I find no error of fact.
ORDER
17The applicant’s request for reconsideration is denied.
Dawn J. Kershaw
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: May 23, 2019