RECONSIDERATION DECISION
Before: Kate Grieves, Adjudicator
File: 17-005631/AABS
Case Name: C.B. v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: N/A
For the Respondent: David E. W. Koots, Counsel
OVERVIEW
1On March 19, 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, assistive devices, and interest. The Tribunal determined that the applicant was entitled to the assessment with interest, but did not award the assistive devices. 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 March 17, 2016. She sought accident benefits from the respondent under the Schedule. An OCF 18 submitted by Promed Rehabilitation Clinic, dated September 28, 2016 proposed a chronic pain assessment in the amount of $1,765.20. Another treatment plan submitted by Promed of the same date proposed various assistive devices in the amount of $1,099.75.
5The respondent denied the proposed treatment plans by way of a letter dated October 3, 2016 on the basis that the applicant sustained a predominantly minor injury according to an orthopedic assessment conducted by Dr. Rabinovitch (via paper review) prior to the submission of the treatment plan, dated September 27, 2016. The applicant was subsequently removed from the minor injury guideline in September 2017 following a psychological diagnosis and the assistive devices were partially approved for $759.75.
6A written hearing was held to address the applicant's entitlement to a chronic pain assessment and the balance of the partially approved plan for assistive devices. Both parties submitted volumes of evidence to the Tribunal in support of their cases, including contradictory medical reports and opinions. The Tribunal accepted the applicant's evidence and found that they were entitled to the chronic pain assessment with applicable interest but did not award the assistive devices.
7The respondent has requested reconsideration of the Tribunal's decision to award the chronic pain assessment.
ANALYSIS
8The 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.
9Reconsideration 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 becomes known after a hearing.
10The respondent submits that the Tribunal's decision granting the chronic pain assessment should be reconsidered and replaced with a finding that it is not reasonable or necessary on the following grounds:
The Tribunal made a significant error of law in finding the proposed assessment was reasonable and necessary without considering whether the proposed assessor is qualified to perform a chronic pain assessment;
The Tribunal made a significant error of law in finding the proposed assessment was reasonable and necessary to treat left wrist pain;
The Tribunal violated the rules of natural justice and procedural fairness in not providing reasons to indicate that she considered the procedural argument with respect to signature requirement under s. 38(3).
11I will address each in turn.
Did the Tribunal make an error of law by failing to consider if the proposed assessor was properly qualified?
12The 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.
13At paragraph 13 of the original submissions, the respondent submitted that if the applicant did have a chronic pain condition, that it would be better addressed by a medical doctor with training in chronic pain to address her left wrist complaints and any role her psychological condition might play.
14Although I agree that the Tribunal did not specifically respond to the respondent's argument concerning completion of the assessment by a chiropractor versus a medical doctor, I do not consider this to be an error in law that requires that its decision be overturned. Essentially, the respondent is arguing that the applicant should have been assessed by a different practitioner, but the Tribunal found the chiropractor to be a qualified medical practitioner treating people with pain complaints and a credible assessor. It was entirely appropriate for the Tribunal to make such an assessment of the evidence before it.
15Other than the absence of a reference to the respondent's argument in the original decision, I have no basis upon which to find that the Tribunal did not consider the submissions on this issue. More importantly, I find that in the event that the Tribunal failed to consider this argument, the error was not significant enough, in light of the other reasons provided by the Tribunal, to have led it to come to a different decision. In this case, the Tribunal used and applied the correct test for the reasonableness and necessity for a chronic pain assessment.
16Further, the Tribunal is not required to expressly address every piece of evidence and every argument made by a party. For the reasons noted above, the applicant has failed to persuade me that the Tribunal made any errors in law such that its decision should be overturned.
17I therefore reject the respondent's submissions and find that the Tribunal made no error.
Did the Tribunal make a significant error of law in finding the proposed assessment was reasonable and necessary to treat left wrist pain?
18The respondent submits at paragraphs 17 to 20 of its reconsideration submissions that the adjudicator erred in finding that the chronic pain assessment was reasonable and necessary given that the Tribunal found the only ongoing physical pain was left wrist pain.
19The purpose of the reconsideration process is not to interfere with an evidence based and discretionary decision properly made by the Tribunal simply because a party disagrees with the Tribunal's finding. The Tribunal's decision that a chronic pain assessment was reasonable and necessary is within the reasonable range of outcomes based on the evidence and should not be overturned.
20I find that the Tribunal carefully weighed the totality of the evidence before it and provided sound reasons for finding that the applicant was entitled to the chronic pain assessment. At paragraphs 15 to 23, the Tribunal noted the evidence it found significant and concluded that the applicant's wrist pain was unresolved, so the proposed assessment was in fact reasonable.
21Furthermore, as noted in the respondent's reconsideration submissions, a chiropractor's scope of practice includes disorders arising from structures or function of joints.
22Based on the Tribunal's analysis of the evidence and the reasons discussed above, I find no reason to interfere as there was no significant error of law.
Did the Tribunal violate the rules of natural justice and procedural fairness in not providing reasons to indicate that she considered the procedural argument with respect to signature requirement under s. 38(3)?
23The respondent conceded at paragraph 22, that it is settled law that a decision need not mention all of the evidence considered or arguments raised by the parties. I agree. However, the respondent also requested that, if the Tribunal upheld the decision that the treatment plan was reasonable and necessary, that the Tribunal address the 38(3) argument in its reconsideration decision. Accordingly, I find that, even if the Tribunal failed to consider this argument, the error would not have led to a different result. The Tribunal has previously addressed this issue in the reconsideration decision of 17-003450 v Aviva.
24Section 38(3) of the Schedule states that the insured person must sign a treatment or assessment plan unless the insurer waives that requirement. The Schedule does not set out what constitutes a waiver.
25Section 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.
26At paragraphs 24 of its original submissions, the respondent submitted that the signature requirements were critical to managing the claim, because it ensures that a health practitioner has verified the information submitted to the insurer and confirms that the claimant is aware of and intends to use the goods or services submitted on their behalf.
27The respondent cited two FSCO decisions in support of its position that the signature requirement is mandatory, and an insurer is not liable to pay until the s.38 (3) requirement is satisfied. The Tribunal is not bound by FSCO decisions.
28I agree with the respondent with respect to the importance s.38(3), the purpose of which is to protect the claimant, who by signing the treatment plan, confirms they are aware of what is submitted on their behalf and intends to use the goods or service.
29I find that the respondent implied that the signature requirement was waived and the OCF 18 was "accepted as submitted" by advising the applicant by letter dated October 3, 2016 that the treatment plan was denied on the basis of Dr. Rabinovich's findings.
30Further, there is no evidence to suggest that the respondent ever raised the s. 38(3) issue prior to the hearing. According to the evidence before me, the first time the respondent mentioned s. 38(3) was in its Response to the Application, dated September 22, 2017. Even at that point, the respondent's position was unclear, as the Response states: "Aviva pleads section 38 (3) of the SABS and states treatment plan meeting the requirements of this section has been provided to the insurer to date and puts the claimant to the strict proof thereof" [sic][emphasis added]. Upon reviewing the foregoing from the Insurer's Response, the Applicant would not be aware that the respondent required a signed treatment plan. There is no evidence to suggest that at any time prior to the hearing of this matter did Aviva ever contact the applicant, their representative, or the clinic to request a signed copy of the treatment plan.
31Considering the consumer protection nature of the legislation, and the fact that the procedural defense was raised at this stage of the proceedings, and after the respondent took the aforementioned actions in responding to the OCF 18, I reject the respondent's argument.
32Furthermore, 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 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. Consistent with the consumer protection nature of the legislation, I also find 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.
33Therefore, I find that no error was made by the Tribunal.
CONCLUSION
34For the reasons set out above, I dismiss the respondent's Request for Reconsideration.
Kate Grieves
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 24, 2019