RECONSIDERATION DECISION
Before: Maureen Helt, Vice-Chair
File: 17-007428/AABS
Case Name: M.R. v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Kal Stoykov, Counsel
For the Respondent: Shivani Mehta, Counsel
OVERVIEW
1This is a request for reconsideration made by the applicant of a decision of the Licence Appeal Tribunal (Tribunal) dated issued August 17, 2018 (Decision). In the Decision the Tribunal found that the applicant was not entitled to the cost of several treatment plans nor to the cost of a chronic pain assessment.
2The applicant requests that the Tribunal vary its Order and find that the applicant is entitled to all benefits claimed as well as the cost of the assessment.
3The respondent submits that the Tribunal’s decision is correct, and the relief sought by the applicant should be denied.
4Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointment Act, 2009, S.O. 2009, c.33, Sched. 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.
RESULT
5The applicant’s request for reconsideration is dismissed. The applicant has failed to establish any errors of law or fact such that the Tribunal would likely have reached a different decision had the errors not been made.
BACKGROUND
6The applicant was injured in an automobile accident on December 14, 2014. A year and five months after the accident, the applicant was involved in a second motor vehicle accident on April 26, 2016. The applicant filed an application with the Tribunal with respect to the treatment claimed from the first accident only. The matter proceeded by way of written hearing.
7In its application to the Tribunal the applicant requested medical benefits for chiropractic services as set out in four treatment plans which were all denied by the insurer. The applicant also applied for entitlement to the cost of an examination for a chronic pain assessment which was also denied by the insurer.
Tribunal’s Decision
8The Tribunal found that the applicant was not entitled to the costs for any of the treatment plans for chiropractic treatment submitted to the insurer and denied the claims on the basis that the applicant had not established that the disputed treatment plans were reasonable and necessary.
9The Tribunal found that the applicant was also not entitled to the cost of an examination for a chronic pain assessment. The Tribunal was not satisfied that the accident in question was the cause of the chronic pain and/or impairment in question.
10The applicant’s request for reconsideration is made pursuant to rule 18.2 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).
ANALYSIS
11The onus is on the party seeking reconsideration to establish the criteria set out in Rule 18.2.
12The criteria that the applicant is relying on for reconsideration is that 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. The applicant alleges three errors, each of which is dealt with below.
i. Did the Tribunal make a significant error of law or fact in finding that Dr. Rozen does not provide an opinion as to whether the first or second accident is the cause of the chronic pain?
13The applicant submitted an independent chronic pain medical legal assessment prepared by Dr. Rozen in December 2016. The Tribunal noted at para 34 of the Decision that Dr. Rozen, who evaluated the applicant after his second accident, does not provide an opinion as to whether the first or second accident is the cause of the chronic pain he observes in the applicant.
14The applicant submits that the Tribunal erred in its finding submitting that Dr. Rozen did find that the applicant’s chronic pain was as a result of the December 11, 2014 accident and was then exacerbated by the second accident in April 2016.
15The applicant, at paragraph 9 or its reconsideration submission, states that Dr. Rozen diagnosed the applicant as follows:
In my opinion, Mr. Roberston sustained the following impairments as a result of the motor vehicle accident on December 11, 2014: for which he is experiencing an exacerbation as a result of the secondary accident on April 26, 2016.
Dr. Rozen then lists the impairments including chronic axial neck pain, chronic axial lower back pain, and chronic pain syndrome as well as sleep and mood disorder with chronic pain.
16The respondent submits that it is not clear whether or not Dr. Rozen is concluding the second accident exacerbated the injuries to the point of chronic pain or if the pain was from the first accident. The respondent also noted that Dr. Rozen did not complete his assessment until some two years after the first accident.
17In reviewing the Decision it is clear that the Tribunal did consider these impairments however stated when looking at the issue of causation, it is necessary to consider not only the first accident but also the second accident.
18In the Decision the Tribunal states, at paragraph 34, that Dr. Rozen, who evaluated the applicant after his second accident, does not provide an opinion as to whether the first or second accident is the cause of chronic pain he observes in the applicant.
19The Tribunal further states that the applicant has made no submissions or presented any evidence to establish that the first accident caused the chronic pain. Further, the review of the clinical notes and records demonstrate that the applicant attended his family doctor on only one occasion after the first accident.
20In reviewing the Decision, I find that the Tribunal, did not make a significant error of law or fact such that the Tribunal would likely have reached a different decision if the alleged error had not made.
ii. Did the Tribunal err in finding that the applicant’s second accident was more severe, thereby prejudicing her analysis of causation when determining entitlement to the treatment plans in dispute?
21The applicant submits that the Tribunal’s finding that the second accident was more severe than the first is an error, submitting that there was no substantive evidence submitted with respect to the severity of each accident. The applicant submits that this error resulted in the Tribunal incorrectly finding that the second accident likely caused the injuries and therefore the treatment plans were found not to be reasonable and necessary.
22The respondent submits that the Tribunal’s finding about the severity of the second accident was made with respect to consideration of the chronic pain assessment. Specifically, the Tribunal’s finding that the second accident was more severe was made in its analysis of whether the first accident was the cause of the applicant’s chronic pain. This finding was not related to the Tribunal’s assessment of whether the treatment plans are reasonable and necessary.
23The Tribunal concludes at paragraph 29 that the applicant failed to present any medical evidence to demonstrate the applicant’s impairments are beyond soft tissue impairment. The Tribunal then sets out other evidence it considered in its analysis namely that the applicant maintains full-time employment; remains independent and active; and has not submitted any evidence as to why the treatment plans are reasonable and necessary.
24The respondent submits that the Tribunal correctly considered, assessed and weighed all of the evidence presented to make its determination whether the disputed treatment plans are reasonable and necessary.
25For the reasons above I find that the Tribunal’s finding that the applicant’s second accident was more severe was not a significant error or law or fact that had the error not been made, the Tribunal would likely have reached a different decision.
iii. Did the Tribunal err in finding that a treatment plan dated January 5, 2015 and denied on January 16, 2015 was statute barred?
26The applicant submits that there was always an intention to appeal the denial of the January 5, 2015 treatment plan and he Tribunal erred in finding there were no reasonable grounds for granting an extension of time for filing the appeal pursuant to section 7 of the Licence Appeal Tribunal Act.
27The respondent argues that paragraphs 16, 17, 18, 19 & 20 of the reconsideration submissions of the applicant constitute fresh evidence that was not presented at the hearing and should not be admitted.
28Regardless of the admissibility of the alleged fresh evidence, the respondent submits that the applicant has failed to demonstrate that the limitation period should be extended.
29The Tribunal clearly articulated the four factors that make up the test for considering when an extension of time under section 7 of the Licence Appeal Tribunal Act should be granted. Those factors are: the existence of a bona fide intention to appeal within the appeal period; the length of delay, the prejudice to the other party and the merits of the appeal. The applicant has not addressed these specific factors in his written arguments.
30At para 16 of the Decision it is noted:
The applicant has failed to adduce any explanation or evidence as to why an extension should be granted, simply stating that the length of delay is not unreasonable and there will be no prejudice to the respondent... The applicant fails to inform the Tribunal why she was unable to file her appeal within the prescribed 2 year period.
31I find no error on the part of the Tribunal in finding that there were no reasonable grounds for exercising its discretion to extend the limitation period applying the extension and for granting relief.
CONCLUSION
32Based on the above reasons, I deny the request for reconsideration.
Maureen Helt
Vice-Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 25, 2019