RECONSIDERATION DECISION
Before: Paul Gosio, Adjudicator
File: 17-006470/AABS
Case Name: K.F. v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Louis Del Signore Jr., Counsel
For the Respondent: Leanne Zabudsky, Counsel
OVERVIEW
1The respondent seeks a reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) July 16, 2018 decision. The Tribunal held that the applicant was entitled to a medical and rehabilitation benefit in the amount of $6,177.64 for a massage therapy chair, the associated warranty and delivery costs. The Tribunal also found that the applicant was entitled to interest on the overdue payment at the prescribed rate.
2The respondent seeks a reconsideration of this decision. Pursuant 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. For the reasons below, I have denied the request for reconsideration.
FACTS
3The applicant was injured in a motor vehicle accident on January 9, 2017. The respondent paid the applicant benefits under the Statutory Accidents Benefits Schedule, O.Reg. 34/10 (the “Schedule”) until disputes arose. The dispute in this case is focused on a Treatment & Assessment Plan, recommended by Cheryl Fountain-Gore, occupational therapist, for a massage therapy chair, the associated warranty and the delivery cost that was denied by the respondent. Interest was also claimed by the applicant.
4The applicant appealed the denial of this benefit to this Tribunal and the matter was heard in writing. Both the applicant and the respondent relied on submissions and evidence to support their positions with respect to this dispute. The Tribunal ultimately found that the applicant was entitled to the massage therapy chair, the associated warranty and the delivery cost. The Tribunal also found that the applicant was entitled to interest on the overdue payment at the prescribed rate.
5The respondent now requests under Rule 18 of the Tribunal’s Rules of Practice and Procedure that I vary the Tribunal’s decision and find that the applicant is not entitled to the benefit claimed on the grounds that the Tribunal made significant errors of law or fact. The applicant disputes the respondent’s position and submits that the Request for Reconsideration be dismissed and that the Tribunal’s decision be upheld.
DECISION AND REASONS
6Rule 18.1 requires a reconsideration request to include reasons, specifying the criteria under Rule 18.2. The Rule 18.2 criteria are:
I. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
II. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
III. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,
IV. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7In 16-002782 v Aviva Ca. Ins., 2018 CanLII 39370 (ON LAT), the Tribunal explained that Rule 18 affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. Thus, the reconsideration process serves a curative role. For final decisions, it permits the Tribunal to correct a final decision made in error. For interlocutory decisions, it gives the Tribunal the tools to get a matter back on track for a just and timely resolution.
8A party seeking a reconsideration has a high onus to meet. Minor or inconsequential procedural or substantive mistakes will not meet this onus. A reconsideration is only warranted where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, false evidence has been admitted, or genuinely new and undiscoverable evidence comes to light after the hearing has concluded. When the onus is met, the Tribunal has broad remedial powers to order a matter re-heard, or to cancel, confirm, or vary an order or decision.
9The respondent asserts the following arguments in support of its position:
I. The adjudicator failed to consider causation as a legally relevant principal or to apply the proper test of causation;
II. The adjudicator erroneously placed the onus on the respondent to demonstrate that the cost of the message chair was unreasonable;
III. The adjudicator erred in refusing to accept Dr. Naaman’s opinion on the basis that his opinion did not take into account the possibility that some of the applicants existing complaints may have been aggravated by the accident or inhibited her recovery from it;
IV. The adjudicator breached procedural fairness when he referred to information about a massage chair when no such evidence was put before him by either of the parties;
V. The adjudicator erred in determining that the Applicant had proven her entitlement to the benefit claimed without addressing whether the benefit was incurred within the meaning of section 3(7) of the Schedule.
Did the Adjudicator fail to consider causation as a legally relevant principal or to apply the proper test of causation?
10The respondent raised two distinct issues under this heading. First, the respondent submits that the Adjudicator dismissed the issue of causation as a legally irrelevant concept. The respondent relies on paragraph 11ii of the decision in support of its position. Paragraph 11ii states: “Dr. Naaman’s opinion that the accident was not the leading or primary cause of KF’s pain is legally irrelevant.”
11I am not persuaded by the respondent’s submission. When the Tribunal’s decision is read in its entirety, it is clear that the adjudicator considered the need for a causal connection between the applicant’s injuries and the motor vehicle accident. It is also clear that the adjudicator took the applicant’s pre-accident history and the issue of causation into account when he analysed the applicant’s entitlement to the benefit claimed. Both paragraphs 7 and 11 of the decision support this finding. Furthermore, my reading of the decision would lead me to believe that the Adjudicators use of the words “legally irrelevant” are confined solely to the comments respecting Dr. Naaman’s report and his opinion on causation and the connection between the applicant’s pain complaints and the accident. As a result, I will not vary the decision as requested based on this ground.
12Second, the respondent submits that the Adjudicator failed to consider the “required” “but for” test in his analysis and that this amounts to a significant error in law.
13I am not persuaded by the respondent’s submission. Neither party made any submissions to the Adjudicator with respect to the test of causation that should have been applied in this case when the matter was first heard. Although the Tribunal’s decision did not mention the causation test by name, it is clear from reading the decision that the issue of causation was taken into account when the Adjudicator analyzed the applicant’s entitlement to the benefit claimed. I am satisfied that the appropriate test for causation was applied and for this reason, I find that the respondent has not met its onus and I will not vary the decision as requested based on this ground.
Did the Adjudicator err by placing the onus on the respondent to demonstrate that the cost of the message chair was unreasonable?
14The respondent submits that the Adjudicator reversed the onus of proof by requiring the respondent to demonstrate that the cost of the massage chair as submitted in the treatment plan was unreasonable. The respondent relies on paragraph 12i in support of its position.
15I am not persuaded by the respondent’s submission in this regard. The Tribunal’s decision places the appropriate onus on the applicant. This position is supported at paragraph 7 of the decision which states: “The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan, and the associated costs, are reasonable and necessary.” The Adjudicator considered the medical opinions and recommendations before him as well as the financial costs of the message chair. He ultimately concluded that the cost of the massage chair was reasonable. Part of the Adjudicator’s analysis included a consideration of the argument raised by the respondent that the cost of the message chair was unreasonable. The Adjudicator’s decision, including the comments found at paragraph 12, rejected this submission. I am satisfied that the appropriate onus was placed on the applicant to establish that the cost of the massage chair was reasonable and that the Adjudicator finding that this onus was met was appropriate and evidence based. For this reason, I find that the respondent has not met its onus and I will not vary the decision as requested based on this ground.
Did the Adjudicator make a significant error of fact by mischaracterizing Dr. Naaman’s opinion?
16The respondent submits that the Adjudicator made a significant error of fact by mischaracterizing Dr. Naaman’s evidence. The respondent submits that the mischaracterization is evidenced by the Adjudicator’s comments at paragraph 11ii of the decision wherein he stated that Dr. Naaman’s report was “unpersuasive because it does not address the possibility that some of KF’s existing complaints might have been aggravated by the accident or inhibited her recovery from it.” The respondent submits that Dr. Naaman considered this issue at page 10 of his report and that Dr. Naaman acknowledge that there had been an exacerbation of the applicant’s pre-existing pain. The respondent submits that the Adjudicator relied on the mischaracterization of Dr. Naaman’s report to justify a dismissal of his evidence.
17I am not persuaded by the respondent’s submission in this regard. First, I do not agree that the Adjudicator dismissed Dr. Naaman’s evidence, instead, he found it to be unpersuasive. Second, even if I agree with the respondent’s submission that the evidence was mischaracterized, I do not find that this would materially affect the outcome of the decision. The Adjudicator’s analysis with respect to the entitlement to the benefit claimed is based on the totality of the evidence before him. For this reason, the respondent has not met its onus and I will not vary the decision as requested based on this ground.
Did the adjudicator breach procedural fairness when he referred to information about a massage chair when no such evidence was put before him by either of the parties?
18Paragraph 2 of the Tribunal’s decision included a description of a massage chair that was not part of the materials filed by either party. The paragraph reads as follows:
KF claims entitlement to payment for a massage therapy chair. A massage therapy chair is a medical device that features robotic rollers used to simulate massage touch and pressure. The rollers are programmed to simulate the techniques and hand movements of massage: kneading, rolling, compression and percussion. The chair can target upper (back and shoulders), lower and entire back. Some of them include calf and foot massage features. Most of them recline to various angles. They are heavily padded for comfort.
19Although this paragraph was not before the Tribunal, it reads as a general technical description of the massage chair that provides context for the reader. The Adjudicator’s analysis regarding the applicant’s entitlement to the massage chair is based on the medical evidence and opinions before him. The Adjudicator’s analysis does appear to rely on paragraph 2 of the decision in any meaningful way.
20For this reason, I do not find that paragraph 2 of the Tribunal’s decision materially affected the analysis or the decision. I also do not find that in the absence of this paragraph the Tribunal would likely have reached a different decision. For this reason, I find that the respondent has not met its onus and I will not vary the decision as requested based on this ground.
Did the adjudicator err in determining that the Applicant had proven her entitlement to the benefit claimed without addressing whether the benefit was incurred within the meaning of section 3(7) of the Schedule?
21The adjudicator did not comment on whether the benefit was incurred. At paragraph 13 of the Tribunal’s decision, the adjudicator states that the respondent must pay for the benefit claimed. At paragraph 17 of the decision, the adjudicator states that interest on the overdue payment of the benefit is due at the prescribed rate. The adjudicator made these findings without considering whether the benefit in dispute had been incurred within the meaning of section 3(7) of the Schedule or deemed incurred pursuant to section 3(8) of the Schedule. The respondent raised the issue of incurred at the initial hearing and the applicant, in her reply submissions, suggested that the benefit should be deemed incurred pursuant to s. 3(8) of the Schedule. The decision does not reference section 3(7) of 3(8) of the Schedule and the respondent submits that this amounts to a significant error in law and justifies its request that the Tribunal vary its decision and find that the benefit in dispute is not payable. I disagree with the respondent’s submission for the following reasons.
22In my opinion, the issue of entitlement is separate from the issue of payment. The adjudicator’s failure to consider the issue of incurred does not affect the Adjudicator’s finding that the benefit claimed was reasonable and necessary and therefore does not affect the applicant’s entitlement to the benefit claimed. As stated above, I do not find the Tribunal’s finding to be in error.
23In this case, the applicant submitted that the benefit in dispute should be deemed incurred pursuant to section 3(8) of the Schedule. I do not agree with the applicant’s submission. Section 3(8) of the Schedule gives the Tribunal the authority to deem a benefit incurred if the Tribunal finds that a benefit was not incurred because the insurer unreasonably withheld or delayed payment of the benefit. In this case, the denial of the benefit in dispute was reasonably based on the information the respondent had at that time and does not warrant a finding under section 3(8) of the Schedule.
24With respect to the respondent’s submissions regarding section 3(7) of the Schedule, I find that an adjudicator may make a finding that treatment is reasonable and necessary and order the benefit to be payable even without the treatment being incurred as long as that order complies with the schedule (i.e. the treatment and interest being payable once incurred and overdue).
25In this case, the order made by the hearing adjudicator can be found at paragraphs 16 and 17 of the decision. Paragraph 16 indicates that the applicant has proven her entitlement to the benefit claimed. Paragraph 17 indicates that interest is due on overdue payments at the prescribed rate. This approach complies with the Schedule because the reference to “incurred” in section 15 of the Schedule provides that the respondent is only liable to pay for a reasonable and necessary medical or rehabilitation benefit after it has been incurred – not at the time the treatment plan is approved or awarded by the tribunal.
26An applicant may dispute the denial of a treatment plan and seek a ruling from the Tribunal that the proposed treatment is reasonable and necessary before the benefit is incurred. In reading s. 55 of the Schedule (restriction on proceedings), I do not find the issue of incurred to be a threshold matter and therefore, I confirm the Tribunal’s decision on entitlement to the benefit despite the decision’s silence on the issue of incurred.
27For these reasons, I will not vary the decision as requested and confirm the Tribunal’s order. Payment for the treatment in question and any related Interest is payable in accordance with the Schedule.
CONCLUSION
28For the reasons noted above, the request for reconsideration is denied.
Paul Gosio Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: June 25, 2019