V. D. v. Unifund Assurance Company, 2019 CanLII 83590

RECONSIDERATION DECISION

Before: Cezary Paluch, Adjudicator

Date: September 3, 2019

File: 17-005656/AABS

Case Name: V. D. and Unifund Assurance Company

Written Submissions by:

For the Applicant: Lauren Grimaldi, Counsel

For the Respondent: Danielle Lecours, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant in this matter. It arises out of a decision released on December 5, 2018 in which the Tribunal found that the applicant was not entitled to two treatment plans in dispute for a chronic pain program and for assistive devices, a self-propelled lawnmower and snow blower.

2The applicant is seeking an order to cancel that decision and award her the amounts of the two treatment plans in dispute or a re-hearing before a different adjudicator.

3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act¹, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

THE LAW

4A reconsideration is not an appeal and there 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 or fact such that the Tribunal would likely have reached a different decision had the error(s) not been made. The applicant 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) (the “Rules”).

5A party seeking reconsideration has a high onus to meet. Minor or inconsequential procedural or substantive mistakes aren’t enough. Rather, 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 a hearing.²

FACTS

6The applicant was involved in a motor vehicle accident on March 9, 2011 and claimed entitlement to benefits under the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). When those benefits were denied, the applicant submitted an appeal to the Tribunal. A written hearing was held on February 21, 2018.

RESULT

7The applicant’s request for reconsideration is denied.

ANALYSIS & DISCUSSION

8I am not satisfied that the Tribunal made a significant error of law or fact such it likely would have reached a different decision if it had not made the error. For ease of reference, I use the same four headings to address the issues as in the applicant’s reasons for reconsideration.

1. Did the Tribunal misapprehend the evidence of Dr. M. Rathbone, neurologist, in relation to “maximum medical recovery”?

9The applicant takes issue with the Tribunal’s conclusion at para. 21 of the decision that the applicant reached maximum medical recovery in October 2014 based on the interpretation of Dr. Rathbone’s report dated October 15, 2014.

10Specifically, the applicant argues that the adjudicator made a mistake in referring to one selective sentence in Dr. Rathbone’s report at pages 32-33 which was contained under the section “Disc Disorders, Surgery and Surgery Outcomes” and because it was under this section this sentence was confined to the issue of disc disorders and whether further surgery would make any difference to V.D.’s condition:

To date V.D has received an extensive amount of passive and active therapies prior to and following her surgeries and following her accidents, and it has been 3-4 years since her last accident it is likely that she has reached her maximum medical recovery irrespective of future surgical opinions (third lumbar surgery).”

11I agree with the respondent that the above noted sentence must be read in context within the entire section of the report. I note that this sentence was included under the main section entitled – ‘Prognosis and Discussion’ which indicates to me that the assessor was indeed, at that point in his report, focussed on making a determination about the applicant’s projection as to her medical recovery. My plain reading of this entire section is that it was reasonable for the Tribunal to conclude that Dr. Rathbone had reached the conclusion that the applicant had reached maximum medical recovery. Dr. Rathbone unequivocally concluded that “it is likely that she has reached maximum medical recovery.” There is no dispute that this is what he wrote, and these words are plain, unambiguous and easy to understand. There are no qualifications or reservations made anywhere in this statement limiting it to only disc disorders and surgery. If Dr. Rathbone wanted to limit or qualify this statement, he could have explicitly stated as such.

12Furthermore, in the next paragraph, following this sentence, Dr. Rathbone continues to explain that patients with back and radicular leg pain following surgery will continue to suffer from persistent pain and disability. He mentions that chronic symptoms often become widespread and can affect other parts of the body including neck, shoulder, headaches, and mid back and leg. Correspondingly, on page 16 of his report, Dr. Rathbone lists the applicant’s complaints as a result of the accident that include: headaches, neck, arm, back, right leg, shoulder pain. Therefore, it is evident that Dr. Rathbone’s opinion is that treating pain is difficult as many different parts of the body can be affected and his opinion is not confined to only disc disorders and surgery as he mentions all of these other related disorders – some of which the applicant has complained of as a result of the accident and are intertwined with her back surgery and her failed “back surgery syndrome”.

13Irrespective of the Tribunal’s finding regarding reaching maximum medical recovery, the Tribunal reviewed other evidence from numerous sources and found the evidence of IE assessors Dr. Baker and Dr. Chan more persuasive in order to arrive at the determination that the treatment plan was not reasonable and necessary. I note that Dr. Rathbone’s report did not directly provide an opinion as whether the proposed chronic pain program is reasonable and necessary (although I understand that the report was required to reference any particular OCF-18) and the Tribunal ultimately evaluated whether the proposed treatment was reasonable and necessary. Again, preferring Dr. Chan and Dr. Baker’s assessments which did address the proposed treatment plan.

14As such, I find no error of law.

2. Did the Tribunal err in its analysis of reasonable and necessary

15The applicant submits that the adjudicator erred in its interpretation of what the applicant was required to prove that the treatment plan was reasonable and necessary. The key issue being that the adjudicator in para. 18 opines that the OCF-18 would have to contain reasons why it would be effective “more than all of the previous chronic pain services she had already received.”

16A review of the proposed treatment plan was only one of the factors that the Tribunal considered in coming to its determination. Indeed, an OCF-18 forms the basis of the applicant’s dispute and whether, based on the applicant’s condition, the benefits included in the OCF-18s were reasonable and necessary. Moreover, no where in the decision does it state that the test applied was whether the OCF 18 contains reasons why the treatment would be more effective. At paragraph 12, the Tribunal sets out the correct test in the Schedule citing ss. 14 and 15 and was focused on it throughout the entire decision. This is the same test referenced by the applicant at para. 29 of the applicant’s hearing submission.

17The purpose of a reconsideration is not an opportunity to re-argue a case simply because a party disagrees with the Tribunal’s finding. I find that the Tribunal carefully weighed the totality of the evidence before it and provided sound reasons for finding that the applicant was not entitled to the chronic pain program. In particular, at paragraphs 19-20, the Tribunal noted the evidence it found significant and concluded that the applicant had reached medical maximum recovery, so the proposed pain program was not reasonable and necessary. The Tribunal’s decision that a chronic pain program was not reasonable and necessary is within the reasonable range of outcomes based on the evidence and should not be overturned.

18Based 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.

3. Did the Tribunal err in ignoring the case law on pain relief as a legitimate treatment goal?

19The applicant filed five FSCO cases, one LAT case and an Ontario Court of Appeal decision and submits that the Tribunal did not reference any case law in their decision.

20I am not clear what case(s), but more important what legal principle from those cases, the applicant argues should have been followed by the Tribunal but were not. A conflict with established jurisprudence requires, at a minimum, that there be a settled understanding about the legal rules that apply, and a clear and surprising departure from those legal rules.³

21The applicant also submits that the Tribunal erred by ignoring a line of accident benefit cases that state that “supportive care” should be approved. My review of the case law submitted by the applicant is that this is in reference to a passage in Pedisic and State Farm, FSCO A04-002338 and A04-002339, at page 11, and West and Aviva Canada Inc. FSCO 409-002136 at pages 7-8 where Arbitrator Sone stated: “Additionally, if, through the reduction of pain, supportive care can improve, or at least maintain the insured person's level of function, that is also a legitimate medical and rehabilitative goal.”

22The Tribunal did consider whether the proposed treatment would be effective and improve the applicant’s level of function. For example, at para. 18, the adjudicator explained: “the OCF-18 did not indicate how it would be effective in helping the applicant more than all of the previous chronic pain services…[or] did not indicate how the program would help the applicant reduce her pain.” Ultimately concluding that the treatment plan was redundant and unnecessary considering that the applicant was already participating in self directed exercise and physiotherapy and soft tissue injections and reporting good results.

23Therefore, I find that the Tribunal did consider the goals of the treatment and whether it would assist the applicant. In any event, even if no case law was directly mentioned, I find that there has been no clear departure from legal rules.

4. Did the Tribunal err in failing to consider evidence beyond that set out in the IE Report of Dr. Baker?

24The applicant submits that the Tribunal erred by failing to acknowledge that: (i) V.D.’s injections did not provide consistent relief; and (ii) subsequent to the IE examination with Dr. Baker the applicant stopped working apparently due to pain which undermined the Tribunal’s conclusion.

25The weighing of the evidence is entirely within the adjudicator’s discretion. The adjudicator is entitled to prefer some pieces of evidence over others. As here, in para. 19, 20 and 21 the adjudicator explained why she preferred the evidence of Dr. Baker and Dr. Chan and provided sound and thorough reasons.

26I find that the Tribunal discharged its duty without error in considering the evidence.

CONCLUSION and ORDER

27For the reasons noted above, I find no error of law or fact with respect to the Tribunal’s interpretation of the Schedule. Therefore, I deny the applicant’s request for reconsideration.

28Pursuant to the Tribunal’s rule 18.4(b) the decision of the Tribunal dated December 5, 2018, is confirmed.

Cezary Paluch

Adjudicator

Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 12009, S.O. 2009, c. 33, Sched. 5.
2. 217-006956 v. The Guarantee Company of North America, 2018 CanLII 130858 (ON LAT) para. 8.
3. 3See D’Alesio v. Walker Real Estate Inc., 2019 HRTO 1059 at para. 24.