Tribunals Ontario Safety, Licensing Appeals and Standards Division
77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Before: Jeffrey Shapiro, Vice-Chair
File: 17-004828/AABS
Case Name: L.D. v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Frank E. McNally and Sophia L. Dales
For the Respondent: James M. Brown
OVERVIEW
1Aviva seeks reconsideration of the Licence Appeal Tribunal's (the "Tribunal") May 23, 2018 Order, issued by Adjudicator Samia Makhamra. The issue before the Tribunal was whether the applicant, L.D., was entitled under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the "Schedule") to payment for seven medical and rehabilitation plans arising from a motor vehicle accident. The Tribunal found that L.D. was entitled to six of the seven plans.
2Aviva seeks a reconsideration order that either varies or cancels the Tribunal's finding of entitlement to two of the plans – i.e. Issues I and V in the Tribunal's Order, dealing with $3,282.14 for Lidocaine intravenous injection for chronic pain, and $1,292.26 for a dietician assessment. Aviva submits that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
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. For the reasons below, I dismiss this request for reconsideration.
RESULT
4The applicant's request for reconsideration is dismissed.
BACKGROUND
5The applicant, L.D., was injured in a motor vehicle accident on January 8, 2016. Since the accident, she suffers from pain in her neck, back, shoulders, limited range of motion in her arms, headaches, dizziness and issues related to depression and anxiety, and suffers from chronic pain. She has received a variety of treatments, as well as various medications, and is under the care of a chronic pain specialist. She has not returned to her job, and insurer' examinations by an orthopedic surgeon and psychologist both agreed that she suffers a "substantial inability" to return to work.
6After the insurer denied certain treatment, the applicant appealed those denials to this Tribunal. The written hearing addressed the seven different plans, two of which are the subject of this reconsideration. L.D. sought approval of Lidocaine intra-venous injections, recommended by Dr. Nahas, her chronic pain specialist, believing they would help her chronic pain. Aviva questioned the effectiveness of the treatment, as she had previously received one injection and it only provided relief for a day. L.D. also sought the cost of a dietary assessment submitting that it was necessary based on her inability to prepare her own meals, fatigue levels and lack of strength. Aviva questioned whether there was evidence that L.D.'s diet caused her impairments, or at least questioned whether it played any role in advancing recovery. The Tribunal found in favour L.D. on those plans.
7Aviva now requests under Rule 18 of the Tribunal's Rules of Practice and Procedure that I either vary or cancel the Tribunal's decision, claiming the Tribunal made significant errors of law or fact, which will be addressed below.
DECISION AND REASONS
8The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal's Common Rules of Practice and Procedure. Rule 18.1 requires a reconsideration request to include reasons, specifying the criteria under Rule 18.2. Relevant to this reconsideration is:
- the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
9In 16-002782 v Aviva Ca. Ins., 2018 CanLII 39370 (ON LAT), Associate Chair J. Batty explained that the rule 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.
10Aviva asserts several arguments, the main points of which I will address below. L.D. argues that, in an overall sense, Aviva is not really pointing to significant errors of fact or law but is really asking the Tribunal to re-weigh the evidence to come to a different result, which under the circumstances is not a proper basis to grant reconsideration. I agree.
Did the Tribunal misapprehend the "reasonable and necessary" standard regarding the Lidocaine infusions including shifting the burden?
11While Aviva's arguments regarding the Lidocaine infusions are interrelated, I will address the different focus of each separately. In sum, Aviva first argues that the Tribunal erred by applying the wrong standard, in that the Tribunal failed to consider the words "reasonable" and "necessary" as two separate and distinct requirements that must be separately proven by the applicant and analysed by the Tribunal. I disagree with this submission for several reasons.
12I note that the Schedule does not define the words in that way. While some caselaw focuses on providing each word "some meaning", the decisions Aviva cites still acknowledge that the terms are interrelated and overlapping. For that matter, other decisions read the words as a phrase, and others have found pain relief alone can be reasonable and necessary.
13More importantly, the Tribunal's decision makes clear that the adjudicator considered the different aspects of the "reasonable and necessary" standard. The Tribunal specifically considered the insurer's assessor's opinion that the treatment plan was "not cost effective" and therefore not reasonable (para. 24), struggled with both the cost effectiveness and necessity of the treatment, but ultimately concluded it was reasonable and necessary. The adjudicator found short-term relief important for L.D. who suffered with on-going pain for two years and considered that Lidocaine was a reasonable and necessary treatment, to at least be explored more fulsomely, for longer-term relief. The Tribunal certainly had Dr. Nahas's rebuttal report explaining the particular benefits of the treatment for L.D. and why other seemingly available treatments were not appropriate.
14In sum, the decision makes clear that the adjudicator considered all aspects of the reasonable and necessary standard and found L.D. proved her case. As noted below, the adjudicator preferred L.D. evidence and Dr. Nahas's evidence in particular and discounted Aviva's evidence and arguments attempting to refute it. I do not see the standard being misapprehended, nor a shifting of the burden.
Did the Tribunal fail to properly apply the "reasonable and necessary" standard regarding the Lidocaine infusions?
15While this argument overlaps with the prior, Aviva also focuses on the Tribunal's factual findings. Aviva essentially argues that the Tribunal erred in approving the treatment when the relatively undisputed evidence was that L.D. had previously tried this treatment and it was only effective for about a day. In simple terms, Aviva's argument is that it had been tried and did not work, so it is a factual error to claim the infusions are reasonable and necessary.
16I disagree. The adjudicator was clearly was aware of Aviva's argument, analysed and addressed the evidence of both the treatment's potential and its limited success for L.D., and concluded in the context of L.D.'s situation that the Lidocaine Infusion treatment was reasonable and necessary – even if not guaranteed to provide long-term success.
17The Tribunal explained that "I prefer Dr. Nahas's opinion [the prescribing physician and chronic pain specialist] in support of the [treatment] because he provided a more cohesive grasp of the applicant's symptoms and functional limitations, and the plan would reasonably provide relief," and preceded to point to details of Dr. Nahas's opinion.
18The Tribunal also distinguished prior caselaw – even if non-binding – dealing with ineffective treatment. The Tribunal noted that in this case where the treatment had only been administered once with only temporary success, different medications had been tried "without much success," and the applicant's providers had a better grasp of the applicant's symptoms, it was "premature" to conclude the treatment was not reasonable and necessary based on one try.
19In the totality of the evidence and the Tribunal's analysis, I do not find an error.
Did the Tribunal fail to properly apply the burden of proof to the dietician services, in part by shifting the onus from the applicant to the respondent?
20The crux of Aviva's argument is based on the Adjudicator's following statement:
"[39] I see no reason to prefer Dr. Raynor's opinion over that of the dietician who recommended the assessment and would be completing the work set out in the treatment plan. Accordingly, I find this assessment reasonable and necessary."
21Aviva submits that the statement shows that the adjudicator was essentially requiring Aviva to disprove the claim rather than requiring L.D. to prove it – which constitutes an error of law as it is improperly shifting the burden to Aviva.
22Alternately, Aviva argues, the statement shows the adjudicator weighed the evidence evenly and then instead of properly resolving the "tie" against L.D., the adjudicator shifted the burden and resolved it against Aviva.
23I disagree as the adjudicator's statement must be taken in the context of the decision – and in context, the adjudicator's statement is simply summarizing earlier findings of fact. More specifically, the context shows that the Tribunal, albeit briefly, analysed the purpose of the dietary assessment and found it reasonable and necessary, which came after generally accepting L.D. evidence regarding her overall condition. The Tribunal then explicitly explained why it gave less weight to Aviva's evidence on this plan, questioning the qualifications of Dr. Raynor, an orthopaedic surgeon, to provide an opinion on a dietary plan, also articulated two concerns with the opinion itself.
24Thus, in context, the Tribunal was expressing that it had before it a treatment plan with logical goals given L.D.'s condition and that Aviva's evidence to the contrary was weaker. I see no error on the grounds stated.
CONCLUSION
25For the reasons above, I dismiss the respondent's Request for Reconsideration.
Released: August 6, 2019
_____________________
Jeffrey Shapiro Vice Chair