RECONSIDERATION DECISION
Before: Chloe Lester, Adjudicator
File: 17-008500/AABS
Case Name: M.F. v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Joelle Briggs-Sears, Counsel
For the Respondent: David Reposo, Counsel
OVERVIEW
1The applicant seeks a reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) August 28, 2018 decision. The Tribunal held that the applicant was in the Minor Injury Guideline (“MIG”), the treatment plans were not reasonable and necessary, and denied the request for an award.
2The applicant requests reconsideration of the decision on the basis that the adjudicator violated the rules of procedural fairness and made significant errors of law and/or fact that the Tribunal would have likely reached a different decision. The applicant requests the decision be cancelled and a new hearing be ordered.
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 have allowed the request for reconsideration.
FACTS
4The applicant was injured in a motor vehicle accident on June 13, 2013 and sought benefits pursuant to the Statutory Accident Benefit Schedule.1 The applicant was denied benefits and applied to the Licence Appeal Tribunal for dispute resolution.
5The parties participated in a case conference on January 11, 2018 where the parties agreed the hearing would consist of written submissions in advance of the 1 day in-person hearing. The hearing would consist of the examination-in-chief and cross-examination of the applicant.
6Less than a month prior to the hearing, the respondent filed a motion requesting that they be allowed to bring more witnesses to the hearing. At the motion hearing, the applicant requested costs. The motion was denied and the issue of costs was remitted to the hearing adjudicator.
DECISION AND REASONS
7The applicant argues she is entitled to a reconsideration based on Rule 18.2 (a) and (b); the adjudicator violated procedural fairness and made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
8The applicant’s submissions can be summarized in this way:
I. The adjudicator failed to address the issue of costs;
II. The adjudicator decided an issue that was not before him;
III. The adjudicator misapplied the test for causation and for determining whether the applicant had any pre-accident injuries;
IV. The adjudicator provided insufficient reasons for his decision; and
V. The adjudicator improperly relied on a decision from the Financial Services Commission of Ontario (“FSCO”) concerning the applicant’s claim for non-earner benefit and treatment plans as evidence in this hearing.
9The respondent submits:
I. The adjudicator did not err in his decision. The adjudicator found that the injuries were both the same before and after the accident and therefore the applicant would not be entitled to the treatment plans.
II. The adjudicator did find the applicant in the MIG and that she was not entitled to the treatment plans because they were not reasonable and necessary.
III. The adjudicator did not apply the wrong causation test. His decision was clear and cogent.
The adjudicator failed to address the issue of costs and addressed an issue that was not properly before him
10Both the applicant and respondent have requested costs in relation to this hearing. One request was listed on the case conference report and order and the other in the motion decision. The issue of costs was not addressed in the adjudicator’s decision and therefore I find there has been a breach of procedural fairness.
11I also find the adjudicator made a finding on an issue that was not properly before him. The adjudicator found the applicant in the MIG. That issue was not before the adjudicator. It was not listed in the case conference order as an issue in dispute and was not part of any submissions made by the parties. This was problematic because it was one of the reasons why the adjudicator found the treatment plans were not reasonable and necessary. Having placed the applicant in the MIG, limited the amount of funding for benefits the applicant was entitled to. In fact, this was not the case and the applicant was not subject to the MIG limits. Further, the applicant argues because they were not aware the MIG would be contemplated in this decision, they were not given the opportunity to lead evidence on that issue. I agree with the applicant, that making a finding on an issue not in dispute was a breach of procedural fairness. There are other reasons why the adjudicator did not find the treatment plans reasonable and necessary and those reasons will be discussed later in this decision.
The adjudicator misapplied the causation test
12The applicant submitted to the adjudicator that the accident materially contributed to her pre-accident impairments. The respondent argues that the decision should stand because the adjudicator found there was no difference between the pre and post accident impairments. In review of the decision, the adjudicator did not conduct a causation analysis. The adjudicator did mention in his analysis some reasons why he thought the applicant’s injuries were minor but he does not weigh the conflicting reports, nor does he comment on her alleged post-accident psychological injuries and whether they are as a result of the accident. The applicant claims that the applicant was diagnosed with a new injury as a result of the accident, being a shoulder tear. The adjudicator does not mention this new injury in his decision despite referring to clinical notes where the applicant repeatedly complained of shoulder issues to her family doctor.
13The adjudicator refers in paragraph 36 to “most of the post-accident injuries were the same pre-accident injuries…”. Most is not all, and no analysis or reasoning was conducted of the other injuries that were not present pre-accident and whether they were caused by the accident.
14I find these errors could have changed the result of the decision and as a result amount to a breach of procedural fairness.
The adjudicator gave insufficient reasons and improperly relied on a decision as evidence
15The applicant claims the adjudicator improperly relied on her previous decision that decided the issue of non-earner benefit and treatment plans. The applicant claims the adjudicator imported reasoning from the non-earner benefit decision and applied them to why the treatment plans were not reasonable and necessary. The applicant claims relying on the decision as evidence was prejudicial to her because the adjudicator was not the trier of fact and did not hear the evidence in this case. Also, the applicant’s evidence was excluded in that hearing based on a preliminary ruling under FSCO’s Rule 39. So, the previous adjudicator did not have medical records before him in making his decision.
16The respondent claims the adjudicator can rely on that decision because it decided very similar issues and they were found to be not reasonable and necessary.
17I agree with the applicant. The adjudicator improperly relied on the decision as evidence. An adjudicator can rely on a decision as case law or for guiding principles in deciding similar issues, but they cannot rely on it as evidence. The adjudicator in paragraph 35 of his decision relied on the decision to support his preference of medical reports and his conclusion that the applicant is independent and that the injuries are minor. But an applicant’s independence does not equate to having minor injuries, nor does it necessarily mean the treatment plans are not reasonable and necessary. Those tests are very different. The adjudicator heavily relied on that fact that the applicant was independent as a factor that the treatment plans were not reasonable and necessary.
18The adjudicator in this decision was supposed to analyze and determine whether treatment plans for various therapies and assessments were reasonable and necessary. This was not done. The very fact that the adjudicator found the injuries were minor meant that he established that the applicant was impaired from the accident. The question is how the applicant was impaired and whether the treatment being proposed was reasonable and necessary. There was no analysis conducted on the treatment plans, the goals of the treatment plans in relation to the injuries and whether they were reasonable and necessary as required by the Schedule.
CONCLUSION
19For the reasons noted above, the request for reconsideration is allowed. I order that this matter be re-heard under the following conditions:
I. The hybrid hearing, submissions and evidence remain the same.
II. The 1 day in-person hearing for examination-in-chief and cross-examination of the applicant will be before a different adjudicator.
III. The case management officer will book an agreeable hearing date for the parties within the next 90 days of the release of this decision.
Chloe Lester
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: August 29, 2019
Footnotes
- The Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended.