RECONSIDERATION DECISION

Before:

Deborah Neilson, Adjudicator

Date:

August 27, 2019

File:

17-007543/AABS

Case Name:

[F. A.] vs. Belair Insurance Company

Written Submissions by:

For the Applicant:

M. Aftab Alam, Counsel

For the Respondent:

Lori J. Sprott, Counsel

I. OVERVIEW

1This request for reconsideration, filed by the respondent insurer, arises out of a decision dated December 5, 2018, in which the Tribunal found that the applicant was entitled to the costs of a chronic pain assessment and a chiropractic functional impairment assessment. The Tribunal denied the applicant’s request for payment for cost of examinations for psychological, orthopaedic and physiatry assessments. The respondent submits that the Tribunal made significant errors of law and fact and violated principles of natural justice. It seeks an order that the applicant is not entitled to payment for the costs of the chronic pain and impairment assessments.

2Pursuant 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 LAT Rules. ¹

II. RESULT

3I deny the respondent’s request for reconsideration.

III. BACKGROUND

4The applicant was involved in an automobile accident on August 21, 2015. He ssought and received benefits from the respondent pursuant to the ''Schedule''.² After the respondent denied his request for payment for cost of examinations, he applied to the Tribunal.³

5The Tribunal determined that the applicant sustained soft tissue injuries as a result of the accident. His predominant physical injury was a partially torn supraspinatus tendon in the right shoulder. The applicant sought entitlement to the costs of the assessments on the basis that the insurer failed to give the applicant the requisite notice denying the treatment plans within 10 days of their receipt and/or on the basis they were reasonable and necessary. The Tribunal agreed with the applicant that the denial notices for the psychological, orthopaedic and functional abilities assessments did not comply with the notice requirements in s.38(8) of the Schedule. The applicant did not incur any costs in relation to the psychological and the orthopaedic assessments. Therefore, the Tribunal assessed whether those treatment plans were reasonable and necessary and determined that they, and the physiatry assessment, were not. The Tribunal determined that the respondent was required to pay for the costs of the following assessments:

(i) Chiropractic functional impairment assessment – the Tribunal determined that the respondent’s notice stating that the assessment was denied because there was insufficient documentation was not a medical reason to deny a treatment plan as required by s.38(8) of the Schedule. The costs were incurred before a proper denial was made and, therefore they were payable under s.38(11)2.

(ii) Chronic pain assessment – The Tribunal determined the assessment was reasonable and necessary based on the finding of a partially torn tendon, the applicant’s ongoing complaints of pain, and pursuant to the recommendation that treatment options alternative to physiotherapy should be explored.

IV. ANALYSIS

6The grounds for a request for reconsideration are contained in LAT Rule 18 The ground that the applicant argues applies to this case is LAT Rule 18.2(a) and (b):

(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;

(b) 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.

7More specifically, the respondent argues that the Tribunal erred:

(a) in fact, and law and violated the principles of natural justice because the Tribunal’s misapprehended, misapplied, or failed to apply any analysis/test of causation in respect of the applicant’s alleged shoulder injury;

(b) in fact and law and violated principles of natural justice by concluding that “insufficient documentation” is not a medical reason to deny a treatment plan;

(c) in fact and law to conclude without evidence that a Form 53E Acknowledgement of Expert’s Duty required by the Rules of Civil Procedure in Superior Court was completed “by mistake;” and

(d) in fact and law to conclude that housekeeping and caregiving benefits are accident benefits under consideration in this matter.

8I am not persuaded by the respondent’s arguments that the Tribunal made any errors of fact or law. Nor am I persuaded that, if the Tribunal did make any errors, a different decision likely would have been reached but for the error.

(a) Causation

9The respondent submits that the Tribunal misapprehended, misapplied, or failed to apply any analysis or test of causation in respect of the applicant’s shoulder injury. The respondent submits if the Tribunal had not made the error with respect to causation, the Tribunal would not have determined that the applicant was entitled to payment for the cost of the chronic pain assessment and the chiropractic functional assessment.

10The Tribunal determined that the applicant’s predominant physical injury is a partially torn supraspinatus tendon in the right shoulder. The respondent submits that there was evidence of pre-existing orthopaedic trauma to the applicant’s right arm. I find there was no error by the Tribunal in reaching its determination. The applicant’s diagnostic films taken after the accident disclose the partial tear in the applicant’s shoulder. There were no diagnostic films to indicate the tear was from pre-accident or any question by the insurer’s assessors that the applicant’s shoulder complaints are not related or caused by the accident. The evidence of so-called pre-existing trauma to the right arm was a mention in the applicant’s clinical notes and records of surgery to the applicant’s forearm, which is a different part of the body from the applicant’s shoulders.⁴ The respondent’s own orthopaedic insurance examiner, Dr. Saplys, determined that the applicant sustained bilateral shoulder strains as a result of the accident.⁵ There was further evidence in Dr. Saplys’ report dated February 9, 2017, that the applicant’s prognosis was guarded due to the prolonged nature of her subjective complaints. It appears he was not provided with the applicant’s diagnostic films and there is no opinion or evidence to indicate the supraspinatus tear was caused by anything other than the accident. This evidence satisfies the applicant’s burden of proof. Therefore, it was reasonable for the Tribunal to draw an inference and find that the accident caused the right supraspinatus partial tear.

11The respondent also submits that the Tribunal violated the principles of natural justice and procedural fairness by failing to provide reasons in respect of causation. Although I agree that the Tribunal did not specifically respond to the respondent’s argument regarding causation, I do not consider this to be an error in law that requires that its decision be overturned. The Tribunal is not required to expressly address every piece of evidence and every argument made by a party. The respondent submitted to the Tribunal that the applicant failed to establish that she sustained anything more than an uncomplicated soft tissue injury consisting of whiplash. It did not make any submissions about the partial tear in the right shoulder or about the findings of its own assessor, Dr. Saplys with respect to the applicant’s shoulders. When the evidence leads to only one possible inference, as in this case, and there is no evidence or submissions by the opposing party to refute the obvious inference, a discussion about causation is not necessary. Accordingly, the Tribunal made no error with causation and, therefore, the request for reconsideration of the Tribunal’s determination of entitlement to the chronic pain assessment is denied. The request for reconsideration of the chiropractic functional assessment is also denied for the same reasons in addition to the reasons below.

(b) Insufficient Documentation as a Medical Reason

12The Tribunal determined that the respondent’s denials of the orthopaedic assessment and the chiropractic functional assessment did not comply with the Schedule’s notice requirements because the respondent did not give medical reasons for the denials.

(i) Orthopaedic Assessment Denial

13The respondent denied the applicant’s claim for the orthopaedic assessment advising it required an assessment because it did not have enough medical information. The respondent also restated the opinion of one of its assessors who did not recommend additional facility-based treatment, but recommended the applicant see her family physician for further referrals to address her shoulder complaints. The Tribunal determined that this reason fails to address the applicant’s medical condition. The respondent submits that citing the medical opinion of a doctor complies with an insurer’s obligation to provide a medical reason for denying a benefit.

14The medical reasons given by the respondent for the denial of the assessment are required to provide a principled rationale that is based fairly on the applicant’s file.⁶ I agree with the respondent’s submission, that it should be able to rely on a medical opinion of its assessor. However, that medical opinion must also provide a principled rationale. It is not clear in this case that the Tribunal erred. Citing a medical recommendation that the applicant see her family physician for further referrals to address the shoulder complaints as a reason to deny a referral to a specialist to address the shoulder complaints is contradictory and is not a principled rational for denying the assessment. In any event, the Tribunal determined that the assessment was not reasonable or necessary. If the Tribunal had determined that the denial notice complied with s.38(8) of the Schedule, it would not have changed the outcome.

(ii) Chiropractic Functional Assessment Denial

15The respondent also submits that the Tribunal erred in finding that the respondent’s denial of a chiropractic functional assessment did not comply with the notice requirements under the Schedule. The respondent denied the claim advising that Dr. Kopyto found there was insufficient documentation to suggest that, at this stage of the claimant’s recovery, an impairment warranting a Chiropractic Functional assessment persists as a result of the subject MVA. The Tribunal determined that insufficient documentation was not a medical reason. The Tribunal found that the applicant had incurred the cost of the assessment before a valid denial was provided and that the respondent was required to pay for the assessment under s.38(11)2 of the Schedule.

16I agree with the respondent that the Tribunal erred in determining that a medical reason for denying the benefits was not provided. I agree with the respondent that Dr. Kopyto’s comment was a medical opinion. Another way of stating Dr. Kopyto’s opinion was that there was insufficient documentation to suggest an impairment persists that warrants a chiropractic functional assessment, or Dr. Kopyto did not find that an impairment persisted as a result of the accident. Therefore, an assessment was not warranted. Every medical opinion has some evidentiary basis. If a medical conclusion or opinion along with the reasons for reaching that conclusion is not a “medical reason,” then no medical opinion could be used by a respondent as a medical reason for denying a claim. For this reason, I find that the Tribunal erred in determining a medical reason was not provided.

17Although I have found that the Tribunal erred, the respondent’s request for a reconsideration of the order awarding the applicant the cost of the assessment is denied. In order for a decision of the Tribunal to be overturned, it must not only have made an error in fact, but that fact must be significant enough that the Tribunal likely would have come to a different decision. In this case, I find, for the reasons noted below, that the Tribunal would have found that the applicant was entitled to the cost of the chiropractic functional assessment.

(b) Acknowledgement of Expert’s Duty and Housekeeping and Caregiver Benefits

20The respondent submits that Tribunal erred in finding that the chiropractic functional assessment was related to the applicant’s accident benefit claim. The applicant underwent the chiropractic functional assessment and, as a result, a report dated December 5, 2017 called a “Medical-Legal Report Assessment of Function/Impairment” was generated by Dr. Nathanson, chiropractor. The respondent submits the report was prepared for the applicant’s tort claim and relies on the fact that Dr. Nathanson signed a Form 53 Acknowledgement of Expert’s Duty report on December 5, 2017. The Form 53 is a form that experts involved in court actions are required to sign under the Rules of Civil Procedure. The Rules of Civil Procedure have no application to the Tribunal, but the content of the Form 53 is very similar to the Acknowledgement of Expert’s Duty required under LAT Rule 10.2(b). The respondent submitted that the Form 53 was evidence that the assessment was conducted for a court matter and not for the purposes of the Schedule. The applicant submitted that the Form 53 was a mistake. The Tribunal accepted the applicant’s submission and relied on the content of Dr. Nathanson’s report, finding that it predominantly related to the applicant’s accident benefit claim. The respondent submits that the Tribunal erred in accepting the applicant’s submission as evidence. The respondent also submits that the Tribunal erred in concluding that the assessment addressed issues predominantly related to the Applicant’s claim.

21The report commented on the applicant’s ability to care for her children and engage in her housekeeping activities. The Schedule is clear that the applicant is not entitled to claim housekeeping or caregiver benefits unless she sustained a catastrophic impairment or she had purchased optional housekeeping and caregiver benefits. The respondent submits that there was no evidence that the insurer had deemed the applicant to have a catastrophic impairment or that the applicant had purchased optional benefits that enabled her to claim housekeeping or caregiver benefits.

22I do not agree with the respondent’s submission that the Tribunal made a determination based on submissions and not evidence. The Tribunal had the report of Dr. Nathanson. Dr. Nathanson stated that the purpose of his assessment was to determine the applicant’s level of function with respect to housekeeping and caregiving. He provided conclusions that addressed the following:

(i) Whether the applicant had a substantial inability to engage in her housekeeping activities;

(ii) Whether the applicant had a substantial inability to engage in her caregiver activities;

(iii) The test for whether the applicant could proceed with a tort claim;

(iv) What treatment the applicant required; and

(v) Whether the applicant sustained a minor injury in the accident.

23The Tribunal was aware that Dr. Nathanson addressed the tort test and did not need to know whether the applicant was entitled at the time to apply for housekeeping or caregiver benefits to find that the report addressed primarily accident benefit claims. If, at some point, the applicant is deemed to have sustained a catastrophic impairment, the applicant will qualify to claim both housekeeping and caregiver benefits back to the date of the accident. Therefore, Dr. Nathanson’s comments about the applicant’s housekeeping and caregiver abilities are relevant to a potential claim for accident benefits. Those comments, together with his comments about minor injury and recommendations for treatment, are evidence that the Tribunal was entitled to rely on to support its conclusions. Accordingly, it was reasonable for the Tribunal to accept that the assessment was conducted predominantly for the purpose of accident benefits rather than the tort claim.

V. CONCLUSION

24For the reasons noted above, I dismiss the applicant’s request for reconsideration.⁷

Released: August 27, 2019

__________________

Deborah Neilson

Adjudicator

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) [“LAT Rules”]
2. 2Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
4. 4Dr. Asma Iftikhar’s clinical notes and records dated November 23 and 25, 2016.
5. 5Respondent’s book of documents, report of Dr. Saplys, orthopaedic surgeon, dated January 13, 2017
6. 616-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373, at para. 22
7. 7The respondent also sought some correctios to the Tribunal’s decision under LAT Rule 17, which is best addressed by the Hearing Adjudicator.