RECONSIDERATION DECISION
Before: Lindsay Lake
File: 18-001944/AABS
Case Name: R.V. v Aviva Insurance Canada
Written Submissions By:
For the Applicant: Victoria Tchilikova, Paralegal
For the Respondent: Michael J.P. McChesney, Counsel
OVERVIEW
1The applicant, R.V., filed a request for reconsideration of the February 21, 2019 decision (the “decision”) of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). In the decision, the Tribunal found that R.V., was not entitled to income replacement benefits (“IRBs”) and certain disputed treatment plans. The Tribunal, however, did find that R.V. was entitled to treatment plans for physiotherapy, electrotherapy, massage therapy and acupuncture. The Tribunal also found that R.V. was not entitled to an award under Regulation 664 of the Insurance Act.1
2R.V. submits that the Tribunal made several significant errors of fact and law specifically regarding the Tribunal’s finding that she was not entitled to weekly IRBs for the period of October 28, 2016 to September 8, 2017 and that she was not entitled to payment for the cost of a chronic pain assessment. R.V. requests a rehearing on the issues of IRBs and the cost of the chronic pain assessment.
3The respondent, Aviva Insurance Canada (“Aviva”), submits that the decision should be upheld and the request for reconsideration dismissed.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,2 I have been delegated the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5R.V.’s request for reconsideration is dismissed.
ANALYSIS
6The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). The ground that R.V. submits applies in this matter is Rule 18.2(b), that the Tribunal made several significant errors of fact and law.
7In order to interfere with a decision under Rule 18.2(b), however, the Tribunal must not only have made an error of law or fact, but that error of law or fact must be significant enough that the Tribunal likely would have come to a difference decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.
Income Replacement Benefits
8R.V. argues that the Tribunal made two errors of fact and law regarding its determination that R.V. was not entitled to IRBs for the period of October 28, 2016 to September 8, 2017, which are as follows:
i) A factual error was made pertaining to the December 8, 2015 Disability Certificate (OCF-3); and
ii) A legal error was made in ignoring evidence of R.V.’s limitations set out in her family doctor’s clinical notes and records (CNRs).
The Tribunal did not make an Error in Fact – December 8, 2015 OCF-3
9R.V. submits that that the December 8, 2015 OCF-3 indicates that the anticipated duration of injuries and activity limitations will persist beyond 12 weeks and not as reflected in paragraph 14 of the decision. Aviva argues that there was no error of fact made by the Tribunal.
10Paragraph 14 of the decision states that the December 8, 2015 OCF-3 was dated well before the period in dispute for IRBs and noted that there was, “no indication beyond ‘more than 12 weeks’ for R.V.’s anticipated duration of injuries.”
11I agree with Aviva and find that the Tribunal did not make an error of fact regarding the duration of injuries set out on the December 8, 2015 OCF-3.
12In the event that I am wrong and there was an error of fact, I find that this error was not significant enough that the Tribunal likely would have come to a different decision. The Tribunal identified other documents it considered in arriving at its determination on the issue of IRBs and also because it is well established that an OCF-3 alone is not enough to establish entitlement to IRBs.
The Tribunal did not make an Error in Law – Ignoring Evidence of R.V.’s Family Doctor
13R.V. argues that the Tribunal erred by ignoring evidence of her limitations in performing the essential tasks of her pre-accident employment. Specifically, R.V. argues that the Tribunal ignored entries in her family doctor’s CNRs dated March 16, 2016, August 15, 2016, May 17, 2017 and June 22, 2017.
14I disagree with R.V. that the Tribunal ignored these family doctor’s CNR entries. I agree with Aviva that the Tribunal refers to the CNRs at paragraphs 19 and 25 and concludes that there is no evidence in the CNRs that R.V. lacks functionality to such an extent that would lead to a conclusion that she suffers a substantial inability to complete the essential tasks of her pre-accident employment. Therefore, I find that the Tribunal did not ignore this evidence but simply preferred certain evidence over others. I find no error in this, as it is well settled that a Tribunal is entitled to prefer some pieces of evidence over others and to assign more or less weight depending on what is before it.
15Even if I am incorrect and the Tribunal did ignore the CNR entries, I agree with Aviva that the March 16, 2016 and August 15, 2016 entries are not relevant as they were dated outside the period in dispute for IRBs. Additionally, while the May 17, 2017 and June 22, 2017 entries are dated during the period in dispute, the entries only refer to R.V.’s range of motion as being “limited” without further explanation. R.V. failed to demonstrate how this “limited” range of motion prevented her from completing the essential tasks of her pre-accident employment.
Chronic Pain Assessment
16R.V. argues that the Tribunal made several errors of law regarding its finding that R.V. was not entitled to payment for the cost of a chronic pain assessment including:
i) Ignoring evidence when applying a standard of proof based on a balance of possibilities and on a balance of probabilities;
ii) Imposing evidentiary requirements on R.V. to provide a conclusion that the chronic pain assessment is intended to investigate in order to prove on a balance of probabilities that the chronic pain assessment is reasonable and necessary; and
iii) Implying that if the treatment plan is completed over a year from the date of the initial submissions to the insurance company, then it is of little assistance in determining the reasonableness and necessity of that plan.
The Tribunal did not make an Error in Law – Ignoring Evidence and Standard of Proof
17R.V. initially framed her submissions that the Tribunal made an error in ignoring evidence when applying a standard of proof based on a balance of possibilities and on a balance of probabilities. However, after reviewing her submissions, R.V. appears not to be making this argument but is instead arguing that the Tribunal failed to apply the appropriate test when it determined that she was not entitled to a chronic pain assessment and, as a result, certain evidence was ignored.
18R.V. submits that the appropriate test when determining her entitlement to a chronic pain assessment is found in 16-001934 v. Aviva Insurance Company of Canada.3 R.V. argues that the test consists of two questions. First, is it reasonably possible that the applicant suffers from chronic pain and, second, is it reasonable and necessary to explore this possibility.
19R.V. submits that the Tribunal failed to utilize the two-step test in 16-001934 in determining whether or not the treatment plan for the chronic pain assessment was reasonable and necessary and, therefore, failed to complete the required analysis. Regarding the first step of the test, R.V. submits that the Tribunal failed to evaluate the reasonable possibility that R.V. was suffering from chronic pain at the time that the treatment plan was submitted to Aviva.
20I disagree with R.V.’s restatement of the first step of the test in 16-001934. According to 16-001934, the first step is to determine if it is reasonably possible that the applicant suffers from chronic pain syndrome.4 The correct first step of the test from 16-001934 is accurately set out in paragraph 52 of the decision.
21R.V. argues that it was possible that she suffered from chronic pain (as opposed to chronic pain syndrome) based on her complaints of ongoing pain to various doctors who noted that she was suffering from chronic pain. Specifically, R.V. relies upon her original submissions which referenced entries dated February 26, 2916, March 16, 2016, March 18, 2016, April 26, 2016 and August 15, 2016 in her family doctor’s CNRs and Dr. Minnella’s March 14, 2016 and May 11, 2016 Treatment and Assessment Plans (OCF-18s).
22I find that the Tribunal correctly identified and considered the first step in the test set out in 16-001934 and, therefore, made no error in law. Each of the family doctor’s CNR entries highlighted by R.V. were referred to in the decision at paragraph 53 except the August 15, 2016 CNR entry. It is well settled that the Tribunal is not required to expressly address every piece of evidence and argument made by a party. Even so, the same determination that the Tribunal made regarding the other entries, for example, that they mentioned “chronic pain” and not “chronic pain syndrome” and there was no referral to a chronic pain specialist following the visits, is also true of the August 15, 2016 entry. Therefore, while the Tribunal was not required to expressly list the August 15, 2016 family doctor CNR entry, there is no evidence before me that Tribunal likely would have come to a difference decision if the decision had listed it along with the other entries.
23I agree with R.V. that the Tribunal did not refer to Dr. Minnella’s OCF-18s, which are not enough alone to establish entitlement to treatment. However, the Tribunal did refer to Dr. Minnella’s January 25, 2017 note and provided an explanation as to the reasons why it gave little weight to the statements contained therein. I also observed that this note was 2 paragraphs long and provided no details about R.V.’s alleged chronic pain, such as the location of the chronic pain on R.V.’s body, the pain intensity and occurrence, etc. In any event, I find that the Tribunal provided sufficient reasons and an explanation for weighing the evidence in the manner that it did, and the purpose of a reconsideration is not to re-weigh the evidence.
24Regarding the second step of the test, R.V. submits that the Tribunal failed to acknowledge that it was reasonable and necessary for R.V to explore her medical condition using her own examiner. R.V. argues that her own assessment is warranted in light of the fact that Aviva had conducted its own assessment. In support of her argument, R.V. relies upon 17-003496 v TD Insurance5 and 16-003821 v Co-operators General Insurance Company.6
25This argument advanced by R.V. is an entirely new argument not contained in her original written submissions or in her oral closing submissions. Furthermore, neither of these decisions were referred to by R.V. until her request for reconsideration. The Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal during the hearing of the matter.7 Further, while there may be exceptional circumstances in which a new argument should be permitted on a reconsideration, this is not such a case.
26I find that the Tribunal did not make an error in law as it referred to and applied the two-step test in 16-001934, as it agreed with R.V. that the consideration when determining whether or not the treatment plan for a chronic pain assessment was reasonable and necessary involved a consideration of whether or not it was reasonably possible that R.V. may had chronic pain syndrome, and the Tribunal also made findings on whether or not the treatment plan for the chronic pain assessment was reasonable and necessary. The Tribunal explained how it arrived at its decision after weighing the evidence including Dr. Jacobs’ June 19, 2018 report where he diagnoses R.V. with, among other illnesses, chronic pain as opposed to chronic pain syndrome.
The Tribunal did not make an Error in Law – Imposing Requirements to prove a conclusion that the chronic pain assessment is intended to investigate
27R.V. argues that the Tribunal erred by requiring her to prove a conclusion that the chronic pain assessment was intended to investigate (i.e. that she had chronic pain syndrome) in order to find that the chronic pain assessment was reasonable and necessary. Specifically, R.V. argues that the Tribunal erred in requiring the following evidence as a precondition to entitlement to a chronic pain assessment:
i) That R.V.’s family doctor refer R.V. to a chronic pain specialist or include in the CNRs that R.V. suffers from chronic pain syndrome; and
ii) that Dr. Minnella needed to provide additional documentation to support his position in his January 25, 2017 note.
28R.V. argues that these evidentiary requirements unnecessarily created a barrier for individuals suffering from chronic pain by implying that if an applicant is not diagnosed with chronic pain syndrome and only with chronic pain, the chronic pain assessment by an expert to recommend appropriate treatment is not reasonable and necessary.
29I find that the Tribunal did not error in law as it did not establish a requirement that the evidence set out in paragraphs [27] and [28] above was required prior to the Tribunal finding that an applicant is entitled to a chronic pain assessment. The Tribunal observed this lack of evidence in its overall weighing of all of the evidence before it in determining R.V.’s entitlement to a chronic pain assessment.
30I also find that the Tribunal did not err in placing little weight on Dr. Minnella’s January 25, 2017 note as a result of a lack of documentation to support Dr. Minnella’s recommendation or that evidence was ignored that led to an incorrect weighing of Dr. Minnella’s note.
a) Family Doctor Referrals and CNRs
31R.V. submits that the Tribunal erred in paragraph 52 of the decision by imposing requirements for R.V.’s family doctor to refer her to a chronic pain specialist or to include in the CNRs that R.V. suffers from chronic pain syndrome. R.V. argues that the Tribunal does not need to determine whether R.V. actually suffers from “chronic pain and/or chronic pain syndrome,” family physicians are not chronic pain specialists and there is no requirement in the Schedule that specialist referrals can only be made by family physicians. R.V. submits, without any supporting evidence, that it is accepted in the industry that assessments are conducted and/or referrals for the assessments by specialists are completed by facilities that provide treatment to insured individuals on an ongoing basis.
32I disagree with R.V. that the Tribunal required her to be referred to a chronic pain specialist by her family doctor or that her family doctor was required to diagnose her with chronic pain syndrome as a pre-condition that the treatment plan for a chronic pain assessment be found to be reasonable and necessary. The absence of this evidence is noted by the Tribunal in paragraph 52 of the decision and is included as part of the totality of the evidence that the Tribunal took into consideration when making its determination. The Tribunal did not find that in order for a chronic pain assessment to be reasonable and necessary that such a referral or a diagnosis is required.
a) Dr. Minnella’s January 25, 2017 note
33R.V. argues that the Tribunal erred in its suggestion that Dr. Minnella needed to provide additional documentation to support his January 25, 2017 note which, again, put R.V. in a position to prove a conclusion that the chronic pain assessment is entitled to investigate.
34Aviva argues that Dr. Minnella, chiropractor, is not qualified to provide a diagnosis of chronic pain and therefore it was appropriate to place little weight on his recommendation for a chronic pain assessment without supporting documentation.
35The Tribunal discusses Dr. Minnella’s January 25, 2017 note in paragraph 52 of the Decision as follows:
the only evidence concretely before me from Dr. Minnella is his note dated January 25, 2017 which states that R.V., “continues to suffer from chronic pain as a result of the accident.” Without any further notes, reports or any attachment to the OCF-18 at issue supporting Dr. Minnella’s recommendation for the chronic pain assessment, it is difficult to place weight on his recommendation as there is little to no documentation from him supporting his position.
36R.V.’s argument that the Tribunal’s statement regarding the lack of supporting documentation provided by Dr. Minnella places her in a position to prove a conclusion that the chronic pain assessment is entitled to investigate is not clear. Rather, it appears that R.V. is arguing that the Tribunal made an error in fact in its finding that there was no documentation to support Dr. Minnnella’s January 25, 2017 note because Dr. Minnella completed assessments of R.V. that were included in R.V.’s hearing materials, or that the Tribunal erred by ignoring this evidence, either of which led to an error of placing little weight on Dr. Minnella’s note.
37R.V. submits, “Dr. Minnella assessed the Applicant when he was completing treatment plans that were all included in the Applicant’s written submissions,” and referred me to tabs 3 and 5 of her original hearing submissions. The document at tab 3 was an OCF-18 dated November 9, 2016 and the document at tab 5 was an OCF-18 dated May 11, 2017. Neither of these documents included any report or assessment by Dr. Minnella outside of the information requested in the OCF-18 form. Furthermore, the November 9, 2016 OCF-18 was signed by Dr. Jacobs as the Health Practitioner and Dr. Minnella was listed as the Regulated Health Professional. There is no distinguishment made on this OCF-18 as to who completed the check boxes or wrote the comments. Therefore, while Dr. Minnella may have been completing assessments of R.V. as her treating chiropractor, this information is not included on the OCF-18s identified in R.V.’s submissions.
38I also give no weight to R.V.’s argument that the Tribunal erred because it ignored evidence that Dr. Minnella’s January 25, 2017 note corroborates R.V.’s previously noted “chronic pain” experiences. The Tribunal weighed the evidence before it at the hearing and provided reasons and an explanation as to why it did not afford weight to Dr. Minnella’s January 25, 2017 note. I find no error in this.
39Even if I am incorrect, Dr. Minnella’s note was two paragraphs long and stated that R.V. “continues to suffer chronic pain,” with no additional details such as R.V.’s pain location, pain intensity and occurrence. I am not satisfied that even if I found that the Tribunal had ignored the alleged corroboration of R.V.’s previous pain complaints with Dr. Minnella’s January 25, 2017 note such that the note should now be considered, that the Tribunal would have arrived at a different decision. Dr. Minnella’s note had additional deficiencies not identified at first instance by the Tribunal which would also lead me to conclude that it is of little assistance in determining R.V.’s entitlement to a chronic pain assessment.
The Tribunal did not make an Error of Mixed Fact and Law – Weight of Treatment Plan
26R.V. argues that the Tribunal erred in implying that if a treatment plan is completed over a year from the date of its initial submission to an insurance company, then it is of little assistance in determining the reasonableness and necessity of that plan. R.V. further argues that the Tribunal’s finding in this regard is not supported by the two-year limitation period that an applicant has to commence a proceeding at the Tribunal following a denial by an insurer to pay a benefit as set out in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). R.V. also submits that there are no deadlines in the Schedule for completing treatment sought in treatment plans.
27The September 30, 2016 treatment plan for a chronic pain assessment was submitted to Aviva on November 9, 2016. On November 22, 2016, Aviva denied the costs of the assessment by way of an explanation of benefits following a s. 44 paper review Insurer’s Examination (“IE”) completed by Dr. Alikhan on November 21, 2016. Despite this denial, R.V. underwent the chronic pain assessment with Dr. Jacobs on June 18, 2018.
28Paragraph 53 of the decision states, “Dr. Jacob’s report is also of little assistance in determining whether or not the treatment plan for a chronic pain assessment was reasonable and necessary because it was completed over a year and a half after the treatment plan was submitted to Aviva.” The Tribunal expressed concerns over Dr. Jacob’s report and highlighted Dr. Jacobs’ opinion that R.V. suffers from chronic pain, as opposed to chronic pain syndrome.
29I find that the Tribunal did not make an error in assigning little weight to Dr. Jacobs’ report given it was not in existence at the time the treatment plan for the chronic pain assessment was submitted for consideration to Aviva.
30In the event that I am incorrect, Dr. Jacobs did not diagnose R.V. with chronic pain syndrome following his assessment which is a separate medical condition than “chronic pain.” To support this position, the Tribunal acknowledged the two separate medical conditions in the reconsideration decision of 16-001934 submitted by R.V. for this reconsideration. Therefore, even if the Tribunal was incorrect in assigning Dr. Jacobs’ report with little weight, Dr. Jacobs’ opinion does not assist R.V. in furthering her argument that the chronic pain assessment was reasonable and necessary because she is not diagnosed with chronic pain syndrome.
Other Arguments advances by R.V.
31R.V. made further arguments at paragraphs 16 to 18 in her submissions for the reconsideration that do not identify any alleged error made by the Tribunal. Instead, these submissions contain arguments that could have been made at first instance and, therefore, are not properly before me as a ground for reconsideration. As a result, I do not give any weight to these arguments in making my decision on the request for reconsideration.
CONCLUSION
32For the reasons outlined above, I find that the R.V. has failed to establish any error of law or of fact by the Tribunal. I therefore dismiss R.V.’s request for reconsideration.
Released: August 14, 2019
_________________
Lindsay Lake
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Footnotes
- R.S.O. 1990, c. I.8.
- S.O. 2009, c. 33, Sched. 5.
- 2017 CanLII 69464 (ON LAT) (“16-001934”).
- Ibid. at para. 13.
- 2018 CanLII 13167 (ON LAT).
- 2018 CanLII 13192 (ON LAT).
- See I.K. v. Primmum Insurance Company, 2018 CanLII 13162 at para. 27.