RECONSIDERATION DECISION
Before: Stephanie Kepman
File: 18-002368/AABS
Case Name: K.C. vs. Pafco Insurance Company
Written Submissions by:
For the Applicant: Svetlana Vinokur, Paralegal
For the Respondent: Andrew McKague, Counsel
OVERVIEW
1The applicant filed a request for reconsideration of the February 25, 2019 decision ("the decision") of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the "Tribunal"). In that decision, I found that the applicant was not entitled to an income replacement benefit ("IRB"), that he did not sustain a minor injury, was not entitled to the cost of his treatment plans for chiropractic, massage and acupuncture services nor an x-ray, and interest.
2The applicant submits that I made errors of law and fact, and seeks an order cancelling the decision. The request for reconsideration alleges an error in law in interpreting section 38 of the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). He also submits that I reconsider the decision on the basis that it is grossly unfair that I did not consider the handwritten notes that I found illegible.
3The respondent submitted that the decision should be upheld and that the request for reconsideration dismissed.
4Pursuant 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 the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The applicant's request for reconsideration is dismissed.
BACKGROUND
6The applicant was involved in a motor vehicle accident on September 26, 2017. He sought income replacement benefits ("IRBs"), removal from the Minor Injury Guideline ("the MIG"), payment for the cost of 3 treatment plans and interest. The applicant applied to the License Appeal Tribunal – Automobile Accident Benefits Service ("the Tribunal), when the benefits were denied.
7The parties were unable to resolve their issues in a case conference and participated in a 1 day in-personal hearing to determine these issues. I concluded that the applicant was removed from the MIG but was not entitled to the other benefits.
8The applicant seeks reconsideration of that decision on the basis that there was an error of law and a that there is new evidence that could not have been obtained earlier and would have affected the result.
ANALYSIS
Request for Reconsideration
9The grounds upon which a request for reconsideration can be granted are set out in Rule 18 of the Tribunal's Common Rules of Practice and Procedure1. The grounds that the applicant submits applies in this case are Rule 18.2(b) and (d).
10Rule 18.2(b) states:
"The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made."
11In this case, the applicant states that I erred in interpreting section 38(8) of the Schedule. This section deals with insurers receiving a treatment and assessment plan. This section prescribes that insurers must provide applicants, within 10 business days, a notice stating which treatments and assessments plans it will pay for. For those the insurer refuses to pay for, it must provide medical reason and all other reasons why it will not pay for said good, services, assessments or examinations.
12Section 38(11) of the Schedule states that if an insurer doesn't comply with the above-mentioned section, then it cannot take a MIG position on the treatment and assessment plan and will pay for the treatment from the 11th business day until it give proper notice.
13After reviewing the evidence and caselaw, I find that the respondent did provide the applicant with a denial of the benefit on December 1, 2017, 9 business days after the respondent received the treatment plan. As stated in my decision, the Schedule prescribes 10 business days elapse before non-compliance, which did not pass.
14The applicant argues that he was not provided with medical & other reasons for the denial of the dispute treatment plan within 10 business days. I was provided with an Explanation of Benefit ("EOB") dated December 1, 2017, which stated the medical benefits were denied on the basis of "Medical reason(s) – see explanation of benefits statement or correspondence with claimant". The applicant felt that these were not sufficient medical reasons for the denial and therefore the respondent was not in compliance with section 38(8) of the Schedule.
15In my decision, I refer to the fact that the applicant has been removed from the MIG on a psychological basis. Therefore, when the applicant requested chiropractic, massage and acupuncture treatment, section 15(1) of the Schedule would apply. This would require the respondent to pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
16In this case, the applicant has not incurred the treatment plan in question. The applicant has also not presented persuasive arguments or evidence as to why the treatment plan was reasonable and necessary. My reasons for this can be found at paragraphs 60-64 of my original decision.
17Though the respondent was originally not in compliance with section 38(8) of the Schedule, it remedied this via the EOB dated January 2, 2019. The applicant had still not incurred the treatment in this time period; therefore, the section 38(8) of the Schedule's lack of compliance became a moot point as soon as the medical reasons were provided. As the plan had still not been incurred, the issue was remedied. Therefore, my findings remain the same.
18I am not persuaded by the submissions of the applicant that I made any error in law or fact. I find that I applied the correct interpretation of section 38 as set in case law when analyzing the evidence and determining if the benefits were payable.
19The applicant is also applying for a reconsideration on the grounds of Rule 18.2(d) of the Common Rules, which states:
"There is new evidence that could not have reasonably been obtained earlier and would have affected the result."
20During the hearing, the applicant relied on clinical notes and records ("CNRs"). I found these CNRs, specifically those from the Jane Park Doctors Medical Office, to be illegible and therefore put no weight on them.
21The applicant states in his reconsideration submissions that that the evidence in question is "not new evidence that "could have been reasonably obtained earlier"". Rather, he feels that it's grossly unfair that I did not consider removing him from the MIG on a physical basis based on evidence that was not reviewed.
22I note that I did review the evidence in question, but was unable to put any weight on it, as I could not understand what was written by the medical professionals.
23The applicant submits that the Tribunal should have and/or provide a medical specialist to read the CNRs to assist the adjudicators. The applicant further offers to provide the transcribed CNRs for review.
24The applicant has been found to be out of the MIG on psychological grounds. However, he still has the onus to demonstrate that the treatment wanted is reasonable and necessary based on the injuries sustained. It is not the Tribunal's responsibility to ensure that the applicant has met his evidentiary burden. The applicant's suggestion that the Tribunal could be responsible for aiding with transcribing CNRs goes beyond the scope of its duties.
25This issue should have been addressed earlier by the parties. None the less, it is the applicant's responsibility to ensure the evidence submitted can be read by all the parties, including the adjudicator.
26The applicant has not satisfied me that having either the Tribunal transcribe these CNRs or the applicant's offer to do so qualify as new evidence. As stated by the respondent in its submissions, the applicant could have arranged for transcription of the CNRs in question. This could have been arranged at any point prior to the hearing.
CONCLUSION
27For the reasons set out above, I find that the applicant has failed to establish any error of law or that he has presented new evidence. I therefore dismiss the applicant's request for reconsideration.
Stephanie Kepman, Adjudicator
Tribunals Ontario
Safety, Licensing Appeals and Standards Division
Released: August 27, 2019