RECONSIDERATION DECISION
Before: Poeme Manigat
Tribunal File Number: 18-008995/AABS
Case Name: C.M. vs. Intact Insurance Company
Written Submissions by:
For the Applicant: N/A
For the Respondent: Paul C. Omeziri, Counsel Beard Winter LLP
OVERVIEW
1This request for reconsideration was filed by the respondent, Intact Insurance Company (“Intact”). It arises out of a decision in which the Tribunal found that the applicant (“CM”), was entitled to the balance of the psychological services claimed in the amount of $877.93 plus interest. More specifically, the Tribunal found that the applicant was entitled to 1.5 hours of psychological treatment as opposed to 1 hour (amount approved by the insurance company).
2Intact submits that the Tribunal erred by failing to consider the correct issues in dispute. The respondent also submits that the Tribunal erred by reversing the burden of proof and committed an error of law by failing to consider relevant evidence. Intact requests the Tribunal set aside the decision dated January 28, 2020, dismiss the applicant’s claim and in the alternative, order a new hearing before a different adjudicator. Intact also requests any other relief the Tribunal deems appropriate.
3Pursuant to Rule 18 of the Tribunal’s Common Rules of Practice and Procedure, I have been delegated the responsibility to reconsider this matter. Accordingly, and to ensure the efficient resolution of this dispute, the reliefs requested were addressed in this decision.
RESULT
4Intact ’s request for reconsideration is granted.
ANALYSIS
5The criteria for granting a reconsideration are stated at Rule 18.2 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) 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;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is new evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6Intact’s reconsideration request relies on Rule 18.2(b), specifically, Intact submits that the Tribunal considered the wrong issues in dispute instead of considering the issues stated in the Case Conference Report and Order released June 5, 2019. Intact also submits that the Tribunal reversed the burden of proof by accepting the applicant’s position without direct evidence and suggests that the Tribunal required that the respondent provide specific evidence that 1 hour of psychological treatment was appropriate. Finally, Intact argues that the Tribunal failed to consider relevant evidence by not considering the parties evidence about the applicant’s psychological condition. Intact argues that the severity, scope and nature of the applicant’s psychological condition is relevant and have direct bearing on the length and type of treatment the applicant requires. Below, I address Intact’s arguments.
Incorrect Issues in Dispute
7I disagree with Intact’s allegation that I failed to consider the relevant issues in dispute, because the decision released January 28, 2020 does not state the issues listed in the Case Conference Report and Order released June 5, 2019. The issues in dispute at the hearing held July 22, 2019 were clearly stated for all the parties in attendance. At no point did Intact or the applicant raise any concern with the issues in dispute as stated in the decision released January 28, 2020. This fact is evidenced by the Tribunal’s recitation of the issues in dispute found in the hearing transcript at page 97, which reads as follows:
“Perfect, okay. So, then I will give the parties time to make opening statements, but just before can I just confirm the issues that I have in dispute? […] All right, so there are really three main issues, and then the third one is interest. So, is the applicant entitled to receive a medical benefit in the amount of $877.93, representing an unpaid balance of the initial claim of $3,940.31 for psychological services recommended by Medex Health Services in a treatment plan submitted on October 19th, 2018, and denied by the respondent on October 31st, 2018? So that’s the first issue.
The second issue we have in dispute is the applicant entitled to payment for the cost of examination in the amount of $877.93, representing an unpaid balance of the initial claim for $2,200 for psychological assessment recommended by Dr. Judith Pilowsky in a treatment plan dated January 3rd, 2018 and denied by the respondent on March 5th, 2018?
The third issue is the applicant entitled to payment for the cost of examination in the amount of $2,200 for speech language pathologist assessment recommended by Medex Health Services in a treatment submitted on January 8th, 2019 and denied by the respondent on January 22nd, 2019?
The last issue is the applicant entitled to interest on any overdue payment of benefits?”
8At the hearing, the applicant withdrew issue number two (please refer to page 98 of the hearing transcript). Therefore, the only issues outstanding were issues number one, three and interest as reported in the relevant excerpt of the hearing transcript quoted above. The issues in dispute listed in the decision released January 28, 2020 are exactly as stated to the parties on July 22, 2019. As well, on page 9 of the transcript, Intact stated that there are three issues to be considered which appear to be the same issues stated in the decision. Therefore, the issues in dispute considered by the Tribunal were correct as proven by the transcript.
Reversal of Burden of Proof
9Intact argued that I reversed the burden of proof, because I awarded 1.5 hours of psychological treatment to the applicant despite finding that there was no evidence to establish whether 1.5 hours or 1 hour was appropriate. To support its argument, Intact relied on the fact that I stated that neither the Insurer Examination psychologist or the treating psychologist provided an explanation for their recommendation as to the length of time required for psychological treatment. As well, I noted the fact that both psychologists failed to attend the hearing to justify their recommendation.
10Intact stated that by accepting the applicant’s position without direct evidence, I effectively reversed the burden of proof and that I required Intact to provide specific evidence that 1 hour of psychological treatment was appropriate.
11Intact also relied on previous cases where Dr. Pilowsky had provided treatment plans, above the Insurer approved amount, without substantiation and noted that the Tribunal ruled that these treatment plans were not reasonable and necessary.
12I disagree with Intact’s argument that I reversed the burden of proof. Intact admits that I acknowledged that the applicant has the burden of proof. I never intended to reverse the burden of proof and did not ask Intact to prove that 1 hour of psychological treatment was appropriate. I simply stated that neither psychologists provided an explanation for their recommendation and that both failed to attend the hearing, which could have clarified the rationale for their respective recommendations regarding psychological treatment.
13Intact overlooked the fact that I was persuaded by the applicant’s testimony, which I found to be reliable. Therefore, the decision to award 1.5 hours of psychological treatment was not made without any evidence as suggested by Intact. The applicant’s oral testimony at the hearing is evidence and it is the adjudicator’s duty to assess this evidence along with other evidence available. The adjudicator must consider the totality of the evidence, including all oral testimony given at the hearing, before deciding. Furthermore, there was no reversal of the burden of proof. The relevant passage of the decision where I stated the basis for my reasoning for awarding 1.5 hours of psychological treatment reads as follows:
The applicant must prove on a balance of probability that 1.5 hours of psychological treatment is reasonable and necessary. I am persuaded by the applicant’s testimony that the psychological treatment that she is receiving once a week with her treating psychologist is necessary to help her cope with her psychological difficulties. I find the applicant to be a credible witness who was forthright during her testimony even when her answers were not favourable to her position. Based on the aforementioned reasons, I am satisfied that 1.5 hours per session recommended by the applicant’s treating psychologist is reasonable and necessary.
Failure to consider relevant evidence
14Intact argued that I failed to consider relevant evidence. In support of their position, Intact quoted an excerpt of the decision, which reads as follows:
Both the applicant and respondent made submission and tendered evidence regarding the applicant’s psychological condition, however I find these arguments irrelevant to the issues in dispute since the parties both agree that the applicant suffered from psychological impairment as a result of the accident.
15Intact argued that my failure to consider the evidence regarding the applicant’s psychological condition tendered by both parties is wrong, because the severity, scope and nature of the applicant’s psychological condition have direct bearing on the length and type of treatment she requires.
16I agree with Intact’s argument that the evidence tendered by both parties regarding the applicant’s psychological condition must be considered, because it is directly related to the length and type of treatment that the applicant requires. I erred by failing to properly consider the evidence tendered by both parties regarding the applicant’s psychological condition. Consequently, I will assess this evidence below to determine if 1.5 hours of psychological treatment is reasonable and necessary.
17Intact argued that the subject motor vehicle accident was a minor impact in a minor circumstance. There were no emergency responders contacted, i.e. no fire department, no police and no ambulance. The applicant testified that despite feeling nauseous, sick and disoriented at the time of the accident, she was able to drive home safely after the accident. The applicant testified that her back bumper was completely damaged as a result of the accident.
18The applicant testified that she did freelance training as a personal trainer after the motor vehicle accident. The applicant testified that she drove 1 hour to work 2 to 3 days per week after the motor vehicle accident and that she has been able to safely operate her vehicle post-accident. The applicant testified that her current employment requires focus, concentration and include answering calls, emails and dealing with internal matters. The applicant testified that she can perform the tasks of her current employment well and that she has not experienced any major issues. The applicant also testified that she has no disciplinary issues regarding her performance at work. The applicant testified that she suffered from memory loss and has difficulty concentrating since the motor vehicle accident. The applicant testified that she regularly communicated with the sales team and engineers at her employment.
19The applicant testified that for a period of 3 to 4 months after the accident she was doing double shifts working at Banner Canada and doing Uber driving. The applicant testified that she went through a personal relationship breakdown, which was emotionally challenging, causing her to experience anxiety. The applicant also testified that she had a close family member who was diagnosed with a serious illness and this caused her a great deal of emotional problems. At the hearing, the applicant was overwhelmed with emotions and cried when speaking of these difficult personal issues. The applicant testified that she speaks about these personal issues with her treating psychologist.
20The applicant testified that she experienced a decline in her health and that she is not able to engage in the same activities that she used to take part in before the motor vehicle accident. The applicant testified that since the accident she is feeling nervous, anxious, exhausted and for the most part she is experiencing various levels of pain. The applicant testified that Dr. Fiati stated that she is experiencing anxiety, depression, sleep disturbances and mood swings. The applicant testified that prior to the motor vehicle accident she had no psychological problems.
21After considering the evidence presented by both parties regarding the applicant’s psychological condition, I accept that the applicant is experiencing various psychological problems and that she is likely benefiting from ongoing psychological treatment. However, I do not find that her psychological problems are exclusively caused by the motor vehicle accident that occurred on July 8, 2017. The applicant takes the position that her psychological impairment is caused by the motor vehicle accident, mainly because she has no prior history of psychological problems. I accept the fact that the applicant has no prior history of psychological problem, but I cannot ignore the other personal difficulties (relationship breakdown and close family member diagnosed with serious illness) that she experienced after the accident, which she admits had a negative impact on her psychological health. The benefits available under the Schedule are intended for impairments caused as a result of the motor vehicle accident. These benefits cannot be used for psychological issues that are not related to the motor vehicle accident. As stated above, the applicant has the burden of proving that the treatment plans sought are reasonable and necessary. After considering the evidence pertaining to the psychological condition of the applicant, I am not persuaded that the psychological impairment suffered by the applicant in the motor vehicle accident warrant granting 1.5 hours of psychological treatment. The applicant failed to provide sufficient evidence to prove that the motor vehicle accident was so severe that it caused her to experience serious psychological problems to a point that she requires 1.5 hours of psychological treatment as opposed to the 1 hour approved by the Insurer. I acknowledge the fact that the applicant’s current psychological condition may be more severe since the accident, but I attribute this increase in her psychological problems to the personal difficulties she experienced post-accident.
CONCLUSION
22Intact’s request for reconsideration is granted.
23The applicant’s claim is varied as a result of the reconsideration.
Released: December 4, 2020
Poeme Manigat
Adjudicator