T. P-B. v. Aviva General Insurance, 2020 CanLII 101850

RECONSIDERATION DECISION

Citation: T. P-B. v. Aviva General Insurance, 2020 ONLAT 19-000856/AABS

Before: Robert Watt

Date: December 15, 2020

Case Name: T. P-B. v. Aviva General Insurance

Written Submissions by:

For the Applicant: De Rose Barristers and Solicitors / Oksana Turner

For the Respondent: Flaherty McCarthy LLP / Sam Davies

OVERVIEW

1This Request for Reconsideration was filed by the applicant in this matter. It arises out of a decision dated August 21, 2020, in which the Tribunal found that the applicant was not entitled to any medical benefits applied for or interest.

2The applicant submits that the Tribunal has acted outside its jurisdiction and violated the rules of procedural fairness and has made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

3The applicant is seeking an order varying the Tribunal’s decision, stating that all denied plans are reasonable and necessary, an order that the applicant is entitled to interest on all overdue amounts, or, in the alternative, a new hearing with a different adjudicator.

4Pursuant to Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Common Rules”), I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5The applicant’s Request for Reconsideration is dismissed, other than the issue of interest.

ANALYSIS

6The grounds for a Request for Reconsideration to be allowed are contained in Rule 18.2 of the 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 a significant error of law or fact such that the Tribunal would likely have reached a different decision;

(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 could not have reasonably been obtained earlier and would likely have affected the result.

7The applicant relies on Rules 18.2(a) and (b) in this request for reconsideration.

A. The Tribunal acted outside of its jurisdiction and violated the rules of procedural fairness

i. The medical benefit for psychological services was ruled on even though it was settled between the parties

8Issues 1 and 3 of the order of Adjudicator Meray Daoud issued on September 4, 2019, refer to the medical benefit of $3,153.76 for psychological services in a plan dated January 5, 2017 and for $5,375.87 for psychological services in a plan dated March 20, 2018 to be among the issues to be decided at a hearing. These issues were settled by the parties before the written hearing and this was acknowledged in the Tribunal’s decision in paragraph [18].

9The applicant submits that, despite this, the Tribunal improperly ruled on these issues in paragraph [5]. I disagree. Paragraph [5] of the decision is correct. In reading paragraphs [5], [18] and [38] of the decision together, the Tribunal noted that the respondent agreed to pay for the two psychological services treatment plans described in issues 3 and 3, and were therefore no longer issues to be decided by the Tribunal. There is no prejudice to the applicant because future access to continued psychological treatment was not dealt with by the decision. As for the physiotherapy services recommended by Alexmuir, paragraph [5] accurately summarizes the Tribunal’s conclusion that physiotherapy services claimed in issues 3, 3 and 3 were not reasonable and necessary.

ii. The decision referred to a “Neurological” instead of a “Neuropsychological” Assessment

10This is a minor misspelling and does not affect the merits of the decision. It is clear that there is only a neuropsychological assessment in the order of Adjudicator Daoud, being issue 3. The decision relates to that issue, which it did in paragraphs [29] to [32] of the decision. A neurological assessment was not an issue in dispute and the Tribunal did not make a decision on that type of assessment.

iii. The entitlement to the Functional Abilities Evaluation was not referred to in the “Results” Section of the Decision

11The decision in paragraphs [19] to [28] clearly indicates the reasons why the Tribunal found that the applicant was not entitled to this benefit. The Results section is only a summary of the findings discussed in paragraphs [19] to [28]. The findings are what are binding, not the Results summary. When viewed in combination with paragraph [38], it is clear that the Tribunal did not conclude that this benefit was reasonable and necessary.

iv. The Adjudicator denied procedural fairness by failing to address the issue of interest on the overdue payments for the treatment plans, that the respondent has agreed to fund.

12As indicated in paragraph [18] of the decision and repeated in this reconsideration decision, the issues of the two treatment plans agreed to be funded by the respondent were not before the Tribunal. The issue of interest should have been negotiated between the parties as part of their settlement of payment of those plans. I do not have enough information before me as to know what settlement discussions took place on the benefits issues, including the issue of interest, or whether the respondent agreed after receiving more information to approve the two issues that were settled, on its own.

13The applicant asked for interest in his written submissions paragraph 34 and in his reply submissions paragraph 14, even though at this time, the two overdue benefits had been approved by the respondent.

14I therefore grant the reconsideration on the issue of interest and order that interest be paid on the two overdue benefits agreed to be paid by the respondent, pursuant to s. 51 of the Schedule.

v. The Tribunal’s limits on the applicant’s submissions to 10 pages prevented the applicant from presenting all of the evidence in fine detail, including medical evidence, law and analysis

15The limitation of written submissions to a fixed number of pages did not prevent the applicant presenting the copies of all relevant medical reports and legal cases for review by the Tribunal. Medical reports and case law were not included in the page count for the written submissions. Also, if the applicant needed more pages for his submissions, he could have brought a motion to the Tribunal to increase the page limit for his written submissions. No such motion was made.

16Rule 3.1 of the Common Rules requires an efficient, proportional and timely resolution of the merits of the proceedings before the Tribunal. Page limits have to be considered in order to carry out the objectives of the Rule.

17I find that the Tribunal did not act outside of its jurisdiction or violate the rules of procedural fairness.

B. The Tribunal made errors of law and fact such that the Tribunal would likely have reached a different decision, had the errors not been made

i. The Tribunal made an error of law by it failed in the application of the correct test for causation for the injury to the shoulder

18The Tribunal made a finding on the facts, as set out in paragraph [20] of the decision that there was no medical evidence that the shoulder injury was caused by the accident or exacerbated by the accident.

19The Tribunal accepted the report of Dr. Abuzgaya that there “was no evidence of residual muscle impairment attributable to the injuries sustained as a result of the accident,” as set out in paragraphs [22] to [23] of the decision. At paragraph [24] of the decision, the Tribunal accepted that the MRI taken on July 16, 2018 indicated that there was no tear to the rotator cuff.

20The onus is on the applicant as required by section 3(1) of the Schedule to prove that the injury was caused by the accident. The decision indicates that the Tribunal found the applicant failed to meet that onus.

ii. The Tribunal made errors of law and fact in assessing and applying the evidence related to the causation of the left shoulder injury

21I find that the applicant is trying to re-argue his case. A reconsideration is not an opportunity to re-argue the facts of his case that previously failed.

22It is also not the role of the Tribunal on a reconsideration to re-weigh the evidence that has already been considered by the Tribunal, which is the decision maker of first instance. My role on a reconsideration is to determine if the Tribunal made an error in fact and in law as alleged by the applicant, which I find that it did not.

23It is trite law that the Tribunal in its reasons is not required to refer specifically to every argument or piece of jurisprudence that it considered in arriving at its decision.

24The Tribunal in its decision set out in paragraphs [20] to [27] the evidence upon which it based its decision. The Ultrasound, report of Jason Smith and report of Dr. Abuzgaya all show that the accident was not the cause of the applicant’s left shoulder issues. There was no evidence put in by the applicant to show causation relating to the left shoulder injury.

iii. The Tribunal has made significant errors of law and fact in concluding that four treatment plans in dispute for physical therapy, Functional Abilities Evaluation and Attendant Care Assessment were not reasonable and necessary based on causation of the right shoulder injury.

25The applicant is repeating the same arguments set out above, which have already been dealt with. Paragraphs [21] to [23] above are also applicable to these arguments.

26The decision in paragraph [25] of the decision makes it clear that the Tribunal found that the applicant put in no evidence to support the reasonableness and necessity of the plans.

iv. The Tribunal has made significant errors in concluding that the treatment plan in dispute for Neuropsychological Assessment was not reasonable and necessary, based on the wrong premise and misapprehension of evidence.

27Paragraphs [21] to [23] above again apply to the applicant’s argument. Paragraphs [29] to [31] of the decision make it clear what evidence the Tribunal relied on. The Tribunal accepted the evidence of Dr. Salerno over other evidence and explained why.

28The Tribunal found that the applicant never complained about any head trauma. The diagnostic imaging of the head on the date of the accident did not reveal any medical evidence of head trauma.

29It is therefore not reasonable and necessary to have a neuropsychological assessment.

30I find that the Tribunal has not made any errors of fact or law, in assessing and applying the evidence, such that the Tribunal would likely have reached a different decision, had the errors not been made.

CONCLUSION

31For the reasons noted above, I grant the applicant’s Request for Reconsideration in part, specifically on the issue of interest for the benefits that the respondent agreed to fund. Interest on those overdue payments is payable to the applicant pursuant to s. 51 of the Schedule. The remainder of the applicant’s Request for Reconsideration is dismissed.