K. K. v. Aviva General Insurance Company, 2020 CanLII 12739

RECONSIDERATION DECISION

Before: Brian Norris, Adjudicator

Date: February 11, 2020

File: 18-004177/AABS

Case Name: K. K. and Aviva General Insurance Company

Written Submissions by:

For the Applicant: Jeton Memeti, Representative

For the Respondent: Kathleen E. Mertes, Counsel

OVERVIEW

1The Request for Reconsideration was filed by the applicant, K. K. It arises out of a decision in which I found the applicant to have suffered predominantly minor injuries as defined by the Schedule and subject to the $3,500.00 funding limit provided by the Minor Injury Guideline (“MIG”).

2The applicant makes the request pursuant to Rule 18.2 (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (April 2016) (the “LAT Rules”). The applicant submits I erred in law and in fact such that I would likely have reached a different decision had the error not been made.

3I found the applicant sustained minor injuries as a result of the accident. As a result of this finding, I concluded that an analysis of whether the disputed treatment plans were reasonable and necessary was not required as the applicant had exhausted the funding limit provided by section 18 of the Schedule. The applicant’s position is that I erred in law by applying the incorrect legal test, by not considering whether the disputed treatment plans were reasonable and necessary, and by failing to consider the applicant’s evidence.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 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 denied.

BACKGROUND

6The applicant claimed to suffer from chronic pain and psychological injuries and sought medical benefits beyond the $3,500.00 funding cap provided by the section 18. I considered the evidence and found the applicant sustained predominantly minor injuries and was subject to the $3,500.00 MIG funding cap, which had already been exhausted. As a result, I determined an analysis of whether the disputed treatment plans are reasonable and necessary was unnecessary.

THE REASONABLE AND NECESSARY TEST

7The applicant submits I erred in law by creating and applying an incorrect test to address the issues in dispute. The applicant submits the I turned the “reasonable and necessary” test from an objective analysis to a subjective analysis by assessing whether the applicant’s injuries were considered minor injuries as defined by the schedule. The applicant further submits I erred in law by not adjudicating whether the disputed treatment plans were reasonable and necessary. I find there was no err of law for the reasons that follow.

8The applicant submits that the Schedule provides the respondent is liable to pay for all reasonable and necessary medical and rehabilitation benefits. However, the applicant fails to appreciate the Schedule provides monetary limits on such benefits. The decision found the applicant suffered predominantly soft-tissue injuries, defined as minor injuries in the Schedule, and is subject to the $3,500.00 funding limit. I see no err of law here because the applicant was provided with $3,500.00 of funding for medical benefits and section 18(1) confirms the sum of medical and rehabilitation benefits should not exceed $3,500.00, plus tax for predominantly minor injuries. An analysis of whether the treatment plans are reasonable and necessary is not required because the applicant reached the monetary funding limit for medical and rehabilitation benefits.

FAILURE TO CONSIDER EVIDENCE

9The applicant submits I erred in law or fact by failing to consider the applicant’s evidence in determining whether the burden of proof was met. The applicant submits the evidence shows the applicant suffers from chronic pain and psychological impairments and is entitled to the disputed treatment plans. The applicant did not specify which evidence was not considered.

10I see no indication that I failed to consider supporting evidence and find no err in law or fact. My reasons are as follows.

11The applicant’s psychological injuries and supporting evidence are analyzed in paragraphs 9 through 14 of the decision. I reviewed the psychological assessment reports provided by the parties and preferred the respondent’s report because it included validity testing and it reflected the applicant’s medical record more accurately. This is specifically noted in paragraph 12 of the decision. I also reviewed the clinical notes and records (“CNRs”) of the applicant’s family physician and determined they did not provide evidence of a psychological injury which would remove the applicant from the MIG and the $3,500.00 funding limit. Paragraph 14 specifically addresses the CNRs. It notes there is only one mention of symptoms of a psychological injury, and that single mention of a symptom is insufficient evidence of a psychological injury.

12The applicant’s claim of chronic pain and supporting evidence is addressed in paragraphs 15 through 19 of the decision. I found the applicant did not provide evidence of a chronic pain condition which would remove the applicant from the MIG. The applicant’s evidence was absent any impairment as a result of ongoing pain. It was noted the applicant had returned to work on full duties and was found to be functional.

13The decision expressly refers to two psychological assessment reports, the clinical notes and records of the applicant’s family physician, and the applicant’s treating healthcare facility. I reviewed all the evidence and found the applicant suffered predominantly minor injuries as defined by the Schedule and was therefore subject to the MIG and the $3,500.00 funding limit.

CONCLUSION

14For the reasons noted above, I deny the applicant’s request for reconsideration.