RECONSIDERATION DECISION
Before: Derek Grant, Adjudicator
Tribunal File Number: 18-004588/AABS
Case Name: E.M. and Aviva Insurance Company
Written Submissions by:
For the Applicant: Sam Elbassiouni, Legal Representative
For the Respondent: Nisaa Khan, Counsel
OVERVIEW
1On July 17, 2019, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter arising under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The issues before the Tribunal were E.M.’s entitlement to a cost of examination and interest. The Tribunal determined that E.M. was not entitled to the disputed treatment plan, and as such, no interest was payable.
2E.M. has asked the Tribunal to reconsider that decision.
3Pursuant 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 responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RELIEF SOUGHT
4E.M. requests that my decision, dated July 17, 2019, be varied to grant her request because the Tribunal violated the rules of procedural fairness and/or made a significant error of law or fact.
5In the alternative, E.M. requests that the Tribunal order a rehearing on all, or part, of the matter.
RESULT
6E.M.’s request for reconsideration is dismissed.
BACKGROUND
7E.M. was injured in an automobile accident on December 14, 2015 and sought benefits from the respondent (“Aviva”) pursuant to the Schedule.
8In my decision dated July 17, 2019, I concluded that E.M. was not entitled to the cost of examination expense or interest. My decision determined, on the evidence, that since E.M. had already received a chronic pain assessment, a second chronic pain assessment was not reasonable and necessary.
ANALYSIS
9To be successful in a request for reconsideration, E.M. must satisfy one of the criteria set out in Rule 18 of the Tribunal’s Rules1, The criteria are:
(i) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(ii) 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.
(iii) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(iv) There is new evidence that could not have reasonably been obtained earlier and would likely have affected the result.
10E.M. claims my decision failed in three ways:
(i) The Tribunal acted outside of its jurisdiction when the Adjudicator decided to recommend a modality of treatment instead of determining whether the cost of examination expense was reasonable and necessary;
(ii) The Adjudicator did not provide an opportunity for E.M. to explain her reasons for not considering surgery; and
(iii) The Adjudicator erred and misdirected himself on a question of fact as he found that both Dr. Getahun and Dr. Baker recommend the same type of treatment which was continued active physiotherapy and/or surgery.
11I will address each claim in turn.
The Tribunal did not act outside its jurisdiction
12E.M. submits that the Tribunal’s decision not granting the treatment plan should be reconsidered because I acted outside of my jurisdiction when I decided to recommend a modality of treatment. E.M. advanced a question of law to the Tribunal asking whether or not the treatment plan proposing a chronic pain assessment to be conducted by Dr. Getahun is reasonably necessary.
13E.M. submits that instead of answering that question, I decided to assume the role of the medical expert and found the surgical option to be more beneficial to E.M. E.M. submits that my medical knowledge or experience should not be relevant and should not be employed when dealing with the issues in dispute; but rather, the legal knowledge and the legal test pursuant to section 25 of the Schedule.
14In review of the decision in its entirety, it is clear that my decision was that the chronic pain assessment was not reasonable and necessary because it was a duplicate of the previous chronic pain assessment and the evidence did not support the need for a second assessment. The comment regarding surgery had no bearing on my decision on whether the assessment met the test for entitlement.
15In paragraph 7 of my decision, I discussed the application of the reasonable and necessity test in assessing entitlement to the chronic pain assessment. At paragraphs 8 and 9, I summarized the evidence I found significant. I noted the clinical notes and records of E.M.’s treating physicians. Significantly, I considered a chronic pain assessment report from Dr. Getahun. At paragraph 10(i)(b), considering that E.M. had already obtained a chronic pain assessment report, I did not find a second chronic pain assessment was reasonable and necessary. My reading of E.M.’s medical evidence was that her practitioners were focused on her need for treatment and not on further assessment.
16A review of my decision shows that I considered all relevant factors typically considered in a reasonable and necessary analysis. In hearing the merits of E.M.’s claim, I considered and weighed the evidence presented, and applied my findings of fact to the law. In exercising my discretion, I acted within my jurisdiction in determining that E.M. was not entitled to a further chronic pain assessment as it was not reasonably necessary.
17For the reasons noted above, I therefore do not accept E.M.’s submissions and find that the Tribunal did not act outside its jurisdiction.
No Reply Submissions Submitted
18E.M. contends that I violated the rules of natural justice or procedural fairness when I did not extend the opportunity for E.M. to make reply submissions to explain her reasons for not considering surgical intervention. Aviva submits that E.M. had an opportunity to address surgical intervention through her initial and reply submissions.
19E.M. did not submit reply submissions, which she was given an opportunity to do as noted in Adjudicator Aggrey Msosa’s Order dated October 17, 2018. Adjudicator Msosa’s order noted the dates for submissions, including reply submissions. Specifically, the reply submissions, if any, were due on January 25, 2019. The Tribunal did not receive any request from E.M. to extend the deadline for reply submissions. Therefore, my decision was based on the submissions and evidence filed by the parties in accordance with Adjudicator Msosa’s order.
20The purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument. Only where an exceptional circumstance that arises during the course of a proceeding, would the Tribunal consider additional submissions.
21If there is an exceptional circumstance, the Tribunal must consider whether it is in the interests of justice and whether the matter can be fairly decided. This is not such a matter. E.M. has not produced any evidence of any exceptional circumstance that exists in this proceeding.
Evidence
22E.M. further submits that I further violated the rules of natural justice or procedural fairness because I did not consider particular evidence, specifically, the reports of the supervised physiotherapy and injections. In response, Aviva submits that the benefits associated with physiotherapy and injections were modalities and issues that are not in dispute.
23The only issues for me to consider were E.M.’s entitlement to a chronic pain assessment and interest. Although E.M. directed me to the reports of treatment she received, the treatment was not a recommendation related to the additional chronic pain assessment. E.M. did not persuade me that the treatment reports established that a second chronic pain assessment was reasonable and necessary.
24In addition, the Tribunal is not required to expressly address every piece of evidence, argument, or case submitted by a party.
25For the reasons discussed above, I find the reasons in the decision to be balanced, reasonable, sufficient, and responsive to the parties’ submissions. I find there was no error of law nor was there a violation of the rules of procedural fairness in rendering a decision in this matter.
26Paraphrasing my decision, at paragraph 10(i)(a), the issue before me was not ongoing treatment. I agree that both Dr. Getahun and Dr. Baker recommend the same type of treatment. Their respective reports note E.M.’s continued right shoulder pain, which the Drs. opined is best treated with continued active physiotherapy and/or surgery. The issue before me was whether a chronic pain assessment was reasonable and necessary.
27Further, and specifically at paragraph 10(i)(b), I stated:
E.M. has failed to show me why, after a chronic pain assessment by Dr. Getahun in 2018, yet another chronic pain assessment is reasonable and necessary. My reading of E.M.’s medical evidence is that her practitioners were focused on her need for treatment and not on further assessment. I find that a further chronic pain assessment would not be reasonable and necessary at this time.
28My decision was based on the totality of the evidence before me. As such, I do not agree that I failed to consider relevant evidence such that a different conclusion would likely have been reached. Further, I do not find that an error of law or fact was made in considering the evidence of the parties. E.M. did not persuade me that a second chronic pain assessment was reasonable and necessary, which was the onus that was placed on her.
CONCLUSION
29For the reasons set out above, E.M.’s request for reconsideration is dismissed.
Released: February 13, 2020
___________________
Derek Grant
Adjudicator