RECONSIDERATION DECISION
Before: Chloe Lester, Vice-Chair
File: 18-009981/AABS
Case Name: AY v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Lisa Bishop, Counsel
For the Respondent: Maggie Morgan, Counsel
OVERVIEW
1The applicant, AY, asks for a reconsideration of the Tribunal’s1 decision released on September 6, 2019 where the applicant’s injuries were found to be in the Minor Injury Guideline (MIG) and denied two treatment plans.
2The applicant makes the request pursuant to Rule 18.2 (a) and (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (February 7, 2019) (the “the Tribunal’s Rules”).
3Pursuant 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.
ISSUES IN DISPUTE
4The applicant alleges the Tribunal’s decision meets the reconsideration criteria in the following ways:
(1) Erred when it determined the applicant’s injuries were subject to the MIG and limited to $3,500 worth of treatment;
(2) Erred when it failed to address the applicant’s submissions regarding the inadequate and unclear denial to the psychological treatment plan and apply the provisions of s. 38(11).
RESULT
5The reconsideration is dismissed.
BACKGROUND
6The applicant was injured in an automobile accident on May 23, 2016 and the respondent determined that based on the injuries sustained in the accident the applicant was subject to the MIG and $3,500 worth of treatment. The applicant applied for a psychological assessment and psychological treatment. These treatment plans were denied on the basis that the applicant was in the MIG.
7The Tribunal issued a decision on the issues in dispute and determined the applicant’s injuries fell within the MIG definition contained in the Schedule2 and therefore, there was no need to consider whether the treatment plans were reasonable or necessary as the $3,500 worth of treatment had already been approved.
ANALYSIS
Erred in Fact and Law
8The applicant argues that the Tribunal’s decision erred and by determining the MIG applied and that there was no need to consider the two treatment plans. Also, she argues the decision erred by failing to address the applicant’s submissions with respect to the inadequate and unclear denial letter from the respondent for the psychological assessment.
9The respondent argues that the applicant’s submissions regarding alleged errors do not meet the criteria for reconsideration under the Tribunal’s Rule 18 and are using this process to re-litigate their arguments.
10Upon review of the applicant’s reconsideration submissions, she argues that the Tribunal erred in finding she is in the MIG based on her psychological condition. She then goes onto re-argue her case and present new arguments that were not originally submitted to the adjudicator. The applicant’s reconsideration submissions focus on the fact that the Tribunal’s decision did not assign the appropriate weight to the applicant’s evidence. The applicant claims the adjudicator’s decision relies on the fact that she did not complain to her family doctor about the psychological symptoms she was suffering from and that’s why the adjudicator preferred the respondent’s evidence over the applicants. The applicant argues that more weight should have been given to the clinical notes and records from the physiotherapy clinic where the applicant did complain about her psychological symptoms. The adjudicator provided reasons for preferring the respondent’s evidence over the applicant’s and although the reasons did not focus on the applicant’s complaints to the physiotherapy clinic does not manifest itself to an error that warrants reconsideration. The adjudicator preferred the respondent’s psychological assessment report because the assessor had conducted more validity testing and had concerns regarding the alleged symptomology compared to how she presented during the assessment which is reason to conclude that a psychological status is unlikely present. I find no error in the way the adjudicator assigned weight to the respondent’s evidence over the applicants.
11They also now argue that the respondent’s psychological assessment results should be interpreted with greater scrutiny when answers are given through a translator. This argument is in a form of submission and not supported by any evidence. Therefore, I cannot consider this argument an error that meets the criteria for reconsideration.
12The applicant also argues that the adjudicator erred when it stated “I find it improbable that psychological injuries related to the accident took over 5 1/2 months to begin to manifest themselves” claiming that the applicant complained of psychological symptoms from the beginning, even when she filed her Application for Accident Benefits (OCF-1). In review of the OCF-1, it is true the applicant did complain of psychological symptoms right after the accident. Therefore, I agree that is an error of fact. That being said, complaining of psychological symptoms does not necessarily mean that a diagnosis will follow. In order for the accident injuries to be considered not minor, a diagnosis must be established. The adjudicator reasoned why it preferred the respondent’s psychological assessment report over the applicants, and for other reasons, did not find that the applicant suffered from a psychological condition. Although the adjudicator did err in fact, that error does not change the outcome of the decision.
13The applicant also submits that the adjudicator erred by not deciding whether the respondent issued a proper denial letter on the psychological assessment treatment plan. Upon review of the applicant’s submissions filed with the Tribunal on April 25, 2019 the applicant did not argue that the respondent had issued an improper denial and should be precluded in taking the position the applicant is in the MIG as per s. 38(11) of the Schedule. The only reference to an inadequate and unclear response is in her submissions regarding why an award was justified. The applicant claims in her original submissions that the adjudicator ought to order an award because the respondent acknowledged that there was compelling medical evidence that the injuries sustained were not minor yet failed to approve the psychological assessment. Upon review of the letter sent on August 2, 2017, it was noted in the “medical reasons section” that the respondent required the applicant to go for a psychological assessment because she provided compelling medical evidence that her injuries were not minor. I do not see this as an admittance that the injuries did not fall within the MIG but that it was the respondent’s reasons for why it was asking the applicant to go for an assessment. It was to assess the veracity of the diagnosis being alleged by the applicant. That being said, the applicant withdrew their claim for an award at the case conference and never advised the respondent that the claim for an award was still an issue in dispute for the hearing. I find the adjudicator was under no obligation to go into detail on the issue of whether the denial was improper or whether it met the criteria under s. 38(11) if no arguments were presented on that issue.
14The applicant is re-arguing the same submissions, looking for a different result and also arguing new submissions not argued at the hearing. This is not the basis for a reconsideration and therefore the applicant’s request for reconsideration is dismissed.
Released: February 12, 2020
Chloe Lester
Vice-Chair