Tribunals Ontario Safety, Licensing Appeals and Standards Division Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
AMENDED RECONSIDERATION DECISION
Before: Brian Norris, Adjudicator
File: 18-008308/AABS
Case Name: L. F. and Aviva General Insurance Company
Written Submissions by:
For the Applicant: Nolan Kennedy, Counsel
For the Respondent: Nisaa Khan, Counsel
OVERVIEW
1The Request for Reconsideration was filed by the applicant, L. F. It arises out of a decision which I found she failed to attend a section 44 assessment and, as a result, was statute-barred from bringing an application. The application was dismissed.
2The applicant makes the request pursuant to Rule 18.2 (a) and (b) of the Licence Appeal Tribunal Rules of Practice and Procedure Version 1 (April 2016) (the “LAT Rules”). The applicant submits I erred in law and fact such that I would likely have reached a different decision had the error not been made. Further, the applicant submits there is new evidence that could not have been previously obtained, which ought to be considered.
ERRORS IN LAW AND FACT
3The errors in law and fact are submitted as follows;
- I erred in finding the treatment and assessment plan was properly denied;
- I erred in finding the IE was reasonable;
- I erred in dismissing the appeal rather than adjourning it.
The denials
4The applicant submits the treatment and assessment plan was not properly denied because the respondent did not give proper reasons to deny the assessment and request an IE. Specifically, the applicant submits the respondent failed to address the reasonable possibility or suggestion that the applicant’s condition existed and was related to the accident. I disagree and find no error in law.
5Pursuant section 38(8), the respondent is required, amongst other things, to provide medical and all other reasons to deny funding for a treatment and assessment plan. The requirement for reasons is echoed in section 44(5)(a), which requires the respondent to provide the medical and any other reasons why it requires an insurer’s examination. As noted in the original decision in paragraphs 9 through 15, I assessed the denial and found the respondent provided the requisite reasons by concluding the services proposed are not consistent with the injuries reported and there are gaps in treatment without any documented clinical explanation. As a result, an IE is required.
Reasonable and necessary versus reasonably necessary
6The caselaw provided by the applicant is not applicable as it addresses the test to determine whether a section 25 assessment is reasonable and necessary. Such jurisprudence is not relevant for this hearing as the dispute here is about whether the applicant failed to attend a properly scheduled IE. It is not about whether the proposed assessment is reasonable and necessary.
7The applicant submits the purpose of the IE is to determine the diagnosis, causation, timing, and nature and extent of the applicant’s injures and that this is reason to approve funding for the assessment. However, this is not the legal test for whether the applicant is required to attend the IE. The legal test for an IE, once it has been determined it was properly requested, is whether it is being requested more than reasonably necessary. This IE test is well-described by Adjudicator Paluch in 17-005291/AABS v Travelers Canada1 and was contemplated in paragraphs 17 through 27 of the original decision. I see no error in law on this issue.
Request to vary the scope of the IE
8The applicant requests that, in the event the IE is permitted to proceed, the decision be varied to limit the scope and form of the IE. The applicant asked to have the IE limited to only question the reasonableness and necessity of the proposed assessment in order to prevent the respondent from having its own expert complete what is essentially the same assessment.
9I find this is a new argument being advanced by the applicant and will not consider it. Nowhere in the submissions for the original hearing did the applicant request this option, let alone mention it. The reconsideration process is not an opportunity to raise arguments that could have been submitted in the hearing.
PROCEDURAL FAIRNESS
10The applicant submits I violated procedural fairness by dismissing the application rather than adjourning it. I disagree for the following reasons.
Unnecessary Prejudice to the applicant
11The applicant submits the dismissal is disproportional and does not facilitate a timely resolution of the merits of the proceeding. The applicant submits a more appropriate remedy would be to adjourn the matter until such time the applicant is able to attend the IE, as was the case in 17-0010882. I disagree.
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