RECONSIDERATION DECISION
Before:
Derek Grant
April 1, 2020
Tribunal File Number:
18-010369/AABS
Case Name:
M.Z. vs. Aviva Insurance Canada
Written Submissions by:
For the Applicant:
Volha Vinahradava, Paralegal
For the Respondent:
Marcin Panasewicz, Counsel
OVERVIEW
1M.Z. filed a Request for Reconsideration of the January 17, 2020 Decision (“the Decision”) of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). In that Decision, I found that M.Z. was not entitled to the disputed benefits, interest and an award pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2M.Z. submits that I made errors of law and seeks an order changing the Decision. The Request for Reconsideration alleges errors in my consideration of the medical evidence.
3Aviva submits that the Decision should be upheld, and the Request for Reconsideration dismissed.
4Pursuant 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 the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5M.Z.’s Request for Reconsideration is dismissed.
BACKGROUND
6M.Z. sustained injuries in an accident on January 10, 2015 (the “accident”). She claimed entitlement to benefits under the Schedule. When those benefits were denied by the respondent, M.Z. submitted an appeal to the Tribunal. A written hearing was held to determine whether M.Z. was entitled to medical benefits, a cost of examination expense, interest and an award. I concluded that M.Z. was not entitled to the balance of a treatment plan, the remaining treatment plans, interest or an award; M.Z.’s claim for accident benefits was dismissed. M.Z. seeks reconsideration of that Decision.
ANALYSIS
Request for Reconsideration
Error of Fact
7The grounds upon which a Request for Reconsideration can be granted are set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.1 The ground that M.Z. submits applies in this case is Rule 18.2(b), which states:
“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.”
8Specifically, M.Z. submits that I made the following errors of fact:
(i) by not considering a note from M.Z.’s family physician;
(ii) by finding that M.Z.’s right knee pain was not accident-related;
(iii) by finding that M.Z. and her legal representative received Aviva’s denial letter dated November 5, 2015, and subsequently finding that the limitation period had expired; and
(iv) by not adequately considering M.Z.’s request for an award.
9I am not persuaded by M.Z.’s submissions that I made any error in fact. The parties agree that no error of law was made. I find that I considered the medical evidence and based on a review of the evidence, correctly determined that M.Z. was not entitled to the disputed benefits, interest or an award.
10I will address each issue in the order set out above.
ERRORS OF FACT
A. Dr. Finkelstein’s note
11In support of her position that I made an error of fact, M.Z. refers to a March 2019 note from Family Physician, Dr. Finkelstein. M.Z. appears to imply that this referral note of Dr. Finkelstein supports M.Z.’s claim for physiotherapy. For the reasons that follow, I find it does not. For example:
a. There is no reference in M.Z.’s initial submissions to the note;
b. There is no reference in the March 2019 referral note for physiotherapy; and
c. The Tribunal Order dated March 5, 2019, notes at para. 5(ii), “Submissions must make pinpoint reference to the law and evidence by tab and page number. Evidence not so referenced may not be reviewed by the hearing adjudicator”.
12In her reconsideration submissions, M.Z. fails to point to where in Dr. Finkelstein’s note that there is a referral for or a reference to physiotherapy treatment, or how that note supports that M.Z. requires further physiotherapy treatment.
13M.Z. also fails to show how I did not consider this note in the Decision. At para. 21 of the Decision, I state in part, “Dr. Finkelstein… makes no recommendation for physiotherapy. Dr. Finkelstein does recommend chiropractic treatment on several occasions”.
14In the absence of a recommendation by Dr. Finkelstein, M.Z. relies solely on the treatment plan to support her position. A treatment plan, without any supportive, objective evidence is not always enough to establish that the treatment is reasonable and necessary. More is required, and in this proceeding, there was a treatment plan which confirmed M.Z. suffered predominantly ‘minor’ injuries as a result of the accident. Further, recommendations from M.Z.’s treatment providers were for chiropractic treatment, not physiotherapy.
15As such, I find that M.Z. has not satisfied her burden to persuade me that a different decision would have been made regarding the physiotherapy treatment as a result of an error of fact.
B. M.Z.’s right knee pain is not accident related
16On reconsideration, in reply, M.Z. “requests to have s. 44 IE of Dr. Auguste report to be considered”. The reconsideration process is not an avenue for advancing new evidence that a party could but did not introduce at the hearing on the merits. M.Z. points to no exceptional circumstances to warrant the new evidence on reconsideration. The reconsideration process is not meant as a separate adjudicative or fact-finding forum.
17By attempting to submit new evidence in her reconsideration reply submissions, M.Z. failed to properly introduce evidence she intended to rely on in her initial submissions. M.Z.’s request for me to now consider Dr. Auguste’s report fails the test for new evidence on appeal because it was readily available at the time of M.Z.’s initial submissions. Further, based on the medical evidence that was before me, the report would have no impact on the outcome of the Decision.
18In support of her position on this issue of error of fact, M.Z. refers to the s. 44 assessment report of Orthopaedic Surgeon Dr. Auguste dated August 21, 2019. Dr. Auguste states that M.Z.’s pre-existing right knee impairments “are not causally linked to the subject accident but may have been exacerbated by the subject accident”.
19On reconsideration, M.Z. relies on the wording of the Dr. Auguste report, “may have been exacerbated” as evidence of an error of fact of my consideration of the cause of M.Z.’s right knee pain complaints. However, despite the Tribunal Order requiring specific reference, M.Z. failed to specifically refer to the report in her initial submissions.
20Even if I did consider the report of Dr. Auguste, the Decision dealt with the causation element of the right knee pain complaints, which is also supported by evidence that was referred to in the parties’ submissions. For example,
a. There are no knee pain complaints made to Dr. Finkelstein at the first post-accident visit;
b. There are no right knee pain complaints made to any treating physician until December 7, 2016, nearly two years post-accident;
c. At a February 15, 2017 visit to Dr. Finkelstein, he diagnosed M.Z. with a Baker’s Cyst in her right knee which is not attributed to the accident; and
d. At para. 31e of the Decision, I address the s. 44 report of Physiatrist Dr. Ko, in which Dr. Ko opines that the right knee pain complaints are not attributable to the accident; and
e. Between 2016 and 2018, the report and notes of Chiropractor Dr. Chudolinski contain no mention of any right knee pain complaints.
21M.Z. has failed to establish that the accident caused the right knee pain complaints, and more importantly, how I failed to find that the right knee pain is accident-related. As such, I find there was no error of fact in my consideration of the cause of the right knee pain.
C. November 5, 2015 denial letter
22Aside from quoting a large section of the Decision in her reconsideration submissions, M.Z. points to no persuasive evidence of an error of fact as it relates to my finding regarding the issue of ‘deemed received’ of the November 2015 letter.
23In the Decision I found that the two-year limitation period had expired with respect to a treatment plan March 25, 2015. At issue was the date that M.Z. received the denial letter. I found that date was November 12, 2015. According to the Schedule, M.Z. had until November 12, 2017 to seek dispute resolution with respect to this denied treatment plan. M.Z. did not file her application to the Tribunal October 30, 2018. M.Z. argues that she did not receive the denial letter.
24M.Z. contends that there was no proof of service from Aviva regarding the November 25, 2015 letter.
25The Decision addresses the letter in paras. 14-18, and I find the evidence regarding same was considered and properly determined. Specifically, at paras. 14-15 of the Decision, I state,
I find that Aviva’s November 5, 2015 denial letter was mailed to M.Z. on
November 5, 2015. This method of delivery is permitted by s. 64.2 of the
Schedule. Section 64 (18) states that in the absence of evidence to the contrary a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. In this case the date that the mailed copy of the letter was deemed received by M.Z. was November 12, 2015.
My finding is based on the fact there is no evidence that confirms that this correspondence was not provided to M.Z. in accordance with s. 38 (8) and s. 64 (18).
26Section 64(18) is a legal presumption and “evidence to the contrary” must necessarily come from the party seeking to rebut the legal presumption (e.g. the recipient of a letter sent by regular mail). Both an insurer and insured are equally entitled to rely on the deeming provision. It would be up to the recipient to lead satisfactory evidence to dislodge the presumption (e.g. the insured was out of the country for an extended period and couldn’t pick up the mail until she returned 3 weeks later).
27I find there was no error of fact as it relates to the November 2015 letter. M.Z. has not directed me to any satisfactory evidence or “evidence to the contrary” to rebut the legal presumption. Further, I find that M.Z. has failed to point to how an error was made that would have led to a different decision regarding the November 2015 letter.
D. M.Z.’s request for an award
28M.Z. submits that an award is warranted due to “improper handling and unreasonable delays on responding and considering medical evidence” on the part of Aviva, leading to a withholding/delaying of M.Z. receiving proper treatment. I disagree.
29I may make an award of up to 50% of any amounts improperly withheld if I find that the respondent unreasonably delayed or withheld payment of a benefit. In this matter, I have found that M.Z. is not entitled to the payment of any benefit, therefore, no benefit has been unreasonably withheld or delayed. There is no basis for an award.
CONCLUSION
30For the reasons set out above, I find that M.Z. has failed to establish any error of fact. I therefore dismiss M.Z.’s Request for Reconsideration.
Derek Grant, Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 1, 2020