M.S. v. Unifund Assurance Company, 2020 CanLII 40330

RECONSIDERATION DECISION

Citation: M.S. v. Unifund Assurance Company, 2020 ONLAT 18-002321/AABS

Before: Craig Mazerolle

Date: May 29, 2020

Case Name: M.S. v. Unifund Assurance Company

Written Reconsideration Submissions by:

For the Applicant: Mirelle Dahab, Counsel

For the Respondent: Ken Yip, Counsel

OVERVIEW

1Due to injuries sustained from an accident on August 3, 2016 the applicant sought medical benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”).¹ The respondent denied some of these benefits, so an application was filed with the Tribunal.

2Though originally scheduled for November 23, 2018, a one-day, in-person hearing was eventually held on January 30, 2019. Several sets of written submissions both preceded and then followed this hearing.

3In my decision (dated December 9, 2019), I found the applicant was entitled to $465.97 for physiotherapy services (the “Decision”).² I denied the other disputed medical services and assessments, due to my finding that she was subject to the funding and treatment limits of s. 18 of the Schedule and the Minor Injury Guideline (the “MIG”).

4The applicant took issue with the Decision, so she filed a Request for Reconsideration (dated January 3, 2020).

5The grounds for granting a reconsideration are enumerated in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (the “LAT Rules”):

a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

6In her Request for Reconsideration, the applicant alleged the following factual and legal errors in the Decision:

a. The Tribunal incorrectly applied s. 38 of the Schedule;

b. Dr. Shafik Dharamshi and the applicant’s treating physicians concluded there was some form of accident-related “dysfunction” with her right Temporomandibular Joint (“TMJ”), yet the Tribunal did not remove her from the MIG;

c. The applicant should have been removed from the MIG due to her diagnosis of cervical radiculopathy;

d. The Tribunal incorrectly concluded that her psychological impairments were “minor” in nature; and,

e. The Tribunal incorrectly concluded that a treatment plan has to be incurred before an award can be granted under s. 10 of Regulation 664.

7She then argued that “the Tribunal violated the rules of natural justice and procedural fairness” by failing to require two of the respondent’s experts to testify at the hearing in January 2019. The Tribunal then compounded this error by choosing to admit their reports into the hearing record.

8In her reply, the applicant added a further ground of reconsideration, i.e., she alleged the reasons provided in the Decision were “inadequate” and “ambiguous.”

9As a remedy, the applicant is requesting the payment of the disputed medical benefits (as well as a finding that she is no longer held to the MIG). Failing that, the applicant asked for a new hearing.

10Briefly, the respondent asked the Tribunal to dismiss the Request for Reconsideration in full.

11For the reasons to follow, I dismiss the applicant’s Request for Reconsideration in full.

ANALYSIS

Section 38

12In the Decision, I found the respondent was barred from relying on the MIG as a reason for denying one of the two TMJ assessments in dispute. Briefly, I concluded that the respondent did not comply with the statutory timeline for denying a benefit, as described in s. 38(8) of the Schedule:

Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

13By violating s. 38(8), the remedies in s. 38(11) are then engaged:

If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

14However, by relying on the Divisional Court’s reasoning in Zheng v. Aviva Insurance Company of Canada,³ I found this remedy only applied to the treatment plan related to the breach of s. 38(8):

Even though the respondent admits that it failed to comply with the timeline under s. 38(8) for one of the two proposed TMJ assessments…I do not accept the applicant’s argument that she is no longer held to the MIG for every other disputed treatment plan. A plain reading of paragraph 21 from Zheng makes clear that the Divisional Court does not accept this interpretation of s. 38(11):

… the language used in s. 38 refers to the specific Treatment Plan in question. We therefore do not accept the submission, in these cases, that s. 38(11) imposes a permanent prohibition on Aviva with respect to whether the impartment of [the insured persons] is covered by the MIG or is subject to the $3500 limit in s. 18(1).⁴

15In other words, the respondent could continue to rely on the MIG as a means of denying entitlement to the other disputed benefits. I further concluded that, without evidence that this TMJ assessment had, in fact, been incurred, it was not payable under s. 38(11)2.

16The applicant took issue with this conclusion for several reasons.

17First, the applicant argued that my reliance on Zheng was misplaced, because—not only did the insurer in Zheng have its appeal dismissed by the Divisional Court—but I ignored the Tribunal’s more consumer-friendly reasoning in M.F.Z. v. Aviva Insurance Canada.⁵ While a decision from the Tribunal is clearly persuasive in my analysis, I am, ultimately, bound by a higher court’s interpretation of the Schedule. Without a convincing account for why the Divisional Court’s interpretation should not be followed in this matter, I find there is no significant error of law.

18Second, the applicant took issue with my finding that this assessment would only be payable if it had been incurred. I do not accept this submission. That is, in reading of s. 38(11)2, I find that this remedy is only engaged once a benefit is incurred in the period from the 11th business day following the submission of the treatment plan to the date of any later, valid denial. Without evidence of the assessment being incurred, it is not payable.

19The applicant contended that the term “incurred” is not used in s. 38(11) of the Schedule. However, considering this section specifically lists a start and end date for when the remedy will apply, it would be illogical to make the services payable if they were not incurred. That is, if the Legislature intended for any requested services to be automatically payable after the 11th business day, there would be no need to list when this remedial period would end.

20In making this finding, I do not accept the reasoning provided in Ferawana v. State Farm Mutual Automobile Insurance Co.⁶ Beyond the fact that I am not bound by case law from the Financial Services Commission of Ontario, I find this decision’s focus on the word “relate” in s. 38(11)2 ignores the rest of the language in the provision (i.e., the specified start and stop dates for this remedial period).

Cross-Examination

21In an order dated January 18, 2019, Adjudicator Maedel allowed the applicant to summon Drs. Dharamshi and Alfonso Marino for cross-examination, i.e., the respondent’s physical and psychological experts, respectively. These witnesses were not present at the hearing.

22During the hearing, I allowed the witnesses’ expert reports to form a part of the hearing record, though I noted that their non-attendance would affect my weighing of their evidence. This evidentiary consideration was mentioned several times in the Decision. For instance, at paragraph 27, I stated:

The applicant did raise concerns about how the respondent’s experts did not attend the hearing for the purposes of cross-examination, including Dr. Dharamshi. While it would have been helpful to have these assessors attend before the Tribunal, I still place significant weight on Dr. Dharamshi’s report because it is a more detailed analysis of the applicant’s physical condition.

23The applicant now alleges that the Tribunal’s failure to compel their attendance (or, at least, reject their reports) constituted a breach of procedural fairness. Specifically, the applicant argued this decision “effectively deprived the Applicant of her integral right to cross-examination and ability to meet her burden of proof.” She then noted that “the Tribunal made and rendered its Decision relying entirely, or in the alternative, too heavily upon the said reports.”

24In support of her position, the applicant cited the Supreme Court of Canada’s ruling in Innisfil (Township) v. Vespra (Township).⁷ Briefly, the applicant argued that this case stands for the proposition that there is “a right to cross-examine witnesses when a statutory authority creates the right to a hearing.” She also cited the Court of Appeal for Ontario’s decision in Khan v. University of Ottawa for further support of this proposition, especially for proceedings where credibility is a central concern.⁸

25The applicant also alleged that the respondent interfered with the witnesses’ attendance at the hearing.

26The respondent submitted that the applicant did not summons its experts to testify. Further, the respondent cited s. 15(1) of the Statutory Powers Procedure Act⁹ for the proposition that an adjudicator can consider an expert report without requiring the cross-examination of its author.

27In her reply, the applicant challenged the allegation that she never summonsed the experts.

28First, I find the admission of these reports (with an adverse ruling regarding their weight) was an appropriate remedy for addressing the witnesses’ non-attendance at the hearing. As noted by Adjudicator Maedel in his January 2019 order, the Tribunal has a mandate to consider disputes in an efficient, proportional, and merit-based fashion.¹⁰ Therefore, an adjournment would have caused further delay to an already adjourned hearing, and the failure to consider these reports would have left the Tribunal with an incomplete evidentiary record. Both consequences would have been contrary to the Tribunal’s mandate.

29Second, though the applicant contests my reliance on these reports in the Decision, it is within an adjudicator’s purview to consider and weigh the evidence as she or he sees fit (even if there is a recognition that a particular piece of evidence will be provided less weight on account of a procedural deficiency). I also note that these reports did not form the sole basis of my findings, as there are references to other medical records and reports throughout my Decision.

30In this same vein, I do not accept that the Supreme Court of Canada’s ruling in Innisfil is of great assistance to the case at hand. In this decision, the Ontario Municipal Board accepted the opinion of a government actor wholesale, thereby disallowing any challenge to this evidence. In the present case, the Tribunal weighed the experts’ reports alongside the rest of the evidence—an analysis that included consideration of the applicant’s submissions about the non-attendance of the witnesses. While it may not have been the applicant’s preferred method of challenging these reports, there was ample opportunity to question their conclusions.

31I also do not accept that Khan is applicable to this dispute, as credibility was not a central aspect of the Decision. In short, one of the key questions for the respondent decision-maker in Khan was whether the appellant student was credible. As such, disallowing her from making submissions (among other procedural deficiencies) constituted a violation of procedural fairness.

32No such dynamic was at play in the Decision. For instance, the weight afforded to Dr. Dharamshi’s report had nothing to do with his credibility. Instead, I preferred the methodology he used to gather the information that formed the basis of his opinion (i.e., an in-person assessment).

33Finally, I would highlight the broad and flexible evidentiary powers afforded to the Tribunal under s. 15(1) of the SPPA.

34Therefore, in light of the Tribunal’s mandate to promote efficiency and proportionality, alongside the authority provided under the SPPA to control its proceedings, I do not find that the Tribunal violated the natural justice or procedural fairness of the applicant.

TMJ Dysfunction

35Entitlement to medical benefits is determined by ss. 14 and 15 of the Schedule. Briefly, applicants have the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.

36In the present case, the applicant also had onus of demonstrating that her injuries do not fall within the funding limit of s. 18(1) and the MIG. That is, if an insured person has only suffered a “minor injury” as a result of an accident, s. 18(1) of the Schedule places a $3,500.00 limit on treatment coverage.

37A “minor injury” is defined in the Schedule as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

38Briefly, I found the applicant’s TMJ issues constituted a “minor injury”. That is, since I accepted the less severe symptomology found by Dr. Dharamshi (over the applicant’s self-reported symptoms listed in the TMJ assessment treatment plans), I concluded that these issues fell within the definition of a “minor injury”:

Upon physical examination, Dr. Dharamshi made the following comments about the right TMJ: “did not demonstrate any deformities or abnormalities. There was no palpable tenderness. The range of motion was normal with clicking with each opening of the mouth. This was not painful.” Even in spite of these observations though, the assessor still concluded that she suffered from an accident-related right TMJ “dysfunction.”

… By accepting this less severe account, I am then satisfied that this TMJ injury is a clinically associated sequalae to her otherwise minor injuries. That is, there is no evidence of tears, fractures, or any other non-minor injuries to either the left or right joints. Rather, the injury appears to be soft tissue in nature, with the applicant continuing to experience residual pain and clicking at most.¹¹

39The applicant disputed this finding, as she argued that Dr. Dharamshi’s diagnosis of TMJ “dysfunction” demonstrated that she suffered from a non-minor injury.

40While the applicant framed this argument as a legal question (i.e., the Tribunal failed to properly apply the definition of a “minor injury”), this submission appears to challenge a factual finding, namely, her TMJ “dysfunction” amounted to injuries that are “soft tissue in nature”. Disagreement with a factual finding alone does not meet the standards for granting a reconsideration. As such, this finding shall stand.

Cervical Radiculopathy

41Next, the applicant took issue with my finding that her claim of cervical radiculopathy was not established. Instead, the applicant argued that the evidence of her treating practitioners clearly demonstrated the existence of this accident-related, non-minor injury.

42Briefly, this conclusion was based on my weighing of the evidence from Dr. Dharamshi and one of the applicant’s treating practitioners. Once again, simply disagreeing with how the Tribunal weighs evidence does not—on its own—constitute a valid ground under Rule 18 of the LAT Rules.

Psychological Impairment

43In the Decision, I used the psychometric testing from Dr. Marino, as well as a post-accident record from the applicant’s family physician (wherein she attributed “severe anxiety” to a non-accident source) to determine that she did not establish the existence of an accident-related, psychological impairment. Instead, I concluded that the applicant’s psychological distress “appears to be subclinical sequalae to her otherwise minor injuries.”¹²

44The applicant argued that this finding was unreasonable, because there was compelling, uncontested evidence that established the existence of a psychological impairment. She also claimed that, in finding any level of distress related to the accident, I should have “automatically” removed her from the MIG.

45I do not accept this submission, as it is an attempt to relitigate arguments she made during the hearing. Further, the definition of a “minor injury” includes “any clinically associated sequelae”. Therefore, I was able to conclude that her driving anxiety was “clinically associated sequelae” to her otherwise minor injuries, because she did not establish that this distress resulted in any significant, functional limitations.

Award for the TMJ Assessment

46Section 10 of Regulation 664 permits the Tribunal to “award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured” if the Tribunal “finds that an insurer has unreasonably withheld or delayed payments.”

47As noted above, the only amount found payable in the Decision was $465.97 for physiotherapy services, i.e., the amount left remaining under the treatment limits of s. 18(1) and the MIG. Since none of the other disputed amounts were found payable, I did not grant an award.

48The applicant submitted that I incorrectly denied her an award for one of the TMJ assessments (i.e., the one related to the s. 38[8] contravention detailed above). Specifically, I incorrectly found no award could be granted, because the assessment had yet to be incurred. She also argued that this assessment was denied “in complete disregard of objective medical evidence.”

49I do not accept either of these submissions. First, since this assessment has not been incurred (and, thus—as explained above—is not payable), it cannot be said that this payment was “unreasonably withheld or delayed”. Second, the applicant is again trying to use the reconsideration process to relitigate this finding.

Sufficiency of Reasons

50In reply, the applicant challenged the sufficiency of my reasons. For instance, in describing my conclusion about her claim of cervical radiculopathy, she alleged:

…the Adjudicator assessed the impairment as not ‘made out,’ simply using an undefined ambiguous term. Moreover, the Adjudicator determined without reasons that the Applicant’s diagnosis of cervical radiculopathy as found in evidence, is not sufficient to find the Applicant has an impairment not defined by the MIG.

51One of the leading cases on the sufficiency of reasons in administrative decision-making is the Supreme Court of Canada’s ruling in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board).¹³ In an oft-cited paragraph, Justice Abella stated that a decision need not reference every argument and detail, but rather reasons must “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes.”¹⁴

52With this observation in mind, I am satisfied that I provided sufficient detail in my reasons to allow a reviewing court to determine whether my findings are “within the range of acceptable outcomes”. Specifically, I find the applicant’s description of the Decision to be limited in nature, as context about the decision-making process is left out of her reply submissions. For instance, in the example about cervical radiculopathy cited above, the term “made out” is followed by several paragraphs wherein I detail the reasons behind this conclusion. Similarly, while the applicant claimed that there was no justification to explain why her psychological distress was “clinically associated sequalae”, this submission ignores my finding about the applicant’s post-accident activity levels.

ORDER

53The applicant’s Request for Reconsideration is dismissed in full.

Footnotes

1. 1Effective September 1, 2010, O. Reg. 34/10.
2. 2M.S. v. Unifund Assurance Company, 2019 CanLII 130367 (ON LAT).
3. 32018 ONSC 5707 (“Zheng”).
4. 4Decision at para. 13.
5. 52017 CanLII 63632 (ON LAT).
6. 6FSCO A13-005419 (August 29, 2016), [2016] O.F.S.C.D. No. 247.
7. 71981 CanLII 59 (SCC), [1981] 2 S.C.R. 145 (“Innisfil”).
8. 81997 CanLII 941 (ON CA), 34 O.R. (3d) 535 (“Khan”).
9. 9R.S.O. 1990, c. S.22 (“SPPA”).
10. 10LAT Rules, Rule 3.1(b).
11. 11Decision at paras. 24 and 26.
12. 12Decision at para. 34.
13. 132011 SCC 62, [2011] 3 S.C.R. 708.
14. 14Ibid at para. 16.