RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 18-006592/AABS
Case Name: D.S. and Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Anupama Bakshi, Counsel
For the Respondent: Kristofer Angle, Counsel
OVERVIEW
1Aviva seeks a reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) March 5, 2020 decision. The Tribunal held that D.S. was entitled to two treatment plans for chiropractic treatment. The Tribunal also found that D.S. was entitled to interest on the outstanding balance of overdue payment.
2Aviva seeks a reconsideration of this decision. D.S. also seeks an amendment of the Order in the decision to include a third treatment plan that was approved but not included in the Order.
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. For the reasons below, I have denied the request for reconsideration and I amend the Order of the initial decision.
BACKGROUND
4D.S. was injured in a motor vehicle accident on May 8, 2013. Aviva paid D.S. benefits under the Statutory Accidents Benefits Schedule, O.Reg. 34/10 (the “Schedule”) until disputes arose. The dispute in this case is focused on treatment plans for chiropractic treatment that were denied by Aviva. Interest was also claimed by D.S.
5D.S. appealed the denial of these benefits to this Tribunal and the matter was heard in writing. D.S. alleged that Aviva was in non-compliance with s. 38 of the Schedule, and therefore, the treatment plans were payable. Both D.S. and Aviva relied on submissions and evidence to support their positions with respect to this dispute. The Tribunal ultimately found that D.S. was entitled to the chiropractic treatment. The Tribunal also found that D.S. was entitled to interest on the overdue payment in accordance with the Schedule.
6Aviva now requests under Rule 18 of the Tribunal’s Rules of Practice and Procedure that I vary the Tribunal’s decision and find that D.S. is not entitled to the chiropractic treatment plans claimed on the grounds that the Tribunal made significant errors of law or fact. D.S. disputes Aviva’s position and submits that the Request for Reconsideration be dismissed, and that the Tribunal’s decision be upheld.
ANALYSIS
7Rule 18.1 requires a reconsideration request to include reasons, specifying the criteria under Rule 18.2. The Rule 18.2 criteria are:
(i) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(ii) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
(iii) 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,
(iv) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
8Aviva submits that I erred in determining that D.S. is entitled to the benefit claimed without addressing whether the benefit was incurred within the meaning of section 3(7) of the Schedule.
Did the Tribunal err in determining that D.S. is entitled to the benefit claimed without addressing whether the benefit was incurred within the meaning of section 3(7) of the Schedule?
9I did not comment on whether the benefit was incurred. At paragraphs 7 and 20 of the decision, I state that Aviva must pay for the benefit claimed. I made these findings without considering whether the benefit in dispute had been incurred within the meaning of section 3(7) of the Schedule or deemed incurred pursuant to section 3(8) of the Schedule.
10Aviva raised the issue of incurred at the initial hearing and D.S., in her reply submissions, suggested that the benefit should be deemed incurred pursuant to s. 3(8) of the Schedule. The decision does not reference section 3(7) or 3(8) of the Schedule and Aviva submits that this amounts to a significant error in law and justifies its request that the Tribunal vary its decision and find that the benefit in dispute is not payable. I disagree with Aviva’s submission for the following reasons.
11Both parties relied on case law in support of their submissions. I am persuaded by the K.F. and Aviva 1 that D.S. relies on. Although I am not bound by the decisions of my fellow Members, I agree with Adjudicator Gosio on his comments regarding whether treatment has been incurred.
12D.S. submitted that the benefits in dispute should be deemed incurred pursuant to section 3(8) of the Schedule. I do not agree with D.S.’s submission. Section 3(8) of the Schedule gives the Tribunal the authority to deem a benefit incurred if the Tribunal finds that a benefit was not incurred because the insurer unreasonably withheld or delayed payment of the benefit. In this case, the denial of the benefit in dispute was reasonably based on the information Aviva had at that time and does not warrant a finding under section 3(8) of the Schedule.
13With respect to Aviva’s submissions regarding section 3(7) of the Schedule, I find that an adjudicator may make a finding that treatment is reasonable and necessary and order the benefit to be payable even without the treatment being incurred as long as that order complies with the Schedule (i.e. the treatment and interest being payable once incurred and overdue).
14In this case, my order made in the decision is found at paragraph 50 of the decision. Paragraph 50 indicates that in accordance with s. 38(11)(2), D.S. is entitled to the chiropractic treatment plans, with interest. Again, Adjudicator Gosio clarifies ‘incurred’ where he states at paragraph 25, “this approach complies with the Schedule because the reference to “incurred” in section 15 of the Schedule provides that Aviva is only liable to pay for a reasonable and necessary medical or rehabilitation benefit after it has been incurred – not at the time the treatment plan is approved or awarded by the Tribunal”.
15An insured may dispute the denial of a treatment plan and seek a ruling from the Tribunal that the proposed treatment is reasonable and necessary before the benefit is incurred. I confirm the decision on entitlement to the benefits despite the decision’s silence on the issue of incurred.
16For these reasons, I will not vary the decision as requested by Aviva and confirm the Tribunal’s order regarding payment of the disputed treatment plans. Payment for the treatment in question and any related interest is payable in accordance with the Schedule. Further, interest is only payable once the treatment plans have been incurred and the payment is overdue.
Request for an amendment to the Order of the decision
17D.S. requests that the Order in the decision be varied to include payment of the treatment plan submitted on July 14, 2017 (“Glavan TP2”). At paragraphs 35 and 36, I find that the treatment plan is reasonable and necessary, and that D.S. is entitled to payment.
18In my Order, I did not include that D.S. is entitled to payment for the Glavan TP2. As such, I vary my Order to include that D.S. is entitled to the Glavan TP2, with interest, in accordance with s. 51 of the Schedule.
CONCLUSION
19For the reasons noted above, I deny Aviva’s request for reconsideration and vary my Order regarding the Glavan TP2.
Derek Grant
Adjudicator
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: June 26, 2020
Footnotes
- 17-006470 v Aviva Insurance Company of Canada, 2019 CanLII 72226 (ON LAT).