K.M. v. Aviva General Insurance Company, 2020 CanLII 45491

RECONSIDERATION DECISION

Citation: K.M. vs. Aviva General Insurance Company, 2020 ONLAT 18-010438/AABS

Before: Avril A. Farlam, Vice Chair

Date: July 6, 2020

File: 18-010438/AABS

Case Name: K.M. v. Aviva General Insurance Company

Written Submissions by:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal

For the Respondent: Sjawal Bhutta, Counsel

OVERVIEW

1The applicant, K.M. (“applicant”) asks for a reconsideration of the Tribunal’s Decision released on January 14, 2020 (“Decision”) in which the applicant was denied two treatment plans for chiropractic services and a total of three treatment plans for psychological, orthopaedic and chronic pain assessments. Aviva Insurance Company (“respondent”) asks that the reconsideration be denied.

Applicant’s Reconsideration Request Made Under Outdated Rules

2As a preliminary observation, I note the applicant made her reconsideration request under Rules 18.2 (a) and 18.2(b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (April 2016) (“old LAT Rules”)¹ which do not apply to this proceeding. The old LAT Rules were replaced on October 2, 2017 by the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“current LAT Rules”), which apply to applications filed with the Tribunal after October 2, 2017. The applicant filed her application in 2018. Therefore, this proceeding and its reconsideration are governed by the current LAT Rules. Further, Rule 18 of the current LAT Rules governing reconsiderations was amended February 7, 2019. Rule 18.5 provides that Rule 18, as amended, applies to any reconsideration of a decision issued after February 7, 2019. The Decision was released January 14, 2020. Therefore, this reconsideration is governed by Rule 18, as amended, of the current LAT Rules. The applicant should have made her reconsideration request under Rule 18 of the current LAT Rules.

3Although neither party made submissions on this error, I am of the view that the failure of the applicant to request reconsideration under the applicable current LAT Rules should not be fatal to her reconsideration request. In comparing the wording of Rules 18.2(a) and 18.2(b) between the old LAT Rules and the current LAT Rules, I note that although they vary somewhat, the difference is not great. In order to avoid putting the applicant to the expense and delay of re-filing the reconsideration request under the applicable Rule and putting the respondent to the expense and delay of re-filing its response, pursuant to Rule 3.1(a) and (b) of the current LAT Rules I am allowing the applicant’s reconsideration request to proceed. I find that allowing the applicant’s reconsideration request to proceed is necessary to facilitate a fair, open and accessible process and to allow effective participation by both parties and to ensure an efficient, proportional and timely resolution of the reconsideration proceeding. I will consider the applicant’s grounds for reconsideration under Rule 18.2(a) and (b) of the old LAT Rules to be made under Rule 18.2(a) and (b) of the current LAT Rules, as amended, and will re-state the applicant’s grounds under the current LAT Rules for clarity.

4The Applicant submits that the Tribunal in the Decision:

i. acted outside its jurisdiction or violated the rules of procedural fairness² when the adjudicator failed to give the applicant an opportunity to present evidence;

ii. has made an error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made³ in relation to the Minor Injury Guideline (“MIG”), chronic pain syndrome and whether the treatment plans in dispute are reasonable and necessary.

RESULT

5The Applicant's Request for Reconsideration is dismissed.

ANALYSIS

6The grounds for a request for reconsideration to be allowed are contained in Rule 18, amended February 7, 2019, of the current LAT Rules. A request for reconsideration will not be granted unless one or more of the following criteria are met:

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

b. 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;

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

d. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

7The onus is on the party seeking reconsideration to establish one or more of the Rule 18 grounds for reconsideration to be successful.

a. Jurisdiction and Procedural Fairness

8The applicant does not argue that the Tribunal acted outside its jurisdiction. The applicant does argue that the Tribunal violated the rules of procedural fairness in deciding the second treatment plan because the Tribunal “failed to give the Applicant an opportunity to present evidence”.

9The Tribunal denied the second treatment plan for chiropractic services on the basis that it was not reasonable and necessary based on the applicant’s failure to adduce enough evidence to support the need for the plan. The Tribunal noted that the “…applicant’s submissions are entirely based on the adequacy of the denial on July 28, 2018. The applicant did not provide further evidence as to why the treatment plan is reasonable and necessary.” The Tribunal found the respondent’s denial to be in breach of s. 38(11) of the Schedule between July 28, 2018 and October 16, 2018 when a proper denial was made but found that it was provided with no evidence that any of the benefits had been incurred during that time.

10The applicant argues that the Tribunal should have advised the applicant of the deficiency or afforded her an opportunity to provide evidence that the treatment had been incurred. The applicant relies on 17-001265 v. Waterloo Insurance⁴ in which another adjudicator gave a party an opportunity to respond to correspondence sent by the opposing party.

11Having reviewed the Decision I am satisfied that the Tribunal did not violate the rules of procedural fairness. The onus is on the applicant to prove that the treatment plans are reasonable and necessary and, if she also chooses to argue non-compliance with s. 38(11) of the Schedule, to put forward relevant evidence to support this. The applicant failed to do so. There is no obligation on the Tribunal to inform a party of evidentiary deficiencies in that party’s case. To do so would be at odds with the Tribunal’s impartiality. The Tribunal is entitled to decide the issues on the record before it and that is what the Tribunal did here. No Tribunal member is bound by the decision of any other Tribunal adjudicator because each case must be determined on its own facts. 17-001265 is factually distinct as that case involved an issue regarding expert’s qualifications that had not been responded to and the Tribunal gave an opportunity to respond. The applicant has failed to demonstrate that the Tribunal violated the rules of procedural fairness.

b. Error of Law or Fact Such that the Tribunal Would Likely have Reached a Different Result had the Error not been Made

12The applicant argues that the Tribunal erred in law and made a significant error in fact in failing to find that the respondent should have re-evaluated the first treatment plan for chiropractic services after the applicant’s removal from the MIG. The applicant relies on several previous decisions of the Tribunal for the proposition that the respondent had a duty to re-assess the treatment plan after the applicant was removed from the MIG.

13Having reviewed the Decision, I am satisfied that it does not contain any such error of law or fact. The Tribunal correctly stated that the onus is on the applicant to establish that the disputed treatment plans are reasonable and necessary. The Tribunal found that the applicant did not do so based on the evidence presented and was entitled to do so. The Tribunal took into account the fact that the first treatment plan was initially denied by the respondent because it took the position that the applicant was within the MIG. However, the Tribunal also found that the applicant failed to submit evidence that established on a balance of probabilities that the treatments are reasonable and necessary for the reasons expressed in paragraphs 18, 19 and 20 of the Decision. The other Tribunal decisions cited by the applicant were not binding and are specific to their facts. Further, paragraph 17 shows that the applicant made this MIG argument at the hearing and it was rejected for the reasons expressed.

14The applicant argues that the Tribunal made a significant error of fact by ruling that the totality of the evidence failed to establish that the remainder of the denied psychological plan is reasonable and necessary and argues that the established issue by the respondent was over the correct rates for payment of the treatment for an incurred psychological assessment. The applicant also argues that the Tribunal made an error in law since the onus is on the applicant to establish that the rates of the incurred psychological assessment is payable and not whether the treatment plan was reasonable and necessary.

15The applicant has misapprehended the issue before the Tribunal in respect of this and the other four treatment plans. The law is clear that under sections 14 and 15 of the Schedule an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving that any proposed treatment plan is reasonable and necessary.

16Having reviewed the Decision, I am satisfied that it does not contain any error of fact or law regarding the treatment plan for psychological assessment. The Tribunal was entitled to assess and weigh the evidence. Here the Tribunal reached the conclusion that this treatment plan was not reasonable and necessary for the reasons expressed in paragraphs 31 and 32 of the Decision.

17The applicant argues that the Tribunal made errors of fact and law in deciding the fourth treatment plan for orthopaedic assessment. These errors are summarized as totally disregarding the fact that the applicant was removed from the MIG on September 26, 2017, overlooked the fact that the applicant had not sustained injuries that are minor in nature, and suffers from impairments “…that are being improperly classified in the MIG”.

18Having reviewed the Decision, I am satisfied that no such errors of fact or law were made. Paragraphs 12, 14, 17 and 23 show that the Tribunal did not disregard or overlook that the applicant had been removed from the MIG or improperly classified the applicant’s impairments in the MIG. Instead and at paragraph 42, the Tribunal found that the applicant did not establish that the orthopaedic assessment is reasonable and necessary.

19Lastly, the applicant argues that the Tribunal made errors of fact or law in deciding the fifth treatment plan for chronic pain assessment. These errors are summarized as failing to consider authorities that discuss chronic pain and the need for a chronic pain assessment to determine recovery status, diagnosis and prognosis, failing to accept the applicant’s medical evidence and preferring the evidence of the respondent’s assessor Dr. Siddiqui.

20Having reviewed the Decision, I am satisfied that no such errors of fact or law were made. The Tribunal applied the correct legal test and found that the applicant failed to establish that the treatment plan is reasonable and necessary. The Tribunal considered the applicant’s medical evidence and found it lacking.

21In this Decision the Tribunal explained why findings of fact were made and conclusions reached. I find no misapprehension of the evidence or errors of law or fact were made as the applicant alleged. The weight to be given to evidence at the hearing is a matter to be determined by the Tribunal. The Tribunal found the applicant’s evidence lacking on all five treatment plans for the reasons expressed.

22I find that the applicant has not established this or any of the other grounds for reconsideration. The grounds for reconsideration of a Tribunal decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. In this particular case, because the applicant has requested reconsideration, the onus is on the applicant to prove her grounds and she has not done so. Instead, the applicant’s submissions appear to be an attempt to reargue the case made before the adjudicator in a new way. A reconsideration is not an opportunity to reargue one’s case or an appeal.

ORDER

23For the reasons noted above, I deny the Applicant's Request for Reconsideration.

Footnotes

1. 1Applicant’s request for Reconsideration dated February 3, 2020 page 1, under License(sic) Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016), Rules 18.1, 18.2(a),(b).
2. 2Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“current LAT Rules”), Rule 18.2(a).
3. 3Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“current LAT Rules”), Rule 18.2(b).
4. 417-001265 v. Waterloo Insurance, 2017 CanLII 87150 (ON LAT).