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
RECONSIDERATION DECISION
Before: Sandeep Johal, Adjudicator
File: 18-009182/AABS
Case Name: B.M. v. Aviva Insurance
Written Submissions by:
For the Applicant: Ryan St. Aubin, Counsel
For the Respondent: Christine McKenna, Counsel
OVERVIEW
1Both the applicant and respondent filed requests for reconsideration. The reconsideration requests arise out of a decision dated November 22, 2019 in which I found the two out of three chiropractic treatment plans to be reasonable and necessary. The third treatment plan was denied as a result of being found to be duplicative and not reasonable and necessary.
2The applicant (“B.M.”) submits that I made several significant errors of law or fact such that the Tribunal would likely have reached a different decision and that the applicant now has new evidence to show that the denied treatment plan was not a duplicative request for treatment and was incurred.
3The applicant requests the Tribunal reverse its decision on the denied chiropractic treatment plan and make a finding that the treatment plan is reasonable and necessary as part of this reconsideration.
4The respondent requests a reconsideration for the two approved chiropractic treatment plans and submits that I made significant errors of law and fact such that I would likely have reached a different result had the errors not been made.
RESULT
5The applicant’s Request for Reconsideration is denied and the respondent’s Request for Reconsideration is granted.
The Tribunal decision dated November 22, 2019 is hereby varied with the following outcome.
6The following treatment plans are not reasonable and necessary.
a. Chiropractic treatment in the amount of $1,296.75
b. Chiropractic treatment in the amount of $2,268.02; and
c. Chiropractic treatment in the amount of $4,195.85.
d. The applicant is not entitled to any interest.
ANALYSIS
7I will begin my analysis by discussing the applicant’s request for a reconsideration first and then moving on to discuss the respondent’s request for a reconsideration.
8The grounds for a Request for Reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be grated unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
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.
Applicant’s Request for Reconsideration
9The applicant submits that Rule 18.2(b) applies as the Tribunal erred in making a finding that the chiropractic treatment plan in the amount of $1,296.75 dated September 27, 2016 was duplicative to the chiropractic treatment plan that was submitted and approved by the respondent on August 30, 2016 (which was not an issue in dispute for the original hearing).
10As part of her reconsideration request, the applicant seeks to introduce new email evidence which was not part of the original hearing from the office manager of the treating chiropractic clinic, Movement Physio (previously known as The Physical Therapy Institute). This new evidence the applicant relies upon was to prove that the treatment plan was not a duplicate treatment and was in fact incurred.
New Evidence under Rule 18.2(d)
11For the following reasons I find that the applicant is not entitled to rely upon the new email evidence in support of the denied treatment plan.
12In the applicant’s submissions, other than introducing the emails, she provides no further submissions on why the emails should be accepted as new evidence in accordance with Rule 18.2(d).
13The respondent’s position is as follows:
Rule 18.2(d) bars new evidence and argument on a reconsideration
The reconsideration process cannot be used to relitigate matters that should have been addressed at first instance.1
The parties are expected to provide the Tribunal with all the evidence that they intend to rely on to prove their case at the hearing.2
Previously available evidence cannot be introduced for the first time on reconsideration.3
Where documents were created after the Tribunal decision is released, such documents have been considered “available” to the applicant prior to the hearing where the applicant could have reasonably obtained the documents.4
The reconsideration process is not intended to be an opportunity for parties to fill in the evidentiary gaps or supplement the evidence that should have been provided prior to, or at, the hearing.5
14As a result of the above submissions and case law, it is the respondent’s position that the applicant is trying to introduce new evidence that could have been obtained prior to the hearing and by doing so, she is trying to fill in the evidentiary gaps as noted by my original decision.
15I agree with the respondent’s submissions and the case law being relied upon in support. The applicant has not provided any submissions on why this email evidence could not have been obtained prior to the hearing.
16Furthermore, the respondent raised the issue of the duplicative treatment plan in its submissions and the applicant could have used her reply submissions to address the respondent’s submission and provide this email evidence in support but did not do so.
17The email was dated after the Tribunal’s decision was released and the applicant has not explained why it could not have been obtained prior to the hearing. The reconsideration process is not an opportunity to correct any evidentiary gaps noted from the original decision and in my view, the information the applicant now seeks to rely upon could have been reasonably obtained and provided in the applicant’s reply submissions after they were raised by the respondent.
18The onus is on the applicant and I have not been persuaded on a balance of probabilities that this email evidence the applicant now seeks to introduce could not have been obtained previously.
19As a result, I find that the email evidence dated December 12, 2019 cannot be introduced for the first time as part of the reconsideration process and the requirement of Rule 18.2(d) has not been met.
No error of fact or law under Rule 18.2(b)
20In my view, there is no error of fact or law such that I would have reached a different conclusion had the error been made with respect to the denied chiropractic treatment plan.
21The applicant submits that in light of the new email evidence the denied treatment plan should be found to be reasonable and necessary and because the evidence demonstrated that the applicant had a medical need for chiropractic treatment before and after the treatment plan in dispute.
22The respondent submits that there was no error of fact and law that was made in the original decision and the reconsideration process should not be turned into a separate adjudicative or fact-finding forum.6
23The respondent further submits that the applicant has not met her onus to show that I made significant error such that I would have reached a different decision and the applicant is seeking to reargue the same issue as part of the reconsideration process, which is not permitted.7
24I agree with the respondent and the case law in support. The applicant has not provided any submissions, on any significant errors made in the original decision such that I would have arrived at a different outcome. The applicant seeks to rely on new email evidence obtained after the release of the original decision in support of her view that I made a significant error. Other than the attempt to add new email evidence for this reconsideration, I have not been persuaded on a balance of probabilities that there was a significant or any error made in the original decision denying the chiropractic treatment plan that would likely have affected the result.
25As a result of the above, I find that I did not commit an error of fact or law under Rule 18.2(b) such that I would likely have reached a different conclusion and the applicant’s request for a reconsideration is dismissed.
26I will now turn to discuss the respondent’s request for reconsideration.
Respondent’s Request for Reconsideration
Was there an error of fact and law in finding the treatment plans were reasonable and necessary?
27After a review of the parties’ reconsideration submissions and evidence, I find that there was a significant error of law and fact such that I would have reached a different conclusion had the error not been made. I will proceed to outline my reasons for that conclusion.
28The respondent submits that in my original decision I misapplied the case law such that I found the applicant’s pain complaints alone are sufficient to justify a treatment and assessment plan as reasonable and necessary which identifies pain relief as its only goal. It is the respondent’s position that such treatment should improve function and produce benefits to the applicant.
29In support of its reconsideration submissions the respondent relies upon case law that states where pain relief is a valid treatment goal, adjudicators have expressly linked pain relief to improved function and that the treatment plans are likely to produce results.8
30Furthermore, the respondent submits that the applicant’s contemporaneous evidence around the time of the submission of the treatment plans showed that the treatment did not improve her function and the applicant denied any improvement from ongoing therapy to both insurer examination (“IE”) assessors, Dr. Nesterenko and Dr. Gembora. The applicant further denied any improvement to her own treatment providers at the Physical Therapy Institute and to her own psychologist and psychotherapist, and that she stated to them that her pain problems were getting worse.9
31Furthermore, according to the respondent, the applicant did not give direct evidence during the hearing that the treatment she received had improved her function in any way and that she maintained that her pain had been “constant” since the accident.10
32It is the respondent’s position that the original decision was based on an error of law because pain relief alone is not a valid treatment goal and an adjudicator must expressly link pain relief to improved function and that the treatment plans are likely to produce positive results. Furthermore, a failure to engage in this analysis resulted in an improper application of the applicant’s evidentiary burden and she has not demonstrated the treatment plans were reasonable and necessary on a balance of probabilities because of the following:
The applicant did not provide evidence of an increase in function with treatment.
The applicant did not provide objective evidence of pain relief with treatment.
The applicant did not provide updates to establish progress or effectiveness of the disputed treatment.
The applicant’s pain complaints did not change despite the months of treatment prior to and after the submission of the treatment plans, her pain was noted to have increased and there was no progress at all.
The applicant had reached maximal medical recovery (MMR) by the time she saw IE assessor, Dr. Nesterenko which means that the stated goal of pain relief was not achievable.
33The applicant submits that there is ample medical evidence that supports her need for chiropractic treatment and, as stated in my original decision, I found that the applicant had proven on a balance of probabilities that the two chiropractic treatment plans were reasonable and necessary. Furthermore, the medical evidence established that the applicant is in pain and the treatment plan in dispute has a goal to provide pain relief, which is a reasonable and legitimate goal of treatment.
34I agree with the respondent. In my original decision I found the evidence established that the applicant suffered from pain and as a result, I found the treatment plans to be reasonable and necessary as a result of her pain and that she was entitled to seek treatment for her pain.
35In my view, the error that was made in the original decision was linking the applicant’s pain to her request for ongoing treatment. If the treatment does not provide any relief of her pain, the treatment plan is not effecting its goal of reducing her pain, and that would be evidence in support of the position that the treatment is not reasonable and necessary. It would be inconsistent with the Tribunal jurisprudence the respondent relies upon, that the medical evidence must demonstrate that the applicant’s condition is improving as a result of the treatment.11
36In the original decision, I erred in finding that the applicant was entitled to treatment as a result of her pain without taking into account that the applicant did not direct me to any evidence that the treatment plans have produced a positive result, which is inconsistent with other Tribunal case law. Although I am not bound by another member’s decision, I agree with the premise from the Tribunal case law the respondent relies upon that the goals of the treatment plan must be met to a reasonable degree. In the present case, the goal of pain reduction was not being met and that was not considered in the original decision. That was an error, significant enough that I would likely have reached a different conclusion.
37The fact that the applicant is in pain is not in dispute;12 however, the original decision failed to recognize the evidence of the IE assessors and the applicant’s own evidence from her treating clinic and psychological sessions, clinical notes and records that state the applicant found the treatment was not beneficial and had not reduced her pain at all. The original decision did not address the case law the respondent relied upon that stated that there must be some functional improvement and a reduction in her pain so as to show that the treatment plan is achieving its goal.
38In this case, the applicant was in pain; however, her pain was not improving and she was not finding any relief from the treatment, and as a result there must be evidence to show that the treatment is improving her objective injuries, impairment and function.13
CONCLUSION
39For the reasons noted above, I dismiss the applicant’s Request for Reconsideration and the respondent’s Request for Reconsideration is granted.
40The Tribunal decision dated November 22, 2019 is hereby varied with the following outcome.
41The following treatment plans are not reasonable and necessary.
a. Chiropractic treatment in the amount of $1,296.75
b. Chiropractic treatment in the amount of $2,268.02; and
c. Chiropractic treatment in the amount of $4,195.85.
d. As a result, the applicant is not entitled to any interest.
Released: June 30, 2020
Sandeep Johal
Adjudicator
Footnotes
- 16-000066 v. Waterloo Regional, 2017 CanLII 19186 (ON LAT) at para. 13.("Waterloo Regional")
- H.T. v. TD Insurance Company, 2017 CanLII 82018 (ON LAT) at para. 25.("H.T.")
- 17-006956 v. The Guarantee Company, 2018 CanLII 130858 (ON LAT) at paras. 11-13; and Waterloo Regional
- H.T. at para. 25.
- H.T.; and J.L. v. TD Insurance, 2019 CanLII 119805 (ON LAT) at para. 10.
- I.K. v. Primmum Insurance Company, 2018 CanLII 13162 (ON LAT) at para. 27; and H.T. at para. 11.
- ST v. Economical Mutual Insurance Company, 2018 CanLII 61170 (ON LAT) at para. 13.
- LW and the Cooperators General Insurance Company, 2016 CanLII 93133 (ON LAT) at para. 11; Wong v. Allstate Insurance Company of Canada, (September 22, 2000; Adjudicator Renahan) FSCO No. A99-000545 at pgs. 9-10; and KW and Certas, 2018 CanLII 130866 (ON LAT) at para. 10.
- Respondent’s Request for Reconsideration Submissions at Tab C-Respondent’s Submissions, para’s, 26 and 30; Tab B9, Applicant’s Submissions, CNRS’s of the Physical Therapy Institute; Tab B13, Applicant’s Submissions, psychotherapy clinical notes and records; Tab B14, Psychological Assessment Report dated May 6, 2017; and Tab B15, Psychological Progress Report dated April 8, 2018.
- Respondent’s Request for Reconsideration Submissions at Tab E, Affidavit of B.M. at paras. 9, 17, 18, 19; Tab F, Transcript of Cross-Examination of B.M.
- VT and Aviva, 2019 CanLII 72210 at para. 14; RK and RBC, 2019 CanLII 101568 at paras. 10-11; and GL and TTC, 2019 CanLII 101848 at para’s 18-22.
- Respondent’s Request for Reconsideration Submissions at para. 26.
- 17-003906 v. The Guarantee Company, 2018 CanLII 39446 (ON LAT)