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
AMENDED RECONSIDERATION DECISION
Before: Brian Norris, Adjudicator
Date: July 10, 2020
File: 17-007722/AABS
Case Name: M. L. and Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Jeton Memeti Jordan Kirlik
For the Respondent: Candace Mak
OVERVIEW
1The request for reconsideration was filed by the respondent, Aviva Insurance Company of Canada (“Aviva”). It arises out of a decision in which I found the applicant entitled to two treatment plans which include chiropractic therapy, massage therapy, and physiotherapy treatment in the amount of $2,027.00 and $2,569.00 (“the disputed treatment plans”).
2Aviva makes this request pursuant to Rule 18.2(b) of Common Rules of Practice and Procedure, October 2, 2017 (“the Rules”). Aviva submits I erred in law and in fact such that I would likely have reached a different decision had the error not been made.
3Aviva submits that I erred in law and fact by applying the incorrect test to determine whether the disputed treatment plans were reasonable and necessary. Specifically, the respondent submits I applied the incorrect test by relying on the applicant’s subjective complaints and the opinions of psychologists and by not considering objective evidence. Further, the respondent submits, in essence, that I misapplied or misunderstood the parties’ medical evidence, discussed in greater detail below.
RESULT
4The respondent’s request for reconsideration is denied.
BACKGROUND
5The applicant was involved in a motor vehicle accident and, as a result, suffered soft-tissue injuries to the neck and back, as well an adjustment disorder with mild anxiety and depressed mood. The respondent denied her claims to the disputed treatment plans and, in response, she applied to the Tribunal. The Tribunal issued a decision dated July 26, 2018 in which it found the applicant entitled to the disputed treatment plans. In that adjudicator’s view, it was “reasonable and necessary that [the applicant] choose her modality of treatment” to address her physical injuries.
6The respondent requested a reconsideration. The Tribunal found that the adjudicator made a significant error in law by not applying the correct analysis as to whether the disputed treatment plans were reasonable and necessary. As a result, a new hearing on the disputed treatment plans was ordered.
7I presided over that new hearing. I found that the applicant to be entitled to the disputed treatment plans, which are aimed at helping the applicant to increase her range of motion, reduce her pain, increase her strength, and return her to her activities of normal living and working. I weighed the evidence on a balance of probabilities and, ultimately, determined that the treatment plans were reasonable and necessary. The respondent requests reconsideration of this decision.
THE REASONABLE AND NECESSARY TEST
8The respondent submits that I erred in law by applying an incorrect test to address the issues in dispute. It submits the correct test to determine whether a treatment plan is reasonable and necessary must include a consideration of objective supporting evidence. The applicant submits that the Schedule does not prescribe a single test to determine whether a treatment plan is reasonable and necessary. The applicant’s position rests on the previous reconsideration decision of this matter.1 In that reconsideration decision, Associate Chair Jovanovic observed that “there is no one specific test that is used by all adjudicators in determining whether a treatment plan is reasonable and necessary, nor does the Schedule set one out”. I agree.
9I find the Schedule is silent on what must be considered when determining whether a medical benefit is reasonable and necessary. To me, this provides the adjudicator with the flexibility to consider claims based on their individual merit in order to determine whether a benefit is reasonable and necessary. Claims must be addressed according to each claimant’s unique circumstances.
10I see no error in law in considering the applicant’s entitlement to medical benefits on the basis of whether they are reasonable and necessary as a result of the accident. I will now focus my analysis on the respondent’s sub-arguments, which focus on how the evidence is weighed when applying the reasonable and necessary test.
THE EVIDENCE
The applicant’s self-report and psychologist’s opinions
11Aviva submits one cannot prove the reasonableness and necessity of physical treatment with subjective complaints alone and psychological evidence. It submits the adjudicator in 17-002689 v. Aviva Insurance Canada2 (“17-002689”) found subjective complaints alone were insufficient to establish entitlement to a medical benefit. It further submits the adjudicator in 18-006362 v. Aviva Insurance Canada3 (18-006362”) gave no weight to the psychologist’s opinion regarding physical treatment.
12The applicant submits that I considered the evidence in its totality and that the presence of objective supporting evidence is only one factor to consider when determining whether the disputed treatment plans are reasonable and necessary. She submits her case is different than 17-002689 because, in that case, the applicant submitted only the treatment plan and failed to submit any other evidence to support entitlement. Likewise, the applicant submits her matter is different from 18-006362 because, in that case, it was a psychologist who recommended physical treatment, whereas in the applicant’s case a chiropractor recommended the physical treatment.
13I agree with the applicant and, for the same reasons, find this matter is distinguishable from those relied upon by the respondent.
14I find no error in law in considering the applicant’s subjective complaints and psychological evidence in part when considering whether physical treatment is reasonable and necessary. As submitted by the applicant, my decision considered the evidence in its totality. This includes the disputed treatment plans, the clinical notes and records (“CNRs”) of Mackenzie Medical Rehabilitation Centre, the CNRs of Dr. Pilowsky, the psychological insurer’s examination reports by Dr. M. Hanna, Dr. S. Mor and Dr. S. MacKay. I found, on balance, that the applicant has soft-tissue injuries causing ongoing pain which impairs her functionality. Importantly, I found the applicant’s self-reports within the various assessment reports to be consistent, credible, uncontested and, as a result, found her self-reported benefit from psychical treatment to be credible.
15I find my decision is consistent with the reasoning in 17-004357/AABS v. Aviva General Insurance.4 That decision turned on the discrepancies in the applicant’s self-reporting throughout her medical record. The adjudicator in that matter found the applicant’s evidence relied too heavily on her self-reported psychological symptoms and concluded her reports were inconsistent and lacked evidence to clarify or corroborate the applicant’s claims.
16In this matter, the applicant’s evidence of ongoing pain is unfailing, and her self-reporting is consistent throughout. The CNRs from Mackenzie Medical Rehabilitation Centre show she consistently complained of neck and back pain and, likewise, the CNRs from her treating psychologist and the two insurer’s examinations (“IEs”) evidence the same complaints.
17I find no error in law by considering the entirety of the evidence before me to determine whether a medical benefit is reasonable and necessary.
Dr. Hanna’s reports
18Aviva submits that I erred in finding the disputed treatment plans are reasonable and necessary considering, according to the respondent, Dr. Hanna addressed the test for reasonable and necessary and the need for future treatment and, in so doing, found that further facility-based treatment would not provide further rehabilitative benefit. Aviva submits that I ignored this evidence.
19The applicant submits Dr. Hanna’s evidence was outweighed by other evidence, rather than ignored. She further submits that Dr. Hanna’s report focused on whether her injuries were subject to the MIG and that Dr. Hanna’s addendum report was confusing in that it recommends the applicant continue physical exercise, but not any which is “facility-based”.
20I agree with the applicant and find no error in law in my analysis of Dr. Hanna’s reports.
21I considered Dr. Hanna’s report and addendum, as noted in paragraph 9 of the decision. Dr. Hanna’s report noted tenderness throughout the applicant’s shoulders and cervical, thoracic, and lumbar spine. It also noted the applicant reported pain during examination of the cervical spine. However, Dr. Hanna’s examination focused on whether the applicant suffered predominantly minor injuries and concluded that the applicant’s “accident-related injuries fall within the MIG”. Additionally, Dr. Hanna’s minor injury determination is contradicted by the medical evidence before him. Dr. Mor conducted a psychological IE prior to Dr. Hanna’s physician assessment, which Dr. Hanna purported to have reviewed as part of the examination. Dr. Mor found the applicant met the criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which falls outside the minor injury definition, and found that she would benefit from psychotherapeutic support.
22I found Dr. Hanna’s addendum uncompelling and outweighed by the other evidence. The addendum opines that “from a physical perspective, the opinions noted in my previous report…have remained entirely unchanged.” However, the report and addendum have different opinions. The addendum finds the applicant has not sustained an impairment at all, but the initial report found no permanent impairment. The former finding is unequivocal, whereas the latter is qualified with the word “permanent”, which implies there was some impairment to begin with. The determination in the addendum, that the treatment plan is not reasonable and necessary, is based on Dr. Hanna’s examination in the December 2, 2016 IE. However, that examination was conducted to determine whether the applicant’s injuries fell within the minor injury definition. I found that this focus skewed the assessor’s opinion when considering whether the treatment plans were reasonable and necessary to reduce the applicant’s pain, increase her strength and range of motion, and return her to her activities of normal living and working. Further, as submitted by the applicant, the addendum report was somewhat contradictory. Dr. Hanna encouraged the applicant to engage in physical exercise at home but found the disputed treatment plan was not reasonable and necessary because the services proposed, which includes exercises, would not provide any further rehabilitative benefit.
Evidence to justify further treatment
23The respondent submits that, according to 17-004357, the applicant is required to produce evidence which clearly supports and speaks directly to the specific type of treatment sought. The applicant makes no submission on the requirement to produce evidence which clearly supports the specific treatment sought.
24I find that the applicant is required to produce evidence which meets her evidentiary burden. Requiring an applicant to produce evidence which speaks directly to the specific type of treatment sought can create an unnecessary and additional burden on the applicant. Evidence speaking directly to the treatment sought may hold more weight over evidence that does not, but it is not a strict requirement in order to prove certain medical benefits are reasonable and necessary. The applicant is required to produce evidence that, on a balance of probabilities, is compelling enough to prove that the benefit claimed is reasonable and necessary.
25I find that the respondent overstates the importance of having evidence speak directly to the specific type of treatment sought. This is because objective evidence speaking directly to the specific type of treatment is not a requirement. In 17-004357, the adjudicator found evidence speaking directly to the specific type of treatment sought was only one of four reasons explaining why the applicant in that case failed to meet her onus to establish that a disputed physiotherapy treatment plan was reasonable and necessary. The analysis on the reasonable and necessary test as outlined in 17-004357, and the requirement for objective evidence speaking directly to the specific treatment sought, was referenced in the first reconsideration decision of this matter, as noted previously. In the reconsideration, Associate Chair Jovanovic wrote “there is no one specific test that is used by all adjudicators in determining whether a treatment plan is reasonable and necessary, nor does the Schedule set one out”. The Associate Chair characterized the analysis in 17-004357 as “typical” but does not consider it to be a requirement.
26Further, in 17-004357, the adjudicator also notes the possible persuasiveness of evidence from an applicants’ subjective reports. He states that “compelling evidence from the applicant herself about the effectiveness of treatment in relieving pain or improving function would also be persuasive.” In that case, however, the applicant “[did] not provide that corroborating evidence” (emphasis mine). In my view, the adjudicator clearly acknowledges that statements from an applicant can be considered corroborating evidence, but such statements were absent.
27Considering the submissions and case law before me, I find no error in law in allowing the applicant to rely on evidence which does not speak directly to the specific treatment sought.
IT IS POSSIBLE TO BOTH APPEAL AND ASK FOR RECONSIDERATION?
28The respondent has, in essence, both applied for judicial review and appealed to the Divisional Court pending the outcome of this request for reconsideration. The applicant suggests this practice is contrary to Rule 18 of the Common Rules of Practice and Procedure (“the LAT Rules”). However, this position is too broad in that it fails to specify what part of Rule 18 was contravened and how. Further, the applicant led no authority, be it legislation or case law, to support this submission. The respondent submits there is nothing preventing it from applying for judicial review pending the outcome of this reconsideration decision and that its position is supported by the case law.
29I agree with the respondent because its interpretation is consistent with Taylor v. Aviva5. In that decision, the Divisional Court found that Rule 18 permitted the reconsideration of the Tribunal’s decision and that section 11 of the Licence Appeal Tribunal Act, 1999, makes no indication that a request for reconsideration restricts the right of appeal in any way. As a result, it concluded “it is possible to both appeal and ask for reconsideration”.
COSTS
30The applicant requested costs in the amount of $1,000.00 and submits the respondent’s decision to both appeal and ask for reconsideration is vexatious and unreasonable. The respondent characterizes its behavior as exercising its legal rights. I agree.
31Pursuant to rule 19.1 of the Rules, costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith.
32There is no evidence suggesting the respondent’s actions are unreasonable, frivolous, vexatious, or in bad faith. As found above, the respondent has not violated any rules or regulations in its appeal and request for reconsideration.
CONCLUSION
33The reconsideration of a decision is warranted only where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome.6 The respondent has not met its onus to prove I made a significant legal or evidentiary mistake.
34The respondent claims that I applied the incorrect legal test to determine whether a treatment plan is reasonable and necessary but provided no alternative test for me to consider. It has failed to meet its onus to prove a significant error of law occurred. It has also failed to prove I erred in law or fact by considering the subjective complaints of pain throughout the applicant’s medical record, including the CNRs of her psychologist.
35The respondent has failed to prove that I erred in law or fact by not requiring evidence which speaks directly to the specific treatment sought. Likewise, it has failed to prove I erred in law or fact by finding Dr. Hanna’s opinion less persuasive than the balance of the applicant’s medical record.
36Neither party has acted unreasonably, frivolously, vexatiously, or in bad faith.
37For these reasons and the details noted above, I deny the respondent’s request for reconsideration and the applicant’s request for costs.
Released: July 10, 2020
_____________________________________
Brian Norris Adjudicator
Footnotes
- M.L. v Aviva Insurance Company of Canada, 2019 CanLII 83886 (ON LAT).
- 2018 CanLII 2311 (ON LAT).
- 2019 CanLII 63382 (ON LAT)
- 2018 CanLII 13152 (ON LAT)
- 2018 ONSC 4472 (Div Ct.)
- 17-006956/AABS v The Guarantee Company of North America, 2018 CanLII 130585 (ON LAT) para. 8