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: Patricia McQuaid, Vice Chair
File: 18-007082/AABS
Case Name: M.S. v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Richard Stancu, Paralegal
For the Respondent: Adina Strom, Counsel
OVERVIEW
1The Applicant M.S. (“Applicant”) asks for a reconsideration of the Tribunal’s Decision released on March 6, 2020 (the “Decision”) in which the Applicant was denied a treatment plan for chiropractic services and a treatment plan for post concussive therapy. Aviva Insurance Company (“Respondent”) asks that the reconsideration be denied.
2The Applicant makes her reconsideration request under Rule 18.2 (b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“the Rules”).
3The Applicant submits that the Tribunal in the Decision made an error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made1 in relation to whether the treatment plans in dispute are reasonable and necessary.
RESULT
4The Applicant's Request for Reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration to be granted are set out in Rule 18.2 of the Rules. The Applicant submits that Rule 18.2(b) applies in this matter: that the Tribunal made errors of fact and law. Any such error must be enough that the Tribunal likely would have come to a different decision had the error not been made.
6The Applicant argues that the Tribunal erred in law by failing to consider and weigh all the evidence, though purported to have decided all of the issues in dispute on the totality of the evidence before it, and by making a material finding of fact that was not supported by the evidence. Having reviewed the Decision, I am satisfied that it does not contain any such error of fact or law. The Tribunal correctly stated that the onus is on the Applicant to establish that the disputed treatment plans are reasonable and necessary. The Tribunal decided that the Applicant did not do so based on the evidence presented and was entitled to do so.
7The Tribunal notes that it is trite law that a tribunal need not expressly address every piece of evidence submitted by a party, which was acknowledged by the Applicant in her submissions.
8On reading the Decision, it was not the case of the Tribunal “cherry picking evidence in support” of the conclusion as submitted by the Applicant but, rather, as stated in paragraph 8 of the Decision, after a careful review of the various medical reports submitted by the Applicant, the Tribunal concluded that there was insufficient evidence to support the conclusion that the treatment plans were reasonable and necessary. The Applicant had not met her onus.
9It is also apparent from the Decision that, when considering entitlement to the treatment plan for chiropractic services and the treatment plan for post concussive therapy, the Tribunal weighed (and specifically cited) the various reports submitted including those of Dr. Chan and Dr. Bhattia which the Applicant referred to in these submissions. The Tribunal stated that specific evidence in support of the treatment plans was not clear and, at times, conflicting (paragraph 6 of the Decision). The Applicant now submits that the reports of Dr. Chan and Dr. Bhattia, an optometrist and psychologist respectively, be preferred over other medical evidence submitted by her at the hearing and, in particular, over that of the Applicant’s primary treating physician.
10The Applicant disagrees with the weight accorded to the evidence of her primary treating physician and her ophthalmologist. The Applicant further disagrees with the findings of fact made by the Tribunal, on the balance of probabilities, based on that evidence. The Tribunal did not address the causation issue (an issue that was not before the Tribunal in this hearing) in the Decision as suggested was done by the Applicant in her reconsideration submissions, but rather, considered the Applicant’s medical evidence put before it in assessing and weighing whether the treatment plans were reasonable and necessary, which was the issue to be decided.
11Disagreeing with how much weight the Tribunal gave to certain reports, all of which were submitted as evidence by the Applicant, is not a ground upon which to grant a request for reconsideration. The Applicant is essentially attempting to re-argue her case. Re-weighing the evidence is not the task on a request for reconsideration.
12Reading the Decision, it is clear that the Tribunal considered the comment and discussion within the reports of Dr. Chan and Dr. Bhattia, even though their reports specifically addressed their individual treatment plans which were not before the Tribunal. The Applicant notes that their treatment plans were limited to their areas of expertise but submits that their observations and conclusions be read expansively in order to provide substance for the Applicant’s post concussive symptoms and support the chiropractic and post concussive (brain based) therapy. The Tribunal did not misapprehend this evidence but, rather, did not find support for the reasonableness or necessity of the treatment plans within the assessments of either doctors. In the Decision, the Tribunal explained why findings of fact were made and conclusions reached. The Tribunal considered the Applicant’s medical evidence in support of the treatment plans and found it lacking.
13I find that that the Applicant has not established grounds for reconsideration as required by the Rule. The Applicant has requested reconsideration and the onus is on her to prove her grounds and she has not done so. Instead, she appears to be attempting to re-argue her case before the Tribunal in a new way. As stated above, this is not the function of reconsideration.
ORDER
14For the reasons noted above, I deny the Applicant's Request for Reconsideration.
Released: August 14, 2020
Patricia McQuaid
Vice Chair
Tribunals Ontario – Safety, Licensing Appeals and Standards Division