RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 18-012669/AABS
Case Name: A.G. vs. Aviva General Insurance
Written Submissions by:
For the Applicant: Yaser Saffie, Counsel
For the Respondent: Leanne Zabudsky, Counsel
OVERVIEW
1On July 18, 2019, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter arising under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The issues before the Tribunal were A.G.’s entitlement to a cost of examination expense and interest. The Tribunal determined that A.G. was not entitled to the disputed treatment plan, and as such, no interest was payable.
2A.G. has asked the Tribunal to reconsider that decision.
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.
RELIEF SOUGHT
4A.G. requests that my decision, dated November 25, 2019, be varied to grant his request because the Tribunal made an error of fact such that the Tribunal would likely have reached a different result had the error not been made.
RESULT
5A.G.’s Request for Reconsideration is dismissed.
BACKGROUND
6A.G. was injured in an automobile accident on May 2, 2015 and sought benefits from the respondent (“Aviva”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).
7A.G. was denied certain benefits by Aviva and submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
8In my decision dated November 25, 2019, I concluded that A.G. was not entitled to the physiotherapy treatment plan or interest. My decision determined, on the evidence, A.G. had not persuaded me that the treatment was reasonable and necessary to address his impairments as a result of the accident.
ANALYSIS
9To be successful in a request for reconsideration, A.G. must satisfy one of the criteria set out in section 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) (“Rules”). The criteria are:
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 new evidence that could not have reasonably been obtained earlier and would likely have affected the result.
10A.G. claims my decision made three errors of fact:
(i) The Tribunal's Decision made an error of fact by failing to consider all of the tabs and documents included in the Applicant's Submissions;
(ii) The Tribunal's Decision made an error of fact by failing to consider the letter from Ms. Rochelle Nicdao and the MedRehab recent clinical notes and records; and
(iii) The Tribunal's Decision made an error of fact by failing to carefully consider the Affidavit of A.G., dated July 10, 2019.
11In response to all of the alleged errors of fact, Aviva submits that A.G. is singling out, and selectively relying on, paragraphs, and/or sub-paragraphs of my decision, to find faults that do not exist when the decision is read as a whole.
12I will address each claim in turn.
A. The Tribunal did not fail to consider all of the tabs and documents in A.G.’s submissions
13A.G. referenced paragraph 10 of my decision which states:
To meet his burden of proof, A.G. relies on clinical notes and records and the report/recommendations from the treatment provider. His case for ongoing pain issues is based on:
i. The treatment plan ("OCF-18") in the amount of $1,596.50, dated July 19, 2018 authored by Physiotherapist Rochelle Nicdao; and
ii. Clinical notes and records ("CNRs") of his Family Physician, Dr. Caruso.
14A.G. submits that my decision did not specifically reference approximately ten additional tabs of documents1 that he relied on in support of his position.
15Aviva submits that it is trite law that it is the role of the Adjudicator to consider and weigh the evidence before him and although he is required to consider all of the evidence, he is not required to reference each piece of evidence put before him in his Decision.2
16A review of my decision clearly refutes A.G.’s claim that I failed to consider the additional documents. At paragraphs 10-13, there are specific and general references to documents (Ms. Nicdao’s letter, the clinical notes and records of MedRehab, the report of Dr. Khaled) which A.G. submits I failed to consider.
17In addition, the Tribunal is not required to expressly address every piece of evidence, argument, or case submitted by a party.
B. The Tribunal did not fail to consider the letter of Ms. Nicdao and the clinical notes and records (CNRs”) of MedRehab
18A.G. submits that the following portion of my decision at paragraph 14, supports that I failed to consider the aforementioned documents. The portion of paragraph 14 states:
A.G. has failed to provide any clinical updates from treating practitioners, including the health services provider who completed the treatment plan, to establish that treatments have been effective in reducing his pain or impairment...
19A.G. also submits that this is contrary to the Tribunal stating at paragraph 15b: "A.G.'s failure to provide any clinical updates from treating practitioners to establish objective progress or effectiveness of treatment ... " A.G. contends that he did not fail to provide the clinical notes and records from MedRehab. Such clinical notes and records were submitted with the original Applicant's Submissions at Tab 10.
20Aviva submits that A.G. is mischaracterizing paragraph 14 of my decision. On a plain reading of the paragraph in its entirety it is clear that I did not state that A.G. failed to produce the documents. Reiterating my statement, I said the documents "failed...to establish that the treatments have been effective in reducing his pain or impairment."
21Similarly, at paragraph 15, I addressed the effectiveness of the evidence to establish that the goals of the treatment plan were being met, not whether the specific documents were or were not before me.
22As stated in the previous section regarding the claim that other documents were not considered, I have already established that these two specific documents, Ms. Nicdao’s letter and the CNRs of MedRehab were not only considered, but specifically referenced in my decision. Therefore, A.G.’s claim that I did not consider these two specific documents fails on its merits.
C. The Tribunal did not fail to consider the Affidavit of A.G. dated July 10, 2019
23In support of this third claim, A.G. references a portion of paragraph 15 of my decision as follows:
[ ... ] I am persuaded by A. G.'s self-reporting [ ... ] that the treatment received to date has not proven to be necessarily effective.
24In full, the paragraph reads:
A.G.’s failure to provide any clinical updates from treating practitioners to establish objective progress or effectiveness of treatment leaves me with no evidence to refute Aviva's contention that the proposed treatment will not be effective in reducing his pain or impairment. I am persuaded by A.G.s self-reporting and the evidence of Dr. Khaled that the treatment received to date has not proven to be necessarily effective. A.G. has not met the onus on him to prove that the claimed benefit is reasonable and necessary.
25The risk of not considering paragraphs in their entirety, as A.G. does throughout his request for reconsideration, is that key details are overlooked. To reiterate, I am not required to address every piece of evidence (including affidavits), argument or case submitted by a party. When taking paragraph 15, and the decision as a whole, in context, it was my consideration of various medical evidence that formed the basis of my decision.
26Although A.G.’s claim in the affidavit that he found physiotherapy to be beneficial in the past, I disagreed with his claim, although I did not specifically refer to A.G.’s claims in his affidavit. In my decision, I found that A.G.’s other medical evidence, i.e. Dr. Khaled’s report, to be more persuasive and did not support that further physiotherapy treatment was reasonable and necessary.
27Additionally, A.G. submits that I erred in my finding of fact that A.G. had undergone treatment at a rate of 1-2 times per week for an extended period since the accident because A.G. testified in his affidavit that there were gaps in treatment.
28The three earlier treatment plans attached to Aviva’s responding submissions at TABs A, C and, D, demonstrate that A.G. had attended for treatment at this rate for a significant amount of time.
29In his initial submissions, A.G. relied on the fact he had been treated by Ms. Nicdao for an extended period. At page 4 of his submissions, A.G. stated that Ms. Nicdao had treated him since the time of the accident. On page 7 he refers to Ms. Nicdao as someone who “knew and treated the applicant for years”. Again, at page 8, A.G. reiterated that Ms. Nicdao “has been treating A.G. since the accident”. I find this evidence supports my finding that A.G. received post-accident treatment for an extended period of time.
30I find that my decision appropriately considered all of the evidence, medical, affidavit and otherwise, from both parties. A.G.’s claim that my decision failed on the basis of various errors of fact is without merit.
31As noted throughout my decision, and in this subsequent reconsideration decision, all evidence was considered, whether it was specifically referred to or not. I have established that documents A.G. alleges I did not consider, were in fact specifically mentioned in my decision. In addition, A.G. has failed to show how I would have come to a different conclusion, had I specifically referenced any or all of the aforementioned documents A.G. claimed I did not consider.
32My decision was based on the totality of the evidence before me. As such, I do not agree that I failed to consider relevant evidence such that a different conclusion would likely have been reached. Further, I do not find that an error of fact was made in considering the evidence of the parties. A.G. did not persuade me that the physiotherapy treatment plan was reasonable and necessary, which was the onus that was placed on him.
CONCLUSION
33For the reasons set out above, A.G.’s request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: July 13, 2020
Footnotes
- Applicant’s reconsideration submissions, pg. 3
- Cowles v. Balac, (2006) 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.) at para 117; 16-000066 v Waterloo Regional Municipalities Insurance, 2017 CanLII 19186 (ON LAT) at para 16; 16-000929 v. TD Home and Auto Insurance Company, 2017 CanLII 69239 (ON LAT) at paras 11 and 17; C.W. v. Unifund Assurance Company, 2018 CanLII 11487 (ON LAT) at paras 9 and 10.