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: Brian Norris, Adjudicator
File: 18-009689/AABS
Case Name: K. H. vs. Gore Mutual Insurance
Written Submissions by:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Arthur Robert Camporese, Counsel
OVERVIEW
1The applicant, K. H., filed this Request for Reconsideration. It arises out of a decision which I found the applicant entitled to medical benefits proposed in a treatment plan dated May 30, 2018, but not entitled to an award pursuant to section 10 of Ontario Regulation 664. The decision found the respondent’s actions, or inaction, did not amount to unreasonably withholding a benefit.
2The applicant makes the request pursuant to Rules 18.2 (a) and (b) of the Common Rules of Practice & Procedure (the “Rules”)1. The applicant submits I made an error of law or fact when considering her entitlement to an award such that the Tribunal would likely have reached a different result had the error not been made.
RESULT
3As explained below, I deny the applicant’s request for reconsideration. I am not satisfied that a significant error of law or fact occurred such that the Tribunal would have reached a different decision had the error not been made.
DISCUSSION AND REASONS
4The applicant was injured in an automobile accident and sought benefits from the respondent pursuant to Ontario Regulation 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). In response, the respondent sought an insurer’s examination (“IE”) to determine the applicant’s entitlement to a certain treatment plan. Prior to the IE, the parties negotiated and agreed on the questions that the assessor would answer and, importantly, agreed to not ask the assessor to provide a prognosis on the applicant's recovery. Yet, the IE occurred, and the report prognosticated that the applicant will have reached maximum medical benefit from facility-based treatment once she completes the subject treatment plan.
5The applicant sought entitlement to another medical benefit and the respondent denied her entitlement. The unsolicited prognosis contained in the IE report was the basis for the respondent’s denial.
6I presided over the written hearing on the applicant’s entitlement to the denied treatment plan and an award and found her entitled to the treatment plan but not an award. I found that even though the decision to deny it was incorrect, it was not unreasonable to rely on the IE report to deny entitlement to the treatment plan.
7The applicant seeks a reconsideration of my decision pursuant to Rule 18. The onus is on her to prove that the decision satisfied one or more of the criteria outlined in Rule 18.2.
8The applicant submits I erred in law and fact in finding that the respondent’s behavior did not warrant an award. However, several of her submissions require no analysis because they are overly broad and make no reference to any error in law or fact. For instance, she discussed her attempts to change the respondent’s position on her entitlement to the treatment plan and that she believes the respondent disregarded all other evidence but for the IE and did “nothing” to adjust the claim following submission of the disputed treatment plan. These submissions are analogous to her initial submissions and fail to identify any error of law or fact and, thus, require no analysis.
9I will now address the applicant’s reasons which identify an error of law or fact. They fall under two categories: 1) the decision does not consider the respondent’s inactions following the denial, namely not taking the steps provided by the Schedule to ensure a fair assessment of her request for treatment; and 2) the decision failed to consider the “wisdom of allowing a prognosis to be offered” and the purpose of IEs.
10The respondent submits that the decision considered the respondent’s inaction and found it did not meet the threshold for an award. With respect to the second position, the respondent agrees with the decision and reiterates that the Schedule does not prevent IE assessors from prognosticating, and where the prognostication occurs, it should be weighed and considered amongst the balance of the medical evidence and opinions.
11I agree with the respondent and find that the applicant has failed to prove that a significant error in law or fact occurred, which if it hadn’t, would lead to a different result. My reasons are as follows.
The respondent’s inaction
12The decision considered the respondent’s inaction following the submission of the disputed treatment plan during the analysis of an award. I found the respondent’s inaction was reasonable in light of the evidence before it because the IE had concluded that no further facility-based treatment was necessary. While the respondent’s decision to deny the treatment plan was ultimately determined to be wrong, it was not unreasonable to rely on the opinions in an IE report that are provided by a regulated healthcare professional.
13The applicant failed to meet her onus to show there was an error in law in my finding that the respondent’s inaction failed to meet the threshold for an award. She provides no legislative or precedential authority to explain her position that the respondent’s inaction following the submission of the disputed treatment plan was of bad faith and did not follow the appropriate steps as directed by the Schedule. She fails to identify what the appropriate steps were and where the respondent breached the directions of the Schedule. Similarly, the applicant implies that the respondent has an obligation to conduct an IE prior to denying entitlement to a treatment plan but provides no authority for this position. I see no such provision in the Schedule.
Relying on a Prognosis in an IE Report
14The circumstances surrounding the prognosis in the IE report were considered in the decision. The analysis of the evidence included a weighing of the IE report, and the prognosis contained in it, against the balance of the evidence. In paragraph 15 of the decision, I found the IE report uncompelling and noted that the “prognosis is provided in advance of the applicant engaging in the treatment and without knowing how the applicant will respond to the treatment.” The award analysis also considered the impact of the prognosis in the IE report and found that such an analysis is best addressed when weighing the evidence.
15I see no error in law in how the issue of the prognosis in the IE report was analyzed. The applicant provides no authority to support her position that there was an error in law in this respect. She makes no reference to any provision in the Schedule which bars IE assessors from prognosticating. Likewise, she makes no reference to any provision which bars the respondent from relying on a previously-completed IE to determine entitlement to a newly-claimed benefit.
CONCLUSION
16Upon review of the submissions and evidence, I find the applicant has failed to meet her onus to prove a significant error of law or fact occurred that would have resulted in a different outcome had it not occurred. Thus, I deny the applicant’s request for reconsideration.
Brian Norris, Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: August 12, 2020