RECONSIDERATION DECISION
Before: Craig Mazerolle
Case Name: G.R. v. Aviva General Insurance Company
Written Reconsideration Submissions by:
For the Applicant: Lisa Bishop
For the Respondent: Amanda Lo Cicero & Patrick Baker
BACKGROUND
1Due to injuries sustained from an accident on June 17, 2016, the applicant sought medical and attendant care benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”).1 The respondent denied some of these benefits, and the applicant filed an application with the Tribunal.
2In a decision dated August 14, 2019, I found that the applicant was entitled to some of the disputed benefits.2 Specifically, while I concluded that she was not entitled to an attendant care benefit, I awarded her the disputed medical benefits (i.e., four treatment plans for physiotherapy services; a treatment plan for psychological services; a treatment plan requesting a functional impairment assessment; and a treatment plan for a chronic pain assessment).
3Further, in finding that the respondent unreasonably withheld payment of the functional impairment assessment, I granted the applicant an award amounting to 20% of this disputed amount. In accordance with s. 3(8) of the Schedule, I then deemed the functional impairment assessment to have been incurred.
4Both parties took issue with this decision, and so both parties filed Requests for Reconsideration. For the reasons that follow, I find that the respondent’s Request for Reconsideration is upheld, in part. The applicant’s Request is dismissed in full.
PARTIES’ POSITIONS
5The grounds for granting a reconsideration are enumerated in Rule 18.2 of the Tribunal’s Common Rules of Practice & Procedure (the “LAT Rules”):
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 evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6The respondent challenged the Original Decision on the following grounds:
a. The Tribunal made a significant error in law by finding that the applicant was entitled to psychological services following the conclusion of duplicative services she was receiving at the time of the treatment plan’s submission;
b. The Tribunal breached its right to procedural fairness by not providing the respondent with notice of its intention to rely on s. 3(8) to deem the functional impairment assessment as incurred; and,
c. The Tribunal incorrectly challenged its decision to seek a further insurer’s examination report from Dr. Michael Hanna (dated February 21, 2017).
7In response, the applicant argued that the respondent is attempting to relitigate issues that have already been decided. Further, she noted that my decision to limit her entitlement to psychological services incurred after October 17, 2017 (i.e., the end of her OHIP-funded therapy) benefited the respondent, as I could have ordered it to pay for all the incurred services. Finally, the applicant stated that she did, in fact, refer to s. 3(8) of the Schedule in her submissions.
8In her Request for Reconsideration, the applicant challenged the Original Decision as follows:
a. The Tribunal made an error in law by not considering whether the requested attendant care services were reasonable and necessary; and
b. The Tribunal failed to deem these attendant care services as incurred under s. 3(8)—an error in law that contradicts the finding in Belair Insurance Co. v. McMichael3, as well as evidence about when she learned about her removal from the Minor Injury Guideline (the “MIG”).
9In addition to arguing that she is putting forward submissions that were not part of her original submissions, the respondent contended that there was no need to determine whether the disputed attendant care services were reasonable and necessary.
RESPONDENT’S RECONSIDERATION REQUEST
Psychological Services
10Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating (on a balance of probabilities) that the expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.
11Based on the medical evidence provided by the applicant, I concluded that the proposed psychological services (as listed in a treatment plan submitted on November 8, 2016) were reasonable and necessary. However, considering the applicant received OHIP-funded psychotherapy from August 2016 to October 17, 2017, I found that any services incurred before that date were duplicative, and therefore not payable.
12In challenging this part of the Original Decision, the respondent argued that there is no evidence from in and around October 2017 that supports the reasonable and necessary nature of these psychological services. Additionally, the applicant told its psychological assessor, Dr. Shari Schwartz, that she did not want to see any other service providers than the one she then had (report dated January 27, 2017). Therefore, without contemporaneous evidence to support the provision of further therapy, the Tribunal made a consequential legal error that will require insurers “to fund treatment at indeterminate dates in the future when said treatment may no longer be needed.”
13I do not find this argument meets the standard enumerated under Rule 18.2, as it effectively asks that I reweigh the evidence that was before me at first instance. As noted in the following extract from my Original Decision, I was provided with records from the applicant’s OHIP-funded service provider that allowed me to conclude that similar services should be funded by the respondent after October 2017:
… Then, in August 2016, the applicant was referred to both individual and group psychotherapy… Records from these psychotherapy programs directly link the accident to her mental health struggles, and she was eventually removed from [the MIG] in January 2017 on account of an accident-related, psychological impairment.
These program records also demonstrate the relief she has received from attending regular psychotherapy sessions. Whether it is learning relaxation techniques or discussing her daily motivation levels, both individual and group therapy appear to be important tools for addressing her accident-related, psychological impairment.4
14The respondent then cited several cases from the Tribunal in support of this position. First, in S.E. v. Gore Mutual Insurance Company, Adjudicator Lake denied two disputed treatment plans for physiotherapy, in part, because the applicant failed to provide credible evidence “dated in or about the time that [the treatment plan] was submitted to Gore.”5 Then, in W.C.C. v. Allstate Canada, Adjudicator Daoud took issue with how the family physician’s records from the applicant all pre-dated the two disputed treatment plans.6 Finally, Adjudicator Pinto made the following comments about the paucity of medical evidence provided by the applicant in 17-007244 v. Motor Vehicle Accident Claims Fund:
The applicant has not adduced sufficient medical evidence to show what his condition was at the time these treatment plans were proposed… In addition, I do not have the benefit of the records from any rehabilitation clinic or the chronic pain facility where the applicant received treatment to provide me with an understanding of the applicant’s condition around the time of the proposed treatment plans. It is also unclear if the applicant has been seeking treatment at the chronic pain facility where he was referred by his family doctor. The applicant did not point to any specific entries within Dr. Ho’s records that would support the need for ongoing facility-based physical rehabilitation for the time period of the proposed treatment plans.7
15Beyond the fact that I am not bound by the rulings of my fellow adjudicators, the common thread connecting all these cases is a lack of medical evidence. For instance, while Adjudicator Pinto took issue with how dated some of the medical evidence was in MVACF, the main thrust of this decision was how the applicant provided little to no records in support of his claim. In the present dispute, I was satisfied that there was sufficient evidence to support the applicant’s claim, so I see no need to overturn this earlier finding.
Award for the Functional Impairment Assessment
16Section 10 of Regulation 664 permits the Tribunal to “award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured” if the Tribunal “finds that an insurer has unreasonably withheld or delayed payments”.
17By relying on the finding I made about the unconvincing reasons provided by Dr. Hanna for denying the functional impairment assessment, I used the following reasoning to grant an award:
… To review: the applicant submitted a request for this assessment on January 21, 2017; in an unrelated report released on January 27, 2017, Dr. Hanna suggested the applicant should complete a functional abilities evaluation; the respondent issued a explanation of benefits on February 6, 2017 informing the applicant that the treatment plan for the proposed functional impairment assessment was being sent for a paper review; Dr. Hanna released a report on February 21, 2017 that found this proposed assessment to not be reasonable and necessary. As noted above, I do not find that the assessor provided a convincing account for why his opinion changed in this short period of time.
Therefore, in light of my earlier findings, I find the respondent’s reliance on Dr. Hanna’s changing opinion was an unreasonable withholding of this assessment. I would also question why the respondent felt it necessary to submit this treatment plan for a further review when its assessor had already recommended a similar assessment just a few days before.8
18The respondent challenged this determination, as it contended that I erred in concluding that the respondent should not have asked for a second report from Dr. Hanna. It also stated that Dr. Hanna had access to more medical records during this second report than in his original. The respondent then cited the Tribunal’s decision in 16-002858 v. State Farm Insurance Company, wherein Adjudicator Johal concluded that it is not enough for an insurer’s report to be unfounded, but rather “[t]here must be unreasonable conduct by the respondent” before an award can be granted.9
19I do not accept this submission, as—once again—it is not enough for a party to disagree with a finding made by the Tribunal. Rather, it must be shown that a factual or legal error was committed, and that “the Tribunal would likely have reached a different result had the error not been made”. Beyond the fact that granting an award under Regulation 664 is a highly discretionary determination, I have not been presented with a credible reason to question my interpretation of s. 10 (or why one of the factual findings underpinning this award was incorrect).
20Further, I do not find the reasoning in State Farm is of assistance, as the award was not based solely on the actions of Dr. Hanna or its decision to send the treatment plan for this paper review, but rather the respondent’s unreasonable decision not to question its assessor’s second, contradictory opinion.
21Finally, though the respondent provided more general arguments about how the functional impairment assessment should not have been approved in the first place (e.g., the applicant reported only minor pain complaints to one of its assessors in November 2016), I find these arguments are further attempts at relitigating factual findings that were made at first instance. As such, I do not find they meet the standard for granting a reconsideration.
Section 3(8) and the Functional Impairment Assessment
22Section 3(8) of the Schedule states:
If… the Licence Appeal Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Licence Appeal Tribunal may, for the purpose of determining an insured person’s entitlement to the benefit, deem the expense to have been incurred.
23After finding the functional impairment assessment had been unreasonably withheld, I further concluded that this unreasonable withholding was the reason why it had not been incurred. Therefore, I engaged the discretion provided under s. 3(8) to deem this expense to have been incurred.
24After considering the parties’ submissions, I conclude that the respondent’s right to procedural fairness was breached on this point. While the applicant’s submissions indicated that she would be pursuing an award (a submission which put the respondent on notice that the reasonableness of its actions was being challenged), this is not the only consideration that is made when deciding whether to invoke s. 3(8). Rather, an adjudicator must also be satisfied that this unreasonable withholding and/or delay led an applicant to not incur the expense. Without proper notice that s. 3(8) could be used in relation to this specific benefit, the respondent was unaware that it could make an argument about whether its actions caused the applicant not to incur this assessment.
25Being deprived of the ability to make submissions on a key issue in dispute is generally seen as a breach of one’s “right to be heard”, i.e., the fundamental value protected by the guarantee of procedural fairness. Therefore, while I am still satisfied that there was an unreasonable withholding of this disputed examination, I conclude that the respondent’s right to be heard was breached as a result of my decision to apply s. 3(8) without either myself or the applicant putting it on notice.
26I would add that, while the applicant did mention s. 3(8) in her initial submissions, she only referenced this provision in relation to attendant care services, not the medical benefits. As such, I am not satisfied that the respondent had sufficient notice of this argument in advance of its initial submissions.
27The standard for granting a reconsideration under Rule 18.2(a) is not concerned with whether a breach affected the underlying substantive decision. That is, in contrast to an alleged factual or legal error, a party that has established a breach of procedural fairness does not then have to show that the outcome of the decision would have been different had this breach not take place. By establishing a breach of procedural fairness, the respondent is entitled to an order striking my decision to invoke s. 3(8) of the Schedule.
APPLICANT’S RECONSIDERATION REQUEST
“Incurred” Requirement for Attendant Care Services
28Section 19(1) of the Schedule states [emphasis added]:
Attendant care benefits shall pay for all reasonable and necessary expenses,
(a) that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant or by a long-term care facility, including a long-term care home under the Long-Term Care Homes Act, 2007 or a chronic care hospital…
29Since I found that the applicant had not provided any evidence of incurred attendant care services during the original hearing, I declined to order them payable. In her Request for Reconsideration, the applicant argued that this reliance on the “incurred” requirement was a legal error, as it conflicts with the reasoning in McMichael. The applicant then submitted that the evidence is clear that she meets the standard for entitlement to an attendant care benefit.
30I am bound by the language of the Schedule, and I have not been provided with a convincing account for why my interpretation of s. 19(1) in the Original Decision amounts to an error in law. Further, I continue to find that McMichael relates to an earlier version of the Schedule that did not require attendant care services to be incurred. It has no bearing on the present matter, and so my earlier finding shall stand.
Section 3(8) and Attendant Care Services
31In her initial submissions, the applicant argued that—if I found the attendant care services had to be incurred—I could invoke s. 3(8) of the Schedule to deem them incurred. I declined to use this discretionary power for the following reasons:
In the alternative, the applicant raised the Tribunal’s discretionary power to deem an expense incurred, i.e., s. 3(8). Specifically, the applicant stated that the respondent unreasonably held her to the funding limits of [the MIG]. An insured person cannot receive an attendant care benefit from an insurer under this limit, so the applicant argued that she could have not have incurred these services even if she wanted to.
I do not accept this argument, as the applicant was removed from this funding limit in January 2017. Therefore, even if it was the reason why she did not receive attendant care services up to that point, why did she then fail to incur them from January 2017 to the 104 week mark in June 2018? This explanation lacks credulity, and so I decline to exercise my discretion under s. 3(8).10
32The applicant has now asked me to reconsider this finding. In addition to similar arguments made during the original hearing (e.g., it was unreasonable to require the applicant to take on the cost of attendant care services when her only source of income was an income replacement benefit), the applicant then asserted that she was never informed of her removal from the MIG until after the 104-week mark.
33First, I do not find that the applicant’s submissions that largely mirror those made during the original hearing meet the standards for granting a reconsideration. Though she may disagree with my findings, reiterating arguments made at first instance does not meet any of the standards in Rule 18.2 of the LAT Rules. Put another way, disagreement with a finding from the Tribunal does not—on its own—meet the standard for granting a reconsideration.
34Second, even if I accept that the applicant was not aware of her removal from the MIG until after the 104-week mark, I do not find that remedying this error would alter my analysis. That is, while the applicant may characterize this error as a breach of procedural fairness, I find that it is better understood as a factual mistake. Therefore, to grant a reconsideration, I must be satisfied that “the Tribunal would likely have reached a different result had the error not been made”. I do not find that I would have reached a different result if it had been established that the applicant was not informed of her removal from the MIG until after the 104-week mark.
35The heart of my analysis concerning the attendant care benefit was the lack of any incurred services. Any indication that the applicant had obtained these services (however briefly) would have been a strong indication that it was a lack of funding that caused her not to incur further expenses. Rather, with the evidence that was before me at first instance, it appeared that the applicant did not want to pursue this benefit.
36Once again, it is not enough to find that a service has been unreasonably withheld or delayed, but to engage s. 3(8) there must also be a connection between the unreasonable behavior and the decision not to incur the service. I can accept that the applicant experienced some financial hardship during the two years following the accident, but—without incurring any of these services (even on a promise to pay)—I cannot accept that the applicant did not incur these services because of the respondent’s actions.
37Additionally, though the respondent clearly stated in its written submissions for the original hearing that the applicant had been removed from the MIG in January 2017, the applicant chose not to challenge this point in her reply submissions. In fact, she did not provide any reply submissions to the Tribunal at all. As such, this assertion from the respondent about the MIG was left unchallenged. When a party takes issue with an argument put forward by the opposing side, it is imperative that it address the disagreement at first instance—as opposed to waiting until the reconsideration.
38Finally, the applicant cited 17-001681 v. Motor Vehicle Accident Claims Fund in support of its assertion that the McMichael framework has been incorporated into the current version of the Schedule through s. 3(8). That is, the applicant highlighted the passage wherein Adjudicator Hines suggested that—by always requiring these services to first be incurred—insurers could get out of paying for attendant care services, even if they have acted unreasonably.11 I do accept the applicant’s use of this earlier case in the present dispute, as my decision not to engage s. 3(8) was not dependent on whether the respondent had acted unreasonably. Rather, I was focused on whether the respondent’s actions were the reason why she did not pursue this expense. In the end, I was not satisfied that they were the reason she did not use this service.
CONCLUSION
39The respondent’s Request for Reconsideration is upheld, in part. Specifically, the functional impairment assessment is no longer deemed incurred.
40The applicant’s Request for Reconsideration is denied in full.
ORDER
41The parties shall provide the Tribunal with written submissions on the following question:
a. Considering the Tribunal’s finding that payment for the disputed functional impairment assessment was unreasonably withheld by the respondent, can this expense be deemed as incurred in accordance with s. 3(8) of the Schedule?
42The submissions will be provided in accordance with the following timetable and instructions:
Due Date
Page Limit
Applicant’s submissions and evidence:
September 18, 2020
5 pages
Respondent’s submissions and evidence:
October 2, 2020
5 pages
Applicant’s reply submissions and evidence (or notice that no reply submissions will be filed):
October 7, 2020
3 pages
(i) No affidavits will be submitted as evidence.
(ii) The page limits are exclusive of evidence and case law. The hearing adjudicator may not consider submissions which exceed the page limits.
43I remain seized of this decision.
Released: August 31, 2020
___________________________________
Craig Mazerolle
Adjudicator
Footnotes
- Effective September 1, 2010, O. Reg. 34/10.
- G.R. v. Aviva General Insurance Company, 2019 CanLII 94064 (ON LAT) (the “Original Decision”).
- 2007 CanLII 17630 (ONSC Div. Ct.) (“McMichael”). I would also add that the version of McMichael I was provided at first instance was not the decision from the Divisional Court, but rather an earlier decision from the Financial Services Commission of Ontario, i.e., McMichael and Belair Insurance Company Inc., FSCO AO2-0-1081 (March 2, 2005).
- Original Decision, at paras. 23-24.
- 2019 CanLII 43887 (ON LAT), at para. 56.
- 2018 CanLII 39453 (ON LAT), at paras. 41-43.
- 2018 CanLII 83521 (ON LAT) (“MVACF”), at para. 19.
- Original Decision, at paras. 44-45.
- 2017 CanLII 85692 (ON LAT) (“State Farm”), at para. 36.
- Original Decision, at paras. 8-9.
- 2018 CanLII 112134 (ON LAT), at para. 83.