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: Stephanie Kepman
File: 18-001329/AABS
Case Name: L.L. vs. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Pamela J. Quesnel
For the Respondent: Josh Nisker
OVERVIEW
1The applicant filed a request for reconsideration of the September 6, 2019 decision (“the decision”) of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). In that decision, I found that the applicant was entitled to a special award related to a cost of examination in the amount of $2,200.00, which totaled $550.00.
2The respondent submits that I made errors of law and fact and seeks an order to vary the decision to indicate that the applicant is not entitled to an award under Regulation 664.
3The applicant also submitted that I made errors of law and fact and seeks an order to vary the decision to indicate that the applicant is entitled to an award under Regulation 664 in the amount of $2,147.57.
RESULT
4Both the respondent’s and the applicant’s requests for reconsideration are dismissed.
BACKGROUND
5The applicant was involved in a motor vehicle accident on September 24, 2017. She applied for several benefits via the respondent, Aviva Insurance Canada. The applicant applied to the Tribunal when these benefits were denied.
6A three day, in-person hearing was held on December 3, 4 and 5, 2018 to determine the applicant’s right to costs for a physiatry examination in the amount of $2,200.00, interest and a special award.
7I concluded that the applicant was entitled to all three issues in dispute.
8The respondent seeks a reconsideration of that decision on the basis that there was an error of law. The applicant also seeks a reconsideration on the basis that that I made an error in calculating the special award.
ANALYSIS
Request for Reconsideration
9The grounds upon which a request for reconsideration can be granted are set out in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure1 (“Rules”). The grounds that the respondent submits applies in this case is Rule 18.2(b).
10Rule 18.2(b) states:
“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.”
11In this case, the respondent argues that I erred in awarding a special award by:
- Mistakenly considering factors extraneous to factors actually considered in the denial of the physiatry assessment;
- Mistakenly concluding that a general practitioner with a specialization in occupation health, was not qualified to address a request for a physiatry assessment and utilizing this as a factor in both awarding and quantifying the special award; and
- Incorrectly quantifying the special award given her finding that the evidence suggested there was neither bad faith or a conscious decision to withhold benefits.
12The respondent argues that I erred in not addressing or considering the reasons for Dr. Tepperman’s Insurance Examination (“IE”), which are explained in Aviva’s letter to the applicant dated February 15, 2018.
13Though I did consider this letter when forming my decision, I did not address it explicitly when addressing the special award, as the only insight it provided into the denials of the applicant’s treatment plans was that the insurer wanted to conduct IEs to determine if they were reasonable and necessary.
14The award was granted, on the balance of the evidence, that the insurer was unable to articulate a legitimate reason for denying the benefit or for scheduling a physiatry assessment with a general practitioner as opposed to a physiatrist.
15As stated in paragraphs 21 and 22 of the decision, when Adjuster Fajit was asked why these IEs were scheduled with Dr. Tepperman specifically, she was unable to answer this. The log notes related to this IE were redacted, providing little to no insight into the decision process related to this claim.
16The respondent also argues that I erred when concluding that Dr. Tepperman was not qualified to address the applicant’s request for a physiatry assessment and using this as a factor for awarding and quantifying the special award. The respondent directed me to 17-005905 v. Certas Home and Auto Insurance Company, 2019 CanLii 34603 (ON LAT).
17In 17-005905 v. Certas Home and Auto Insurance Company, though the insurer did not pay benefits to the applicant, the benefit in question was not stopped “willfully”, but rather based on the opinion of one of its medical experts who performed an IE. However, I note that in 17-005905 v. Certas Home and Auto Insurance Company, the question of if the assessment doctor, Dr. Bhardwaj, was the appropriate doctor to perform the IE for the respondent in regard to the applicant’s injuries.
18In the current matter, the respondent’s adjuster was specifically asked why Dr. Tepperman, a General Practitioner, was being relied upon to give an opinion regarding a physiatry assessment.
19As mentioned above, the adjuster was unable to provide insight into this decision, and therefore, I found that there was unreasonable conduct on the part of the respondent.
20The respondent provided information regarding Dr. Tepperman’s background and qualifications. The respondent provided reasons for denying the applicant’s assessment but could not explain its reasoning for sending the applicant to a General Practitioner and not a Physiatrist to consider the assessment. This lack of specifics is one of the reasons I awarded the special award. This information is vital to understanding the reasons behind sending the applicant to her IE with Dr. Tepperman.
21Finally, the respondent submits that I incorrectly quantified the special award given there was insufficient evidence upon which I could reasonably conclude a special award was appropriate. It argues though I found “several errors and issues with the respondent’s handling of the applicant’s file”, and that there was no evidence of excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour on the part of the respondent.
22The respondent argues that I didn’t outline the evidence upon which I based my finding that it “did not respond with reasonable reasons as to its decision”. In terms of this argument, I direct the respondent to paragraphs 17-29 of the decision, where I do specifically state the reasons for awarding a special award.
23This would be an example of the blameworthiness of the respondent. As stated above, the respondent was not able to defend or explain its decision to send the applicant to a General Practitioner for a Physiatry assessment. Since the respondent was not able to form any explanation for this action, I factored this into the blameworthiness of the insurer’s conduct.
24In regard to the applicant’s request for reconsideration, she does not specifically state that I made an error of law. She also does not cite any of the grounds of reconsideration of Rule 18.2. The grounds upon which a request for reconsideration can be granted are set out in Rule 18 of the Rules.
25She argues that I made an error in calculating the amount of the special award. Instead of awarding 25% of $2,200.00, I should have awarded $2,147.57, being 25% of the total of the denied physiatry assessment and two denied case management treatment plans totaling $8,590.28.
26When reviewing my notes from this hearing, as well as submissions from the parties, it is clear that the issue of a special award for the two denied case management treatment plans was never specifically raised to me at the hearing. I only considered the special award in relation to the “live” treatment plans in dispute.
27I do not have jurisdiction to adjudicate issues that were not properly before the Tribunal, and a reconsideration is not the appropriate stage to do so.
CONCLUSION
28For the reasons set out above, I find that the respondent has failed to establish any error of law. I therefore dismiss the respondent’s request for reconsideration.
29I also find that the applicant has failed to establish any error of law and also dismiss her request for reconsideration.
Released: August 6, 2020
Stephanie Kepman Adjudicator