RECONSIDERATION DECISION
Before: Robert Watt
File: 18-004852/AABS
Case Name: [T.K.] and Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Lisa Bishop, Counsel
For the Respondent: Patrick Baker, Counsel
OVERVIEW
1This Request for Reconsideration arises from a decision of the Licence Appeal Tribunal (the “Tribunal”) denying that the applicant’s claims were outside of the Minor Injury Guidelines (MIG), and therefore he was not entitled to further medical benefits, interest or an award. The applicant now asks that I reconsider the Tribunal’s order and order a new hearing.
2Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive chair delegated to me her responsibility to decide this matter.
3As explained below, the reconsideration is dismissed.
FACTS
4The applicant filed a Request for Reconsideration in this matter on August 16, 2019, in respect of a decision dated July 26, 2019.
5The applicant applied to the Tribunal on the issues of MIG, additional medical benefits, award, and interest. The matter proceeded to an in-person hearing and an in-writing hearing. The adjudicator’s decision found that the applicant was not entitled to an IRB, further medical benefits, award, or interest.
6The applicant requests that the decision be reconsidered on the basis that the Tribunal made several significant errors of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.
DECISION AND REASON
7Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under rule 18.2.
8Under Rule 18.2, one or more of the following four grounds needs to be established
- The Tribunal acted outside its jurisdiction or violated the rules of natural justice;
- The Tribunal made a significant error of law or fact such that the Tribunal would likely have received a different decision;
- The Tribunal heard false evidence or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
- There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
9The Rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions.
10Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake, preventing a just outcome, where false evidence has been admitted or where genuinely new and indiscoverable evidence comes to light after a hearing
ANALYSIS
The Tribunal made several significant errors of law such that the Tribunal would likely have reached a different decision had the error not been made
11The applicant’s position is that the Tribunal failed to address the issue of mandatory payment by the insurer required under Section 38(11) of the Schedule.
12The applicant submitted an OCF-18 in the amount of $1,232.12 on September 11, 2017 for physiotherapy treatment, with the respondent’s first response being November 16, 2017. The applicant submitted an OCF-18 in the amount of $1521.26, for an assessment of attendant care needs, on September 11, 2017 and the respondent responded on November 16, 2017.
13The Tribunal did address the issues of Section 38(11) in its decision. In relation to the OCF-18 relating to the $1,232.12, there were problems with some of the expenses as to when they had been incurred. Section 38(2) of the Schedule does not require payment for expenses before a treatment plan is submitted. The proposed expenses were also found not to be reasonable and necessary. The Tribunal set out its discussions in paragraphs [42-45][52] of its decision. The Tribunal also followed the Supreme Court of Canada decision Smith v. Co-Operators (2002 SCC 30 para1) which requires the applicant to prove its claim despite deficiencies.
14In relation to the OCF-18, relating to the $1,521.26, for an assessment of attendant care needs, the Tribunal did not address this issue under 38(11). I therefore find that there is a deficiency in the decision, and that the issue of the OCF-18 for the amount of $1,512.26 for attendant care needs now has to be addressed.
15The applicant’s evidence on the attendant care issue is set out in paragraph [28] of the decision. When the applicant needs help with dressing or laundry or other household chores, his wife and mother assist him. Section 19(1) of the Schedule requires attendant care benefits to be paid if they are reasonable and necessary. There is no evidence before the Tribunal that attendant care benefits are needed by the applicant.
16There was no evidence put before the Tribunal the mother or sister were professional personal care workers. There were no invoices submitted into evidence, seeking reimbursement for time spent. There was no evidence put before the Tribunal that the mother and sister suffered economic loss, as required to be produced under section 19(3) of the Schedule before payment.
17I find therefore, that the proposed OCF-18 in the amount of $1,521.26 is not reasonable and necessary.
18The applicant raises the issue that proper notice was not given to the applicant that an IE assessor would be addressing three treatment plans in addition to an IRB, which was the main reason for the IE. The applicant did receive the report.
19If the applicant was not given proper notice and refused to attend, this would be an issue under Section 45 of the Schedule. The applicant has attended and has received the report. Even if the Tribunal disregarded the IE assessment on the three plans for physiotherapy and attendant care, there is other overwhelming evidence including the applicant’s own testimony set out in the decision that shows these plans were not reasonable or necessary.
20I find that the Tribunal made no significant errors of law such that the Tribunal would likely have reached a different decision had the errors not been made
The Tribunal made several significant errors of fact such that the Tribunal would likely have reached a different decision had the error not been made
21The applicant indicates that the Tribunal did not consider the Psychological Assessment of Dr. Shaul. The wording is a bit confusing in the decision, but the Tribunal did consider the proposed Psychological Assessment of Dr. Shaul. The Tribunal considered the reasonableness of the plans at the time they were proposed.
22The Tribunal on a reconsideration does not question the weight that an adjudicator assigns to the evidence. The adjudicator is entitled to prefer some pieces of evidence over others. A reconsideration is not a second opportunity to have a matter reheard.
23I find that the Tribunal made no significant errors of fact such that the Tribunal would likely have reached a different decision had the error not been made.
CONCLUSION
24For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Robert Watt
Adjudicator
Tribunals Ontario- Safety, Licensing Appeals and Standards Division
Released: October 8, 2020