RECONSIDERATION DECISION
Before: Derek Grant
Tribunal File Number: 19-003783/AABS
Case Name: [I.K.] vs. Allstate Canada
Written Submissions by:
For the Applicant: Derek L. Smith, Counsel
For the Respondent: Brittanny Tinslay, Counsel
OVERVIEW
1I.K. filed a Request for Reconsideration of the May 11, 2020 Decision (“the Decision”) of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”). In that Decision, I found that I.K. was not entitled to the disputed benefits, interest and an award pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).
2I.K. submits that I made errors of law and seeks an order varying the Decision. The Request for Reconsideration alleges errors in my consideration of the medical evidence.
3Allstate submits that the Decision should be upheld, and the Request for Reconsideration dismissed.
RESULT
4I.K.’s Request for Reconsideration is partially granted. I will address this below.
BACKGROUND
5I.K. sustained injuries in an accident on October 21, 2017 (the “accident”). She claimed entitlement to benefits under the Schedule. When those benefits were denied by Allstate, I.K. submitted an appeal to the Tribunal. A written hearing was held to determine whether I.K. was entitled to medical benefits, transportation and damaged clothing expenses, interest and an award. I concluded that I.K. was not entitled to the treatment plans, the remaining balance of a treatment plan, the expenses, interest or an award; I.K.’s claim for accident benefits was dismissed. I.K. seeks reconsideration of that Decision.
ANALYSIS
Request for Reconsideration
6The 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 Procedure.1 The grounds that I.K. submits apply in this case are Rules 18.2(a), (b) and (d), which state:
(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; and
(c) 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.
7Specifically, I.K. submits that I did not provide procedural fairness in that:
(i) I did not mention her evidence and submissions regarding issues numbered 1 and 4 listed in the Decision;
(ii) I did not address the issue of relief for forfeiture regarding issue numbered 3; and
(iii) I ought to have confirmed that Allstate was liable to pay for the goods and services described in the OCF-23 dated October 25, 2018.
8I am not persuaded by I.K.’s submissions that I made an error of fact or that there was a lack of procedural fairness regarding the disputed OCF-18s. I find that I considered the medical evidence and based on a review of the evidence, correctly determined that I.K. was not entitled to the disputed benefits, interest or an award.
9I find that an error was made regarding the October 25, 2018 OCF-23, and that any outstanding amount is payable, including any applicable interest.
10I will address each issue in the order set out above.
PROCEDURAL FAIRNESS
A. OCF-18s dated February 7, 2019 and September 28, 2018
11In support of her position that I made an error of fact, I.K. refers to the August 27, 2018 report of Dr. Dessouki. In the Decision, I relied on Dr. Dessouki’s report in denying the February 7, 2019 OCF-18 as well as the September 28, 2018 OCF-18. I.K. submits that my reliance on the Dr. Dessouki report is erroneous as the report pre-dates the two OCF-18s.
12Although I did not refer to the specific subsequent reports in the Decision, in fact, Dr. Dessouki completed two additional paper review reports.2 In his reports, Dr. Dessouki maintained that I.K.’s physical injuries were predominantly minor.
13I.K. submits that I ignored medical evidence and submissions that support her need for ongoing treatment. However, documents referred to, i.e. an August 15, 2018 letter from Dr. Pisani, speak to entitlement to a non-earner benefit. Dr. Pisani states in his letter that I.K. needs access to her therapy. The note contains no report of any testing conducted by Dr. Pisani. Dr. Pisani suggests that the “lack of assistance/support will only exacerbate her physical and psychological injuries and predispose her to chronic issues”.
14I disagree that the letter or any of the other medical evidence confirms that I made an error fact in the outcome of the decision regarding the medical benefits. I.K.’s position is that I should have found that the evidence and submissions affirm the reasonableness and necessity of the OCF-18s. In addition, that the OCF-18s were incurred, therefore they should be paid. This is notable because despite the OCF-18s being incurred, I.K. still presented to treating physicians with complaints of pain. This suggests that the OCF-18s goals of pain reduction were not being met, as noted in the Decision.
15I find that an insured who has incurred treatment and yet still presents with pain complaints, is not meeting the goals of a treatment plan to a reasonable degree. Where treatment is received and yet an insured still presents with pain complaints, I must consider the goals of the disputed OCF-18s. I.K.’s pain complaints are not indicative of treatment that is providing a significant level of relief. As such, I find that the Decision properly determined that the OCF-18’s were not reasonable and necessary.
B. OCF-18 dated April 26, 2018 and submitted July 1, 2018 – Relief for Forfeiture
16I.K. submits that the Decision did not address her request for relief for forfeiture. The reason for the request being, that the treatment plan, while dated April 26, 2018, was not submitted until July 1, 2018.
17I.K. argues that she was not able to submit the OCF-18 through the central processing agency (HCAI) herself; that Allstate knew she was in therapy and would have denied the OCF-18 as it denied the subsequent three OCF-18s. I.K. further submits that the principles of relief from forfeiture apply: The Tribunal needs to consider the conduct of the applicant, the gravity of the breach, and any damage caused.3
18While the Decision did not specifically address the issue of the request for relief for forfeiture, it did address the fact that the treatment was incurred prior to the OCF-18 being submitted. This was addressed at paragraphs 25-28. Specifically, at paragraph 28, the Decision stated that I.K. did not dispute that the treatment was incurred before the submission of the OCF-18.
19I.K. argues that s. 34 of the Schedule provides a remedy in support of her relief for forfeiture. I disagree for the following reasons. Section 34 also requires “reasonable explanation” for non-compliance. I.K. did not offer any reasonable explanation for the non-compliance under s.38 (2) of the Schedule. Paragraph 28 of the decision addressed both I.K.’s non-compliance and the outcome for Allstate. Based on my finding that Allstate was not liable to pay for the April 26, 2018 OCF-18, it was not necessary to specifically address I.K.’s request for relief for forfeiture.
C. OCF-23 dated October 25, 2018
20I.K. submits that a second OCF-23 should be paid under s. 40(5) and (6) of the Schedule. Her position is that she had changed clinics three times, and in the event that she “was still in the minor injury guideline”, the second, October 25, 2018 OCF-23 was submitted.
21At the time of the October 2018 OCF-23, Allstate had maintained that I.K. was still under the minor injury guideline (“MIG”). Section 40(5) requires that an amended treatment confirmation form be completed if an insured changes treating practitioners during the course of treatment under the MIG. I.K. changed treating facilities three times during the course of her treatment under the MIG. Section 40(6) states that the insurer shall pay for any goods and services that have not already been provided in accordance with the MIG.
22I.K. submits that at the time of the OCF-23, Allstate had “not paid the MIG limits with respect to physical therapies”. I find this statement to be somewhat erroneous, in that there is no separate MIG limit for physical or psychological treatment. However, I.K.’s claim regarding the applicability of s. 40(5) and (6) concerning the OCF-23 has merit.
23I agree that I.K.’s changing clinics is covered under the s. 40(5) requirement that “if during the course of treatment under the MIG, he or she changes the health practitioner…”. Thereby, Allstate would be bound by the s. 40(6) requirement, to the extent that any outstanding goods and services remain under the MIG. There is no evidence that the MIG limit was exhausted during the course of I.K. changing clinics or health practitioners.
24I reverse my decision and order with respect to this OCF-23 and find that any outstanding amount of the October 2018 OCF-23 is payable, including interest.
D. I.K.’s request for an award
25I.K. submits that an award is warranted as it “was unreasonable for the Respondent to continue to rely on the August 2018 assessment/statement with Dr. Dessouki, leading to a withholding/delaying of I.K. receiving proper treatment”. I disagree.
26I may make an award of up to 50% of any amounts improperly withheld if I find that the respondent unreasonably delayed or withheld payment of a benefit. In this matter, I have found that I.K. is not entitled to the payment of any of the disputed OCF-18s. I.K. has not persuaded me, on reconsideration, that she is entitled to the OCF-18s, therefore, no benefit has been unreasonably withheld or delayed. There is no basis for an award.
CONCLUSION
27For the reasons set out above, I find that:
(a) I.K. has failed to establish any error of fact regarding the disputed OCF-18s;
(b) The October 25, 2018 OCF-23 is payable, including interest, pursuant to s. 51 of the Schedule; and
(c) I.K. is not entitled to an award.
Derek Grant, Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: October 19, 2020
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended.
- Orthopaedic Assessment Paper Review reports by Dr. Dessouki dated October 2, 2018 and November 2, 2018.
- Dube v. RBC 2015 ONCA 641, 127 O.R.(3d) 161 (C.A.) – Applicant Document Brief – Tab C