RECONSIDERATION DECISION
Before: Robert Watt
Case Name: Joseph Chiarello vs. Aviva General Insurance
Written Submissions by:
For the Applicant: David Carranza
For the Respondent: Michael Silver
OVERVIEW
1This Request for Reconsideration was filed by the applicant in this matter. It arises out of a decision in which the Tribunal found that the applicant was not entitled to any medical benefits applied for.
2The applicant submits that the Tribunal has acted outside its jurisdiction, or violated the rules of natural justice, or procedural fairness and has made a significant error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
3The applicant is seeking an order varying the Tribunal’s decision of September 11, 2020, stating that all denied plans are reasonable and necessary, an order that the applicant is entitled to interest on all overdue amounts, or in the alternative a new hearing with a different adjudicator.
4I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The applicant’s Request for Reconsideration is dismissed.
ANALYSIS
6The grounds for a Request for Reconsideration to be allowed are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one or more of the following criteria are met:
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 a decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
7The applicant relies on Rules 18.2(a) and (b) in this request for reconsideration.
The Tribunal breached the rules of procedural fairness by failing to comment on the evidence presented by the applicant with respect to the improper denial of the treatment plan from Dr. Basile in accordance with section 38(8) of the Schedule.
8It is trite law that the Tribunal in its reasons is not required to refer specifically to every argument or piece of jurisprudence that it considered, in arriving at its decision.
9The Tribunal was aware of the section 38(8) arguments as it addressed this section in other parts of its decision.
10The Tribunal referred to the evidence of Dr. Basile in paragraphs [35], [36], and [37], which clearly indicated that the proposed treatment plan for a neurological assessment was not reasonable and necessary. Section 15 of the Schedule requires treatment plans to be reasonable and necessary before they are to be paid.
11The Tribunal held in J.S. v. Aviva General Insurance,1 that the exclusions of findings, with respect to certain arguments raised by the parties, is not a deprival of procedural fairness or a breach of natural justice, nor is it a ground for reconsideration.
12I find that the Tribunal did not breach the rules of procedural fairness.
The Tribunal made an error of mixed law and fact by failing to properly review the plan goals proposed by Dr. Basile in the treatment plan for the neurological assessment
13The applicant argues that the Tribunal improperly weighed the evidence and did not comment sufficiently on the evidence.
14Again as I stated in paragraph [8] above, it is trite law that the Tribunal in its reasons is not required to refer specifically to every argument or piece of jurisprudence that it considered, in arriving as its decision.
15Reconsideration is not an opportunity to reargue arguments that the Tribunal did not accept at first instance.
16It is not the role of the Tribunal on a reconsideration to re-weigh the evidence that had already been considered by the Tribunal, which is the decision maker of first instance. My role on a reconsideration is to determine if the Tribunal made an error in fact and law as alleged by the applicant, which in this case I find that it did not.
17The treatment plan goals were reviewed by the Tribunal with sufficient reasons provided as to why the Tribunal found the treatment plan to be not reasonable and necessary, as set out in paragraphs [34] to [37] of the decision. The proposed treatment plan would not meet the goals from a neurological assessment.
18I find that the Tribunal did not make any errors of mixed fact and law
The Tribunal made an error of law by not considering that the respondent failed to properly deny the treatment plans by Dr. Bodnar dated April 23, 2018, by Dr. Dorken dated October 9, 2018, by Dr. Bodnar dated February 22, 2018, and by Dr. Basile dated April 16, 2019 in accordance with section 38(8) of the Schedule and by extension for not applying section 38(11) of the Schedule.
19Dr. Bodnar’s treatment plans submitted on June 11, 2018 and on March 20, 2018, as two of the issues on the application, and section 38 of the Schedule were considered by the Tribunal under paragraphs [18] and [32] of the decision. Dr. Bodnar’s treatment plans dated April 23, 2018 and February 22, 2018 were not issues dealt with at the hearing.
20Dr. Basile’s treatment plan submitted on May 1, 2019, being the only plan considered as part of the application, has already been dealt with above. The same reasoning in paragraphs [8], [9], and [11], above, applies to Dr. Dorken’s treatment plan, dated October 9, 2018.
21Again, the Tribunal in its reasons is not required to refer specifically to every argument or piece of jurisprudence that it considered, in arriving at its decision.
22The respondent’s section 44 reports set out the medical reasons for the denials by the respondent and would meet the requirements of section 38 of the Schedule.
23Sections 15 and section 3(7) of the Schedule required the expenses to be reasonable and necessary and also incurred. The evidence also did not satisfy the Tribunal that those sections were proven by the applicant.
24I find that the Tribunal made no error of law.
CONCLUSION
25For the reasons noted above, I dismiss the applicant’s Request for Reconsideration.
Released: November 5, 2020
________________________
Robert Watt
Adjudicator
Footnotes
- 2019 CarswellOnt 11274, 2019 CanLII 63355 (ON LAT)