RECONSIDERATION DECISION

Citation: C. E. vs. Aviva General Insurance Company, 2021 ONLAT 18-002591/AABS - R

Before: Deborah Neilson, Adjudicator

Date: January 13, 2021

File: 18-002591/AABS

Case Name: C.E. vs. Aviva General Insurance Company

Written Submissions by:

For the Applicant: Nicole Walker, Counsel

For the Respondent: Monica Pathak, Counsel

I. OVERVIEW

1This request for reconsideration, filed by the insured applicant, arises out of a decision dated September 13, 2019 in which I found that the applicant sustained minor injuries and is subject to the Minor Injury Guideline (the “MIG”). I also denied the applicant’s request for payment of medical benefits for three treatment plans recommending chiropractic services. The applicant asks that the Tribunal reconsider the decision based on new evidence that he submits was not before the Tribunal at the time of the written hearing and would have likely affected the result. He also submits that I erred in law by failing to request the applicant’s medical from his treating psychiatrist. He seeks an order that his injuries are not within the MIG.

2I have been delegated responsibility to decide this matter in accordance with the LAT Rules.¹

II. RESULT

3The applicant’s request for reconsideration is dismissed.

III. BACKGROUND

4The applicant was involved in an automobile accident on January 5, 2016. He sought and received benefits from the respondent pursuant to the Schedule.² After the respondent denied his request for further chiropractic treatment, he applied to the Tribunal.³ The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” under s.3 of the Schedule.

5I determined that the applicant failed to prove that his injuries were not minor and that he was not subject to the Minor Injury Guideline (the “MIG”). This means that the policy limits available to the applicant for medical benefits and cost of examinations is $3,500.00. I dismissed the applicant’s claims for chiropractic treatment. I did not need to consider whether the chiropractic treatment was necessary because the applicant had already reached the maximum policy limits available to him of $3,500.00 for a minor injury.

6I dismissed the applicant’s application because the I was not satisfied that the applicant proved the following:

(i) Pre-existing condition - I found the applicant failed to prove that he had a pre-existing psychological condition that prevented him from achieving maximal recovery within the cap imposed by the MIG.

(a) The evidence that the applicant relied on was vague. There was no evidence of the frequency, duration or extent of the applicant’s pre-accident symptoms.

(b) There was no evidence that the applicant’s pre-accident psychological condition impacted his recovery from his accident injuries within the MIG.

(ii) Psychological impairment – I found that the applicant did not adduce evidence that he has a psychological impairment that is more than psychosocial symptoms or sequelae arising from his minor injuries.

IV. ANALYSIS

7The grounds for a request for reconsideration are contained in LAT Rule 18. The grounds that the applicant argues apply to this case are LAT Rules 18.2(d) and 18.2(b):

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result; and

(b) I made a significant error of law or fact such that the I would likely have reached a different decision had the error not been made.

8The applicant submits that his psychiatrist’s clinical notes and records (“records”) would affect my findings that he failed to satisfy his burden of proof and that they could not have been reasonably obtained before the hearing.

9The applicant submits that I made significant errors as follows:

(a) In law by failing to request further particulars and a copy the applicant's full psychiatric treatment profile and clinical record of his psychiatrist, Dr. Futerman, after finding that Dr. Futerman's letter was not sufficient; and

(b) In fact because the applicant’s OHIP summary and Dr. Futerman’s report ought to be enough to satisfy the applicant’s burden of proof.

10I determined that the applicant failed to prove that he has a pre-existing condition that takes him out of the MIG. The reason was not because of his failure to provide pre-accident clinical notes and records. It was because the evidence of the applicant’s pre-existing medical condition was vague and, more specifically, there was no evidence to support the applicant’s onus to prove on a balance of probabilities that his pre-accident irritability and depressed mood prevented him from achieving maximal recovery from his accident injuries if he was limited to the goods and services available under the MIG.

11I also determined that the applicant did not satisfy his onus to prove that he had a psychological impairment that amounted to more than psychosocial symptoms arising from his minor injuries. Dr. Futerman reported that the applicant had heightened anxiety when out walking and avoided the accident scene for a number of weeks after the accident. The applicant had some flashbacks and he had some exacerbation of his pre-accident mood difficulties consisting of increased irritability and depressed mood. Dr. Futerman implied in his report that these symptoms were short lived or were not severe enough that they required treatment with medication or an increase of medication. The evidence was that they had not affected the applicant’s activities except for altering the route that he walked to work for a few weeks. There was no evidence that the applicant’s psychological symptoms were anything more than psychosocial sequelae from the accident.

12I am not persuaded by the applicant’s arguments that that there is new evidence that could not have reasonably been obtained before the hearing. Nor am I persuaded that I made any errors of fact or law. Even if I did make an error, there is no evidence that would allow me to likely or even possibly reach a different decision but for the error.

(a) New Evidence

13The applicant submits that his psychiatrist’s records would affect my findings. In order to grant the reconsideration requested, the applicant must prove the following:

(ii) There is new evidence;

(iii) The evidence could not have reasonably been obtained earlier; and

(iv) The evidence would have affected the result of the proceeding.

(i) New Evidence

14The applicant has advised that he requested Dr. Futerman’s records after my decision was released. In his submissions, he included a copy of his lawyer’s letter of request to Dr. Futerman. He advised that the records would be filed with the Tribunal once they were received. To date, the Tribunal has not received the records. Accordingly, there is no new evidence.

(ii) Availability of Dr. Futerman’s records for the Hearing

15As the applicant has not presented any new evidence, this should be the end of my determination. However, for the sake of completeness, I will address the applicant’s onus to show that Dr. Futerman’s records could not have reasonably been obtained before the hearing. I find that the requirement that the records could not have been “reasonably” obtained refers to the efforts undertaken by a party to obtain the evidence from non-parties.

16The applicant made no submissions or provided any evidence to support that Dr. Futerman’s records could not have reasonably been obtained before the hearing. In his request for reconsideration, the applicant relied on a letter from his lawyer to Dr. Futerman dated September 24, 2019, requesting his records. The letter was sent after my decision was issued. The applicant submitted that the September 24, 2019 letter was his second request for Dr. Futerman’s records. However, no evidence in support of that submission was filed with the Tribunal. Accordingly, I have no evidence of what efforts the applicant made to obtain Dr. Futerman’s records prior to the hearing.

17I am unable to draw an inference that the records were not available before the hearing based on the fact that Dr. Futerman still has not produced them. This is because I have no evidence that the applicant asked Dr. Futerman for his medical record prior to the hearing. Without that information, I am unable to find that the records could not have reasonably been obtained earlier.

18In case I am wrong about what inference I may draw from the fact that Dr. Futerman’s records have not yet been filed with the Tribunal, I shall address what affect they would have had on the result.

(iii) Whether the Records Would Affect the Result

19The applicant submits that Dr. Futerman’s records would have changed my determination. The respondent submits that, without Dr. Futerman’s records, I am unable to determine whether they would have affected the outcome of the proceeding. In this case, I agree with the respondent. One can expect certain information to be available on a treatment plan or disability certificate because these are forms that have been drafted to provide enough information for insurance adjusters to make determinations of entitlement. However, the purpose of keeping clinical notes and records is not to provide evidence that is required to prove entitlement under the Schedule.⁴

20I can only speculate on what the records would have contained and whether they would have changed my determination. Speculation does not satisfy the applicant’s burden of proof on a balance of probabilities. For these reasons, I am unable to find that the records would have affected my decision on whether the applicant sustained a psychological impairment as a result of the accident that was not predominantly a minor injury.

21The applicant has not provided any authority or evidence to indicate that the records would contain compelling evidence that the applicant’s pre-existing psychological condition would have prevented maximal recovery within the cap imposed by the MIG.

22Accordingly, I am unable to find that the records would have affected my decision.

(b) Error of Fact or Law

(i) Failing to Request Further Particulars

23The applicant submits that I erred in law by failing to request the applicant’s full psychiatric treatment profile. I have assumed that the “full psychiatric treatment profile” means Dr. Futerman’s clinical notes and records. The applicant relies on the Tribunal’s reconsideration in J.R. v. Certas Home and Insurance Company.⁵ The Tribunal dismissed an application that sought chronic pain and physiotherapy treatment based on "lack of information and insufficient evidence". The Appellant in that case sought reconsideration of the final decision based on LAT Rule 18.2 (d) and submitted complete copies of the disputed treatment plans. Partial treatment plans were included in the parties’ submissions for the hearing, but not the complete treatment plans.

24The Executive Chair determined that the Tribunal erred in exercising its discretion in weighing the evidence because it did not do so in a manner that was procedurally fair and rationally cogent. She noted that under LAT Rule 9.1, the Tribunal may at any stage in the proceeding, including prior to a case conference, order any party to provide such further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding. The Executive Chair found that the Tribunal in J.R. v. Certas erred in failing to request the complete treatment plans that were in dispute.

25The applicant submits that this is such a case. However, the applicant’s submission that I ought to have asked him for Dr. Futerman’s records is essentially a submission that the onus to prove his case is on the Tribunal. That is not what J. R. v. Certas stands for. The Executive Chair clearly stated that applicants to the Tribunal are obligated to make their own case. As part of that obligation, applicants must adduce all evidence upon which they need or intend to rely. The Tribunal will not satisfy their evidentiary onus for them.

26In J.R. v. Certas, the fact that the applicant had filed part of the treatment plans in dispute was a clear indication that the applicant intended to rely on the treatment plans. However, in the case before me, there was and is no indication or any evidence that the applicant ever intended to rely on the clinical notes and records of his psychiatrist. This was not a case where an incomplete medical record was produced.

(ii) Failing to Find the Applicant Was Out of the MIG

27The applicant submits I erred in law in failing to find that the OHIP summary and Dr. Futerman’s report were enough to take him out of the MIG.⁶ The weight to be given to evidence at the hearing is a matter to be determined by the Tribunal. The applicant has provided no reason or submissions as to why I erred in finding that the OHIP summary, together with Dr. Futerman’s report and the other medical evidence filed, was not enough to satisfy his onus of proof. The applicant’s submissions appear to be an attempt to reargue the case made before me at the hearing. A reconsideration is not an opportunity to reargue one’s case or an appeal. Accordingly, the applicant’s request for reconsideration on this basis is denied.

V. CONCLUSION

28For the reasons noted above, I dismiss the applicant’s request for reconsideration.

Footnotes

1. 1LAT Rule 18.2, Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) [“LAT Rules”]
2. 2Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10.
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
4. 4See Part V of O. Reg. 114 under the Medicine Act, 1991, SO 1991, c 3 and s. 12(b) of the Medicine Act, 1991.
5. 516-003921 J.R. v. Certas Home and Insurance Company, 2018 CanLII 13161 (ON LAT) (“J.R. v. Certas”)
6. 6The applicant submitted that the OHIP summary together with Dr. Futerman’s report are sufficient to ascertain his complex psychological profile. I have taken this to mean that he submits that, together, they are enough evidence to show the applicant sustained a psychological impairment as a result of the accident that takes him out of the MIG.