RECONSIDERATION DECISION
Before: Melody Maleki-Yazdi, Adjudicator
File: 18-012528/AABS
Case Name: J.S. vs. Aviva General Insurance
Written Submissions By: For the Applicant: Rajwant Singh Bamel, Counsel For the Respondent: Candace Mak, Counsel
OVERVIEW
1The respondent requests reconsideration of issues 1, 4, 5 and 6 in the decision dated May 22, 2020, which found that the applicant was entitled to the following treatment plans: chiropractic treatment (issue 1); attendant care assessment (issue 4); chronic pain assessment (issue 5) and the remainder of a psychological assessment (issue 6). The Tribunal concluded that the applicant was not entitled to two other treatment plans for chiropractic treatment (issues 2 and 3) because the Tribunal found that they were duplicative treatments and were less comprehensive than the approved chiropractic treatment plan. The respondent has not raised issues 2 and 3 for the purposes of being reconsidered.
2The respondent submits that a reconsideration is warranted because the Tribunal made significant errors in the decision. The respondent submits that the Tribunal erred in law by creating and applying incorrect tests to determine whether the applicant has tendered sufficient evidence to show that the treatment plans listed as issues 1, 4, 5 and 6 are reasonable and necessary.
RESULT
3The respondent’s request for reconsideration is dismissed.
DECISION AND REASONS
4The grounds for a request for reconsideration 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 of the following criteria are met:
a) The Tribunal acted outside of its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would have likely 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 its decision, could not have been obtained previously by the party now seeking to introduce it, and would have likely affected the result.1
5The respondent submits that rule 18.2(b) applies.
Rule 18.2(b) – The Tribunal made an error of law or fact such that the Tribunal would have likely reached a different result had the error not been made
Error: The Tribunal erred in law by creating and applying incorrect tests to determine whether the applicant has tendered sufficient evidence to show that the treatment plans listed as issues 1, 4, 5 and 6 are reasonable and necessary
6The respondent submits that the Tribunal formulated its own incorrect tests and applied these tests to determine whether the applicant has tendered sufficient evidence to prove, on a balance of probabilities, that the treatment plans for issues 1, 4, 5 and 6 are reasonable and necessary.
Issues 1, 4 and 5
7The respondent has similar arguments for why the Tribunal erred with issues 1, 4 and 5. Specifically, the respondent submits that by formulating and applying an incorrect test, the Tribunal erred in law by turning the “reasonable and necessary” test from an objective analysis into a subjective analysis. The respondent also submits that the Tribunal erred by not considering whether there was contemporaneous and objective supporting medical evidence to justify the disputed treatment plans.
8The respondent refers to issue 1 as a treatment plan for physical treatment. As set out in the decision, this is a treatment plan for chiropractic, massage therapy and acupuncture treatment. The respondent submits that the Tribunal erred in law by finding that the treatment plan was reasonable and necessary based only on the applicant’s self-reporting and the treatment plan itself. The respondent submits that there was no medical evidence cited that the disputed treatment plan is reasonable and necessary or how it may assist the applicant’s condition.
9Regarding issues 4 and 5, the respondent submits that the Tribunal erred in law by finding that the treatment plans for the attendant care assessment and chronic pain assessment were reasonable and necessary based solely on the applicant’s self-reporting. The respondent submits that the Tribunal erred by not considering whether there was contemporaneous and objective supporting medical evidence to justify the attendant care and chronic pain assessments.
Issue 6
10Regarding issue 6, the respondent submits that the Tribunal erred in law when it concluded that the applicant is entitled to the total amount of the treatment plan for the psychological assessment in the amount of $2,000.00 “because the assessment is within the $2,000.00 payment limit for the completion of an assessment as stipulated in s. 25(5)(a) of the Schedule.” The respondent submits that under this test, any assessment that is found to be partially reasonable and necessary would automatically be payable in the amount of $2,000.00, and therefore the applicant would not be required to discharge his onus of proving that the cost of the examination is reasonable and necessary. The respondent submits that this is contrary to the principle outlined in another Tribunal decision, 18-001128 v. Aviva Insurance Canada2, where the adjudicator found that the applicant was not entitled to the remaining amount in the treatment plan for a psychological assessment because without properly filed evidence to support the full hours being claimed in the treatment plan, the adjudicator was unable to evaluate the applicant’s claim that it was reasonable for the psychologist to spend the amount of time claimed on the psychological assessment.
11The respondent submits that the Tribunal erred in law by not considering whether there was properly filed evidence to justify the full hours and costs being claimed in the treatment plan. The respondent submits that the applicant did not provide any evidence to counter the evidence of Dr. Shahriar Moshiri (psychologist), the respondent’s insurer’s examination (“IE”) assessor, and the decision of the respondent to partially approve the treatment plan.
Analysis
12I disagree with the respondent that the Tribunal formulated its own incorrect tests. As set out in the decision, the Tribunal applied sections 14-16 of the Statutory Accident Benefits Schedule – Effective September 1, 20103 (the “Schedule”). These sections provide that an insurer is only liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of the accident.
13The Tribunal has not been persuaded by the respondent’s submissions. Reconsideration is not an opportunity to reargue previously failed arguments. I find the respondent largely used its submissions to attempt to redirect the Tribunal’s preference of the evidence.
14On review of the respondent’s submissions, I am satisfied that the Tribunal assessed all of the evidence before it and assigned appropriate weight to the evidence that the Tribunal found most persuasive that led to the Tribunal’s determinations.
15I find no error in law in the Tribunal’s considerations of the applicant’s subjective complaints. The decision considered the evidence in its totality. The Tribunal found the applicant’s self-reports within the various assessment reports and the clinical notes and records of the family physicians to be consistent and credible. Furthermore, the Tribunal found that there was objective evidence to support the applicant’s self-reports. As set out in the decision, the objective evidence included the following: Dr. Isa Mohammed (general practitioner), an IE assessor, opined in the IE assessment dated November 9, 2017, that limitations in the range of motion were found in the shoulders bilaterally, cervical spine and lumbar spine. He opined in the addendum report dated August 22, 2019, that the applicant’s range of motion and strength testing presented normal findings across all joints even though some movements were painful.
16I also find that the Tribunal did not err in law when it concluded that the applicant is entitled to the total amount for the treatment plan for the psychological assessment. When read in their totality, the Tribunal provided its reasons at paragraphs 31 to 36 of the decision. The Tribunal’s determination in 18-001128 v. Aviva Insurance Canada is not binding on me.
17While the respondent is entitled to a different viewpoint, I find no reason on reconsideration to interfere with the Tribunal’s original decision.
18For the reasons outlined above, the Tribunal did not make errors of law or fact that would have changed the outcome of the decision.
CONCLUSION
19The respondent’s request for reconsideration is dismissed.
Released: January 12, 2021
____________________________
Melody Maleki-Yazdi
Adjudicator
Footnotes
- Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, Version 1, October 2, 2017, as amended.
- 18-001128 v. Aviva Insurance Canada, 2019 CanLII 58164 (ON LAT).
- O. Reg. 34/10.