RECONSIDERATION DECISION
Before: Rebecca Hines, Adjudicator
File: 19-007772/AABS
Case Name: P.M. v. TD Insurance Meloche Monnex
Written Submissions by:
For the Applicant: Kiro Soliman, Paralegal
For the Respondent: Derek Vihvelin, Counsel
OVERVIEW
1This reconsideration request follows a Tribunal decision dated November 13, 2020 in which I determined that the applicant sustained a minor injury and was subject to monetary limit provided for in the Minor Injury Guideline (“MIG”). I also found that the applicant was not entitled to the disputed treatment plan, interest or an award, and that the respondent’s notice complied with s.38 of the Schedule.
2The applicant has requested a reconsideration of my decision and argues that I acted outside of my jurisdiction and violated the rules of procedural fairness. Further, I made a significant error of fact and law in my determination of the issues before me.
3The respondent opposes the request for reconsideration and submits that my decision is correct. It submits that the applicant’s reconsideration request is an attempt to reargue his case which ultimately failed at the hearing. Further, the applicant has failed in his onus to prove that I made a significant error of fact or law that would result in a different decision.
RESULT
4After reviewing the parties’ submissions and evidence, I order as follows:
(i) The applicant’s reconsideration request is dismissed.
RECONSIDERATION CRITERIA
5The grounds for a request for reconsideration are contained in Rule 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019 (“Rules”).
6Rule 18.2 states that 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 its decision, which could not have been obtained earlier and would likely have affected the result.
7The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
8The applicant requests that I cancel my decision and make an alternative finding, that he did not sustain a minor injury and is entitled to the treatment plan, interest an award, and costs. Alternatively, the applicant requests a re-hearing.
9The applicant relies on Rules 18.2 (a) and (b) and argues that I:
(i) Acted outside of my jurisdiction and violated the rules of procedural fairness; and
(ii) Made a significant error of law by:
a) Failing to correctly interpret and apply sections 38(8), 38(9) and 38(11) of the Schedule;
b) Making a finding of fact for which there was no evidence;
c) Making a finding of an undisputed fact raising a question of law which is incorrect and/or no legal principles were applied; and by
d) Assessing evidence based on wrong legal principles.
10The test to be met on a request for reconsideration is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. For clarity, I have broken the applicant’s reconsideration request into two sections. The first deals with whether I made an error in law in my finding that the applicant’s accident-related impairments fit within the MIG. The second is whether I failed to correctly interpret and apply s.38 (8) and 38 (9) of the Schedule in determining that the respondent’s notice of denial was sufficient.
ANALYSIS
Did I error in law in my determination that the applicant’s accident-related impairments fall within the MIG?
11I do not find that I made an error in law in my determination that the applicant’s accident-related impairments fall within the MIG.
12The applicant submits that I erred in law, in that I assessed the evidence on the wrong legal principles. In particular, I rejected his expert’s diagnosis of chronic pain syndrome which he asserts was based on objective medical evidence and should have been preferred over the respondent’s assessors. Further, I placed the wrong evidentiary weight on his family doctor’s clinical notes and records (“CNRs”). In addition, he maintains that I erred in law, in my determination that he did not sustain a psychological impairment that would remove him from the MIG. Finally, he contends that I breached the rules of procedural fairness by relying on the paper review insurer examination (“IE”) reports of the respondent’s experts which he maintains were never served on him.
13The respondent argues that the applicant is attempting to relitigate issues that already failed at the hearing. Moreover, the applicant has failed to demonstrate that I have made an error in law which would result in an alternative decision. The respondent maintains that the applicant simply disagrees with my decision and that I correctly interpreted the law and placed the appropriate weight on the evidence before me. Furthermore, it submits that I gave wholly cogent reasons to support why I preferred the evidence of its experts over the applicants. For the reasons that follow, I agree with the respondent.
14I find that the applicant’s reconsideration request is an attempt to relitigate his position that already failed at the hearing. In the initial hearing, the onus was on the applicant to prove on a balance of probabilities that his accident-related impairments were not minor and did not fit within the MIG. Based on the evidence before me, I determined that the applicant did not meet his onus and that his accident-related impairments fit within the MIG.
15The applicant submits that I placed the wrong evidentiary weight on his family doctor’s CNRs. In my view, this argument has no merit as it was the applicant who relied on his family doctor’s CNRs in support of his position that he should be removed from the MIG. Ultimately, I determined that this evidence did not support his position. In paragraph [14] of my decision, I provide very clear reasons for why I did not find the family doctor’s CNRs persuasive. For example, I state that the CNRs were not helpful because the records were not legible, and it was not clear whether his visits were accident related. Consequently, I placed little weight on this evidence. The applicant has failed to convince me that I applied the wrong legal principles in weighing the value of this evidence.
16The applicant submits that I erred in law, in that I did not apply the appropriate weight to Dr. Rod’s chronic pain report. I agree with the respondent that the applicant is asking that I reweigh the evidence submitted for the initial hearing because he disagrees with my decision. In paragraphs [16] to [18] of my decision, I provide very detailed reasons for why I did not accept Dr. Rod’s diagnosis that the applicant suffers from chronic pain syndrome as a result of the accident. The applicant also argues that my decision is inconsistent because in paragraph [16] I state that Dr. Rod relied entirely on the applicant’s self-reports but, then I note that the doctor conducted a physical examination and completed testing. This is not an accurate description of what the decision says as I note that Dr. Rod failed to interpret the results of any of the testing he conducted. The applicant has failed to convince me that I misapprehended the evidence or applied the wrong legal principles in assessing the value of Dr. Rod’s report, or that I made an error in law that would result in an alternative decision.
17The applicant also contends that I erred in finding that he did not sustain a psychological impairment as a result of the accident that would remove him from the MIG. The applicant maintains that I should have applied more weight to the report of Dr. McCutcheon (the respondent’s IE assessor) because the doctor determined that the applicant had mild symptoms of anxiety and depression. Consequently, I should have determined that the applicant was removed from the MIG as a result of a psychological impairment. I disagree. Ultimately, the applicant did not submit sufficient evidence to support that he sustained a psychological impairment that would remove him from the MIG. In paragraphs [19] to [22] of my decision, my determination in relation to this is clear. A reconsideration request is not an opportunity for the losing party to reargue their position that already failed at a hearing. The applicant has not met his onus in proving that I made an error in law that would result in a different decision.
18The applicant also alleges that I did not review, consider or analyze a particular decision he relied upon in his submissions for the initial hearing, and that my decision is inconsistent with an earlier decision of mine. This is not accurate as I did consider the case law submitted, but I did not find it relevant. In the initial hearing, the applicant relied on T.F. v. Peel1 in support of his position that chronic pain or a diagnosis of chronic pain removes an individual from the MIG. To clarify, I did not find this decision helpful because, in T.F. v. Peel, the adjudicator accepted the applicant’s expert’s diagnosis of chronic pain syndrome. In this case, I did not, and I provided detailed reasons for why. While I acknowledge that my decision could have been clearer in explaining why I did not find this decision relevant it would not result in an alternative decision. Moreover, there is no requirement that the Tribunal refer to or address every argument made or piece of jurisprudence referred to by a party in its submissions. Overall, I find my decision clearly explains how I came to my determination on the MIG issue.
19Finally, the applicant submits that I violated the rules of procedural fairness by relying on the paper review IEs of Dr. Oshidari and Dr. McCutcheon which he contends were never served on him. I agree with the respondent that this was a misrepresentation of the findings in my decision. In paragraph [30] of my decision I indicate that these paper reviews were unnecessary as the respondent had just conducted its assessments addressing the MIG a few months prior. I do not find that I breached the rules of procedural fairness as I determined this evidence added no value. Ultimately, it was up to the applicant to prove that his accident related impairments do not fit within the MIG. Based upon the evidence before me he failed to meet his onus.
20For all of the above reasons, the applicant’s request for reconsideration of my decision finding that his impairments fall within the MIG is dismissed.
Did I act outside of my jurisdiction or error in law by failing to correctly apply ss. 38 (8), 38 (9) and 38 (11) of the Schedule?
21I do not find that I acted outside of my jurisdiction or erred in law in my interpretation of sections 38(8) and 38(9) of the Schedule.
22The applicant submits that I acted outside of my jurisdiction. In particular, I ignored the specific and mandatory language set out in s.38(8) of the Schedule in my determination that the respondent’s notice was sufficient because the respondent did not identify that it was a chronic pain program that was being denied. Despite this fact, I still found the respondent’s notice complied with s. 38(8) in paragraph [27] of my decision. The applicant argues that I erred in law because I applied an interpretation of s.38(8) which is contrary to the plain meaning rule of statutory interpretation.
23The respondent submits that my decision is correct and that I correctly interpreted and applied s. 38(8) of the Schedule in finding that its notice was sufficient. For the following reasons, I agree with the respondent.
24For clarity, the first paragraph of the respondent’s notice dated June 5, 2019 states:
We have received the treatment and assessment plan (“OCF-18”) submitted by Dr. Marcio Curio of Healthmax Physiotherapy – Thornhill dated May 14, 2019 for the amount of $13,667.32…We do not agree to pay for any of the goods, services and assessments described for the medical reasons and all other reasons known as of the date of this notice as follows.
25In paragraph [27] of my decision, I determined that despite the fact that the respondent’s notice contained a few mistakes, it was sufficient enough to allow the applicant to understand what was being denied regardless of the fact that it did not identify that it was a chronic pain program. I do not find that I erred in relation to this finding. In my view, unless the applicant had submitted multiple treatment plans in the same amount, from the same clinic on the same date, there would have been little room for confusion about what was being denied. I do not find that I incorrectly interpreted s.38(8) of the Schedule in applying it to the facts of this case. However, I do acknowledge that my decision could have been clearer as I should have highlighted that the respondent’s notice identified the service provider who authored the treatment plan, the date of the treatment plan and the total cost. My decision also indicates that I was satisfied with the respondent’s explanation that it attached a copy of the treatment plan that was being denied to the notice of denial. So, if there had been any confusion this would have made it clear.
26The applicant also argues that I erred in determining that the respondent provided adequate medical reasons as it did not address Dr. Rod’s chronic pain report in its denial. Furthermore, he contends that I made a finding of fact for which there was no evidence in paragraph [28] of my decision as I determined the respondent advised the applicant that the MIG applied to his case pursuant to s.38(9) of the Schedule. Section 38(9) provides that if an insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person. The applicant submits that no text stating that the respondent believed the MIG applied to the applicant’s condition exists in the notice. Further, he contends that I made an error in law when I concluded that the respondent’s notice was sufficient when the definition of the MIG was never provided. I disagree. Within the body of the respondent’s notice dated June 5, 2019, which I quoted in my decision the respondent states:
i. Based upon the information provided to date, we have determined that the documentation received is insufficient to support that you have sustained an injury or impairment which is not minor in nature as a direct result of this subject motor vehicle accident;
ii. Furthermore, there has been no supporting or compelling medical documentation provided to indicate that you suffer from a pre-existing condition which would preclude you from reaching maximum medical recovery within the policy limits as afforded under your Medical & Rehabilitation Benefits of $3,500.00;
iii. We have also received a completed Section 44 report and it was determined that your physical injuries are sprain / strain of lumbar spine and that there is no psychological impairment that would prevent your recovery within the Minor Injury Limit (underlining added).
27The case law supports that whether a notice of denial is sufficient will depend on the unique facts of each case. Based upon the evidence before me in this hearing, I determined that the above reasons were sufficient in denying the treatment plan. I also do not find that I erred in determining that the respondent complied with s.38(9) of the Schedule. In paragraph i. above, the respondent indicates that the medical documentation reviewed supports that the applicant sustained an impairment that is minor. Further, paragraph ii. indicates that there is no evidence of a pre-existing injury which would prevent the applicant from achieving maximum medical recovery under the policy limit. Finally, in paragraph iii., the respondent indicates that its assessors determined that the applicant sustained a minor injury based upon its s.44 IE. I determined that these reasons were sufficient based upon the evidence before me. Although the above paragraphs do not quote the MIG verbatim, they address the criteria needed to be removed from the MIG. Section 38(9) of the Schedule places no obligation on the respondent to quote the MIG or the section of the Schedule relied upon to satisfy its obligation. In my view, the fact that the respondent refers to it as the Minor Injury Limit instead of the Minor Injury Guideline, does not render the notice invalid. Nor does the fact that it did not specifically refer to the chronic pain report of Dr. Rod.
28The applicant has failed to convince me that I erred in applying s.38(8) or 38 (9) of the Schedule to the facts of this case. The applicant’s request for reconsideration on this issue is dismissed.
CONCLUSION
29For all of the above-noted reasons:
i. The applicant’s reconsideration request is dismissed.
Rebecca Hines
Adjudicator
Licence Appeal Tribunals
Tribunals Ontario
Released: May 6, 2021
Footnotes
- T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT)