RECONSIDERATION DECISION
Before:
Monica Chakravarti, Adjudicator
05/10/2021
Tribunal File Number:
18-008564/AABS
Case Name:
P.Y. v. Aviva Insurance Company
Written Submissions by:
For the Applicant:
Aminder Hayher, Paralegal
For the Respondent:
Dale Stuckless, Counsel
OVERVIEW
1The request for reconsideration was filed by the applicant.
2This reconsideration request arises out of the March 11, 2020 decision (the Decision) by the Tribunal, which found that the applicant sustained predominantly minor injuries, the applicant was not entitled to the medical benefits for physiotherapy treatment and the cost of a psychological assessment. As well the Tribunal found no basis for an award pursuant to Ontario Regulation 664 and no interest was payable.
3The applicant is seeking a variation of the Decision.
RESULT
4The applicant’s request for reconsideration is dismissed.
POSITION OF THE PARTIES
5In sum, the applicant submits that, as per the Decision, the Tribunal found that the respondent did not respond to the disputed treatment plans within the ten business days contemplated under section 38(8) of the Schedule1. The applicant submits that the Tribunal made an error when it found that the goods and services in the disputed treatment plans had not been incurred and the treatment plan was not payable. The applicant also submits that the Tribunal made an error in that the Tribunal found that the treatment plans had to be reasonable and necessary in order to invoke the consequences of section 38(11).
6The respondent submits that the applicant’s understanding of the Decision is flawed, and that the Decision should stand.
ANALYSIS
7The grounds for the request of reconsideration are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice & Procedure, October 2, 2017 (“Rules”), as amended. The applicant makes this request under Rule 18.2 (b), which is that 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.
8Having reviewed the Decision, I find there is no error of law or fact such that the Tribunal would have likely reached a different result had the error not been made.
a) The Physiotherapy Treatment Plan
9The applicant in the reconsideration submissions posits that the Tribunal determined that the response from the respondent to the treatment plan for physiotherapy was denied late. This is incorrect. There was no finding by the Tribunal about the “lateness” of a response to the physiotherapy treatment plan and this argument was not raised by the applicant in the first instance. A reconsideration is not an opportunity to re-argue or put forth new arguments that were not provided during the hearing.
10Secondly, as pointed out by the respondent, the initial denial of the physiotherapy treatment plan was on July 24, 2017 which was within ten business days from the date the physiotherapy treatment plan was submitted (i.e. July 10, 2017). This evidence of the July 24, 2017 denial was never put before the hearing adjudicator because the issue of the late denial of the physiotherapy treatment plan was not an issue for the hearing and therefore the evidence was not necessary. This is persuasive in showing that the issue of the late denial of the physiotherapy treatment plan was, first, not an issue raised at the hearing, and, secondly, even if it was raised it would not have been successful therefore rendering the same result as in the Decision.
b) The Psychological Assessment Treatment Plan
11With respect to the psychological assessment treatment plan, the applicant submits that the Tribunal found that the treatment plan was submitted on June 22, 2017 and the respondent responded to this treatment plan outside of the ten business days provided for in section 38(8), and that the remedial powers of section 38(11) of the Schedule would apply.
12The Tribunal held that the remedial powers under section 38(11) and, specifically, the respondent would be liable to pay for the incurred psychological assessment starting on the 11th day after submitting the treatment plan until proper notice was provided. In the Decision, the Tribunal held at paragraphs 54 and 55 that:
If the applicant had incurred the expense of the psychological treatment plan prior to the respondent providing notice, then the respondent would be liable to pay the treatment plan based on what was incurred prior to proper notice as contemplated by the Schedule.
However, the applicant did not incur expenses associated with the psychological assessment treatment plan prior to the late notice.
13The applicant submits that the Tribunal’s finding that the applicant did not incur the psychological assessment prior to the notice of denial was an error in fact by the Tribunal. The applicant submits that the Tribunal should have known it was incurred because a psychological assessment was provided as evidence in the hearing.
14With respect, the applicant’s facts, as submitted above, are incorrect.
15First, the disputed treatment plan for the psychological assessment was for an assessment with Dr. Jon Mills of Mills Psychology Professional Corporation. At the hearing, there was no psychological assessment submitted by Dr. Mills or Mills Psychology Professional Corporation. The applicant did not provide any invoices or proof of an incurred psychological assessment in the amounts contemplated in the disputed treatment plan or for any amounts.
16Secondly, the psychological assessment that the applicant is referring to as incurred is the assessment completed by Mr. Gosse on October 28, 2017 (the “Gosse Assessment”). As noted above the applicant did not provide an invoice or anything showing the actual cost of the Gosse Assessment. The applicant submits that the Tribunal should have known that the Gosse Assessment was the same as contemplated by the disputed treatment plan that stated that services were to be provided by Dr. Mills. This is unrealistic. If the submissions of the applicant are accepted, the expectation would be for the Tribunal to substitute providers on treatment plans, to assume what the costs of the assessment or treatment are, and for the Tribunal to do this on its own accord without submissions from the parties. This would also mean that the respondent would have no opportunity to respond to a change of providers in a treatment plan or respond to a change of costs of the treatment. This is unrealistic and not an error in fact or law that would allow for a reconsideration of the Decision.
17Lastly, the respondent points out the psychological assessment treatment plan was submitted on June 22, 2017 and initially denied on July 13, 2017. The applicant in his reconsideration submissions at tab 4 provides this initial denial letter of July 13, 2017. The psychological assessment is denied again following the insurer examination on November 30, 2017 which is the date the Decision notes in paragraph 49. The respondent conceded and the Decision confirmed that its response to the psychological assessment treatment plan was more than 10 business days after receipt; however, as the amount was not incurred the Tribunal made no finding of the true date of the initial denial and simply referred to the second denial.
18Further, for the psychological assessment to meet the condition under s.38 and be payable, it would have to have been conducted following the 10th business day which would be as of July 8, 20172 and prior to the initial notice of denial of July 13, 2017. Paragraph 18 of the Decision confirms that the Gosse Assessment was completed on October 28, 2017. Therefore, even if the Tribunal accepts that the Gosse Assessment should be used in lieu of the assessment contemplated by Dr. Mills in the psychological treatment plan (which the Tribunal does not), the same result as in the Decision would have been rendered by the Tribunal, in that the cost of the Gosse Assessment is not payable because it was not incurred prior July 13, 2017.
19With respect to the psychological assessment the applicant also submits that the Tribunal erred in that it found that the assessment had to be reasonable and necessary in order for the assessment to be payable under section 38(11). This was not the finding of the Tribunal in the Decision.
20The Tribunal held that for the assessment to be payable under section 38(11) that it had to be incurred prior to proper notice. The Tribunal did not find that it had to reasonable and necessary in order to be payable under section 38(11). Further as noted in paragraph 53 of the Decision the Tribunal confirms that the first consequence of section 38(11) - that the respondent is precluded from taking the position that the MIG applies - remains regardless of the proper notice. As noted above and in the Decision, the second consequence under section 38(11) - that the respondent must pay for the assessment if it was incurred starting on the 11th day and ending on the day of proper notice – ends on the day of proper notice of denial by the respondent. In other words, the second consequence of section 38(11) in this case can be only invoked between July 8, 2017 and July 13, 2017 regardless of the reasonableness and necessity of the assessment.
21Thus, there was no error of law with respect to when the Tribunal applied the test of reasonableness and necessity to the psychological assessment treatment plan.
CONCLUSION
22A reconsideration is not an avenue to re-litigate or put forth new arguments that were not done so during the hearing. The grounds for reconsideration of a Tribunal Decision are limited and specific and the onus is on the party requesting the reconsideration of the Decision to show that one is warranted. In this instance, the applicant did not establish that the Tribunal made errors of law and fact such that the Tribunal would have reached a different result had the error not been made.
23For the reasons noted above, the applicant’s request for reconsideration is dismissed.
Monica Chakravarti
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: May 11, 2021
Footnotes
- Statutory Accident Benefits Schedule, O.Reg 34/10
- Accounting for July 1 as excluded from being a business day (carried over to the Monday, since July 1 was on a weekend), the 10th and last possible business day after the day of receipt (as per the language of s. 38(8)) to respond to the treatment plan would be July 7 and therefore July 8, 2017 is the 11th business day.