[DJ] v. Aviva Insurance Company
RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
Date of Order: 08/13/2021
Tribunal File Number: 18-012131/AABS
Case Name: [DJ] v. Aviva Insurance Company
Written Submissions by:
For the Applicant: No submissions
For the Respondent: Michael J. L. White, Counsel
OVERVIEW
1This request for reconsideration was filed by the respondent, Aviva. It arises out of a decision dated May 28, 2020 by Adjudicator Braun. The Tribunal determined that the applicant was entitled to medical benefits in the amount of $3,030 for social work counselling and $2,600 for physiotherapy, on the basis that the treatment plans were reasonable and necessary.
2In its request, Aviva submits that the Tribunal erred in law and fact in finding that the benefits were reasonable and necessary pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20201 (the "Schedule"). Aviva asserts that the Tribunal failed to provide any reasons for assigning little or no weight to the applicant's sworn evidence from her Examination Under Oath ("EUO"), that the Tribunal mischaracterized or overlooked parts of its evidence and that it committed other errors of law in overriding a previous Tribunal decision involving the parties.
3The applicant acknowledged Aviva's request for reconsideration, but declined to provide submissions, deferring instead to the Tribunal's decision at first instance. Pursuant to Rule 18 of the Tribunal's Common Rules of Practice and Procedure, I have been delegated responsibility to reconsider this matter, as the original adjudicator is no longer with the Tribunal.
RESULT
4The request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal's Common Rules. A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, Aviva relies on criteria 18.2(b), submitting that the Tribunal committed errors of law and fact in reaching its decision such that the Tribunal would likely have reached a different decision had the errors not been made.
6The accident occurred on October 26, 2013, and was previously the subject of a Tribunal decision released on November 29, 2016, where the Vice-Chair removed the applicant from the Minor Injury Guideline but determined that facility-based treatment was not reasonable and necessary because the applicant had reached maximal medical recovery, a finding purportedly made by the applicant's own doctor. The 2016 Tribunal decision underpins Aviva's reconsideration request of the 2020 decision, which takes aim primarily at paragraphs 12-14, where the Tribunal "placed little weight upon the answers of the applicant in the EUO and instead preferred the evidence of the mental health assessors…" in making its finding that the social work counselling was reasonable and necessary.
7On review, and in the absence of submissions from the applicant, I agree with Aviva that the Tribunal's decision to disregard the applicant's own EUO testimony that she "is not depressed, can control her emotions and feels anxious but not to the extent where…it will put [her] in a state where [she] cannot do anything" in favour of the medical opinions to the contrary was unexplained. The reasons supporting this preference were not really articulated. However, on review of the paragraphs that follow this finding, I disagree that this was an error that would have resulted in a different outcome had it not been made.
8Indeed, while I find it peculiar to discount the applicant's own words, I find the Tribunal's reasons at paras. 15-18 provided appropriate rationale to fill in the gaps for its decision to award $3,030 for the social work treatment plan: that "Dr. Syed recommended broadly similar treatment" and the same number of sessions as the OCF-18; because Dr. Syed's report did not explain why it was preferable for a clinical psychologist to provide treatment over a social worker, which is permitted under the Regulated Health Professions Act; that there was no compelling evidence that the services in the OCF-18 could not be performed by a social worker; that there was general agreement between assessors that the applicant suffers from accident-related psychological impairments which should be treated with counselling; and, that the disputed plan was reasonable and necessary, meeting the test under the Schedule. Further, the Tribunal's criticism of Dr. Syed's opinion on a social worker's ability to provide treatment did not shift the evidentiary burden, as alleged. Rather, I find that the adjudicator was expanding on her reasoning for discounting Dr. Syed's report while also expanding her reasoning on why the applicant had met their burden of proof.
9Next, I find no error in the Tribunal's determination and reasons at paras. 19-29 that the physiotherapy treatment plan was reasonable and necessary. It is well-settled that adjudicators are not bound by the decisions of their colleagues, even previous decisions that concern the same parties.2 Contrary to Aviva's submissions, the Tribunal did not "override" the Vice-Chair's finding from the 2016 decision that the applicant had reached maximal medical recovery. Rather, the adjudicator relied on the evidence before her and arrived at a different conclusion, citing the applicant's chronic pain and the fact that Dr. Bui and Dr. Ta performed in-person examinations while Dr. Karabatsos conducted a paper review only. While Aviva may disagree with the weight that the adjudicator assigned to the evidence in the 11 paragraphs dedicated to the physiotherapy treatment plan, I see no error of law that would have affected the outcome of the decision. These findings were well within the adjudicator's purview, and I see no reason to interfere on reconsideration.
10Accordingly, I do not find that that the adjudicator's lack of reasons for assigning meaningful weight to the applicant's EUO testimony or in her preference for the evidence resulted in an error in her ultimate decision to award the benefits on the basis that they were reasonable and necessary. I find that the Tribunal did not commit an error of law or fact that would have resulted in a different outcome had they not been made.
ORDER
11For the reasons above, the request for reconsideration is dismissed.
Jesse A. Boyce
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Date of Issue: August 13, 2021
Footnotes
- O. Reg. 34/10, as amended.
- See, for e.g., Wilson v. Atomic Energy of Canada, 2016 SCC 29, at para. 82; and Domtar Inc. v. Québec (Commission d'appel en matière de lésions professionnelles), 1993 CanLII 106 (SCC).