Rodionova v. Aviva General Insurance Company, 2022 CanLII 114465

Citation: Rodionova v. Aviva General Insurance Company, 2022 CanLII 114465

RECONSIDERATION DECISION

Before: Brian Norris

Licence Appeal Tribunal File Number: 19-012116/AABS

Case Name: Liliiia Rodionova v. Aviva General Insurance Company

Written Submissions by:

For the Applicant: Alexei Antonov, Counsel Francesco Vumbaca, Student-at-Law

For the Respondent: Christina Chiu, Counsel

OVERVIEW

1Requests for reconsideration were filed by both parties in this matter. They arise out of a decision in which I found that the Applicant was entitled to a physiotherapy treatment plan and the unapproved balance of a psychological assessment, plus interest.¹ I also found that the Applicant was not entitled to income replacement benefits, (“IRBs”), and treatment and assessment plans which include physiotherapy, spinal decompression treatment, a psychological assessment, a chronic pain assessment, and a chronic pain treatment plan.

2The Applicant seeks a variance on all issues decided in favour of the Respondent. She also seeks a finding on her costs request associated with the initial decision.

3The Respondent seeks a variance on the issue with respect to the cost of the psychological assessment.

RESULT

4The Applicant’s request for a finding on her costs request associated with the initial decision is granted and address below. He remaining requests for reconsideration are denied.

5The Respondent’s request for a reconsideration is denied.

BACKGROUND

6The Applicant was the driver of a vehicle which was struck on the driver’s side by another vehicle exiting a parking lot on May 24, 2019. She sought no medical attention at the time of the collision but went to her family physician the following day with complaints of headaches and neck and back pain. She engaged in physiotherapy treatment due to her accident-related injuries. The Respondent characterized the Applicant’s injuries as being a minor injury and subjected her to the MIG the $3,500.00 funding limit on treatment. The Applicant contested this characterization of her injuries at the hearing, as well as her entitlement to IRBs and various treatment and assessment plans.

7At the case conference for this application, the Respondent conceded that the Applicant sustained psychological injuries as a result the accident. Thus, the Respondent no longer subjected the Applicant to the MIG, approved funding for psychological services, but maintained that other benefits, such as IRBs and certain treatment and assessment plans, were not reasonable and necessary as a result of the accident.

ANALYSIS

8The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”). 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, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

9The Applicant advances her request for reconsideration pursuant to all four grounds.

10The Respondent advances its request for reconsideration pursuant to grounds (a) and (b).

11Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. Errors of fact and law must be significant enough that the Tribunal would have reached a different decision had the error not been made.²

12The Reconsideration of a decision is not an opportunity to relitigate the issues when a party disagrees with the previous decision. Reconsideration is not a venue to tender new evidence unless the evidence was unavailable for the initial hearing and would likely affect the result if admitted.

13Procedural fairness provides that the Parties understand the case they have to meet and that they have an opportunity to be heard and allowed to respond accordingly.³

THE APPLICANT’S REQUEST FOR RECONSIDERATION

14As noted above, the Applicant advances her request for Reconsideration on all four grounds. Her submissions touch on numerous issues, which I have grouped into the four grounds for a reconsideration.

15In short summary, the Applicant disagrees with most of the initial decision. Her disagreement involves the admission of her post-secondary school records into evidence, how certain evidence and witness testimony was analyzed, findings on her functionality, application of case law, and interpretation with the legislation. The Applicant also submits that I consider new evidence, as well as her cost submissions from the initial hearing.

VIOLATED THE RULES OF PROCEDURAL FAIRNESS

Admitting Medix College file into evidence

16The Applicant’s post-secondary school records from Medix College were admitted into evidence for the hearing. The Applicant objected to this on the grounds that the file was included in a pre-hearing brief from the Respondent that was not served until one business day before the hearing. I addressed this at paragraphs 3, 4 and 5 of my decision. I advised the parties that I would address the records as they were presented during the hearing. Later, when the Medix College file was requested to be put into evidence during the hearing, I found that the records were relevant because they were contemporaneous with the Applicant’s claim for IRBs and because the file presented little prejudice to the Applicant, considering it originated from her.

17The Applicant submits that I violated the rules of procedural fairness by admitting her Medix College file and affording it the weight that I did. She submits that it prevented her from presenting her case fully and fairly. The Applicant also highlights how the document was used when concluding that she was not forthright with assessors, submitting that the timing of her enrollment in the program occurred following the assessments.

18The Respondent submits that role of the adjudicator is to consider the appropriate weight to give a particular piece of evidence. It submits that reasons are given in the decision to support the finding that the documents were relevant. Notably, that the file is contemporaneous with the period the Applicant claims IRBs, that it speaks to her functionality during said period, and that it originated from her.

19I agree with the Respondent and find no violation of procedural fairness. The Applicant is relitigating her arguments on the issue at the outset of the hearing. Admitting the document was permitted because it is relevant for the reasons outlined in my decision. Further, I found no prejudice to the Applicant by admitting the document as it originated from her and was in her possession at the time of the hearing. The Applicant was aware of the document and the fact that it was submitted in an evidence brief subsequent to the deadline does not change that. Not only was the Applicant aware of the Medix college file, but she was also given an opportunity to address it in her testimony and did so.

Failing to address the costs request

20The Applicant submits that I violated her right to procedural fairness when I failed to address her costs request in the initial decision.

21The Respondent contends that the Applicant has failed to submit any authorities or provide any other submissions on how the Tribunal violated her right to procedural fairness by not addressing the request for costs in the initial decision. It suggests that the cost request is improper because it was not addressed in the Order for this hearing.

22I agree with the Applicant that I failed to address her request for costs in my decision. However, this can be remedied by addressing the cost submissions now, which are reiterated in the Applicant’s submissions on Reconsideration. The Applicant requested costs in the amount of $7,000.00. She outlined that the Respondent provided the adjuster’s log notes after the deadline ordered by the Tribunal, changed its position on working from a single document brief and thereby served the Applicant a brief on the eve of the hearing, and failed to conclude that the Applicant sustained psychological injuries until the parties participated in a case conference.

23Pursuant to Rule 19.2, a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, or at any time before the decision or order is released. Thus, the Applicant’s request was within the Rules.

24Pursuant to Rule 19.1, requests for costs may be made where a party believes the other party in the proceeding acted unreasonably, frivolously, vexatiously, or in bad faith. Pursuant to Rule 19.6, the amount of costs shall not exceed $1,000.00 for each full day of attendance at a motion, case conference, or hearing.

25In deciding whether to order costs, I must consider all relevant factors. This includes the seriousness of the misconduct, whether the conduct was in breach of an order, whether the behaviour interfered with the Tribunals ability to carry out a fair, efficient, and effective process, the prejudice to the other party, and the potential impact an order for costs would have on individuals accessing the Tribunal.

26I find no behaviour during the proceeding which rises to the level to warrant a cost award.

27With respect to the disclosure of documents, the Applicant refers to a breach of order dated May 4, 2020, that advised the parties to produce certain records, including adjuster’s log notes and the clinical notes and records of IE assessors by May 15, 2020. A Tribunal order of October 20, 2020 states that the parties agreed that the Respondent will produce those records by October 23, 2020.

28Indeed, it appears from the Tribunal orders that the Respondent failed to comply with the initial order. Its submissions fail to explain any reason for the failure to comply with the initial order.

29However, the Respondent complied with the agreement in the second order, dated October 20, 2020. This action partly mitigated the issue by providing the documents. Remarkably, the October 20, 2020 order was as a result of a motion by the Applicant to add issues to the hearing and not related to the Respondent’s production of records.

30There appears to be no prejudice to the Applicant as a result of failing to provide the records in a timely fashion. The Applicant received the documents and was able to rely upon them at the hearing. Further, there is no evidence that the disclosure resulted in any prejudice to the Applicant.

31The disclosure issues described by the Applicant had no impact on the Tribunal’s ability to conduct a fair, efficient, and effective process. The hearing proceeded on time, without any delays. The hearing record included sufficient information to render my decision on the issues in dispute.

ERRORS OF LAW OR FACT

Erred by mischaracterizing Dr. Koepfler’s findings

32In the initial decision, I determined that the Respondent’s insurer’s examination, (“IE”), assessor, Dr. L. Koepfler, psychologist, had sufficient information to determined that the Applicant’s accident-related psychological impairments were not preventing her from performing her essential work tasks.

33The Applicant submits that I made an error of fact with respect to Dr. Koepfler’s report. She submits that it is not the case that Dr. Koepfler had enough information, it is that there was no reliable data in which to make a conclusion on. She submits that the IE report dated October 7, 2019 says “the present assessment does not provide any reliable or valid data to conclude that (the Applicant) is substantially disabled from the essential tasks of her pre-accident employment”.

34I find no error of fact such that the Tribunal would have reached a different decision had the error not occurred. Indeed, the report finds no reliable or valid data to conclude the Applicant is substantially disabled from completing her work tasks. I agree that my iteration of the finding in paragraph 37 of the initial decision is different than the language in the report. However, the conclusion remains the same – that there is no medical basis to conclude that the Applicant is unable to complete the essential tasks of her employment.

Erred by characterizing Dr. Karmy as a physician and not a chronic pain specialist

35In the initial decision, I characterized Dr. G. Karmy as a physician. The Applicant submits that it was an error of fact to characterize Dr. Karmy as a physician and not “chronic pain specialist”. She submits that Dr. Karmy’s opinion would have been afforded greater weight had the error not been made. The Respondent submits that this is not an important factual error or omission that would likely have reached a different conclusion had the error not occurred.

36I find no error of law or fact by characterizing Dr. Karmy as a physician. Indeed, Dr. Karmy was addressed at the hearing as a chronic pain specialist, not simply a physician. However, this characterization had no impact on my initial decision and is not an error that would end in a different result had the error not occurred. My preference for other evidence over that of Dr. Karmy was due to the nature of the evidence and testimony, not on account of his specialty.

Erred in my assessment of Dr. Harmantas’ IE report and opinion

37In the initial decision, I preferred Dr. Harmantas’ opinion over Dr. Karmy, despite the fact that Dr. Harmantas never reviewed a second disability certificate provided by the Applicant. I found that the Applicant never established how or why the disability certificate would change Dr. Harmantas’ opinion.

38The Applicant submits that the disability certificate dated October 3, 2019 was important additional information in the Applicant’s post-accident condition that, if considered with the appropriate weight, would or should have impacted Dr. Harmantas’ opinion. The Respondent never addressed this issue directly.

39I find that this is an attempt to relitigate the initial hearing. At paragraphs 38 and 39, I considered Dr. Harmantas’ report and weighed it accordingly. The Applicant’s suggestion that a single disability certificate, which includes virtually no objective information, would upset the findings of a comprehensive in-person assessment and accompanying report is uncompelling.

Erred in finding that Dr. Karmy and Dr. Brunshaw relied too heavily on the Applicant’s self-reports

40In the initial decision, I found that Dr. Karmy and Dr. Brunshaw, both witnesses for the Applicant, relied too heavily on the Applicant’s subjective complaints, causing them to get an unobjective perspective of the Applicant’s condition. I found insufficient evidence to demonstrate that the assessors cross-referenced the Applicant’s complaints with her pre-and post-accident medical records.

41The Applicant submits that it is an error of fact by concluding that Dr. Karmy and Dr. Brunshaw relied too much on the Applicant’s self-reports. She directs me to the objective findings in Dr. Karmy and Dr. Brunshaw’s reports that, to her, demonstrate her accident-related impairments. She also submits I erred by concluding that Dr. Karmy overlooked pre-accident pain complaints.

42I find that this is an attempt to relitigate the matter. The weighing of evidence is the adjudicator’s role, which I did at paragraphs 41 of my decision. I found that the reliance solely on the Applicant’s self-reported medical history, instead of cross-referencing it with pre- and post- accident records, to be detrimental to the overall persuasiveness of the reports. This is of particular importance because Dr. Karmy and Dr. Brunshaw both concluded that the Applicant’s current presentation was as a direct result of the subject accident. Indeed, there are objective findings in Dr. Karmy and Dr. Brunshaw’s reports. However, employing objective testing during an assessment does not make up for the historical analysis required when determining the cause and affect of those impairments.

43With respect to pre-accident pain complaints, Dr. Karmy concluded that the Applicant’s pain complaints were as a result of the accident. At paragraph 40 I found that he failed to reconcile this finding with the Applicant’s pre-existing pain complaints. Records confirm that the Applicant requested and was provided a back brace due to pain while working full-time in a commercial kitchen about a year prior to the accident. To me, Dr. Karmy never satisfactorily explored this issue, and relied too much on the Applicant’s reports that her pre-existing back issues weren’t symptomatic to any significant degree before the accident. The fact is the Applicant’s pre-existing back issues were significant enough to warrant the use of a back brace at work.

Erred in determining that the Applicant was not forthright with assessors

44In the initial decision, I found that the Applicant was not forthright with her disclosure to the assessors when it came to her participation in the massage therapy college program. I found that only Dr. Brunshaw’s report mentioned enrollment in a college program and questioned why none of the other assessors were made aware the enrollment.

45The Applicant submits that I erred in fact when I made my findings. She submits that she started her massage therapy program on September 30, 2019 – after she was assessed by Dr. Harmantis on August 22, 2019 and Dr. Koepfler on September 21, 2019. She suggests that she was enrolled in the program at the time of the assessments and not yet attending studies, thus, was not required to disclose this to the assessors. The Respondent never addressed this submission directly.

46I find no error in determining that the Applicant was not forthright with assessors when it comes to her participation, or enrollment, in a massage therapy program. As noted in my decision at paragraph 41, while the Applicant may have started her program shortly after the assessments, she never disclosed her enrollment to the assessors. The Applicant reported to Dr. Koepfler on September 21, 2019 that she would like to take courses through Ontario Works or return to school to study another career – but never mentioned her enrollment in a massage therapy program, scheduled to start 8 days following the assessment. Similarly, Dr. Karmy assessed the Applicant on November 29, 2019 and the corresponding report addressed the Applicant’s education and employment, noting that she has a bachelor’s degree and a certificate from the Ontario College of Teachers but that her functional restrictions cause a complete inability to work in any occupation. Remarkably, Dr. Karmy makes no mention of the massage therapy program that the Applicant was enrolled in at the time of the assessment.

47Considering the evidence, submissions and timing of the events, I find no error of law or fact in finding that the Applicant was not forthright with assessors.

Erred in findings no evidence of a cognitive assessment or evaluation

48In the initial decision, I found that Dr. Brunshaw never met the Applicant and that there was insufficient evidence of a cognitive assessment or evaluation by Dr. Brunshaw which would support the conclusion that the Applicant’s cognitive deficits preclude her from completing her essential work tasks.

49The Applicant submits that Dr. Brunshaw did not opine that the Applicant’s cognitive deficits preclude her from completing her essential work tasks. Rather, she submits, Dr. Brunshaw opined that a common symptom or characteristic of Specific Phobia is difficulty with cognition, which is an important aspect of driving for her employment, which renders her substantially unable to perform her essential tasks as an Uber driver.

50I find that the Applicant is attempting to relitigate the issue. Dr. Brunshaw’s evidence and testimony were considered when I concluded that there was insufficient evidence of a cognitive assessment or evaluation for which Dr. Brunshaw could formulate a persuasive opinion on.

Erred in inferring that Dr. Karmy’s testimony undermines his impartial opinion

51In the initial decision, I found that Dr. Karmy’s comments undermined his impartial opinion. In testimony, he noted that 164 physical treatment sessions in four months are reasonable and necessary. He noted that some treatment plans may overlap, many were rejected and sometimes it is necessary to get approval for more treatment than will be used because chronic conditions can be difficult to treat.

52The Applicant submits that I erred in finding that Dr. Karmy’s opinion on whether treatment is reasonable and necessary is skewed in favour of securing additional funding from the Respondent. She submits that Dr. Karmy clarified his remarks in re-direct examination, that his opinion on the treatment and assessment plans was based on the individual plans and not as a whole and that the treatment included multiple modalities.

53I find that this is an attempt to relitigate the issues. The weighing of evidence and drawing conclusions based on testimony is the role of the adjudicator. Dr. Karmy’s remarks at the hearing caused me to conclude that his impartial opinion was undermined in favour of securing additional funding for the Applicant. I see no error with my weighing of the evidence and find that the Tribunal would have come to the same conclusion had the evidence been weighed differently.

Error of Law by finding in favour of the Respondent, contrary to the caselaw provided by the Applicant

54The Applicant suggests that I erred in law by not following B.A. v Aviva (“BA”) and K.K. v Aviva.⁴ In BA, the adjudicator distinguished the difference between driving for personal reasons and driving for employment. In KK, significant consideration was given to psychological impairment when determining whether the Applicant was substantially unable to complete their essential work tasks.

55I find that this is an attempt to relitigate the matter. While BA and KK are not binding on me, they were nevertheless considered in the initial decision. However, I found that they were unhelpful because I preferred the reports of Dr. Harmantas and Dr. Koepfler over the reports of Dr. Karmy and Dr. Brunshaw for the reasons described in the initial decision and in this reconsideration.

Error of Law in my application of sections 38(5) and 38(6)

56The Applicant submits that I erred in law when I determined that the treatment plans dated May 25, June 11, and July 31, 2019 were subject to section 38(5) of the Schedule and not subject to review, pursuant to section 38(6). She submits that the treatment plans describe goods or services to be received in respect of an accident-related impairment which falls outside of the MIG. The Respondent submits that the Applicant provides no authority demonstrating that my interpretation of sections 38(5) and 38(6) of the Schedule are erroneous.

57I find that the Applicant is relitigating the position. This was addressed in the initial decision at paragraphs 22 to 26, and the Applicant provides no authority to the contrary.

58The Applicant also fails to appreciate that the goods and services were proposed during the period which the Applicant is entitled to goods and services pursuant to the MIG. As noted in the initial decision, the Applicant initially reported a predominantly minor injury as defined in the Schedule. While there are reports of symptoms of a psychological injury, which were later agreed to be associated to an injury outside the minor injury definition, her predominant injury which required acute treatment was her collection of sprain/strain injuries to her neck, back and shoulder. There were reports of a possible concussion but, as noted in paragraph 18 of my initial decision, imaging conducted was unremarkable and the treatment proposed addressed the Applicant’s sprain and strain injuries, not her concussion symptoms.

59As noted in paragraph 26 my initial decision, the MIG was implemented to ensure speedy access to treatment for soft-tissue injuries during the acute phase of the injury. The operation of section 38(5) of the Schedule provides that Applicant, who reported a predominantly minor injury, must treat her accident-related injuries within the MIG during that acute phase. While doing so, she is permitted to provide additional evidence that she sustained a non-minor injury or that she has a pre-existing health condition which would preclude her recovery if subject to the MIG and the $3,500.00 funding limit on treatment.

Erred in finding no functional impairment

60In my initial decision, I concluded that the Applicant exhibits no functional impairment as a result of chronic pain. This led me to conclude that the treatment and assessment plans related to chronic pain were not reasonable and necessary.

61The Applicant submits that Dr. Karmy’s report contradicts my finding that the Applicant exhibits no functional impairment and that she is independent with her personal care tasks. She notes that Dr. Karmy found that the Applicant had restricted range of motion and tenderness, and that it was factually incorrect to conclude that the Applicant was independent with her personal care. The Applicant also submits that her enrollment in a fulltime massage therapy program is irrelevant to her function.

62I find that this is an attempt to relitigating the issue. My initial decision was based on the reports and testimony at the hearing. I concluded on that evidence that the Applicant is independent with her personal care, which is reflected in Dr. Karmy’s report. Dr. Karmy noted that the Applicant has been experiencing difficulties while performing personal care tasks, but never mentioned that the Applicant has assistance with those tasks. The Applicant reported that she was slower and careful when completing her tasks on her own. Thus, she is independent with her personal care tasks.

63The Medix College file is relevant to the Applicant’s functionality. As noted in the initial decision, the program requires an in-person, practical component which included providing massage therapy to patients. The records demonstrate that the Applicant was able to complete the program and there is no evidence she required any accommodation, other than the use of a stool, as I noted in the initial decision. I find no error of law or fact in my conclusion that the Applicant is not functionally impaired as a result of pain.

Error of law to find that the June 30, 2020 treatment plan was not compliant with 38(3).

64In my initial decision, I determined that the treatment and assessment plan dated June 30, 2020, proposing psychological instruction CDs, was not compliant with the Schedule and, therefore, not reasonable and necessary.

65The Applicant submits that my conclusion with respect to section 38(3) is an error of law. The Applicant submits that the Schedule requires that the treatment plan be signed by a regulated health professional and include a statement by a health practitioner approving the treatment plan and stating that they believe that the goods and services are reasonable and necessary. She submits that Dr. O. Pivtoran, chiropractor, signed the treatment plan, and the treatment plan included a statement from a psychologist. She further submits that the expense was reasonable according to Dr. Brunshaw because the CDs provide instruction for pain management and relaxation exercises. According to Dr. Brunshaw’s testimony, the recommended CDs are the best ones for relaxation and lowering adrenaline and strengthening the immune system. To the Applicant, it is not reasonable to expect Dr. Brunshaw to explain the cost of the CDs, but Dr. Brunshaw’s testimony was nevertheless sufficient to determine that the CDs are reasonable and necessary as a result of the accident. The Respondent contends that the Applicant misstates the findings of the Tribunal and that she failed to meet her onus to demonstrate an error of law in this instance.

66I find no error of fact or law by determining that the treatment plans were not compliant with section 38(3) of the Schedule. Section 38(3)(c) of the Schedule provides that a treatment and assessment plan must include a statement by a health practitioner approving the treatment and assessment plan and sating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured persons treatment or rehabilitation.

67As noted in the initial decision, I felt that Dr. Pivtoran was not qualified to recommend psychological treatment and, thus, the treatment plan failed to comply with the requirements in section 38(3). I relied on the definition of “health practitioner” provided by section 3(1). The definition states that “health practitioner” means “in respect of a particular impairment…a chiropractor, if the impairment is one that a chiropractor is authorized by law to treat.” A chiropractor is not authorized by law to treat psychological injuries.

68In addition, I reject the Applicant’s argument that a statement by a health practitioner was provided. The treatment and assessment plan dated June 26, 2020 has an “additional comments” section whereby Dr. Pivtoran states: “In a recent letter by Dr. Andrew Shaul or Dr. Jacqueline Brunshaw recommended to provide this patient with a 4 CD series comprised of Relaxation and Pain management exercises” (sic). This does not satisfy the requirements of section 38(3)(c). It is not a statement but, instead, a comment on a letter, it is unclear where the information originated from, who made it, or whether it is from a health practitioner.

69With respect to the cost of the CDs, I once again find that the Applicant is attempting to relitigate the issue. Costs are considered when assessing whether a treatment and assessment plan is reasonable and necessary. It is reasonable to ask Dr. Brunshaw to explain the cost of the CDs because she considered the Applicant to be under her care. He only explanation regarding the cost was that it was what the vendor charges. There appears to have been no consideration for less costly alternatives, or at the least, what the industry standard is.

Fresh Evidence

70The Applicant submits that a practice direction from the Ontario Psychological Association was not before the Tribunal when I rendered my decision, that it could not have been produced previously, and it would affect my position on Dr. Brunshaw’s supervision of H. Ilios. I disagree and find that the new evidence could have been provided for the hearing and that, if produced, it would not affect my decision.

71The new evidence presented by the Applicant fails to meet the Palmer test, as noted by the Respondent.⁵ The first prong of the Palmer test is that the fresh evidence could, not through the due diligence, have been adduced at the hearing.

72The document in question is not fresh evidence. The Applicant provides no explanation why the OPA Best Practices for Supervision of Registered Members of Other Colleges Authorized in the Controlled Act of Psychotherapy was not available for the hearing. Thus, I will not consider the new evidence during this reconsideration.

CONCLUSION ON THE APPLICANT’S REQUEST

73For the reasons above, the Applicant’s request for a finding on her costs request associated with the initial decision is granted. He remaining requests for reconsideration are denied.

THE RESPONDENT’S REQUEST FOR RECONSIDERATION

74The Respondent submits that I acted outside of my jurisdiction or violated the rules of procedural fairness and made an error of law of fact such that the Tribunal would likely have reached a different result had the error not been made.

75Specifically, the Respondent submits that I failed to consider the evidence of Dr. Brunshaw, in reaching the conclusion that the unapproved balance of the psychological assessment plan dated November 28, 2019 was reasonable and necessary. The Applicant submits that, amongst other responses, the Respondent failed to establish that Dr. Brunshaw’s testimony with respect to the time spent preparing the report dated November 28, 2019, is critical or relevant to the determination of the issue. I agree with the Applicant on this issue.

76I find that the Respondent is attempting to relitigate the issue. The Respondent made the same representations at the hearing, which I found were not relevant considering my interpretation of the Schedule and the relevant superintendent’s guideline. My decision turned on an interpretation of the Schedule, which is unsupportive of the Respondent’s position on the issue. As I noted in paragraph 49 of the decision, section 25 of the Schedule refers to the $2,000.00 limit on the total fees and makes no reference to an hourly rate. I further found that if the intention of the Schedule was to charge the lesser of the hourly rate or $2,000.00, it would say so.

77Additionally, I find that no error of law such that the Tribunal would likely have reached a different result had the error not been made.

78The Respondent submits that I ignored caselaw outlining that an assessment plan requires an itemization of the particular services that form part of the assessment, the number of hours for each service, or the hourly rate.⁶ Yet, these decisions are not binding upon me, and I interpret the legislation differently.

79The Superintendent’s Guideline No. 03/14, (“the PSG”), states that its purpose is to establish the maximum expenses payable by an insurer under the Schedule. The maximums are expressly applicable to conducting an examination, assessment or provision of a certificate, report or treatment plan under subsection 25(1)3 of the Schedule. The maximum prescribed in section 25(5)(a) of the Schedule is $2,000.00. No other fee limits are described in section 25. Thus, I infer that the fee limits discussed in the PSG refers to the $2,000.00 fee limit on a single assessment and the production of a report. As noted, if the intention of the legislation was to impose a fee that is the lesser of the hourly rate or the $2,000.00 cap, the schedule would say so and not simply put a cap on the total assessment fee.

80Section 25(3) states that “the insurer is not liable under subsection (1) for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines.” The use of the word “or” suggests that there is an option - that one or the other provisions apply, but not both. That is, the Respondent is not liable to pay for services rendered that exceed the maximum hourly rate for medical and rehabilitation benefits), or the maximum amount for an assessment, which the guideline expressly stipulates “(a)s provided in subsection 25(5)(a) of the (Schedule), an insurer may agree under subsection 38(8) to pay fees of up to $2,000.00 for any one assessment or examination proposed in an OCF-18.” The Schedule is consumer protection legislation, and any ambiguities should be read in favour of the Applicant. Thus, I reiterate that if the intention of legislators was for assessors to charge for services at the lesser of the hourly rate or $2,000.00, the Schedule would say so.

81For these reasons, the Respondent’s request for a reconsideration is denied.

CONCLUSION

82For the reasons noted above, I grant the Applicant’s request for a reconsideration in part and have addressed her request for costs.

83I deny the Parties’ remaining requests for reconsideration.

Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1The decision was amended twice, culminating in the release of a Further Amended Decision dated July 23, 2021. Reference to “the decision’ or “the initial decision” means the Further Amended Decision dated July 23, 2021.
2. 2R.K.K. v Cooperators General Insurance Co., 2021 CanLII 18934 (ON LAT)
3. 3See L.H. v. Certas Direct Insurance Company, 2020 CanLII 12749 (ON LAT), based on IMN v. Intact Insurance Company, 2019 CanLII 101473 (ON LAT) at para. 9 and 17-004229 v The Guarantee Company of North America, 2018 CanLII 112115 (ON LAT) at para. 7.
4. 4B.A. v Aviva Insurance Canada, 2019 CanLII 94059 (ON LAT) and K.K. v Aviva General Insurance, 2020 CanLII 87927 (ON LAT)
5. 5R v. Palmer, 1979 CarswellBC
6. 6See 16-004061/AABS v State Farm Insurance Company, 2018 CanLII 2312 (ON LAT) and 18-001128 v Aviva Insurance Canada, 2019 CanLII 58164 (ON LAT)