Delores Greenedge v. The Commonwell Mutual Insurance Group, 2022 CanLII 30678

Licence Appeal Tribunal

2022 ONLAT 20-002023/AABS - R

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Date of Order: 04/13/2022

Licence Appeal Tribunal File Number: 20-002023/AABS

Case Name: Delores Greenedge v. The Commonwell Mutual Insurance Group

Written Submissions by:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Cecil R. Jaipaul, Paralegal

BACKGROUND

1On September 21, 2021, the respondent, The Commonwell Mutual Insurance Group, submitted an "Information about your Request for Reconsideration" form to the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal) requesting a reconsideration of the Tribunal's September 1, 2021 decision.¹ The respondent did not file any reasons or submissions to support its request for reconsideration at that time.

2On September 22, 2021, the Tribunal notified the respondent that its request for reconsideration was deficient as it failed to provide particulars as required by Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (Rules).

3On September 24, 2021, the respondent filed its omitted submissions and material with the Tribunal. On the same date, Delores Greenedge, the applicant, wrote to the Tribunal and took the position that the respondent's submissions were statute-barred as they were filed outside of the permitted 21-day request for reconsideration time period.²

4The respondent's request for reconsideration was ultimately permitted to proceed without the respondent being required to seek any further relief from the Tribunal.³

5In its submissions, the respondent submitted that I made significant errors of law and/or fact such that I would likely have reached a different decision had the errors not been made.

6The applicant disagreed and submitted that the respondent's request for reconsideration should be dismissed.

RESULT

7The respondent's request for reconsideration is dismissed.

ANALYSIS

8The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the Rules. The respondent relied upon Rule 18.2(b) in this matter as it submitted that I made significant errors of law and/or fact such that I would likely have reached a different decision had the errors not been made. Specifically, the respondent submitted that I erred in finding that:

1. The applicant proved on a balance of probabilities that she sustained a psychological impairment as a result of the accident and, as result, was entitled to treatment outside of the Minor Injury Guideline (MIG);⁴

2. The applicant was entitled to $549.20 of the December 4, 2018 treatment plan (OCF-18), plus interested in accordance with s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule),⁵ which represented:

(a) $349.20 for 12 sessions of massage therapy; and

(b) $200.00 for the cost of completing the OCF-18; and

3. The applicant was entitled to the December 17, 2018 OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule.

9The respondent provided the following reasons to support its position:

1. That I erred by finding that the respondent did not request the applicant to submit to it a Treatment Confirmation Form (OCF-23) and, had I not made this error, I would have agreed with the respondent's submission that it did "refuse to accept" the disputed treatment plans as required by s. 38(5);

2. That I erred by not considering the reasonableness of the treatment goals, how the goals would be met to a reasonable degree, and that the overall cost of achieving the goals were reasonable when I determined that the applicant was entitled to 12-sessions of massage therapy and completion of the OCF-18 as proposed in the December 4, 2018 treatment plan;

3. That I erred by failing to provide reasons for not addressing the applicant's failure to comply with the Tribunal's order to produce certain documents and the respondent's request that an adverse inference be drawn; and

4. That I erred in finding that the respondent is required to pay the applicant interest in accordance with s. 51 of the Schedule without an invoice.

10In order to interfere with a decision under Rule 18.2(b), however, I must not only have made an error of law or fact, but that error of law or fact must be enough that, had it not been made, I likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

11For the reasons that follow, I find that the only error of fact made in the decision was that the respondent did indeed request the applicant to submit to it a Treatment Confirmation Form (OCF-23). However, I find that I would not have reached a different result had this error not been made. As no other errors of law or fact were made in the decision, I find that a reconsideration of the decision under Rule 18.2(b) is not warranted in this matter.

Request for an OCF-23 and sections 38(5) and (6) of the Schedule

12In its hearing submissions, the respondent submitted that it denied all of the disputed treatment plans pursuant to s. 38(5) of the Schedule and, therefore, its denial was final and not subject to review. I disagreed and provided my reasons for doing so in paragraph [28] of the Decision:

I find that the respondent did not "refuse to accept" the disputed treatment plans as required by s. 38(5). Rather, in its denial letters, the respondent acknowledged receiving the OCF-18s, it scheduled IEs in response to several of the OCF-18s, it partially approved the February 25, 2019 treatment plan, it commented on the reasonableness and necessity of the December 4, 2018 treatment plan, and in all of its denial letters the respondent advised the applicant of her right to dispute its decision which is contrary to s. 38(6) of the Schedule. Moreover, while some of the denial letters noted that the respondent determined that the applicant's injuries were within the MIG, the respondent does not refer to s. 38(5) in any of its correspondence to the applicant and it does not request that the applicant instead submit a Treatment Confirmation Form (OCF-23) under s. 49 of the Schedule.⁶

13The respondent submitted that I erred by not considering, or by excluding, the respondent's letter dated January 4, 2019 which, in fact, requested that an OCF-23 be completed.

14The January 4, 2019 correspondence referred to by the respondent was before me as evidence in the initial hearing and enclosed an OCF-23 to be submitted in order to start treatment. As a result, I agree that an error was made in the Decision as the respondent clearly did request an OCF-23 to be submitted by the applicant. The respondent, however, did not direct me to this portion of the January 4, 2019 correspondence in its initial hearing submissions which is contrary to the requirement set out in the July 15, 2020 Case Conference Report and Order that the parties make specific reference to the evidence and evidence not so referenced may not be reviewed.

15In any event, I find that this error was minor and inconsequential which does not warrant a reconsideration of my decision on the application of s. 38(5) and s. 38(6) of the Schedule. The fact that I incorrectly stated that the respondent did not request the applicant to submit an OCF-23 was not the sole reason for my finding that the respondent did not "refuse to accept" the disputed treatment plans as required by s. 38(5). Several other reasons were provided for my finding and, as a result, I do not agree with the respondent that had the error not been made regarding its request for an OCF-23 that I would have arrived at a different finding. As a result, the reconsideration request is not granted on this ground.

16The respondent also submitted that I denied it natural justice and acted outside of my jurisdiction because I "made a decision with respect to the application of s. 38(5) and (6) and the respondent's request for a Treatment Confirmation Form (OCF-23) even though the applicant did not make submissions with respect to the application of s. 38(5) and (6) or the request for a Treatment Confirmation Form (OCF-23)."⁷

17Even I agreed with the respondent's submission, my finding regarding the OCF-23 was but one of several reasons why I found that the respondent did not "refuse to accept" the disputed treatment plans. As a result, I find that a reconsideration is not warranted on this ground either.

The December 4, 2018 Treatment Plan and the Violi Factors

18The respondent submitted that I erred by failing to undertake an analysis of identifying the reasonableness of the treatment goals, how the goals would be met to a reasonable degree, and that the overall cost of achieving the goals were reasonable regarding the 12-sessions of massage therapy proposed in the December 4, 2018 treatment plan that I found that the applicant was entitled to.

19The respondent also submitted that it is trite law that a treatment plan on its own is not compelling evidence in support of the proposed treatment and then alleged that I erred by relying on a clinical note and record (CNR) entry of the applicant's family physician, Dr. Eyob Gebremicael.

20Whether the treatment goals are reasonable, whether the goals will be met to a reasonable degree, and the reasonableness of the overall cost of achieving these goals, often referred to as the "Violi factors,"⁸ have been adopted by the Tribunal in determining whether a treatment plan is reasonable and necessary. However, the Violi factors are not the sole considerations to determine whether a treatment plan is reasonable and necessary. Every case will turn on its own facts and requires a balancing of various factors to determine if a treatment plan is reasonable and necessary. As such, it is not an error of law to not consider the Violi factors in every single matter that comes before the Tribunal.

21In this matter, there was a clear recommendation for massage therapy from the applicant's family physician which I placed weight on in arriving at my decision. As such, I disagree with the respondent's suggestion that there was no outside compelling evidence in support of the treatment plan. Rather, the respondent appears to disagree with the weight that I provided to Dr. Gebremicael's CNR entry which it is open for it to do but is not a basis for a reconsideration of the decision.

22For all of the reasons, I find no error in my decision that the applicant was entitled to 12 sessions of massage therapy as set out on the December 4, 2018 treatment plan or to the cost for completing this OCF-18.

Failing to give reasons and the December 17, 2018 OCF-18

23The respondent submitted that I erred by failing to give reasons for not addressing the applicant's failure to comply with the Tribunal's order to produce Dr. Jon Mills CNRs. The respondent also noted that the applicant failed to comply with the Tribunals order to produce her Ontario Disability Support Program (ODSP) file.

24In the respondent's initial hearing submissions, it requested that "an adverse inference should be drawn from Ms. Greenedge's [sic] refusal to comply with the Tribunal's Order to produce the 'Clinical notes and records of Dr. Jon Mills.'"⁹ No mention of any issues regarding the production of the applicant's ODSP records were included in the respondent's hearing submissions.

25I find that no error was made in failing to address the respondent's request to draw an adverse inference as requested in its initial hearing submissions. It is well-established that administrative decision makers are not required to include every argument in their reasons or make explicit findings on each factor leading to their conclusion. Further, the only reference in the decision to Dr. Mills was regarding the December 17, 2018 OCF-18 for a psychological assessment. Although I found that the applicant was entitled to the proposed psychological assessment, this finding was based upon two insurer's examination (IE) assessors findings in early 2019 that the applicant had anxiety and depressed mood, among other psychological conditions, as a result of the accident.¹⁰ Therefore, even if I had drawn an adverse inference as requested by the respondent, this would not have changed the outcome of my finding that the applicant was entitled to the December 17, 2018 OCF-18 for a psychological assessment. As a result, a reconsideration is not warranted on this ground.

26The respondent also submitted that I made several errors regarding the weight that I placed on the two IE assessors' evidence and the applicant's self-reports regarding my findings on the applicant's psychological impairments as a result of the accident and subsequent entitlement to the December 17, 2018 treatment plan. A re-weighing of the evidence, which is what the applicant is requesting that I undertake, is not the purpose of a reconsideration and I find that it has not pointed to any errors or law or fact in this regard. Further, the respondent's submissions that I failed to analyze the Violi factors in relation to this treatment plan were addressed above in paragraph [20] and, again, are not an error of law and do not warrant a reconsideration.

Interest

27The respondent also submitted that I erred in finding that it was required to pay the applicant interest in accordance with s. 51 of the Schedule without an invoice. In the alternative, the respondent suggested that the decision requires clarification that the applicant is only entitled to interest in accordance with s. 51 30-days following the submission of an invoice to the respondent for services rendered under the treatment plans which I found that the applicant was entitled to.

28In making its request, the respondent relied upon one of my previous reconsideration decisions, PM v. Aviva General Insurance.¹¹ This decision, however, was addressing when benefits and interest were payable as a result of an insurer's failure to comply with its obligations under s. 38(8) of the Schedule. This decision is distinguishable on the facts from the matter before me.

29The only submissions regarding interest in the respondent's hearing submissions was that interest was not payable because no benefits were owing. A request that interest is only payable upon submission of an invoice was open to the respondent to make at first instance. As a result, I find that this is a new argument that could have been made in the respondent's hearing submissions but, for whatever reason, it failed to do so. Therefore, I am not prepared to address this request as part of the Tribunal's reconsideration process as a reconsideration request is not an avenue to advance new arguments or make new requests that a party could, but did not, make before the Tribunal during the hearing of the matter.

CONCLUSION

30For the reasons noted above, the respondent's request for reconsideration is dismissed.

Lindsay Lake

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Greenedge v. The Commonwell Mutual Insurance Group, 2021 CanLII 85091.
2. 2Rule 18.1, Rules.
3. 3Tribunal Correspondence to the parties dated September 28, 2021.
4. 4Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
5. 5O. Reg. 34/10 as amended.
6. 6Decision, para. 28.
7. 7Submissions – Respondent's Request for Reconsideration, para. 8.
8. 8See Violi and General Accident Assurance Company of Canada (P99-00047, September 27, 2000).
9. 9Hearing Submissions of the Respondent, para. 9.
10. 10Decision, para. 44.
11. 112021 CanLII 76647 (ON LAT Reconsideration).