RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 20-003216/AABS
Case Name: Alison Gomes v. Economical Insurance
Written Submissions by:
For the Applicant: Lawrence H. Calenti, Counsel
For the Respondent: Emily Compton, Counsel
BACKGROUND
1This request for reconsideration was filed by the Applicant in this matter. It arises out of a decision in which I found that the Applicant sustained a predominantly minor injury and that she was not entitled to the disputed treatment and assessment plans
2The Applicant submits that I made a number of significant errors of fact and/or law, misapprehended the evidence, and failed to give fulsome reasons in my decision. The Applicant asks that I vary my decision and that, instead, an order be made to compel payment for the incurred and denied treatment plans and a determination that the Applicant’s injuries are not subject to the MIG and the $3,500.00 funding limit on treatment.
RESULT
3The Applicant's request for reconsideration is denied.
BACKGROUND
4The Applicant was the rear-seat passenger of a minivan which was struck from behind by another vehicle while slowing down in traffic on a major highway. She required no medical help at the scene of the accident but went to her family physician a few days later. The Applicant was assessed by her family physician and advised to start physiotherapy and take over-the-counter pain medication.
5The Respondent characterized the Applicant’s injuries as a minor injury and subjected her to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment. The Applicant disagreed and applied to the Tribunal for resolution of the dispute. That issue, as well as entitlement to several treatment and assessment plans, were before me and, on the evidence, I agreed with the Respondent.
ANALYSIS
6The 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.
7Reconsideration 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.
8The Applicant advances her request for reconsideration under ground (b).
ERROR OF LAW OR FACT
9The Applicant submits that I committed several errors of law and fact and that the Tribunal would likely have made a different decision had the errors not occurred. She submits that I incorrectly interpreted evidence, gave insufficient reasons for my preference of one report over another, failed to explain why I discounted a diagnosis of chronic pain, erred in not analyzing whether the disputed treatment and assessment plans are reasonable and necessary, and erred when I found that the responses to the disputed treatment and assessment plans were compliant with the Schedule.
10The Respondent submits that the Applicant is trying to relitigate the same evidence and that the Tribunal is entitled to weigh and favour evidence.
Was evidence interpreted incorrectly, leading to an error of law or fact?
11The Applicant submits that, in the original decision, I erred by characterizing her anticipated disability period as a recovery period. This issue stems from my assessment of the disability certificate dated October 24, 2019, which I noted that it anticipates a 9–12-week recovery period.
12The Applicant is correct that I mischaracterized the section of the disability certificate. The document anticipates the Applicant’s period of disability and not her period of recovery. However, this error is insignificant in my determination on the issue of whether the Applicant sustained a minor injury. Whether the Applicant has a recovery or disability period of 9-12 weeks makes no difference in my analysis regarding the characterization of her injuries. This error is insufficient and is not grounds for a reconsideration considering that the Tribunal would have reached the same conclusion had the error not occurred.
13The Applicant also takes issue with paragraph 17 of the initial decision, where I found that the clinical notes and records (“CNRs”) of the Applicant’s family physician noted no ongoing functional impairment as a result of pain. She submits that the same records show that she had reduced range of motion on October 17, 2019, February 19, 2020, August 15, 2020, and October 8, 2020 and had disturbed sleep due to pain.
14I find no error of law or fact with my assessment of the family physician CNRs. Contrary to the Applicant’s submissions, my decision noted the reduced range of motion during the October 17, 2019 visit, two days post-accident. Further, I stand by my finding that the Applicant’s family physician’s CNRs note no ongoing functional impairment as a result of pain. Indeed, the February 19, 2020 entry notes that the Applicant complained of difficulty sleeping due to pain and was assessed for “acute on chronic myofascial pain neck and back”, which included a decrease in neck range of motion. However, this information includes no diagnosis of chronic pain syndrome and, as I mentioned in the initial decision, it is not compelling evidence of an ongoing functional impairment due to pain that would remove the Applicant from the MIG. In this case, the characterization of the Applicant’s pain as chronic is different than a diagnosis of chronic pain syndrome.
15Lastly, the Applicant’s evidence does not include any CNRs from her family physician beyond February 27, 2020. Nor did she include it with her submissions for this reconsideration. It is impossible for me to consider evidence that was not put before me. Thus, I made no comment or analysis regarding entries dated August 15 and October 8, 2020.
Insufficient Reasons to prefer the insurer’s examination report and addendums over the Applicant’s Report
16The Applicant submits that I provided insufficient reasons why I preferred the insurer’s examination (“IE”) report and addendums over the physiatry report she submitted. The Respondent submits that the Tribunal is entitled to weigh and favour evidence and that the decision provides reasons why one report was preferred over the other.
17I agree with the Respondent and find no error of fact or law with my preference for one report over another.
18As noted in the initial decision, I preferred the IE report and the family physician’s CNRs over the physiatry report. The physiatry report was afforded less weight because it recommended mindfulness treatment when no psychological symptomology was reported. Further, I questioned why the physiatry report would recommend nerve block injections when the same report states that the applicant “identifies the following as main alleviating factors: heat and exercising” and that her family physician and the IE assessor both recommended exercise to treat her injuries.
19It is settled law that an adjudicator is entitled to weigh and favour evidence. I did so and provided the reasons for doing so in the initial decision. Thus, no error of law or fact occurred with respect to my preference of one report over another.
Was it an error of law to not analyze whether the disputed treatment and assessment plans were reasonable and necessary?
20I see no error in law in my decision to not analyze whether the disputed treatment and assessment plans were reasonable and necessary.
21The disputed treatment and assessment plans proposed treatment in excess of the $3,500.00 funding limit under the MIG. Having concluded that the Applicant sustained a predominantly minor injury, and is subject to the MIG, it follows that it a reasonable and necessary analysis on the treatment and assessment plans is not required.
Was it an error of fact or law to conclude that the Respondent was compliant with section 38 of the Schedule?
22The Applicant submits that I ignored the case law which confirms that the Respondent must provide medical and all other reasons for denying a treatment and assessment plan. To her, the Respondent ought to have reviewed her pre-accident medical records that show she had documented pre-existing symptoms that would impact her recovery. She submits that she is left wondering why her pre-accident health didn’t satisfy the requirements to remove her from the MIG.
23The Respondent submits that no error of law or fact occurred and that its denials are compliant with section 38. In the alternative, the Respondent submits that the denials are not subject to review, pursuant to section 38(5) of the Schedule.
24I see no error in law or fact in finding that the Respondent was compliant with section 38 of the Schedule. While it appears that the Applicant is attempting to relitigate the matter, I will nevertheless address her concerns regarding what she considers to be insufficient denials.
25Notably, I found the denials to be compliant with section 38 of the Schedule and also found that they are not subject to review per 38(5). The Applicant never to address section 38(5) in her initial reconsideration submissions and never made reply submissions, despite being permitted to do so.
26Nevertheless, I will address the Applicant’s submissions regarding the denials that she considers to be insufficient.
27I considered 17-003774/AABS v. Aviva Canada Inc. (“BH v. Aviva”) when making my decision, contrary to the Applicant’ submissions.1 BH v. Aviva sets out the following requirement with respect to an insurer’s compliance with section 38 of the Schedule.
The ultimate purpose underlying s. 38(8) is to require an insurer to respond to a treatment plan not only quickly but also reasonably, in a manner that respects an insured’s ability, when entitled, to access timely treatment. To that end, an insurer’s “medical reasons” for denying a plan should engage the specific details about the insured’s condition forming the basis for the insurer’s decision. They should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. Those entitled to accident benefits should not have to wonder why they are denied treatment. Nor should they have to incur the temporal, emotional, and financial costs associated with engaging the Tribunal in order to obtain the treatment they should have received long before. If s. 38(8) is to achieve its purpose, it must require insurers to accompany any denial of benefits with meaningful and accurate reasons based on an insured’s medical condition as described in the file at hand.
28The Applicant submits that the Respondent’s January 14, 2020 denial failed to mention the Applicant’s pre-accident injuries or symptoms described in the subject OCF-18 and a disability certificate provided about a month earlier. This position fails to appreciate that the Respondent had no pre-accident medical records from the Applicant at the time of this denial – it cannot review or comment on documents it has not seen. The February 20, 2020 denial addressed the Applicant’s concern, stating that the Respondent had “… not been provided with evidence that you have a pre-existing medical condition documented by a health practitioner before the accident that will prevent you from achieving maximal recovery, if your claim is restricted to the minor injury limit of $3,500.” To me, this is compliant with the notice requirements of section 38. Further, and contrary to the Applicant’s submissions, the Respondent is not required to conduct an examination prior to every denial of benefits. There is no provision in the Schedule that supports the Applicant’s position, and the Applicant provided no case law that suggests otherwise.
29The Applicant then provided CNRs from her family physician, which note her prior complaints of back pain. Following receipt of the records, the Respondent sought an examination, pursuant to section 44 of the Schedule. The Applicant neglects to appreciate that the response requirements in section 38 of the Schedule apply only to responses to treatment and assessment plans and not to responses with respect to times when additional medical documents are provided.
30The Respondent issued another denial, dated June 25, 2020. I found that the denial was compliant with section 38 of the Schedule because it identified the treatment and assessment plan, advised that it is not reasonable and necessary and stated that the Applicant’s reported injuries are sprain/strain injuries which are minor injuries. The denial also referred to the Applicant’s family physician’s CNRs and noted that those records included no referral for further assessments, no evidence of a pre-existing condition that would preclude recovery, and referred to a slip and fall incident in January 2020 that is documented in the records.
31The June 25, 2020 denial is compliant with section 38 because it provides the medical and other reasons to deny the benefit. Contrary to the Applicant’s submissions, it mentions her pre-accident health status and the records provided and advises that there is no mention in the CNRs that the Applicant’s injuries are not minor and there is no evidence that her pre-existing medical condition will prevent her from reaching maximal recovery within the MIG. The Respondent is required to give medical reasons for its decisions. It is not required to address every symptom noted in the CNRs provided.
32On reconsidering the evidence and submissions, I maintain that the Respondent’s denial of benefits is compliant with section 38 of the Schedule.
CONCLUSION
33For the reasons noted above, I deny the Applicant's request for reconsideration.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 19, 2022