RECONSIDERATION DECISION
Before:
D. Gregory Flude, Vice-Chair
04/11/2022
Tribunal File Number:
19-010989/AABS
Case Name:
Alan Jardine vs. Aviva General Insurance Company of Canada
Written Submissions by:
For the Applicant:
Gus Triantafillopoulos and Shannon Kelly, Counsel
For the Respondent:
Nabila Madjidzadeh, Counsel
BACKGROUND
1The applicant, Alan Jardine, requests reconsideration of the Tribunal’s decision released on June 15, 2021 (“Decision”) wherein the Tribunal found that he was not entitled to payment for several treatment plans, interest, and an award under O. Reg 664 (“Award”).
2Mr. Jardine submits that the Tribunal made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made (“material error”). He relies on s. 18.2(a) and (b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”). He asks that the Tribunal vary the Decision to permit his claim for benefits, interest, and an Award.
3The respondent, Aviva General Insurance Company of Canada (“Aviva”), submits that Mr. Jardine’s request for reconsideration must fail because it is nothing more that an attempt to reargue the case and reweigh the evidence. In its submission, Mr. Jardine has not pointed to an error that may have impacted the result of the hearing.
RESULT
4Having reviewed Mr. Jardine’s submissions, the Tribunal finds that he has not satisfied his onus on a reconsideration of identifying a material error. While he did identify one procedural irregularity, I have addressed it in these reasons. His request for reconsideration is denied.
BACKGROUND
5Mr. Jardine was involved in a motor vehicle accident on January 15, 2018. In his Application by an Injured Person for Auto Insurance Dispute Resolution under the Insurance Act (“application”) and in subsequent communications with the Tribunal he sought a declaration that his injuries were not subject to the $3,500 coverage limit in s. 18(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34/10 (“Schedule”), and claimed entitlement to 11 different benefits or treatment plans, interest on unpaid benefits, and an Award.
6The matter proceeded to a case conference on May 4, 2020. According to the case conference report and order (“CCRO”), seven issues were resolved at the case conference, including the applicability to the $3,500 coverage limit. The issue of Mr. Jardine’s entitlement to a non-earner benefit was subsequently settled leaving three substantive issues and the question of interest and an Award to proceed to a hearing. Accounting for the settlement of the non-earner benefit claim, the CCRO left the following issues to be determined at the hearing:
a. Is the applicant entitled to the cost of an examination in the amount of $2,486.00 for a neurology assessment recommended by Synoptic Medical Assessments Inc, as set out in a treatment and assessment plan dated February 8, 2019, and denied by the respondent on February 21, 2019?
b. Is the applicant entitled to the cost of an examination in the amount of $2,034.00 for an E.E.G. (electroencephalogram) recommended by ISCOPE Concussion and Pain Centres, as set out in a treatment and assessment plan dated November 15, 2019, and denied by the respondent on January 13, 2020?
c. Is the applicant entitled to the cost of an examination in the amount of $4,746.00 for an M.R.I. of the brain and a diagnostic nuclear study recommended by ISCOPE Concussion and Pain Centres, as set out in a treatment and assessment plan dated November 15, 2019, and denied by the respondent on January 13, 2020?
d. Is the applicant entitled to interest on any overdue payment of benefits?
e. Is the respondent liable to pay an Award because it unreasonably withheld or delayed payments to the applicant?
7The CCRO lists those issues that had been resolved at the case conference. Nothing in the CCRO indicates that the issue of an Award with respect to the resolved items was still in dispute. The CCRO was released on May 20, 2020, and the hearing was held approximately a year later. During that time, Mr. Jardine did not contact the Tribunal to point out that the CCRO was deficient in any manner. The particulars of his claim for an Award served on February 20, 2021, consist of nothing more than general statements unsubstantiated by reference to any factual or documentary evidence that would allow the reader to draw the conclusion that he is seeking an Award for the resolved matters. It is against this backdrop that the matter came before the Tribunal at first instance.
8In the Decision, the Tribunal reviewed the evidence, made findings of fact, and found that none of the three treatment plans in dispute were reasonable and necessary. It then goes on the concluded: “As no benefits are owing, I find that the respondent is not liable to pay an award under Regulation 664 or interest.”
Grounds for the Reconsideration.
9Mr. Jardine sets out the grounds for the reconsideration in his submissions:
a. The Tribunal acted outside of its jurisdiction or violated the rules of natural justice or procedural fairness when it did not address whether the Respondent's holding the applicant in the Minor Injury Guideline (“MIG”) for over a year and by maintaining denials of OCF-18s caused an unreasonable delay in the medical and rehabilitation benefit, which was resolved prior to the hearing.
b. The Tribunal made a significant error in law or fact when it stated that the reports of Dr. Yahmad, Dr. Di Fonzo, and Dr. Lui all come to the same conclusion that the applicant suffered no traumatic brain injury.
c. The Tribunal made a significant error in law or fact when it stated that there was no objective evidence of a brain injury.
ANALYSIS
10Reconsideration is not an opportunity to reargue the original decision or findings of fact. The onus is on the applicant to clearly identify a material error and demonstrate how, if the error had not been made, the outcome would have been different. Where, as here, the Tribunal’s findings were made after considering the evidence, drawing reasonable inferences from it, and reaching a decision, the disagreement of one of the parties with those findings does not constitute an error. With respect to the Tribunal’s findings on the need for the treatment plans in issue at the hearing, that is issues [9] b. and c. above, I find that Mr. Jardine has not pointed to a material error of fact or law. His submissions do no more than ask me to reweigh the evidence and come to a different conclusion. He does this by seizing on isolated language in the Decision without considering it as a whole.
11It is clear from the Decision that the Tribunal did not specifically address Mr. Jardine’s submissions with respect to interest and an Award on the six treatment plans that were resolved at or just prior to the case conference. It is questionable from the case conference order, and the subsequent settlement of the non-earner benefit claim whether the parties discussed the issue. If they did, the reservation of rights was not reduced to an issue in dispute.
12At paragraph 42 of his hearing submissions, Mr. Jardine signaled that the issue of an Award with respect to these treatment plans is still live. He submits: “It is the Applicant’s position that the aforementioned OCF-18s were improperly denied by the Respondent and as such, the Applicant is owed interest and an award under s.10 of Ontario Regulation 664.” The Decision does not deal with this issue directly, or contrary to Aviva’s submission, by necessary implication. The Decision simply states at paragraph [21] after confining its review to the three disputed treatment plans: “As no benefits are owing, I find that the respondent is not liable to pay an award under Regulation 664 or interest.” There is no mention of the previously resolved treatment plans.
13Aviva addressed the question of an Award starting at paragraph 32 of its hearing submissions, first objecting to Mr. Jardine using a without prejudice settlement as the foundation for his claim for an Award, and then pointing out a consensus among treating doctors that Mr. Jardine suffered from “mechanical back, mechanical neck and cervicogenic headaches.” Aviva further points out that post-concussive syndrome is first addressed by a physiotherapist, someone not qualified to make such a diagnosis, and later diagnosed by a neurologist, Dr. Mehridata, during an assessment.
The Tribunal acted outside of its jurisdiction or violated the Rules of natural justice or procedural fairness when it did not address whether the Respondent's holding the applicant in the MIG for over a year and by maintaining denials of OCF-18s caused an unreasonable delay in the medical and rehabilitation benefit.
14As stated above, the Tribunal did not address the question of an Award with respect to the six treatment plans settled in the case conference report and order. The use the term settled must be put in context. Notwithstanding the use of the phrase “the parties resolved …” in the case conference report, Mr. Jardine submits, and Aviva does take issue with the suggestion, that the decision to approve the treatment plans was unilateral on the part of Aviva, so, while it came about as a result of the litigation, it cannot be said to have been the result of settlement negotiations. This is a fine point, but I am prepared to proceed on the basis that these issues are not caught in the “without prejudice” nature of settlement discussions at case conferences.
15I agree that the Tribunal’s failure to address the issue, while understandable given the state of the record, is a violation of the rules of natural justice. The question then is - is it necessary for this issue to be referred back for a hearing before a different adjudicator or am I in as good a position to address it as an adjudicator at a rehearing? In their reconsideration submissions, the parties ask that I decide it.
16I have concluded that I am as equally well placed to decide this issue as a rehearing adjudicator. The bulk of the submissions in the original hearing were in writing. There was one day’s videoconference for cross-examination of Aviva’s adjuster followed by written submissions. Neither party has put the transcript of the adjuster’s cross-examination into their reconsideration record, although Mr. Jardine refers to the adjuster’s answers in his submissions.
17Mr. Jardine submits that Aviva had a belief that his injuries were not minor as early as January 2018. He submits that there was evidence for that belief in February 2019 with the receipt of further medical records. Aviva’s insistence that Mr. Jardine had sustained minor injuries until January 13, 2020, demonstrates, in Mr. Jardine’s submission, “unreasonable behaviour … which was excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ONLAT) at paragraph 28]
18Mr. Jardine refers to adjuster log notes where the handling adjuster appeared sympathetic to Mr. Jardine’s complaints of difficulties in carrying out activities of daily living. The adjuster offered to send out an occupational therapist to assess his entitlement to attendant care. He points to a note dated January 23, 2018, 8-days post-accident, where the handling adjuster noted: “clmnt adv of A/C as cannot do certain things around house - adv of setting a [sic] OT to come to assess and declined for now.” According to Mr. Jardine, since neither an in-home OT assessment nor attendant care benefits are available to someone suffering predominantly minor injuries, this entry means that Aviva believed that the injuries were not minor. Given the timing of this entry, it is clear that Aviva had no idea of the extent of Mr. Jardine’s injuries and were in a factfinding mode. The fact that the adjuster considered attendant care and an in-home assessment indicates that Aviva had an open mind about the extent of Mr. Jardine’s injuries, and this entry does nothing to support an Award.
19It is Mr. Jardine’s submission that there was evidence of psychological problems in the family doctor’s notes and records as early February 15, 2019, but Aviva did not send him for a psychological assessment. In his submission, this failure to remove the applicant from the minor injury coverage limit was unreasonable.
20None of the six treatment plans for which Mr. Jardine seeks an Award was for psychological treatment or a psychological assessment. It is worth noting that the medical note in issue does not recommend further treatment for the alleged psychological condition, pointing out his current medications. The existence of a psychological condition does not, by itself, raise Mr. Jardine to the higher coverage limit. The wording of s. 18(1) of the Schedule makes it clear that the coverage limit applies to impairments that are “predominantly minor injuries.” If Mr. Jardine was of the opinion that his psychological condition was sufficiently severe to overcome the “predominantly” hurdle, it was open to him to provide Aviva with further information about his psychological condition. Other than the doctor’s note, he does not claim that he did so in February 2019.
21The Schedule establishes a claim and response regime. An applicant and the treating healthcare professional are best placed to decide what treatment is appropriate. They signal the need for this treatment by submitting treatment plans, either on a Treatment and Assessment Plan (“OCF-18”) or a Treatment Confirmation Form (“OCF-23”) in the case of minor injuries. The insurer responds to these forms, by agreeing to fund the treatment, refusing to fund the treatment or requiring the applicant to undergo an assessment to see if the treatment is reasonable and necessary. It needed more to trigger Aviva’s action than a single entry in the family doctor clinical notes and records indicating no further treatment steps at that time.
22Only if and when Mr. Jardine submitted an OCF-18 for psychological treatment was Aviva required to consider its options under the Schedule. I can see nothing in the Schedule that requires Aviva to be proactive by sending Mr. Jardine for a psychological assessment because his family doctor noted frustration, suicidal ideation with no plan, and low mood on February 4, 2019. Whether Mr. Jardine was in need of psychological services was a matter for him and his doctor, not Aviva’s adjuster.
23Aviva points to a series of neurological investigations that found no neurological deficit. It points to references by Mr. Jardine’s family doctor of soft tissue injuries throughout. Mr. Jardine’s headaches were diagnosed as cervicogenic, that is, arsing from injuries to his cervical spine, not as a result of a brain injury. It was not unreasonable for Aviva to rely on the survey of these reports and the assessment by its own neurologist, Dr. Yahmad, that the applicant suffered soft tissue injuries and therefor was subject to the $3,500 treatment limit for minor injuries. It is, in fact, the antithesis of excessive, imprudent, stubborn, inflexible, unyielding or immoderate behaviour that Aviva continually reassessed and removed the minor injury limit when it had the evidence to do so.
24I find that Mr. Jardine has failed to show entitlement to an Award on the basis that Aviva unreasonably withheld or delayed payment.
The Tribunal made a significant error in law or fact when it stated that the reports of Dr. Yahmad, Dr. Di Fonzo and Dr, Hui Li all come to the same conclusion that the applicant suffered no traumatic brain injury. The Tribunal made a significant error in law or fact when it stated that there was no objective evidence of a brain injury.
25The second and third ground for reconsideration both address the medical record and are best dealt with together. Mr. Jardine asserts that the Tribunal made a material error by finding that Aviva’s assessing neurologist, Dr. Yahmad, Mr. Jardine’s treating physician at the pain clinic, Dr. Di Fonzo, and neurosurgeon and spinal surgeon, Dr. Hui Li, all come to the same conclusion that he suffered no traumatic brain injury. I disagree.
26A summary of the findings of each doctor shows that this finding was open to the Tribunal on the evidence:
a. Dr, Yahmad diagnosed “headaches likely cervicogenic in nature related to the soft tissue injury of the cervical spine sprain/strain, musculoskeletal and non-neurologic in nature. They are not associated with any neurological disability or impairment … there was no evidence that he sustained any significant traumatic brain injury.”
b. Dr. Di Fonzo’s impression was mechanical neck pain with myofascial features, mechanical back pain and cervicogenic headaches.
c. Dr. Hui Li reported upon physical examination, he has a normal neurological exam. Dr. Li also concluded that the “patient has mechanical neck pain.”
27All three doctors note no neurological involvement in Mr. Jardine’s pain complaints. While Dr. Yahmad concludes no significant traumatic brain injury, he does so on the basis of a lack of neurological disability or impairment. While the other two doctors do not cite a lack of traumatic brain injury their note of normal neurological findings implies no significant traumatic brain injury. There is no material error in the Tribunal making this link between the doctors’ findings.
28Mr. Jardine points to a SPECT scan finding: “Brain SPECT demonstrates perfusion abnormalities in the anterior temporal lobes and the inferior frontal lobes. These are the most common locations for traumatic brain injury to be seen on brain SPECT.” He uses this finding to impugn the Tribunal’s finding that “there was no objective evidence of a brain injury.” In arriving at this conclusion, the Tribunal had the neurological findings discussed above and the lack of evidence for a “significant brain injury.” While the use of the wording is unfortunate, the focus of the Schedule is on impairments caused by a motor vehicle accident and it is clear that the Tribunal accepted that there were no neurological impairments arising out of a brain injury. The wording in the impugned sentence does not materially affect the result and is not a material error.
CONCLUSION
29Mr. Jardine’s request for reconsideration is denied.
D. Gregory Flude
Vice-Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Released: April 11, 2022