MacLeod v. Coachman Insurance Company, 2022 CanLII 38851

Citation: MacLeod v. Coachman Insurance Company, 2022 ONLAT 20-005511/AABS - R

RECONSIDERATION DECISION

Before: Lindsay Lake, Vice-Chair

Licence Appeal Tribunal File Number: 20-005511/AABS

Case Name: Robert MacLeod v. Coachman Insurance Company

Written Submissions by:

For the Applicant: Luke Hamer, Counsel

For the Respondent: Jamie R. Pollack, Counsel

OVERVIEW

1The applicant, Robert MacLeod, filed a request for reconsideration of the February 7, 2022 decision¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (Tribunal).

2In the decision, I dismissed the application after I found that the applicant was not entitled to a treatment plan (OCF-18) dated April 29, 2019 for kinesiology services, occupational therapy services, and a Samsung tablet, an award under Regulation 664, and interest.²

3The applicant requested a reconsideration of the decision and submitted that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made. Specifically, the applicant submitted that I:

(i) Did not consider the totality of his medical reports, including evidence that supported the applicant’s prognosis and permanency of his injuries;

(ii) Overly relied upon the respondent’s medical reports; and

(iii) Failed to consider an award under Regulation 664.

4The respondent’s position is that the request for reconsideration should be denied.

RESULT

5The applicant’s request for reconsideration is dismissed.

ANALYSIS

6The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 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) (Rules). The ground that applies in this matter is set out under Rule 18.2(b), as the applicant submitted that I made several errors of law and/or fact such that I would likely have reached a different result had the errors not been made.

7For the reasons that follow, I find that no error was made in the decision such that a reconsideration under Rule 18.2(b) is warranted in this matter.

Weighing of the medical evidence

8The applicant’s reconsideration submissions are, on the whole, summarized as disagreeing with my weighing of the medical evidence that was before me at the hearing. Seeking a reweighing of the evidence is not a ground for reconsideration under the Rules.

9The applicant did advance one submission alleging an error at law that is grounded in the Tribunal’s reconsideration decision of J.R. v. Certas Home and Insurance Company (J.R. v. Certas).³ In J.R. v. Certas, the Tribunal found that the hearing adjudicator erred by:

(i) Finding that a medical report that was prepared prior to the date of the disputed treatment plans did not “in any way” address the plans;⁴ and

(ii) Failing to consider certain medical reports on the basis that they failed to reference the OCF-18s in dispute.⁵

10Based on J.R. v. Certas, the applicant submitted that I erred by failing to consider his medical reports which predated the disputed treatment plan. I agree with the respondent, however, that J.R. v. Certas is distinguishable on the facts from this matter.

11In J.R. v. Certas, the Tribunal’s comments regarding medical reports prepared prior to the date of the treatment plan were regarding reports that were dated three months and ten months prior to the date of the OCF-18 in that matter.⁶ Here, as noted in the decision, the most recent medical evidence submitted by the applicant at the hearing was dated almost four years prior to the disputed treatment plan.⁷ Such medical evidence is not contemporaneous by any measure to the date of the disputed treatment plan.

12Further, I do not agree that I made the finding, as submitted by the applicant, that I required “medical assessments to explicitly link themselves to a submitted treatment plan” in order to be considered.⁸ My reasons in the decision for affording little to no weight to the medical reports in determining whether the OCF-18 was reasonable and necessary was focused on their lack of contemporaneousness as opposed to any other factor.

13The applicant also submitted that I erred in the weight that I attributed to the July 18, 2019 Occupational Therapy In-Home Insurer’s Assessment report by Christine Phinney, occupational therapist. I reiterate my statement above that a reweighing of the evidence is not a ground for reconsideration. That said, even if I agree with the applicant that I erred in the weight attributed to Ms. Phinney’s report, which I do not, this finding on its own would not automatically entitle the applicant to the disputed treatment plan. In raising this argument, the applicant has disregarded my statement in the decision at paragraph [12] that the onus never shifts to the respondent to disprove entitlement.

14Finally, the applicant submitted that its not proportional for him to be required to incur expenses for contemporaneous reports given his limited financial circumstances. Compelling contemporaneous evidence need not come solely from assessment reports. Evidence in support of disputed OCF-18s can come from a variety of sources including clinical notes and records, letters from treating practitioners, etc.

15For all these reasons, I find that no error was made regarding the medical evidence that weas before me at the hearing.

The award

16The applicant also submitted that I erred by failing to consider his entitlement to an award under Regulation 664. In his reconsideration submissions, the applicant referred me to paragraph 33 of his initial hearing submissions, which appears to be an error as this paragraph only recites s. 10 of Regulation 664.⁹ I assume that the applicant was referring me to paragraph 34, which states:

It is the Applicant's submission that the insurer unreasonably withheld or delayed the payment of the treatment plans in dispute because the insurer did not consider the totality of the medical and other information it had in its possession, put its own interests above those of its insured, and was stubborn and inflexible in considering the ramifications of denying ongoing treatment for Mr. Macleod. They have, effectively, abandoned a vulnerable individual by preventing him from engaging in any meaningful activities and have compromised his safety.

17These were the totality of submissions made at first instance by the applicant regarding his claim for an award. As such, I find no error in the decision where I held as follows:

I find that the applicant is not entitled to an award regarding the August 13, 2019 treatment plan. The applicant only provided general submissions regarding his claim for an award and offered to provide further submissions with respect to the appropriate amount of the award if necessary. In addition to failing to direct me to specific evidence that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, which is required to attract an award under Regulation 664, parties are expected to put their best foot forward to discharge their onus in their hearing submissions. The applicant in this matter has failed to do so and, as a result, he is not entitled to an award under Regulation 664.¹⁰

18In his reconsideration submissions, the applicant provides a few further details regarding his claim for an award, but these reasons are not properly before me as no information was provided as to why they were not made at first instance. A reconsideration is not an opportunity for parties to correct the shortcomings of their submissions and evidence once highlighted by the Tribunal. Again, as stated in the decision, the parties are required put their best foot forward when first called upon to do so. Lastly, it bears worth repeating that no award may be ordered where the Tribunal has not found any payment for benefits were withheld or unreasonably delayed. That was the conclusion at first instance and it remains true after reconsideration.

CONCLUSION

19For the reasons noted above, the applicant’s request for reconsideration is dismissed.

Lindsay Lake

Vice-Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1R.M. v. Coachman Insurance Company, 2022 CanLII 8668 (ON LAT) (decision).
2. 2Ibid. at para. 6.
3. 32018 CanLII 13161 (ON LAT).
4. 4Ibid. at para. 29.
5. 5Ibid. at para. 37.
6. 6Ibid. at para. 29.
7. 7Supra note 1 at para. 11.
8. 8Applicant’s Written Submissions for Reconsideration, para. 16.
9. 9Applicant’s Written Submissions, para. 33.
10. 10Supra note 1 at para. 17.