RECONSIDERATION DECISION
Before:
Derek Grant
Licence Appeal Tribunal File Number:
20-002128/AABS
Case Name:
Joshua Chynoweth v. BelairDirect
Written Submissions by:
For the Applicant:
Joshua Gautreau, Counsel
For the Respondent:
Eli Lipetz, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant, J.C. It arises out of a decision dated August 12, 2021, in which I determined that J.C. had not demonstrated that payment for chiropractic treatment was reasonable and necessary, or that interest or an award was payable.
2In his request, J.C. submits that I acted outside my jurisdiction or violated the rules of procedural fairness due to an apprehension of bias toward J.C. He further submits that I made a significant error of law or fact by concluding that there was an omission of a recommendation for chiropractic treatment from the family physician; that I based my decision on inaccurate statements regarding the OHIP records and the s. 44 report of Dr. Kopyto. Additionally, J.C. submits that I heard false evidence from a party or witness, which was only discovered after the hearing and likely affected the result. Lastly, J.C. submits that there is new evidence that is available that could not have reasonably been obtained earlier that could have affected the result.
3Belair Direct provided responding submissions, arguing that J.C. failed to provide evidence that demonstrates the requested chiropractic services are reasonable and necessary. Essentially Belair Direct takes the position that J.C. failed to provide sufficient evidence that would result in my decision being overturned. Belair Direct seeks a dismissal of the request for reconsideration.
RESULT
4J.C.'s request for reconsideration is dismissed.
ANALYSIS
5The 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 (“Common Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request, J.C. relies on the following grounds:
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; and
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.
6Under Rule 18.2, the threshold for reconsideration is high. The reconsideration process is not an opportunity for a party to ask the Tribunal to reweigh or reconsider evidence nor is it an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to clearly meet its burden at first instance.
7I find that J.C.’s request for reconsideration is such a request, and I reject his assertion that I failed to properly consider his accident-related impairments and/or medical history as it relates to the disputed benefits. Of particular note, the recommendations for physiotherapy (noted in the medical records and submissions) fail to establish that OCF-18s for chiropractic treatment are reasonable and necessary.
Rule 18.2(a): Alleged Violation of Procedural Fairness via Bias; also, Rule 18.2(c): Alleged False or Misleading Evidence from a Party or Witness
8As shown below, J.C.s submissions in relying on these two Rules can be treated together.
9Regarding the allegations of bias, the threshold for a finding of a reasonable apprehension of bias is a high one (see, e.g., R. v. R.D.S., 1997 CanLII 324 (SCC) at para. 76). The high threshold reflects the presumption of impartiality of both courts and tribunal adjudicators alike.
10Apart from J.C.’s submission that Belair mischaracterized certain medical evidence and that the Tribunal accepted that characterization uncritically, J.C. submits that the adjudicator conducting the reconsideration should not be the one who conducted the hearing at first instance and to do so supports his bias argument.
11I disagree for the following reasons. First, s. 21.2(1) of the Statutory Powers Procedure Act (SPPA) permits a tribunal to reconsider its decision, provided that it establishes a reconsideration rule. Here, Rule 18 of the Tribunal’s Common Rules expressly states that the member conducting the reconsideration may be the same member who made the first decision. Second, the Divisional Court has consistently confirmed that the mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias (see, e.g. Landau v. Minister of Finance, 2012 ONSC 6926 at paras. 15-17 and Taucar v. HRTO, 2017 ONSC 2604 at para. 96). Indeed, the Court recognized that same adjudicator may be in the best position to know whether a reconsideration request raises new issues or submissions. This is consistent with both s. 2 of the SPPA and Rule 3.1 of the Common Rules, each of which promote the approach of an expeditious, cost-effective determination of every tribunal hearing on its merits. Lastly, the Court states there must be more to ground a bias argument, and J.C. has not satisfied me of such.
12As mentioned earlier, J.C. submitted that Belair’s counsel mischaracterized certain medical evidence. I disagree with J.C. because I did not accept Belair’s submissions on the evidence to be misleading. While the medical records may not have been directly quoted by Belair, its interpretation of the evidence was not the deciding factor of whether J.C. met his onus to establish whether the disputed treatment plans were reasonable and necessary. Further, the entries that J.C. quotes in his reconsideration submissions, while evident that he is presenting with various complaints, were not persuasive at first instance, in assisting with making my finding on the disputed treatment plans.
13Accordingly, I am not satisfied that J.C.’s request for reconsideration meets either Rule 18.2(a) or Rule 18.2(c) for reconsideration. I now turn J.C.’s submissions concerning Rule 18.2(b).
Rule 18.2(b) – Significant Error of Law or Fact
14J.C. submits that the Tribunal made a significant error of fact or fact when it stated that there was an “omission of a recommendation for any treatment, let alone chiropractic treatment from the family physician,” despite the submissions of OHIP records and family physician recommendations.
15I agree with J.C. that there was a recommendation for treatment, and the above statement is not accurate, on the evidence. Despite the error, I am not persuaded that this was a significant error of fact that would result in a different decision had the error not been made, particularly where there was a recommendation for chiropractic treatment from Dr. Papneja and I found the recommendations from Dr. Jha to be persuasive. I will address the new evidence of Dr. Jha in the next section below.
Rule 18.2(d) - New Evidence
16J.C. argues that new medical evidence, namely, further OHIP records in 2020 and 2021 establish that he continued to require physical treatment. Further, J.C. submits that his removal from the MIG in October 2020 was based on the same OHIP records. J.C.’s position is that the new medical records continue to support the need for ongoing treatment.
17Since the initial submissions, J.C. continued to seek treatment from his family physician and was referred to subsequent OHIP specialists. In his reconsideration submissions, J.C. highlights on the following new evidence:
a. November 16, 2020 – referral to spinal neurosurgeon Dr. Jha, who noted a central posterior disc protrusion at C5-6 and L5-S1 with long term significant neck and back pain and recommended further imagery. Dr. Jha recommended physical treatment;
b. April 27, 2021, and June 16, 2021 – Family physician Dr. Sabry noted that J.C. continues to experience significant pain as a result of the subject accident; and
c. September 1, 2021 – Clinical notes and records of the chronic pain clinic were received. Of particular note, an assessment on September 30, 2020, by chronic pain specialist, Dr. Kim, noted that J.C. continued to suffer from myofascial pain in the upper neck, shoulders, and interscapular spaces. Dr. Kim opined that J.C. continued to require physical treatment.
18J.C. submits that this new medical evidence supports that he suffers ongoing pain and requires additional treatment in order to manage his accident-related symptomatology. J.C. submits that the records include documents between September 30, 2020, and June 16, 2021, with a most recent note dated September 3, 2021, and a November 16, 2020, note from Dr. Sabry. His position is that this new evidence is of significance such that it should be considered and would likely result in a different decision, in that the disputed treatment plans are reasonable and necessary, as a result.
19In its response, Belair argues that the newly submitted clinical notes and records should have been submitted with J.C.’s original submissions. Its position is that J.C. is attempting to relitigate the matter and as such, the new records should be precluded from being considered. It submits that there was no reasonable explanation provided as to why these records are being presented as new evidence, when they were obtained prior to J.C.’s initial submission deadline of January 11, 2021.
20In reply, J.C. submits that requests for records were made on July 28, 2020, September 15, 2020, September 28, 2020, and August 24, 2021, with the records received on August 24, 2021. His position is that given the Covid pandemic, and the December holiday season, the new evidence was not available at first instance and should be considered.
21I am satisfied that the new evidence should be considered, however, based on the new evidence, I do not find that the new evidence would alter my findings regarding the reasonableness and necessity of the chiropractic treatment. In a clinical note date November 16, 2020, Dr. Jha specifically comments, “avoid any spinal manipulation….”, As chiropractic treatment focuses on spinal manipulation, I cannot agree with J.C. that such treatment is reasonable and necessary when a medical practitioner retained on his behalf advises against such treatment. Further, Dr. Jha recommends physiotherapy and other treatment modalities.
22I am persuaded by the recommendations of Dr. Jha. As a spinal neurosurgeon, I place more weight on his expertise in respect of J.C.’s injuries. As J.C. relies on this same evidence in support of his claim, I find that Dr. Jha has not endorsed that chiropractor treatment is reasonable and necessary.
23Although there is a recommendation by Dr. Papneja for chiropractic treatment, I was persuaded by the multiple recommendations for physiotherapy. This is key evidence that the decision turns on. In addition, an insurer is not required to reconsider OCF-18s denied under the MIG, in accordance with s. 38(6) of the Schedule; contrary to J.C.’s argument that Belair failed to reconsider the denied OCF-18s after taking J.C. out of the MIG. Alternatively, J.C. may have had more success had he resubmitted the OCF-18s once he was removed from the MIG.
Award and Costs
24J.C. seeks an award under s. 10 of O. Reg. 664, submitting that Belair unreasonably withheld and delayed the payment of the disputed benefits. I find that an award is not appropriate. In addition, J.C. seeks a cost award based on Belair refusal to pay the disputed benefits. The test for an award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
25I find that both an award and costs are not appropriate. Belair has funded treatment up to the MIG limit and removed J.C. from the MIG based on a psychological report. Belair has relied on the medical evidence and its assessor reports that the chiropractic treatment is not reasonable and necessary. I have found in favour of Belair and agreed that the disputed treatment plans were not reasonable and necessary, and on reconsideration, new evidence put forth by J.C. supports my finding at first instance.
26For these reasons, I find that Belair’s actions have not met the threshold to justify costs or an award.
27I agree with Belair that J.C. has not pointed me to a justifiable violation of procedural fairness, bias, error of law or fact, any alleged false evidence, or that new evidence that was not previously available would have resulted in a different outcome had the error not been made, as is required under Rule 18.2.
28For these reasons, I see no reason to interfere with my decision at first instance.
CONCLUSION
29For the reasons noted above, the request for reconsideration is dismissed.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 13, 2022