RECONSIDERATION DECISION
Before:
Brian Norris
Tribunal File Number:
19-003356/AABS
Case Name:
[A.M] v. Aviva Insurance Canada
Written Submissions by:
For the Applicant:
Sahereh Baghbani, Paralegal
For the Respondent:
Emily M. Hill, Counsel
OVERVIEW
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 was not entitled to a chiropractic treatment plan dated June 12, 2018. I found the treatment plan to be not reasonable and necessary as a result of the Applicant’s accident-related injuries.
2The Applicant submits that I violated the rules of procedural fairness, made errors of fact or law such that the Tribunal would have reached a different result had the error not been made, and that there is evidence that was not before me when rendering my decision that could not have been previously obtained, and would likely have affected the result.
3The Applicant submits that he is seeking the following orders:
a. An Order that my Order dated May 7, 2021 represents a significant error of law and facts and violates the Rules of natural justice and procedural fairness;
b. An Order allowing for new evidence to form part of the record in this matter; and
c. An Order allowing for reconsideration of the matter in light of the new evidence by a different adjudicator.
4Ultimately, the Applicant seeks to cancel or vary my decision dated May 7, 2021, to indicate that he is entitled to the disputed treatment and assessment plan. I infer that, in the alternative, he seeks a rehearing on the issue.
RESULT
5The Applicant's request for reconsideration is dismissed.
BACKGROUND
6The Applicant was the driver of a vehicle which was struck from behand while stopped at an intersection. He sought no medical care immediately following the accident but was later diagnosed with chronic neck and back pain and depression.
7The Applicant initiated a claim for accident benefits and was subject to the Minor Injury Guideline (“the MIG”). The Respondent later removed the Applicant from the MIG, after an insurer’s examination (“IE”) found that the Applicant suffered from depression as a result of the accident. The Respondent approved funding for psychological treatment but denied the chiropractic treatment plan.
8In my decision, I found no compelling contemporaneous evidence in support of the denied chiropractic treatment plan. I preferred the opinion in an IE which found that the Applicant sustained soft tissue injuries and that no further facility-based treatment was reasonable and necessary for those injuries.
ANALYSIS
9The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. 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 would have 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.
10Reconsideration 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.
11The Applicant relies on criteria a, b, and d in his case.
The Tribunal violated the rules of procedural fairness
12The Applicant submits that I failed to consider the evidence in its totality and in an impartial manner. He submits that I completely ignored his medical evidence without any credible reason and that this reconsideration should be heard by a different adjudicator due to my biased and unfair handling of the evidence.
13The Respondent submits that the adjudicator is not required to refer to each piece of evidence on record. Here, the Respondent submits, the decision to prefer one opinion over another is squarely within my role as the adjudicator and is not in any way a breach of procedural fairness.
14The Respondent further submits that the LAT rules provide that a reconsideration may be heard by the same member and that the Applicant’s request is, essentially, premature because it pre-emptively appeals a decision before it was made.
15I find no violation of the rules of procedural fairness. Contrary to the Applicant’s submissions, his medical evidence was considered in its entirety. The evidence is referred to in the decision, where necessary. As the Respondent notes, an adjudicator is not required to address every piece of evidence when rendering a decision.
16There is no evidence to suggest that I was bias or handled the evidence unfairly. Instead, I reviewed the evidence and highlighted what I believed to be the most relevant aspects of the evidence in my decision. The fact that I preferred the Respondent’s evidence over the Applicant’s evidence is not an indication of bias or unfair handling of the Applicant’s evidence. In any event, LAT rule 18.1 provides that a reconsideration may be heard by the same adjudicator whose decision is the subject of the request.
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
17The Applicant submits that I provided no legal analysis with respect to my determination. He characterizes this as an error of law. The Applicant also takes issue with my preference for Dr. Silver’s opinion in the IE report. He submits that my conclusion that the records and reports of Dr. Haji are uncompelling is based not on substance but on the length of his relationship with Dr. Haji, and that this is contrasted by my preference for Dr. Silver’s opinion, who has no ongoing relationship with the Applicant.
18The Applicant suggests that my preference for Dr. Silver’s opinion is also an error of law or that it is another component of an error of law. He submits that the IE report by Dr. Silver does not expressly address whether the disputed treatment is reasonable and necessary and that, because the treatment plan was denied due to the MIG limits, the Respondent has an obligation to have the treatment plan assessed but chose not to.
19In the end, the Applicant submits that I ignored all relevant evidence, except for Dr. Silver’s IE report and expressly states that I neither considered or mentioned the clinical notes and records of his treatment facility.
20The Respondent submits that no errors of fact or law exist. It submits I properly weighed the evidence and applied my findings of facts to the law in coming to a conclusion that the disputed treatment and assessment plan was not reasonable or necessary. Specifically, it submits that my preference for Dr. Silver’s opinion over Dr. Haji’s is discussed in the decision and that I did not ignore evidence but rather, found that it did not adequately demonstrate how the disputed treatment plan was reasonable and necessary.
21The Respondent also notes that, contrary to the Applicant’s submissions, the CNRs from the treatment facility are referred to in the decision.
22Lastly, the Respondent submits that the Applicant advances a new argument when he submits that the denial is invalid because it was based on the MIG. It states the Applicant had the opportunity in the initial hearing to address the validity of the denial but failed to.
23I find no error in law such that the Tribunal would likely have reached a different decision had the error not been made.
24I must first note that the Applicant is partly correct in that I did not provide a fulsome legal analysis with respect to his entitlement to the disputed treatment plan. Specifically, I failed to clearly outline that the onus is on the Applicant to prove entitlement to the disputed treatment plan on a balance of probabilities and that it is not the obligation of the Respondent to prove that a treatment plan is not reasonable and necessary. Including this in the decision would provide greater clarity for the Applicant as to how I came to my decision.
25However, I find that my failure to outline the Applicant’s onus would not have reached a different result, had the error not occurred. It has long been established that the onus is on the Applicant to prove entitlement to the benefits claimed.1
26No evidence was ignored when rendering my decision and all evidence was considered when making my decision. My decision highlighted the opinions of Dr. Haji and Dr. Silver because, in my deliberations, I found those were the most relevant to the issue. In respect of the duration of the relationship between the Applicant and the two doctors, both doctors weighed equally. That discussion addressed why the family doctor’s reports and opinion failed to hold more weight than an IE assessor, which would generally be the case where these has been an ongoing relationship. My preference for Dr. Silver’s opinion over Dr. Haji’s is outlined in several paragraphs in the initial decision. I noted that Dr. Haji’s reports appear to include no objective physical examination and appeared to be based entirely on the Applicant’s subjective complaints. This is unlike Dr. Silver’s examination, which included record of a physical examination. Additionally, I noted that the referral pain that the Applicant complaints appear to be as a result of an incident while walking in the fall of 2019, which is reflected in the records and reports of Dr. Haji and Dr. Silver.
27The Respondent is not required to obtain a medical opinion on every treatment plan that the Applicant submits. This is particularly true when the Respondent has previously conducted an IE on the issue or one similar, which is what happened in the Applicant’s case. Indeed, Dr. Silver’s IE addressed other treatment and assessment plans, but not the plan in dispute. However, the other treatment plans considered in the IE were similar to the plan in dispute and Dr. Silver found that further facility-based treatment would not be reasonable and necessary for the Applicant’s accident-related injuries.
28Lastly, I find that the Applicant is advancing a new argument when he questions the validity of the Respondent’s denial because it was initially based on a MIG determination. The validity of the denials was never at issue in the initial hearing and it would be improper to overturn the decision on that issue.
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.
29The Applicant submits that a May 6, 2021 MRI report and referrals by Dr. Haji to an orthopaedic surgeon and a chronic pain treatment facility is evidence that was not before the Tribunal when rendering its decision and that it would likely have affected the result. To the Applicant, the MRI report is an objective medical opinion that should be preferred over self-reports. He also submits that the referrals carry substantial weight, indicating that the Applicant continues to have chronic neck and back pain.
30The Respondent submits that the MRI report and referrals would not have led to a different conclusion about the disputed treatment and assessment plan. Further, it submits that this ground for a reconsideration is not intended to address any new information or change in circumstance that comes into existence after a decision has been rendered.
31I agree with the Respondent in that this ground for reconsideration is intended to address instances where evidence that was in existence at the time of the decision could not reasonably have been submitted to the Tribunal. As noted by the Respondent, this principle on evidence is outlined in Great Lakes Offshore Services inc. v. Registrar of Motor Vehicles and I see no reason to deviate from it2. In the Applicant’s situation, the evidence was obtained and produced after the decision was rendered.
32In any event, the new information would not alter the outcome of my decision. As I noted in the initial decision, I am aware of the Applicant’s degenerative changes and ongoing pain. However, I agreed with Dr. Silver’s conclusion that the Applicant’s new complaints of radiating pain, which began in fall 2019, were not attributable to the subject accident. I found this was also reflective in the treatment facility records as well as Dr. Haji’s records. The latter records noted that the radiating pain started following an incident while walking in the fall of 2019. The continuation of radiating pain is most likely related to the incident while walking and not the subject accident. The Applicant’s ongoing pain complaints, as well as the new information produced in 2021, have no impact on whether the Applicant is entitled to the disputed treatment and assessment plan dated June 12, 2018. As I noted in my initial decision, I found insufficient contemporaneous medical evidence in support of the disputed treatment and assessment plan.
CONCLUSION
33For the reasons noted above, I deny the Applicant's request for reconsideration.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 28, 2022
Footnotes
- Scarlett v. Belair Insurance, 2015 ONSC 3635
- 11283 v. Registrar of Motor Vehicles, 2018 CanLII 127590 (ON LAT)