RECONSIDERATION DECISION
Before:
Leo Demarce
Licence Appeal Tribunal File Number:
20-013575/AABS
Case Name:
Jayashree Bhikajee v. Intact Insurance Company
Written Submissions by:
For the Applicant:
Maria Papadopoulos, Paralegal
For the Respondent:
Michael Courneyea, Counsel
BACKGROUND
1On April 13, 2023, the Respondent requested reconsideration of the Tribunal’s Decision (“Decision”) that was released to the parties on March 23, 2023. In that Decision, the Tribunal determined that the Applicant is entitled to the following treatment plans/OCF-18 (“OCF-18”):
a. Treatment Plan 1 - $2,027.11 for chiropractic services, proposed by Brampton Civic Care Centre in the plan dated February 11, 2019.
b. Treatment Plan 2 - $2,829.37 for chiropractic services, proposed by Brampton Civic Care Centre in a plan dated February 27, 2019.
c. Treatment Plan 4 - $2,200.00 for a Neurological Assessment, proposed by Ontario Independent in a plan dated August 27, 2019.
d. Treatment Plan 5 - $1,388.72 for a Driving Evaluation, proposed by Ontario Independent in a plan dated September 23, 2019.
e. Treatment Plan 6 - $2,200.00 for a Chronic Pain Assessment, proposed by Ontario Independent in a plan dated September 24, 2019.
f. Treatment Plan 7 - $1,175.00 for a Biopsychosocial Assessment, proposed by Ontario Independent in a plan dated October 29, 2019.
2The Tribunal also awarded interest on any overdue payment of benefits.
3The Respondent requests that the Tribunal amend the Decision to reflect the following:
a. that the treatment plans are not reasonable and necessary; and,
b. that no interest is owing on any overdue payments of benefits.
RESULT
4The Respondent'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 (“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.
6Reconsideration 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.
7The Respondent seeks reconsideration pursuant to Rule 18.2(a) and (b). The Respondent asserts that the Tribunal: (a) acted outside of its jurisdiction or violated the rules of procedural fairness; and (b) made errors of law and fact such that the Tribunal would likely have reached a different result had the errors not been made. The Applicant submits that the request for reconsideration should be dismissed.
8Treatment plans 1 and 2 are for chiropractic treatments and each was found by the Tribunal to be reasonable and necessary. The Respondent argues that the Tribunal’s finding violated the rules of procedural fairness and/or the Tribunal made several errors of law and fact. The Respondent submits that paragraphs 10 and 15 of the Decision show that the Tribunal stated or implied, in error, that the Applicant was removed from the Minor Injury Guideline because of her physical impairments whereas she was actually removed based on her psychological impairments.
9The respondent submits the applicant’s evidence confirmed Dr. Kopyto’s conclusion that she sustained soft tissue injuries that, from a physical perspective, fall within the MIG. The Respondent submits that the Tribunal erred in disregarding the conclusions of Dr. Kopyto and finding the Treatment Plan #1 was reasonable and necessary.
10The respondent makes similar arguments with respect to Treatment Plan #2. Again, the actual basis for removing the applicant from the MIG was based on psychological impairments. Further, the respondent points to paragraph 16 of the Decision as demonstrative that the Tribunal erred in disregarding the findings of Dr. Chaudhry, whose assessment was still relevant as it found that the Applicant sustained soft tissue injuries that, from a physical perspective fall within the MIG.
11I find that any factual error about why the respondent removed the applicant from the MIG would not cause the Tribunal to reach a different result about these chiropractic treatment plans had this error not been made. The Tribunal is not required to limit the scope of a treatment plan to a specific modality based on how the applicant is removed from the MIG. Once the Applicant is removed from the MIG, for whatever reason, all disputed treatment plans must be considered with the totality of the evidence provided. How an Applicant is removed from the MIG cannot be used against the Applicant when seeking treatment.
12The Tribunal weighed the evidence presented by both parties and concluded that both chiropractic treatment plans were reasonable and necessary. I find that the Respondent has not established grounds for reconsideration.
13These treatment plans are for a neurological assessment, chronic pain assessment and a biopsychological assessment. The Respondent argues that the Tribunal erred for the following reasons as stated in the Respondent’s reconsideration submission as follows:
For the Neurological Assessment
a. The Tribunal erred in this finding as there is simply no basis for concluding that a MIG determination was the “primary focus” of the IE assessment (of Dr. Chaudhry).
b. The Tribunal erred by failing to acknowledge that the Applicant’s written hearing submissions contained no expert evidence which contradicted Dr. Chaudhry’s conclusions.
c. The Tribunal erred by considering irrelevant evidence in concluding that Treatment Plan #4 was reasonable and necessary.
d. The Tribunal erred because general pain complaints are irrelevant as to whether a neurological assessment is reasonable and necessary.
e. The Tribunal erred because shoulder pain is irrelevant to determining whether a neurological assessment is reasonable and necessary.
For the Chronic Pain Assessment
a. The Tribunal erred in making a finding of chronic pain based on the report of Dr. Gofeld.
b. The Tribunal erred by stating that “…the applicant’s expert evidence remains largely uncontradicted”.
c. The Tribunal erred in finding that the Treatment Plan #6 was reasonable and necessary
For the Biopsychological Assessment
a. The Tribunal erred by failing to give proper weight to Dr. Bacchiochi’s report.
b. The Tribunal erred by: (a) failing to give sufficient weight to the Applicant’s high level of functioning post-accident; and (b) failing to consider the redundancy of the proposed biopsychological assessment.
14With respect to Rule 18.2(a), the Respondent argues that the Tribunal ignored submissions from the Respondent which would result in a violation of the rules of procedural fairness. I disagree. A careful reading of the Tribunal’s order demonstrated that it considered all of the Respondent’s submissions and weighed them accordingly. The Tribunal considered the evidence supplied by both parties and weighed them in making its findings.
15With respect to Rule 18.2(b), the Respondent claims that there are errors in law or fact in each of the ten statements listed above. I find that the Respondent’s arguments focus on disagreeing with the Tribunal’s conclusions or asserting that the Tribunal erred by considering evidence that the Respondent considered to be irrelevant. Each of the ten impugned statements are simply a re-statement of the Respondent’s arguments presented to the Tribunal in the hearing.
16I agree with the Applicant’s argument that in M.A. v Portage La Prairie Mutual Insurance Company, 2021 CanLII 111181 (ON LAT), the insurer’s request for reconsideration was dismissed because reconsideration was not available to a party simply because they believe that the Tribunal should have viewed the evidence differently.
17Furthermore, the Applicant relies on Abdi v TD Insurance Company, 2022 CanLII 11153 (ON LAT), where the applicant’s request for reconsideration was dismissed as the Tribunal found that that applicant was largely advancing arguments already made at the original hearing and did not provide sufficient case law for its positions.
18The Tribunal weighed the evidence presented by both parties and concluded that treatment plans 4, 6 and 7 were both reasonable and necessary. I find that the respondent is essentially re-litigating its arguments that were unsuccessful at the hearing.
19This treatment plan is for a driving evaluation. The Respondent argues that the Tribunal erred as follows:
a. The Tribunal fundamentally erred by misinterpreting both the purpose and the ultimate finding of Dr. Syed’s assessment.
b. The Tribunal erred by finding that the “fundamental basis” of the report was to consider whether Treatment Plan #5 was reasonable and necessary “from within the MIG”
c. The Tribunal erred in assigning little weight to the IE report of Dr. Syed simply because she addressed the applicability of the MIG within her report.
20I agree that the Decision may have misinterpreted the purpose of Dr. Syed’s report and that Dr. Syed considered the driving evaluation separately from whether the Applicant should remain in the MIG. However, in reviewing the Decision, I find that the Tribunal concluded this treatment plan was reasonable and necessary based on the overwhelming evidence provided by the Applicant as discussed in paragraphs 46, 47 and 50 in the order. While the Tribunal did provide little weight to Dr. Syed’s report as stated in paragraph 49 of the order, it was not discarded from consideration in the Tribunal’s findings.
CONCLUSION
21In my view, there was no error in law or fact for any of the arguments for any of the treatment plans that were found to be reasonable and necessary. The respondent’s basis for removing the applicant from the MIG does not alter the necessary analysis for each of the disputed treatment plans. Apart from that, I find the Respondent is effectively re-litigating the dispute.
22Accordingly, I deny the Respondent's request for reconsideration.
Leo Demarce
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 23, 2023