RECONSIDERATION DECISION
Before: Stephanie Kepman
Licence Appeal Tribunal File Number: 20-007519/AABS
Case Name: Giuseppe Spano v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Erin Neal, Counsel
For the Respondent: Suzanne A. Clarke, Counsel
BACKGROUND
1This request for reconsideration was filed by the respondent.
2It arises out of a decision dated June 29, 2023, where I found that the applicant was entitled to chiropractic and physiotherapy services, interest, and an award.
3I found that the respondent’s denials of these treatment plans did not comply with the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). I also found that as the applicant incurred the treatments related to the deficient denials, the benefits were payable.
4The respondent submits that the Tribunal erred in finding that the applicant was entitled to an award and:
i. Acted outside its jurisdiction or violated the rules of natural justice or procedural fairness, and;
ii. Made a significant error of law or fact such that the Tribunal would have likely reached a different decision.
5The respondent is seeking an order:
i. Varying the original order to find that the applicant is not entitled to an award.
RESULT
6The respondent’s request for reconsideration is dismissed.
ANALYSIS
7The 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’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Common 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.
8Reconsideration 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.
9The respondent submits that I made errors of law and fact in determining that the applicant was entitled to an award and that I made errors of procedural fairness and natural justice. The applicant disagrees.
The respondent does not need to provide the request for reconsideration form
10The applicant submits that the respondent failed to comply with Rule 18.1 and should not be allowed to proceed with its reconsideration.
11Rule 18.1 states that a party must request a reconsideration within 21 days of the decision. This Rule further states that a request for reconsideration should be in the form provided on the Tribunal’s website.
12The applicant submits that when the respondent filed its request for reconsideration on July 20, 2023, it failed to provide the required form, and therefore, should be barred from proceeding.
13Instead, the applicant submits that the required form was only provided when the respondent resubmitted its submissions on July 24, 2023, at the request of the Tribunal.
14I disagree with the applicant and find that the respondent’s request for reconsideration will be fully considered. I rely on Rule 18.1, which states:
A request for reconsideration from a party should be in the form, if any, that is provided on the Tribunal’s website for reconsideration requests. The request must be served on all other parties and must include: (a) All submissions in support of the request, which must specify the applicable criteria under Rule 18.2; (b) Notification if the party is seeking judicial review or pursuing an appeal in relation to the decision; and (c) The remedy or relief sought.
15The applicant was made aware of the reasons the respondent sought the reconsideration within the required 21-day period. In terms of the form, I note that Rule 18.1 uses the word “should” with respect to using the reconsideration forms and not “must”. I also see no real prejudice this issue caused the applicant. Finally, I note the Tribunal’s Delegate accepted the respondent’s request for reconsideration. Therefore, for all of these reasons, I will consider the reconsideration.
No Errors of Law and Fact
16The respondent submits that I made an error of law and fact in ordering that the respondent pay an award of 25% of the treatment plans (“OCF-18s”) in dispute.
17The respondent submits that I acknowledged that the respondent adjusted the applicant’s claim in good faith, yet also found that the respondent had to pay an award.
18The respondent argued that the decision incorrectly stated that Dr. Edwin Urovitz, orthopedic surgeon, Insurer’s Examination (“IE”) did not address the disputed treatment plans dated February 9, 2019, and October 5, 2019, each in the amount of $2,230.58 for physiotherapy and chiropractic services.
19The respondent submits that this is incorrect, and the doctor addresses these OCF-18s on page 6 of the doctor’s IE. Moreover, the respondent submits that its reliance on Dr. Urovitz’s findings does not amount to behaviour that warrants an award. Though the respondent agrees that I did not specifically reference the OCF-18s of February 9 and October 5, 2019, it submits that this is inferred.
20The respondent also submits that its denial dated October 5, 2019, complied with the Schedule and it was also an error for the Tribunal to find that the respondent did not properly deny the OCF-18s for physiotherapy and chiropractic services. The respondent submits that the denials provided the applicant with an unequivocal denial based on medical reasons and that I erred in finding otherwise.
21I find that I did not make an error of fact or law. Though I understand the respondent’s arguments about Dr. Urovitz’s IE, I was not persuaded by it. My reasons for ordering an award were in my original decision in paragraphs 33 to 43. I also agree with the applicant’s submission that this was stated in paragraph 41 of the original decision, where I address the issue of the lack of an updated IE. I also agree with the applicant that this was explained in my reasons for the award in paragraphs 40 to 43 of the original decision.
22Ultimately, my decision had to do with the fact that the respondent issued denials that did not comply with the Schedule and that the respondent chose not to update its assessment of the disputed treatment plans, despite receiving updated information from the applicant. This point was spoken to in paragraph 51 of the respondent’s initial submissions, where it stated:
In this case, the updated clinical notes and records provided by the Applicant did not substantiate any worsening of his accident-related injuries, and therefore, it is reasonable that Aviva did not schedule an updated Insurer's Examination to address the reasonableness and necessity of issues No. 4 and 5. Specifically, the absence of an updated Insurer's Examination addressing Issues No. 4 and 5 do not substantiate any allegation that Aviva unreasonably withheld or delayed funding of these issues.
23This submission by the respondent was made specifically to address the issue of an award. In this case, I rejected the respondent’s arguments, as seen in paragraphs 40 to 43. Though I understand that the respondent may not agree with this position, this does not amount to an error of fact or law, nor would it amount to a different outcome for the issue. Therefore, I find no error of fact or law.
24I agree with the applicant’s submission that the respondent is rearguing the issue of its denial of October 5, 2019, which is not appropriate in a reconsideration. I also agree with the applicant’s argument that this was addressed in paragraphs 19 and 20 of the original decision.
25My findings regarding the respondent being ordered to pay an award are related to the totality of the reasons I mentioned above, namely the multiple, non-compliant denials, the fact that the respondent chose not to get an updated medical opinion, and the unreasonable delay in the applicant receiving treatment.
26I did not fault the respondent for relying on the doctor’s IEs, as argued by the respondent, but instead considered this circumstance when addressing the issue of the award. I see no error of law or fact that would have resulted in a different outcome.
No Breach of Natural Justice or Procedural Fairness
27The respondent submits that my original decision breached natural justice and procedural fairness. The respondent argues that it had no obligation to schedule updated IEs to address all of the disputed treatments sought by the applicant.
28The respondent also submits that I accepted Dr. Urovitz’s medical findings in his IE of August 23, 2018, and therefore, the decision is contradictory, given that I also had concerns regarding the respondent relying on this IE for related, similar treatment.
29The respondent also submits that I ignored its argument related to the fact that the applicant provided no submission showing that the applicant’s family doctor supported the disputed treatments.
30The respondent submits that I made an error when interpreting 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). The respondent submits that this decision addresses the fact that simply failing to fulfill notice obligations under the Schedule does not automatically entitle an applicant to an award.
31The respondent also submits that I failed to address the criteria of 17-006757 v Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT), when I stated: “I was not directed to specific information regarding the vulnerability of the applicant, the potential harm to the applicant, the need for deterrence, the wrongfully gained advantage of the respondent, and other penalties/sanctions likely imposed on the respondent due to its misconduct.”
32The respondent submits that there is no evidence that the delay in the applicant’s treatment was unreasonable and that his decision to incur treatment is not relevant.
33I find that I did not breach the rules of natural or procedural justice. As noted by the applicant, the reasons for granting an award are noted in paragraphs 33 to 43 of the original decision.
34In terms of the specific arguments of the respondent, I disagree that my findings regarding Dr. Urovitz’s IE are contradictory. Instead, I refer the respondent to my comments in paragraph 41 of the original decision, where I note my issue with the fact that the doctor failed to consider the updated records from the applicant.
35In terms of ignoring the issue of the lack of family doctor support for the disputed treatment, I must note that this argument does not address the deficient notices, and the lack of investigation into the applicant’s updated health records, as noted in paragraphs 40 to 42 of the decision. Therefore, I did not make an error in procedural or natural justice.
36I did consider 16-003316/AABS v. Peel Mutual Insurance Company when ordering an award and agree that a deficient notice alone does not automatically merit an award. However, as noted in the original decision, when I considered all the circumstances of the applicant, I found that an award was needed, as addressed in paragraphs 40 to 43 of the original decision. Therefore, no errors were made.
37In terms of the matter of 17-006757 v Aviva Insurance Canada, I note that the criteria of this decision were specifically listed in paragraph 34 of the decision, showing that I did turn my mind to this matter.
38In terms of the lack of evidence regarding the delay, I note that the applicant filed his application in 2020, and it is now 2023. I find that the delay, on its face, is obvious, and is unreasonable; An applicant should not have to wait nearly three years to obtain treatment. Therefore, I did not make an error with respect to this issue.
CONCLUSION
39The respondent’s request is dismissed.
Stephanie Kepman Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: December 11, 2023