RECONSIDERATION DECISION
Before: Ulana Pahuta
Licence Appeal Tribunal File Number: 20-012060/AABS
Case Name: Paul Gibson v. Intact Insurance Company
Written Submissions by:
For the Applicant: Maia L. Bent, Counsel Stephanie C. Coppens, Counsel
For the Respondent: Megan Murphy, Counsel Nickola Haddad, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter. It arises out of the January 10, 2023 Tribunal decision (“decision”) in which I found, as a preliminary issue, that the applicant could not proceed with disputing a treatment plan dated December 7, 2020 for a Kubota tractor, due to his non-attendance at two scheduled s. 44 insurer’s examinations (“IEs”). I also found that the applicant was not entitled to certain treatment plans, as he had not established that they were reasonable and necessary.
2The applicant requested a reconsideration of the decision on the basis that I made significant errors of law and fact, such that, I would have likely reached a different result had the errors not been made. The applicant also submits that there is evidence that was not previously before the Tribunal that could not have been obtained previously, which would have likely affected the result.
3The applicant is seeking an Order varying my decision and permitting him to proceed with disputing the treatment plan dated December 7, 2020; and finding that he is entitled to all of the treatment plans in dispute. Finally, the applicant requests a declaration that he is entitled to an award under s. 10 of O. Reg 664, specifically with respect to the treatment plan for the Kubota tractor.
RESULT
4The applicant's request for reconsideration is allowed, in part.
5I vary the Tribunal’s Order as it relates to the treatment plan dated January 27, 2020. The applicant is entitled to the treatment plan in the amount of $5,092.87, plus interest in accordance with s. 51 of the Schedule.
6I also vary the Tribunal’s Order as it relates to the treatment plan dated August 25, 2020. The applicant is entitled to the treatment plan in the amount of $15,574.00, plus interest.
7The remainder of the applicant’s request for reconsideration is dismissed.
RECONSIDERATION CRITERIA
8The 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”).
9Under Rule 18.2, a request for reconsideration will not be granted unless one 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.
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. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.
11The applicant requests a reconsideration of my decision under Rule 18.2(b) and 18.2(d).
ANALYSIS
Preliminary Issue – Treatment Plan dated December 7, 2020 for a Kubota Tractor
12I find that I did not make an error of law or fact in my preliminary issue determination pursuant to Rule 18.2(a) when I found that the applicant could not proceed with the issue of the treatment plan dated December 7, 2020, by virtue of s. 55(1) of the Schedule.
13In my decision, I determined that the applicant’s failure to attend two IEs, barred the applicant from proceeding with the disputed treatment plan for the Kubota tractor.
14On reconsideration, the applicant submits I made errors of law and fact in the treatment of the respondent’s IE assessments. Specifically, the applicant submits that it was a significant error of law to state that the occupational therapy (“OT”) assessment was “qualified” because of the functional nature of the assessment. The applicant further submits that it was an error of fact to conclude that the OT and physiatry assessors put limitations on their conclusions, such that the additional assessments required by the respondent were warranted. The applicant contends that although both assessors deferred questions outside of their respective scopes of expertise, a deferral is fundamentally different than a limitation or qualification.
15I disagree. As noted in paragraphs 19 and 20 of my decision, both assessors explicitly contemplated and deferred their findings to further medical opinions. Specifically, the respondent’s physiatrist, Dr. Marchuk, deferred to a neurologist regarding the advanced findings on the imaging of the cervical spine, and to an orthopaedic surgeon regarding the left shoulder condition. Further, the respondent’s OT assessor, Mr. Kostadopoulos, deferred comment concerning the neck and left shoulder “to a medical perspective” as it was outside the scope of his practice. I agree with the respondent’s submissions that these deferrals are not fundamentally different than a limitation. In both cases additional medical information outside of the each of the assessor’s expertise was required.
16Further, while I agree with the applicant that the use of the term “qualified” with respect to the OT assessment was inaccurate, I do not find this to be a significant error. It is clear from the decision that I took into account the fact that the OT assessor was not able to comment on the neck and left shoulder as it was not in his scope of practice. My decision does not change simply because I used the term “qualified” inaccurately. The applicant also submits that there is no question of causation as to the applicant’s impairments that would necessitate the additional assessments, and again references the report of Dr. Marchuk, and his own neurology assessment by Dr. Cooper. I find that on this issue, the applicant is attempting to re-argue his case, which is not a grounds for reconsideration.
17I further disagree with the applicant’s submissions that I made an error, by considering the reasonableness and necessity of the additional IE assessments with respect to the applicant’s entitlement to accident benefits generally, instead of the specific treatment plan in dispute. As noted in paragraph 18 of my decision, I specifically considered the injuries listed in the OCF-18 and attached letter, when considering the proposed assessments in relation to the December 7, 2020 treatment plan.
18As such, I do not find an error of law or fact in my determination that the proposed IE assessments were reasonable and necessary.
19I also find the applicant has not established grounds for reconsideration under Rule 18.2(d). The applicant submits that there is new evidence that was not available at the time of the hearing, that supports his argument that the proposed device will successfully achieve its treatment goals. Namely, subsequent to the hearing, the applicant purchased the recommended tractor and on reconsideration, he submits evidence of its efficacy. I agree with the respondent’s submissions that the new evidence would not lead to a different outcome, as required by Rule 18.2(d). My determination was that the applicant cannot proceed by virtue of s. 55(1)2 of the Schedule, and evidence of the merits of the treatment plan in dispute does not address the issue of the applicant’s non-compliance with s. 55(1)2 of the Schedule.
Error in Law or Fact with respect to Treatment Plan dated March 16, 2020 for Car Repair Devices
20I find no error in law or fact with respect to the treatment plan dated March 16, 2020 for car repair devices for the following reasons.
21With respect to my finding that the applicant had not established the reasonableness and necessity of the treatment plan for car repair equipment, the applicant submits that I failed to properly assess the proposed equipment. Namely, that I failed to appreciate the nature of the customizable car repair devices being proposed and how they would assist him to return to his pre-accident leisure activity of repairing cars. I disagree. In my decision I weighed the evidence and came to a conclusion. At paragraphs 55 to 59, I discussed the fact that the applicant did not lead sufficient evidence to establish that the proposed devices would remedy his difficulty in looking up, reaching up and maintaining 90 degree shoulder flexion. I find that the applicant is attempting to reargue his case, which is not grounds for reconsideration.
22The applicant further submits that I erred in not properly considering the treatment plan’s additional stated goal of pain reduction. While I agree with the applicant that I did not expressly address the stated goal of pain reduction in my decision, I do not find that this is grounds for reconsideration under Rule 18.2(a). Given the fact that I found that the applicant had not led sufficient evidence that the proposed devices would alleviate his stated difficulties with looking up, reaching up and maintaining shoulder flexion, I do not find that the applicant has established that he would be able to resume car repair activities using these devices, even considering the stated goal of pain reduction. On reconsideration, the applicant has cited the same medical evidence that was before me at the hearing. I agree with the respondent’s submissions that the argument raised by the applicant with respect to this treatment plan, is an attempt to re-litigate his position. I do not find an error of fact or law in my analysis.
23Further, on reconsideration, the applicant raises a new argument and cites s. 16 of the Schedule. The applicant submits that s. 16 stipulates that the purpose of assistive devices is to reduce the effects of disability resulting from the accident-related impairments, and that, as these devices would reduce his pain, they should be found to be reasonable and necessary. I agree with the respondent that the applicant’s reconsideration submissions regarding s. 16 of the Schedule are new arguments that were not made at first instance. They are not grounds for reconsideration.
Error in Law or Fact with respect to Outstanding Balance of Treatment Plan dated March 16, 2020
24I find no error in law or fact with respect to the balance of the treatment plan dated March 16, 2020 for the following reasons.
25The applicant submits that I erred in concluding that he did not provide sufficient evidence to establish entitlement to the unapproved portions of the treatment plan in dispute. The respondent had partially denied the portions of the treatment plan relating to additional treatment time and additional time to prepare a progress report by the applicant’s OT, Mr. Taylor. The applicant cites a March 16, 2020 letter from Mr. Taylor and submits that I did not properly consider this letter as evidence of the reasonableness and necessity of the outstanding amounts.
26I disagree. I considered Mr. Taylor’s letter in paragraph 64 of my decision, and noted that the reasons stated in Mr. Taylor’s letter did not provide sufficient detail as to why two-hour treatment sessions were required.
27The applicant argues that if his OT opined that the partially approved time was insufficient, he would be “in the best position to know” and that the respondent was obliged to lead evidence to refute Mr. Taylor’s opinion about the amount of time required. I do not find the applicant’s argument to be persuasive. As stated in paragraph 65, the burden of proof rests with the applicant to establish that the additional time to prepare the progress report and longer treatment sessions were reasonable and necessary. I find no fault in my reasoning, and find that the applicant is attempting to re-argue his case.
Error of Law or Fact with respect to Treatment Plan dated January 27, 2020 for a Mattress and Pillow
28I find the applicant has established grounds for reconsideration with respect to the treatment plan dated January 27, 2020 for the following reasons.
29The applicant submits that I erred in my determination that there was insufficient objective medical evidence to establish the reasonableness and necessity of the proposed devices.
30The applicant contends that I incorrectly adopted a very narrow interpretation of “objective medical evidence” by suggesting that a treating physician must also specifically recommend the devices in question, in addition to the applicant’s occupational therapist. Rather, the applicant submits that additional objective medical evidence was provided in the form of medical records documenting the applicant’s ongoing sleep disturbances due to pain, following the accident. In his reconsideration submissions, the applicant further cites two Tribunal decisions, O.M. v Allstate, 2020 CanLII 45540 (ONLAT) and Tobin v. Cayuga Mutual Insurance Company, 2022 CanLII 106459 (ONLAT), where the Tribunal approved mattresses and pillows on the recommendation of the applicant’s occupational therapist alone, in light of the applicant’s sleep disruption due to pain and physical impairments.
31The respondent submits that there was no error in my analysis and argues that in the original caselaw cited by the applicant at the hearing, treating physicians had also recommended the proposed mattresses. With respect to the new caselaw submitted by the applicant, the respondent contends that these decisions are unpersuasive, as in these decisions the Tribunal had specifically noted issues with the IE assessments relied upon by the insurers.
32Upon review of the parties’ reconsideration submissions, I agree with the applicant that I made an error in my interpretation of “objective medical evidence”. Further, I find that this error is such that I would likely have reached a different result had the error not been made.
33In paragraph 50 of my decision, I found that the applicant did not adduce sufficient objective medical evidence of the reasonableness and necessity of the proposed mattress and pillow. In paragraphs 45 to 48, I describe such objective evidence as necessitating a recommendation of the proposed devices by treating physicians or specialists. As such, I agree with the applicant that when describing “objective medical evidence”, I imposed a requirement that does not exist, namely that a treating physician also specifically recommend the mattress and pillow.
34Further, I find that if I had not imposed this additional requirement, the evidence provided by the applicant at first instance would have been sufficient evidence of the reasonableness and necessity of the plan. The applicant had established a record of continuing pain reports post-accident. Further, his family physician had confirmed that such ongoing pain resulted in significant sleep disturbances, which had also been corroborated by the applicant’s similar reports to other treatment providers. The applicant’s occupational therapy report specifically considered the applicant’s current and proposed mattresses with respect to his physical impairments and pain reduction.
35As such, I agree with the applicant that my focus on whether an additional treatment provider had specifically recommended the proposed devices, was unduly narrow and that he has adduced sufficient evidence of the reasonableness and necessity of the proposed treatment plan. I vary the decision on this issue and find that the proposed treatment plan is payable, with interest in accordance with s. 51 of the Schedule.
Error of Law or Fact with respect to the Treatment Plan dated August 25, 2020 for a John Deere Lawn Mower
36I find the applicant has established grounds for reconsideration under Rule 18.2(a) with respect to the treatment plan dated August 25, 2020 for the following reasons.
37The applicant submits that I erred in my determination that the treatment plan for a new zero turn lawn mower was not reasonable and necessary. In my decision, I found that since the applicant had continued to complete lawn care using his existing riding mower, albeit with pacing, the applicant had not established the necessity of the new lawn mower. I further held that the applicant had not led sufficient evidence as to why his current mower was not sufficient. The applicant contends that this narrow interpretation of the evidence failed to consider the other reasonable goals of the treatment plan, including pain reduction, improved management of pain and fatigue and improved engagement with all activities of daily living. On reconsideration, the applicant submits new evidence in the form of a letter dated January 27, 2023 from his occupational therapist, Mr. Taylor, which provided a comparison of the proposed lawn mower to the applicant’s existing mower.
38The respondent submits that the applicant is attempting to re-litigate his position and that he is now attempting to introduce new evidence which could have been obtained previously. The respondent contends that this information is an attempt to bolster his position and should have been provided in first instance. I agree with the respondent that the new letter is evidence that should have been submitted in first instance, and is not in compliance with Rule 18.2(d), and as such, I will not consider it in this reconsideration.
39However, I agree with the applicant that I erred in failing to address all of the stated goals listed in the treatment plan in dispute, particularly pain reduction and management of pain and fatigue. I further find that this error was such that, I would likely have reached a different result, had the error not been made.
40The applicant’s evidence at the initial hearing included a letter from Mr. Taylor dated August 31, 2020. Mr. Taylor described the applicant’s reports of significant pain for up to 2-3 days after mowing the lawn using his existing mower and that the applicant would extend the lawn care over a few days to compensate for the pain. The applicant’s OT further detailed the measures in which the proposed mower would specifically reduce the applicant’s pain while mowing the lawn. At the initial hearing, the applicant had also relied upon the respondent’s assessors’ reports that the applicant continued to suffer from pain related impairments impacting his tolerances for activities of daily living on his property. I find that in my decision, I did not properly consider this evidence when applied to the stated goals of pain reduction, pain and fatigue management.
41Upon reconsideration, I find that the applicant’s evidence did establish that the zero turn lawn mower would meet the stated goals of pain reduction and improved management of pain and fatigue, and that I erred in not considering these stated goals. As such, I vary the decision on this issue and find that the treatment plan in dispute is payable, with interest in accordance with s. 51 of the Schedule.
Section 10 Award
42The applicant requests a declaration that he is entitled to an award under s. 10 specifically with respect to the treatment plan for the Kubota tractor. As I have found that applicant cannot proceed with this treatment plan by virtue of s. 55(1)2 of the Schedule, I do not find there is a basis for an award.
ORDER
43For the reasons noted above, the applicant’s request for reconsideration is granted in part as follows:
a. I vary the Tribunal’s decision with respect to the treatment plans dated January 27, 2020 and August 25, 2020. I find the applicant is entitled to the disputed treatment plans, together with interest in accordance with s. 51 of the Schedule.
b. I dismiss the applicant’s request for reconsideration on all remaining grounds.
Ulana Pahuta Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: April 25, 2023