RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 20-015151/AABS
Case Name: Cody McBeth v. Allstate Insurance
Written Submissions by:
For the Applicant: Michael Smitiuch, Counsel
For the Respondent: Kevin Mitchell, Counsel
BACKGROUND
1This reconsideration request arises from a Tribunal decision dated December 16, 2022, in which I determined that Cody McBeth (“C.B.”), was statute-barred from pursuing a claim for an occupational therapy and physical therapy treatment plan. I further determined that C.B was not entitled to the 10 remaining treatment plans requested for various medical and rehabilitation benefits, and that no interest or an award was payable.
2C.B. requested a reconsideration of my decision and argues that I erred in fact and law in rendering my decision. He argues that had these errors not been made, I would have reached a different decision.
3Allstate argues that my decision is correct and the reconsideration should be dismissed.
RECONSIDERATION CRITERIA
4Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (Effective February 7, 2019 (“Rules”) states that 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 natural justice or procedural fairness;
b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different decision;
c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
5The remedies available to the Tribunal on a request for reconsideration are as follows:
a. Dismiss the request;
b. Confirm, vary or cancel the decision or order, or
c. Order a rehearing on all or part of the matter.
6C.B. relies on Rule 18.2(b), arguing that I:
a. Erred in law in the interpretation of section 44 of the Schedule, when determining whether C.B. was statute barred from proceeding with his claim as it relates to issue 10(b) in the original decision;
b. Erred in finding that a reasonable explanation was not given for the non-attendance of an insurer’s examination (“IE”) as it relates to issue 10(b) in the original decision;
c. Erroneously drew the conclusion that the C.B. never attended his IE with Dr. Dessouki on June 22, 2020;
d. Made an improper finding of fact by failing to consider the C.B.’s prognosis and permanency of his injuries outlined in the numerous reports provided;
e. Erred in finding that the C.B. did not address his concussion diagnosis and required treatment;
f. Erred in finding that the C.B. did not provide persuasive, objective evidence regarding his injuries and the necessity of the treatment plans to address such injuries;
g. Erred in law in interpreting section 38 (11)(2) of the Schedule, by failing to consider that proper medical reasons were not provided for several denials;
h. Erroneously did not take the totality of evidence provided by the C.B. into account and concluded that C.B. was solely relying on the alleged failings on the part of Allstate;
i. Improperly issued a blanket statement rejecting the 10 treatment plans, providing no specific reasoning or analysis to show a clear justification for how each one failed to meet the reasonable and necessary test; and
j. Failed to give proper consideration to the decision rendered by Adjudicator Tavlin Kaur on December 8, 2022, (LAT Application #21-011473/AABS), which dealt with the same parties and some of the same issues surrounding IEs yet drew the opposite conclusion.
7The C.B. submits that had these errors not occurred, I would have come to a different decision.
8I will address each issue above as numbered for clarity.
ANALYSIS
Issues 6(a)
9C.B. submits that I erred in my interpretation of s. 44 of the Schedule in determining he was statute barred from proceeding with his claim pursuant to s.55(1)2. with respect to the medical benefit in the amount of $2,200.00 for occupational therapy, proposed by Options Therapy in OCF-18 dated December 21, 2018.
10His initial submissions at the time of the original decision fail to raise an issue with the Notice of Examination (NOE) as it relates to this treatment plan. His response to Allstate in providing an update to the denial, was that “the insurer simply dropped the ball”. However, it was not until making this request for reconsideration that C.B. alleges Allstate’s denial did not comply with the requirements under s. 44 of the Schedule.
11Even so, in paragraphs 18 to 22 of my decision, I provide very detailed reasons for finding that C.B. was statute barred from pursuing his claim with respect to the December 21, 2018 OCF-18. I considered the content of the NOE and did not find any deficiencies with the notice. Further, at paragraph 22, I specifically address C.B.’s non-compliance, including noting that there was no reasonable explanation provided for not attending as it related to the four remaining OCF-18s.
12I find that C.B. is raising a new issue on reconsideration as it pertains to Allstate’s NOE being deficient and not in accordance with s. 44(5). This is not the purpose of a reconsideration. C.B.’s failure to address this issue at first instance is an error on his part, which does not meet the test of an error of law or fact made by the adjudicator at first instance.
13Accordingly, I see no reason to interfere with my finding that C.B. is statute barred as it pertains to the December 21, 2018 OCF-18.
Issue 6(b)
14On review of the evidence, I find that C.B. did not provide a reasonable explanation for his non-attendance. His initial submissions on the preliminary issues did not appear to address his non-attendance, however, if I am incorrect in finding that his submissions did not, he did not point me, on reconsideration, to where that evidence existed. Further, on reconsideration, he submits that “several of the stated reasons in the NOE were improper”, without pointing me to which alleged statements were improper.
15In addition, as noted at paragraph 19 of my decision, C.B. indicated in a May 29, 2019 letter to Allstate that he would not attend IEs conducted for OCF-18s from December 2018 to January 2019. Although his grounds were that the s. 44 NOE was improper, C.B. has not clearly explained at first instance or on reconsideration, which aspects of the s. 44 NOE were improper, or how any alleged error of fact or law would have led to a different outcome, had the error not been made.
16For these reasons, I find that C.B. has failed to meet his onus on reconsideration, to establish that I made an error of law or fact in my consideration of whether he provided a reasonable explanation for his non-attendance at the s. 44 IE to address the December 21, 2018 OCF-18.
Issue 6(c)
17I agree with C.B. that he did attend an IE with Dr. Dessouki on June 22, 2020. I acknowledge the error of fact and vary the decision to affirm that C.B. attended an IE with Dr. Dessouki on June 22, 2020.
Issues 6(d), (e), (f), and (h)
18Regarding issues 6(d), (e), (f) and (h), I will address these together, as they all relate to the concussion and C.B.’s claim that I made an error of fact in considering the severity of the concussion and whether his evidence properly addressed that the claimed treatment was reasonable and necessary.
19C.B. submits that I made an improper finding of fact by failing to consider his prognosis and the permanency of his injuries as detailed in the reports. I disagree.
20At paragraph 35 of my decision, I comment on his concussion and related symptoms, and comment that there was no analysis provided to establish that the concussion-related symptomatology is appropriately addressed by occupational therapy services, physical therapy, assistive devices or any of the claimed assessments. I go on to note in paragraph 36, acknowledging that C.B. suffered a concussion, however, he failed to point me to the pertinent parts of the reports that establishes that each of the OCF-18 are reasonable and necessary on a balance of probabilities. Lastly, at paragraph 39, I set out the test to be met by C.B. to be successful in his claim, noting that he failed to demonstrate that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
21C.B. points me to the same evidence on reconsideration that was relied on at first instance, however, reconsideration is not an opportunity to ask for a reweighing of the same evidence that was considered at first instance. Accordingly, I am not persuaded on reconsideration that I committed an error of fact by not considering the extent of C.B.’s concussion, that C.B. did not address his concussion diagnosis, or that I did not consider the totality of his evidence in addressing the disputed OCF-18s sought to address his concussion symptomatology.
Issue 6(g)
22C.B. submits that I erred in law in my interpretation of s. 38(11)(2) of the Schedule, by failing to consider that proper medical reasons were not provided for several denials, however, he does not provide any submissions on reconsideration as to how I erred in law in my interpretation of the section. Further, he does not provide any argument as to how any alleged error of law would have led to a different outcome had the error not been made.
23I find that C.B. has failed to meet his onus on reconsideration on this issue.
24However, I agree with C.B. that the balance of this OCF-18 is payable, as the denied portion was for form completion for the OCF-18. Allstate’s suggestion that the amount could have been submitted in an Expense Claim Form (OCF-6) is incorrect.
25In accordance with the Superintendent’s Guideline No. 03/14, an insured is entitled to receive payment up to $200.00 plus HST, if applicable, for the creation of an OCF-18 submitted to the insurer. There is no requirement under the Superintendent’s Guideline or the Schedule, that requires the form completion fee to be filed separately under an OCF-6.
26This was an incorrect determination made by Allstate. Accordingly, I vary my decision to read that C.B. is entitled to the balance of the cost, in the amount of $200.00, plus interest.
Issue 6(i)
27C.B. submits that I issued a blanket statement in denying all 10 OCF-18s. I find I did not. Paragraphs 34-39 of my decision address the shortcomings I found with C.B.’s submissions, specifically at paragraphs 34 and 35, noting his discussion of the IEs and Allstate’s alleged failures to consider various medical reports.
28On reconsideration, C.B. submits that I did not consider evidence regarding his injuries and the necessity of the OCF-18s to address these injuries. I disagree.
29Paragraphs 36 through 39, discuss his concussion injury, the various reports that he points me to and my consideration of said evidence. Specifically at paragraph 39, I state that I agreed that C.B. was dutiful in obtaining the reports that he may have required in order to provide the necessary medical documentation to Allstate in support of his claims.
30Further, on review, I find I did not err in fact or law in finding that the balance of the OCF-18 for replacement of a damaged cellphone was not payable.
31Section 24 of the Schedule sets out that the insurer shall pay for all reasonable expenses incurred by or on behalf of an insurer in repairing or replacing clothing lost or damaged as a result of an accident, or prescription eyewear, dentures, hearing aids, protheses and other medical or dental devices lost or damaged as a result of the accident. This provision is strictly interpreted, and there is no inclusion of a lost or damaged cellphone as an item that an insurer shall pay to replace.
32C.B. relies on s. 16(3)(i) of the Schedule, in support of his claim that the damaged cellphone is replaceable. However, I find this is a wrong interpretation of this section, as it deals with home modifications and home devices. This section does not apply to items that were damaged as a result of an accident. They are captured under s. 24.
33Accordingly, I find that no error of law or fact was made in finding that Allstate was not required to pay for the cost of replacing C.B.’s damaged cellphone, or the shipping costs associated with it.
34On reconsideration, C.B. has not established that my finding that he failed at first instance to demonstrate that the treatment goals are reasonable; that the goals are met to a reasonable degree; and that the overall cost of achieving the goals is reasonable, amounts to an error of fact or law. More importantly, and in considering the ultimate purpose of reconsideration, C.B. failed to demonstrate how this alleged error would have led to a different outcome had the error not been made.
Issue 6(j)
35In addition, regarding C.B.’s reference to the decision of Adjudicator Kaur, specifically, the IE scheduled with Dr. Dessouki on August 23, 2021. I find that this issue is moot, as Allstate paid the November 2019 OCF-18 in dispute as it relates to the NOE for the August 23, 2021 IE, and further, it withdrew its request for this IE.
36As the other OCF-18 in dispute in Adjudicator Kaur’s decision was not an issue in dispute before me, I decline to comment on the reasonable and necessity of that OCF-18, or any issue that C.B. raises regarding the IEs to address same.
37As a result of C.B.’s failure to meet his onus on reconsideration, I see no reason to interfere with my finding at first instance.
CONCLUSION
38For the reasons noted above, I approve C.B.’s reconsideration request in part as follows:
39The Applicant's request for reconsideration is granted, in part. The original decision is varied as follows:
a. C.B.’s non-attendance at the August 23, 2021 IE with Dr. Dessouki is moot as the request to attend an IE was withdrawn and issue has been resolved;
b. C.B. attended an IE with Dr. Dessouki on June 22, 2020; and
c. The $200.00 for the January 15, 2019 OCF-18 is payable, with interest.
40C.B. has failed to establish that I made an error of fact or law that would have led to a different outcome had the errors not been made with respect to the remaining issues.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 11, 2023