RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 20-014453/AABS
Case Name: Helen Bennett v. The Co-operators
Written Submissions by:
For the Applicant: Lawson Hennick, Counsel
For the Respondent: Emily Schatzker, Counsel
OVERVIEW
1This request for reconsideration was filed by Co-operators in this matter. It arises out of a Tribunal decision dated January 6, 2023, in which I found that H.B. was entitled to payment for an attendant care assessment, physiotherapy and interest. Further, I found that she was not entitled to a psychological assessment, chiropractic treatment, case management services or an award.
2Co-operators is seeking a reconsideration of my decision.
3H.B. disagrees and asks the Tribunal to dismiss Co-operators’ request.
RESULT
4Co-operators’ request for reconsideration is dismissed.
RECONSIDERATION CRITERIA
5Rule 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.
6The following remedies are available to the Tribunal on a request for reconsideration:
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.
7Co-operators relies on Rule 18.2(b), arguing that I erred in law in finding that removing H.B. from the Minor Injury Guideline (“MIG”) due to a pre-existing condition resulted in exposure to payment for an attendant care assessment.
8H.B. submits that the proper interpretation of the Schedule, was conducted in my analysis, and no error of law was made.
ANALYSIS
Error of Law – MIG and “minor injury”
9Co-operators submits that I erred in in my interpretation of s. 14(2) of the Schedule, pointing to paragraph 15 of my decision, wherein I state:
On a plain reading of s. 14(2), an impairment that is a minor injury, must be categorized as such. Once notice is provided to an insured that they are removed from the MIG, there is no partial removal, it is a complete removal, and appropriately, the test for claims for benefits under s. 14(2) is reasonable and necessary.
10Co-operators further submits that in relation to s. 25(2), which does not permit in-home assessments for claimants who have sustained minor injury impairments, I read the phrase “impairments that are not a minor injury” as implying that injuries cannot be categorized as such. Its position is that I conflated the defined terms “minor injury” and “Minor Injury Guideline” and read an interpretation of the Schedule that is not in accordance with the plain language of the Schedule.
11Co-operators further submits that “minor injury” was intended to be distinct from the MIG. It specifically relies on s. 18(1), which confirms that the limit of medical and rehabilitation benefits available to an insured whose impairment is predominantly a minor injury is $3,500.00, less amounts paid as part of the MIG. It submits that the MIG is a separate term, with a separate meaning.
12In this vein, Co-operators further relies on s. 18(2), which removes the $3,500.00 limit where an insured has a pre-existing medical condition that will prevent the insured from achieving recovery from the minor injury if he or she is subject to the limit under the MIG framework.
13Co-operators submits that s. 18(2) does not state that a pre-existing condition which impacts a claimant’s ability to recover removes a claimant from the definition of “minor injury”. Further, it posits that the language of s. 25(2) and s. 14 is clear that in-home assessments and attendant care benefits are not available to insured persons whose impairments from the accident are minor injuries.
14In response, H.B. argues that Co-operators is “creating an artificial distinction” which has the effect of creating a separate category between the MIG and “minor injury” under the Schedule.
15Section 4 of the MIG provides that an insured’s impairment does not come within the MIG if the insured person’s impairment is predominantly a minor injury, but, based on compelling evidence provided by a health practitioner, the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident that will prevent the insured person from achieving maximal medical recovery from the minor injury if he or she is subject to the $3,500.00 limit referred to in s. 18(1) of the Schedule or is limited to the goods and services authorized under the MIG.
16To this point, H.B. submits that having been removed from the MIG based on her pre-existing condition, and yet still restricted to the limits of funding and goods and services of the MIG leads to an absurd result. H.B. submits that Co-operators’ position that a pre-existing condition does not remove a claimant from the definition of a “minor injury” creates an exception to the minor injury tier of medical and rehabilitation benefits and is a flawed interpretation.
17I agree with H.B. that the removal from the MIG, as a result of having a pre-existing condition (or meeting any other exception that warrants removal from the MIG), is a “removal of all constraints found within the MIG, including limits as well as goods and services.” I further agree that the MIG’s purpose would be rendered meaningless if the MIG was interpreted to mean that one can be removed from the MIG, but still be determined to suffer minor injuries, and therefore be subject to the MIG’s limit on funding and goods and services.
18I disagree with Co-operators that removal from the MIG must only mean removal from the limits of that particular pre-approved treatment plan. While it makes a unique argument in interpreting “minor injury” and the MIG, I find that they are not separate, and that its interpretation is flawed.
19In notifying an applicant that they have been removed from the MIG, whether it is due to a pre-existing injury, non-minor physical injuries, or for psychological or chronic pain impairments (or any other such impairment not captured under the definition of a minor injury), once such notice has been provided, there is no further reliance on any part of the MIG framework. Such a notice necessarily indicates to an insured that they now have access to the second tier of funding, beyond the $3,500.00 ($65,000 in H.B.’s case).
20There is no provision under the Schedule that separates a “minor injury” from the MIG. While appreciating Co-operators’ argument that these are separately defined terms, the practical reality is that they are intertwined. Therefore, when an insurer provides notice that its insured is no longer under the confines of the MIG, this also confirms that the insurer is no longer considering that its insured’s injuries are minor.
21I clearly set out this analysis at paragraphs 17 to 19 of my decision, concluding that, once a determination is made that H.B. is removed from the MIG based on her pre-existing condition, there is no further MIG discussion/consideration regarding her injuries and impairments.
22In my view, the implication of Co-operators’ argument is that H.B. would get $65,000 worth of funding but the goods and services are limited to those described in the MIG is contradicted by the MIG. That would essentially leave H.B. in limbo about the types of goods or services available to her and subjects her to the whims of the insurer when the accident benefits claim is not bound by the MIG (because H.B. satisfies s. 18(2) of the Schedule and section 4 of the MIG) yet the goods and services available to H.B. are constrained to the MIG. That cannot be a proper interpretation of consumer protection legislation.
23H.B. argues that s. 18 is clear in providing an exception where an insured may be removed from the confines of the MIG limits, goods and services, which, she submits, is harmonious with s. 14(2). In this vein, s. 14(2) provides that attendant care benefits are available if the impairment “is not a minor injury”, “except as otherwise provided in this Regulation.” H.B.’s position is that even if s. 14(2) did include “attendant care assessments”, it would not pose any interpretive concerns as a result of her being removed from the MIG pursuant to s. 18. I agree.
Error of law – MIG and the attendant care assessment
24Regarding the attendant care assessment, H.B. submits that the intention of s. 18(2) is to provide for the removal of the constraints of the MIG, namely the funding limit of $3,500.00 and the goods and services authorized under the MIG. Her position is that this includes access to goods and services and monetary limits beyond the MIG, including an attendant care assessment and the funding for it.
25H.B. relies on s. 18(3), which provides that the sum of medical, rehabilitation and attendant care benefits paid in respect of an insured person who is not subject to the financial limit in subsection (1) (the MIG), shall not exceed…$65,000.00…for any one accident that occur on or after June 3, 2019. Further, s. 18(5) sets out that for the purposes of s. 18(3), medical, rehabilitation and attendant care benefits includes all fees and expenses for conducting assessments and examinations and preparing reports in connection with any benefit or payment to or for an insured person under the Schedule.
26H.B. submits that there is no exception for in-home assessments, and that the broad wording of “preparing reports in connection with any benefit” is consistent with the findings in my decision.
27At paragraphs 21 to 23 of my decision, I consider the evidence of occupational therapist Deena Rogozinsky and found it persuasive, ultimately finding in favour of H.B. Having determined that she was removed from the MIG, I found that H.B. met her onus to demonstrate on a balance of probabilities that the attendant care assessment was reasonable and necessary.
28I see no error of law in my interpretation of the MIG and “minor injury” or finding that H.B. was entitled to the attendant care assessment, having found that she was removed from the MIG, and therefore entitled to the next tier of benefits in accordance with s. 18(5) of the Schedule.
CONCLUSION
29Rule 18.2(b) provides that where the Tribunal is satisfied that a significant error of law or fact has occurred, such that the Tribunal would likely have reached a different result had the error not been made, a decision may be varied. I agree with H.B. that no such error has been made.
30Co-operators request for reconsideration is dismissed.
Derek Grant Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: May 11, 2023