RECONSIDERATION DECISION
Before: Harry Adamidis
Licence Appeal Tribunal File Number: 21-008082/AABS
Case Name: Annmarie Lewis v. Travelers Canada
Written Submissions by:
For the Applicant: Godfrey Bakeerathan, Counsel
For the Respondent: Sonya E Reid, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant in this matter.
2It arises out of a decision dated February 13, 2023 (“decision”) in which the Tribunal found, among other things, that the applicant is not entitled to four treatment plans. Three of these treatment plans are for chiropractic services. One of the plans is for a physiatry assessment.
RESULT
3The applicant’s request for reconsideration is dismissed.
ANALYSIS
4The 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.
5Reconsideration 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.
6The applicant argues that pursuant to Rule 18.2(b), the Tribunal made an error of fact in the assessment of these four treatment plans, such that the Tribunal would likely have reached a different result had the error not been made.
7Regarding the three treatment plans for chiropractic services, the Tribunal found that there was no objective evidence supporting these treatment plans. The applicant submits that is incorrect. She submits the “Physiotherapy Referral Form” dated October 20, 2021 in the clinical notes and records of the Davenport-Perth Neighborhood and Community Health Centre (Davenport-Perth) shows that the applicant’s general practitioner believed that physical therapy was warranted. The applicant submits the Tribunal erred by not considering this objective evidence and the other indications that the applicant is in pain and requires chiropractic treatment.
8The respondent submits that chiropractic services and physiotherapy are two distinct disciplines, with different foci and methods. It argues the people who provide chiropractic services and physiotherapy have different training and qualifications. The respondent also points out that the applicant had access to free physiotherapy through this referral but did not seek this treatment. This is inconsistent with her position that she was in pain and would benefit from chiropractic services.
9I find that no error of fact was made in the assessment of the three treatment plans for chiropractic services for the following reasons. Physiotherapy and chiropractic services have similar goals, including pain management. However, the approaches and methods to achieve these goals are different.
10The referral, dated October 20, 2021, cited by the applicant makes no reference to chiropractic services. It states that the applicant needs access to physiotherapy because the insurer funded physiotherapy has ended. In my view, this referral is not objective evidence supporting the treatment plans for chiropractic services.
11The applicant also seems to be arguing that the need for pain relief alone justifies a finding that chiropractic services are reasonable and necessary. I agree that pain relief is a legitimate therapeutic goal. However, there must be a basis to find that the recommended treatment is suitable to provide pain relief.
12Chiropractic services are a specialized type of treatment. Specific evidence is required to show that chiropractic services will provide musculoskeletal-related pain relief to the applicant. This cannot be established with a referral for physiotherapy.
13Consequently, not referencing the referral for physiotherapy as evidence supporting the three treatment plans for chiropractic services does not constitute an error of fact and is not grounds for reconsideration.
14Regarding the treatment plan for a physiatry assessment, the applicant submits that the Davenport-Perth referral to a pain specialist is compelling evidence that supports this treatment plan. Despite this compelling evidence, the Tribunal found the opinion of the insurer’s assessor, Dr. Farouk Ismail, more persuasive merely because he is a physiatrist.
15She also argues that the Tribunal ignored the report of Dr. Joseph Wong, the section 25 assessor who diagnosed the applicant with chronic pain. The applicant submits there is a low threshold for establishing that an assessment is reasonable and necessary. She argues the chronic pain finding of Dr. Wong meets this low threshold and if the Tribunal had considered the report of Dr. Wong, then it is likely that a different result would have been reached.
16According to the respondent, the Tribunal explained why Dr. Ismail’s report is preferred over the Davenport-Perth referral. Likewise, the Tribunal provided a thorough analysis on why little weight was given to the report of Dr. Wong. There was no need for the Tribunal to restate this analysis.
17I find that no error of fact was made in the assessment of the treatment plan for a physiatry assessment for the following reasons. I gave more weight to the opinion of Dr. Ismail than the Davenport-Perth referrals to a chronic pain specialist. Part of the reason is that Dr. Ismail is a physiatrist, and this makes his opinion more authoritative. However, the decision at para 57 also states that more weight was given to Dr. Ismail’s opinion because he conducted a physical examination and provided a detailed assessment that is far more comprehensive than the minimal information provided in the Davenport-Perth referral.
18I did not rely on the report of Dr. Wong. As noted in the decision at para 20, the applicant declined prescription pain medication. Instead, she managed pain with baby aspirin and modest amounts of Tylenol and Advil. I found her action inconsistent with the chronic pain finding of Dr. Wong and, for this reason, preferred the findings of Dr. Ismail.
19I did not restate this analysis when I considered the treatment plan for the physiatry assessment as I had already set out my analysis earlier in the decision. I agree that referencing Dr. Wong’s report in this latter part of the decision would make my reasoning clearer. However, this does not amount to an evidentiary mistake such that the Tribunal would likely have reached a different result had the error not been made, as required by Rule 18.2(b). Accordingly, I find the applicant has not established grounds for reconsideration.
CONCLUSION
20For the reasons noted above, I deny the Applicant's request for reconsideration. The Applicant’s request for reconsideration is dismissed.
Harry Adamidis Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: June 20, 2023