RECONSIDERATION DECISION
Before: Stephanie Kepman
Licence Appeal Tribunal File Number: 20-013206/AABS
Case Name: Diana Lara Arias v. Economical Insurance Company
Written Submissions by:
For the Applicant: Arthur Semko, Counsel
For the Respondent: Jason Frost, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant, who submits that the Tribunal made a significant error of law and/or facts such that the Tribunal would have likely reached a different outcome.
2It arises out of a decision in which the Tribunal found that the applicant was not entitled to the disputed benefits. These benefits included treatment plans (“OCF-18”s) for physiotherapy, chiropractic services, an active exercise program and massage therapy and a psychological assessment. The Tribunal also found that the applicant was not entitled to interest, an award or costs.
3The applicant is seeking an order determining that the applicant is entitled to the disputed OCF-18s, interest and an award, but not costs.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6Rule 18 of the Tribunal’s Common Rules of Practice and Procedure contains the grounds for a request for reconsideration to be allowed. 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.
7Reconsideration 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.
8The grounds the applicant argues apply to this case are as follows: The Tribunal made significant errors of facts and law that would have led to a different outcome, pursuant to Rule 18.2(b).
No error of law - Correct interpretation of reasonable and necessary
9The applicant argues that the Tribunal did not properly address the issue of the disputed OCF-18s being reasonable and necessary. She submits that requiring an applicant to have doctors specifically recommend the disputed treatment is “unduly burdensome”. She submits that not all people are easily able to access doctors’ services or may not have Ontario Health Insurance Plan (“OHIP”) coverage.
10The applicant argues that the Tribunal established a condition that for treatment to be found reasonable and necessary, it must be reviewed by a family doctor and comment on specifics such as further therapy, the kind, how many sessions and for how long. The applicant submits that this requirement is too stringent, narrow, and unsupported by the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) and the fact that the Schedule is a consumer protection legislation.
11The applicant also argues that the recommending practitioners who authored the disputed OCF-18s were in the best position to support and explain why the treatments were necessary and that the Tribunal erred in not considering this.
12The respondent disagrees with the applicant’s position and submits that the Tribunal did not make an error in interpreting reasonable and necessary. The respondent submits that the applicant carries the burden of showing an OCF-18 is reasonable and necessary, as seen in the binding, Divisional Court decision Scarlett v. Belair Insurance, 2015 ONSC 3635 and confirmed in the Tribunal’s own decision 17-006174 v. Travellers Insurance Company, 2018 CanLII 115647 (ON LAT).
13The respondent submits that to meet this evidentiary burden, the applicant needs to lead evidence that speaks to the OCF-18’s goals, how these goals would be met via the OCF-18, and if the time and associated costs for said goals were reasonable. The respondent submits that the applicant’s evidence did not speak to this and therefore, he did not meet his burden.
14After considering the submissions, I find that I did not require the applicant’s family doctor to “sign off” on the disputed OCF-18 and direct the applicant’s attention to paragraphs 27 to 32 of the original decision where my reasoning is specifically unpacked. Instead, I found that no medical professional beyond the author of the disputed OCF-18 commented on or specifically recommend the disputed treatment. I also agreed with the respondent’s arguments and that based on Scarlet v. Belair Insurance, the applicant is the party required to meet the evidentiary onus.
15Though I understand that the applicant felt her evidence supported the treatment plans, I was more persuaded by the respondent’s position, and that the applicant’s evidence did not speak to the disputed treatment plans in dispute. Therefore, I find no error of law or fact.
No Incorrect Interpretation of Facts and Law regarding Dr. Wilderman’s Evidence
16The applicant also submits that the Tribunal erred in interpreting Dr. Igor Wilderman, family medicine specialist, evidence and would have come to a different outcome had it done so properly. The applicant submits that the Tribunal was unreasonable in deciding that the disputed OCF-18s were not reasonable and necessary.
17The applicant argues that the chronic pain assessment of Dr. Wilderman was conducted after the disputed OCF-18s were submitted and that the doctor recommended future treatment that included passive therapy and not “just” multimodal treatment. Instead, the applicant argues that passive therapy would be a component of multimodal treatment.
18The applicant also argued that as the Tribunal found that the applicant suffered from chronic pain, she should be entitled to the disputed OCF-18s.
19The respondent disagrees and submits that this issue was addressed in paragraph 32 of the original decision. Instead, the respondent submits that the applicant is rearguing her original submissions, which is inappropriate in a reconsideration.
20I agree with the respondent and find that the applicant’s arguments regarding passive therapy being a part of a multimodal treatment plan were already argued and considered in the original decision in paragraph 32. Though I understand that the applicant may not agree with the decision, she has not advanced any new evidence that shows that the Tribunal made an error of fact or law. Therefore, her request for reconsideration on this basis is denied.
No Error of Law and Fact in Finding that the OCF-18s for passive therapy were not reasonable and necessary
21The applicant also argues that the Tribunal made an error of law and fact when finding that the disputed OCF-18s for passive therapy were not reasonable and necessary. The applicant again relies on the OCF-18s themselves and submits that their authors are the best medical experts to speak to their reasonableness and necessity. The applicant also argues that her family doctor and two chronic pain specialists support the OCF-18s.
22The applicant also submits that the Tribunal failed to consider the test of the decision of Amoa-Williams v. Allstate, [2000] OFSCID No 93 (FSCO Arb) when considering if the OCF-18s were reasonable and necessary and failed to follow the legal test of this decision. The applicant argues that she demonstrated the treatments were reasonable, that the goals of the treatments were being met to a reasonable degree and that the costs of said goals was reasonable. The applicant submits that the Tribunal failed to consider the overall costs of these treatment goals.
23The respondent disagreed with this and submitted that these arguments were already addressed in the original decision.
24I agree with the respondent and find that the applicant’s arguments regarding the reasonable and necessary test were addressed in paragraphs 27 to 32 of the original decision. I disagree that the appropriate reasonable and necessary test is that of Amoa-Williams and instead direct the applicant to the more recent decision of Scarlet, which is binding, unlike Amoa-Williams.
25I also agree with the respondent’s argument that passive therapy being a part of a multimodal treatment plan was already argued and considered in the original decision in paragraph 32. Though I understand that the applicant may not agree with the decision, she has not advanced any new evidence that shows that the Tribunal made an error of fact or law. Therefore, her request for reconsideration on this basis is denied.
No Error of Fact in Finding that the psychological assessment was a duplicative service
26The applicant also submits that the Tribunal erred in finding that the applicant’s request for a psychological assessment was a duplicative service. The applicant argues that she was not assessed by Dr. Coleen Blake-Miller, psychotherapist, regarding the accident.
27The applicant submits that the psychological Insurance Examination (“IE”) conducted by Dr. Jonathan Siegal, psychologist, does not constitute a psychological assessment and instead was only conducted to determine if the applicant’s requested psychological treatment was reasonable and necessary.
28The applicant relied on several Tribunal decisions including Harding v. Aviva General Insurance, 2023 ONLAT 20-014608/AABS, where the Tribunal found that psychological treatment was reasonable and necessary. The respondent disagrees and submits that this issue was addressed in the original decision.
29I find that there is no error of fact in terms of the finding that the requested psychological assessment was a duplicative service. As noted in the original decision in paragraphs 49 to 52, the applicant was assessed by Dr. Siegel and then requested funding for a subsequent psychological assessment with Ms. Singh.
30Moreover, after reviewing Harding, I did not find it relevant, as Adjudicator Nielson was addressing a request for psychological treatment and not an assessment, as is the case currently before me. Therefore, this argument was not persuasive.
31For this reason, I did not find a second psychological assessment within less than a year of each other reasonable or necessary. Therefore, I find no significant error of law or fact that would change the outcome of the decision.
Award
32Since I have found that the Tribunal did not make an error of factor or law, I cannot reconsider the issue of an award. Therefore, this issue will not be reconsidered.
CONCLUSION
33For the reasons noted above, I dismiss the applicant’s request for reconsideration.
Stephanie Kepman Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: June 27, 2023