RECONSIDERATION DECISION
Before:
Brett Todd
Licence Appeal Tribunal File Number:
20-008474/AABS
Case Name:
Jian Dai v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant:
Philip Kai Kwong Yeung, Paralegal
For the Respondent:
Maia K. Abbas, Counsel
BACKGROUND
1This request for reconsideration was filed by the respondent on May 8, 2023. It arises out of a decision dated April 17, 2023 (“decision”) in which I found that the applicant was entitled to two treatment plans for physiotherapy services and one plan for psychological services, and that he was not entitled to one plan for chiropractic services, a partially denied amount for catastrophic assessments, and the full amount of an expenses claim form.
2Grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice & Procedure, Version I, (October 2, 2017) as amended (“Rules”). To grant a reconsideration request, the Tribunal must be satisfied that 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.
3Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
4The respondent is seeking a reconsideration pursuant to Rule 18.2(b). The respondent submits that I made a significant error of law or fact such that I would have likely reached a different decision. The respondent requests that I vary my decision and order that:
The applicant is not entitled to $240.00 in transportation expenses as listed in each of the treatment plans dated November 10, 2020 and December 8, 2020 ($480.00 total) that I found to be reasonable and necessary in the decision; and
The applicant is not entitled to $1,429.29 ($4,115.12 less $2,696.83 approved) in a treatment plan dated November 10, 2020 that I found to be reasonable and necessary in the decision.
RESULT
5The respondent’s request for reconsideration is dismissed.
ANALYSIS
Transportation expenses in plans dated November 10, 2020 & December 8, 2020
6I find that I made no error of law or fact with respect to the transportation expenses listed in the treatment plans dated November 10, 2020 and December 8, 2020. The respondent has not established grounds for the reconsideration of these issues under Rule 18.2(b).
7The respondent submits that I made an error of law or fact in finding that the total amount of these plans was reasonable and necessary, as the applicant was not eligible for transportation expenses according to s. 3(1)(b) of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (“Schedule”). This section holds that “authorized transportation expenses” are eligible for payment if they relate “to transportation expenses incurred only after the first 50 kilometres of a trip.” The lone exception to this 50-kilometre rule, which is also addressed in s. 3(1)(b), is if the insured person sustained a catastrophic impairment.
8Here, the respondent claims that I did not properly account for this qualification on transportation expenses in my decision, wherein I found the full amount of these two treatment plans to be reasonable and necessary. This included $240.00 on each plan for transportation expenses to convey the applicant from his home to a treatment clinic for a total of 32 physiotherapy sessions. It submits that as the applicant has not been designated catastrophically impaired, he would only be entitled to transportation expenses incurred beyond 50 KM of each trip.
9Further, the respondent submits that both the applicant’s home address and the name of the physiotherapy clinic where he was receiving treatment were listed in the treatment plans that were presented during the written hearing. As these addresses could be entered into Google Maps to demonstrate that the applicant and the clinic were either 13.6 or 15.9 KM apart depending on the route, the respondent argues that it should have been apparent to me the distance was under the 50 KM limit mandated by the Schedule, and the transportation expenses denied accordingly.
10Consequently, the respondent takes the position that I made an error of law or fact in finding that the total amount of both of these treatment plans were reasonable and necessary. It requests that I vary my decision and find the applicant not eligible for the $240.00 transportation expense line items in each of these two plans ($480.00 total).
11The applicant submits that the respondent failed to provide any argument or evidence in its hearing submissions that the applicant was not eligible for these expenses. He claims that this is an attempt to re-litigate the hearing and as such the request for reconsideration should be denied.
12I agree with the applicant and find that the respondent is attempting to introduce a new argument that was not raised at the written hearing. The respondent made no specific hearing submissions regarding the applicant’s entitlement to the transportation expenses. Transportation cost was actually noted just once in the respondent’s written submissions, in a sentence that described the expenses listed in the November 10, 2020 treatment plan.
13I also do not concur with the respondent’s suggestion in its reconsideration submissions that I should have anticipated this argument and entered the addresses of the applicant and the treatment clinic into Google Maps. An adjudicator cannot be expected to foresee an argument, nor be faulted for not referencing an argument or evidence that was not made by a party in submissions. This expectation carries with it a potential risk to procedural fairness and to the administration of justice, as an adjudicator should not be expected to make a party’s case.
14As a result, the respondent’s request for reconsideration regarding the transportation expenses in the treatment plans dated November 10, 2020 and December 8, 2020 is denied.
15I find that I made no error of law or fact with respect to the treatment plan for physiotherapy dated November 10, 2020, and that the respondent has not established grounds for the reconsideration of this issue under Rule 18.2(b).
16The respondent submits that I did not make any reference in my decision to the adjuster’s log notes and an explanation of benefits (“EOB”) letter, both dated November 13, 2020. The respondent claims that each of these documents indicate that the insurer made an agreement with the author of the treatment plan, physiotherapist Ahmed Afifi, regarding a partial approval that saw the insurer authorize $2,693.83 of the original recommended amount of $4,115.12 (leaving $1,429.29 unapproved).
17The respondent submits that this agreement was tantamount to the withdrawal of the remainder of the treatment plan. It holds that I erred in not taking adequate notice of this agreement when I found that the applicant was entitled to the remainder of the treatment plan, and requests that I remedy this by varying my decision to deny the plan.
18In response, the applicant submits that the respondent failed to provide sufficient evidence of an alleged agreement between Mr. Afifi and the insurer at the written hearing. Further, the applicant submits that the log notes and the EOB letter only record that the insurer was partially approving the treatment plan, and that the respondent has not provided any evidence that Mr. Afifi made any agreement regarding the withdrawal of the remainder of this plan. The applicant puts forward that the respondent is effectively trying to re-litigate this matter and that the request for reconsideration should be denied.
19As with the issues detailed above, the respondent did not make this argument in its initial written hearing submissions. This is a new argument submitted for reconsideration. The respondent wrote of an “agreement” between Aviva and Mr. Afifi in its hearing submissions, but nothing else beyond this single word. It provided no documentation proving that the applicant agreed to withdraw the remainder of this plan, no summary regarding what this agreement allegedly entailed, and no comment that the respondent believed that this issue should have been withdrawn as a result. Its position that the unapproved portion of this treatment plan should be denied rested almost entirely on a statement that the applicant provided no evidence that he would incur the recommended treatment, not on any sort of agreement to withdraw the plan (which, also, would seem to me to be outside of the authority of a physiotherapist).
20Accordingly, I see no error of fact or law in not mentioning this “agreement” in my decision. Indeed, as noted above, it would have been impossible for me to have addressed this argument in my decision, as the respondent had not yet raised it.
21For the reasons detailed above, the respondent’s request for reconsideration regarding the treatment plan dated November 10, 2020 is denied.
CONCLUSION
22In accordance with the above reasoning, the respondent’s request for reconsideration is dismissed.
Brett Todd
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 19, 2023