RECONSIDERATION DECISION
Before: Derek Grant
Licence Appeal Tribunal File Number: 20-011733/AABS
Case Name: Chukwudumebi Ozor v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Jaqueline Ozor, Counsel
For the Respondent: Kimberley Tye, Counsel
OVERVIEW
1This request for reconsideration was filed by Aviva. It arises out of a decision dated April 3, 2023, in which I determined that four OCF-18s, dated February 4, 2019, June 19, 2019, May 29, 2019, and October 21, 2020, were reasonable and necessary. I further ordered that C.O. was entitled to an award of 5% of the total amount payable of the OCF-18s for chiropractic treatment because I determined that Aviva’s approvals were not made in a timely manner.
2Aviva requests that I vary my decision and find that C.O. is not entitled to a 5% award. Despite being offered the opportunity to participate, C.O. did not make submissions on the reconsideration request.
RESULT
3Aviva’s request for reconsideration is granted.
BACKGROUND
4C.O. filed an application with the Tribunal for dispute resolution on March 12, 2021. Several issues were resolved at a case conference, and a written hearing was scheduled for October 24, 2021 in order to determine the reasonableness and necessity of treatment plans as follows:
a. OCF-18 dated February 4, 2019, $2,754.37 for chiropractic services;
b. OCF-18 dated June 19, 2019, $2,612.47 for chiropractic services;
c. OCF-18 dated May 29, 2020, $2,865.53 for chiropractic services;
d. OCF-18 dated October 21, 2020, $3,069.24 for chiropractic services; and
e. OCF-18 dated November 25, 2019, $2,013.44 for a social work assessment.
5For clarity, at paragraph 20 of my decision, the award was granted on the grounds that Aviva unreasonably withheld and delayed payments as follows:
a. Minor injury treatment – September 2018 to January 2019;
b. An August 28, 2020 OCF-18 was approved on March 24, 2021;
c. The last approved OCF-18 prior to August 2020 was September 24, 2018;
d. A November 11, 2020 OCF-18 for a chronic pain assessment was approved in March 2021; and
e. An OCF-18 for psychological treatment was partially approved on October 24, 2019, with the balance approved on March 22, 2021. This is after the s. 44 assessor diagnosed C.O. with psychological impairments in a September 3, 2019 report. A s. 44 multidisciplinary report dated August 9, 2021 also diagnosed C.O. with psychological impairments as a result of the accident.
6Aviva’s position is that the February 4, 2019, June 19, 2019, May 29, 2020 and October 21, 2020 OCF-18s were responded to in a timely manner and an award should not be granted on those issues. I agree.
RECONSIDERATION CRITERIA
7Rule 18.2 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, 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 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 or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d. There is new 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 have affected the result.
8The 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.
9Aviva relies on Rule 18.2(b), arguing that I erred in law, as follows:
a. I mistakenly ordered a special award on file handling related to issues not in dispute and that were not in dispute.
10Aviva submits that had I not made the error of law, I would have reached a different outcome had the error not been made.
ANALYSIS
Error of law – Ordering an award
11For the following reasons, I agree with Aviva and find that I erred in law in my decision. Further, I agree that had this alleged error not been made, I would have reached a different outcome.
12In the initial decision, C.O. sought an award under s. 10 of O. Reg 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed payment of benefits. At paragraph 24 of my decision, I found that C.O. was entitled to an award of 5% of the total amount payable, because Aviva’s approvals were not made in a timely manner, despite having received various records and reports from Dr. Mazzuca, Dr. Kwok, Dr. Grigoropoulos, and other treating practitioners. I found Aviva failed to adjust the corroborative evidence in a manner that resulted in an unreasonable withholding and delay of the payment of benefits.
13On reconsideration, Aviva provided a timeline of the issues in dispute to which the award pertained along with supporting documentation to clarify when its denials were made. The timeline is as follows:
OCF-18
Submitted Date
Denial Date
Insurer Exam Date
Final Denial Date
February 4, 2019
February 5, 2019
February 15, 2019 (MIG)
August 22, 2019
September 9, 2019
June 19, 2019
June 19, 2019
June 21, 2019
August 22, 2019
September 9, 2019
May 29, 2020
June 5, 2020
N/A
August 22, 2019
June 16, 2020
October 21, 2020
October 28, 2020
October 29, 2020
November 19, 2019
December 9, 2020
14Based on the evidence and the timeline of its responses to the treatment plans, I find that Aviva responded to the disputed OCF-18s in a timely manner. The s. 44 insurer examinations were also scheduled in a timely manner, and the reports were provided in accordance with the Schedule.
15On reconsideration, contrary to my findings at first instance, I am persuaded by the evidence highlighted by Aviva that the disputed OCF-18s were in fact responded to in a timely manner. More specifically, I find that Aviva’s actions in responding to the OCF-18s did not amount to an unreasonable withholding or delay in the payment of benefits. The disputed OCF-18s were properly responded to, and an award is not appropriate for Aviva’s actions in its determinations regarding the disputed OCF-18s.
16In addition, the approved treatment plans (discussed at paragraph 5 above) were not before me at first instance. I do not have jurisdiction to adjudicate issues that were not properly before the Tribunal. Therefore, an award cannot be granted on those approved treatment plans that I did not adjudicate upon.
17Accordingly, I vary my decision and dismiss my previous order that Aviva must pay an award of 5% of the total amount payable of outstanding benefits. No interest is payable.
ORDER
18For the reasons noted above, I grant Aviva’s request for reconsideration.
19My previous decision is varied as follows:
a. The award against Aviva is dismissed and no interest is payable.
Derek Grant
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 15, 2023