Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Jeremy A. Roberts, Vice-Chair
Licence Appeal Tribunal File Number: 20-010183/AABS
Case Name: Patricia Tyner v. Certas Home and Auto Insurance Company
Written Submissions by:
For the Applicant: Warren Whiteknight, Counsel
For the Respondent: Alexander Dos Reis, Counsel
BACKGROUND
1On June 6, 2023, the applicant requested reconsideration of the Tribunal’s amended decision (“decision”) that was released to the parties on June 6, 2023. In that decision, the Tribunal determined the applicant was not catastrophically impaired and was not entitled to the treatment plans in dispute.
2The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure (October 7, 2017) (“Rules”). To grant a request for reconsideration, 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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2(b).
4The Applicant is seeking an order cancelling the Tribunal’s decision that the applicant is not catastrophically impaired and that she is not entitled to the treatment plans in dispute.
RESULT
5The applicant’s request for reconsideration is granted, in part.
6I vary the decision of June 6, 2023 to in paragraph 34 (ii), (iii), (iv), and (vi) and find that:
a. The applicant is entitled to $4,788.50 for OT services, proposed by Andrea Dreifelds, in a treatment plan submitted August 13, 2020.
b. The applicant is entitled to $4,155.00 for home modification services, proposed by Mordern OT, in a treatment plan submitted August 4, 2020.
c. The applicant is entitled to $1,221.92 for physiotherapy services, proposed by Laura Tallen in a treatment plan dated September 16, 2020.
d. The applicant is entitled to $5,686.25 for OT services, proposed by Modern OT in a treatment plan submitted April 28, 2022.
ANALYSIS
The Tribunal did not make an error of fact or law in determining that the applicant was not catastrophically impaired
7I find that the Tribunal did not make an error of law or fact with respect to the applicant not being catastrophically injured for the following reasons.
8The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. The test involves a high threshold. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or where it failed to meet its burden at first instance. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
9When arguing that the Tribunal made an error of fact or law in determining that the applicant was not catastrophically impaired, the applicant makes two sets of distinct arguments: (1) The applicant argues that the Tribunal had made an error in fact in not properly assessing the medical evidence before it with regards to the causation of the applicant’s TMJ; and (2) the applicant argues that the Tribunal made an error in law in applying an overly stringent interpretation of the “but for” causation test found in Sabadash vs. State Farm et al., 2019 ONSC 1121.
10With respect to the first argument on whether the Tribunal erred with respect to the medical evidence, the applicant argues that the Tribunal’s finding that none of the medical experts established causation for the TMJ is incorrect. The applicant points to 16 medical reports which “note the TMJ arising post-accident and attribute it to the accident”.
11The respondent argues that this grounds for reconsideration is nothing more than an attempt by the applicant to have the Tribunal reweigh or reconsider the evidence. Furthermore, it reiterates its position that the medical evidence pointed to by the applicant still fails to adequately prove causation. It supports this claim by reminding the Tribunal that it heard evidence in the original hearing that the TMJ concerns did not arise in the immediate aftermath of the accident.
12In considering the submissions by both parties on this first argument, I agree with the respondent. I see no error in the original decision. This issue was addressed at paragraphs 19 to 25 of the decision. At paragraphs 19 to 21, the Tribunal set out the arguments of the parties. Specifically at paragraph 20 the Tribunal considered the medical evidence offered by the applicant to demonstrate causation. At paragraphs 22 to 24, the Tribunal set out its analysis and reasons for concluding at paragraph 25 that the applicant is not catastrophically impaired under criterion 6 or 7.
13I do not find that that an error of fact was made in the decision. The Tribunal weighed the evidence and found that the applicant had not met their burden to demonstrate that the TMJ was caused by the motor vehicle accident. Moreover, I agree with the respondent that a reconsideration is not an opportunity to ask the Tribunal to reconsider the evidence that was already before it.
14With respect to the second argument, the applicant argues that the Tribunal made an error of law in the application of the “but for” test for causation. The applicant points to paragraphs 22 and 23 of the decision and argues that the Tribunal applied too strict an interpretation of the test and that the test is a legal test, not a medical one. She also pointed to new case law which proposes a more “pragmatic” approach to causation and argues that “in the absence of evidence to the contrary, proof of causation may be established by way of inference, even when positive or scientific proof has not been adduced”.
15The respondent disagrees, arguing that the Tribunal adopted a commonsense approach to the “but for” test when it concluded that “all of the medical professionals who comment on this symptom or diagnosis fail to state how the TMJ would not have been present ‘but for’ the accident”. Furthermore, the respondent asserts that the applicant is attempting to reverse the onus in this reconsideration, when clearly the onus to establish grounds for reconsideration lies with the applicant. It argues that no error was made as the applicant can only satisfy the “but for” test by providing a reasonable explanation as to how the alleged injury could be accident related.
16Again, I agree with the respondent. In making its ruling, the Tribunal did not adopt a strict interpretation of the “but for” test. It identified that correct test for causation in paragraph 13. It considered the arguments of both parties in paragraphs 20 and 21. It provided its analysis at paragraph 22 and concluded at paragraph 23 that the applicant had failed to meet her onus. Moreover, I am not convinced by the new case law cited by the applicant, nor do I think it is appropriate for the applicant to introduce these new arguments given that they are seeking reconsideration based on Rule 18.2(b) and not (d). As such, I see no error of law.
17Accordingly, the applicant has not established grounds for reconsideration with respect to the Tribunal’s finding that the applicant is not catastrophically impaired.
The Tribunal erred in not considering whether the Treatment Plans in dispute were reasonable and necessary
18I find the Tribunal did make an error of law in its decision that the applicant was not entitled to certain treatment plans in dispute based on the fact that more than 260-weeks had elapsed since the accident, the treatment plans were not incurred, and the applicant was not deemed catastrophically impaired.
19The test for reconsideration under Rule 18.2(b) is the same as above.
20The applicant argues that the Tribunal erred in its decision to rely on s. 20 of the Schedule to deny entitlement and that the Tribunal abdicated its responsibility to assess the treatment plans on the merits of whether they were reasonable and necessary. In making this argument, the applicant argues that the Tribunal neglected to consider or apply Han v. Wawanesa, 2023 CanLII 1465 (ON LAT), which was raised in the initial hearing. In Han, the Tribunal ruled that, provided a proper denial has occurred and provided that denial had been appealed within the two-year window, the applicant has a right to that treatment if the Tribunal deems the treatment plan to be reasonable and necessary, regardless of the 260-week limitation in s.20. To hold otherwise, given the passage of time between an insurer’s denial of a treatment plan, the insured’s application for dispute resolution to the Tribunal, the hearing, and eventual release of the decision favouring the insured, could result in hollow success. In failing to consider this case, the applicant argued that the Tribunal made an error in law and that had it properly considered the case, the Tribunal would have considered the reasonableness and necessity of the treatment plans, altering the original decision.
21The respondent argues that the applicant has already made her argument with respect to Han in the initial hearing and that by determining the applicant is not entitled to the disputed benefits, it implicitly decided not to follow Han. It also argues Han is not binding on the Tribunal and that the Schedule clearly indicates that the only way an insured can escape the 260-week limit is if (1) they are deemed catastrophically impaired; (2) they are entitled to optional benefits; or (3) if the expenses are deemed incurred as a result of being unreasonably withheld or delayed by the insurer. In this case, the respondent argues that none of those three exceptions apply, given that the applicant has not been deemed catastrophically impaired. As such, it argues that the original decision should stand and that no error in law was made.
22In considering the submissions, I agree with the applicant. I find the Tribunal erred in not considering the Han decision. Han states that the intent of the legislation would not have permitted a situation wherein a dispute could be filed within the prescribed 2-year time period but be ultimately un-payable as a result of the dispute resolution process being longer than 5-years post-accident. While the respondent is correct in that Han is not binding, its reasoning is persuasive and consistent with the consumer protection nature of the Schedule. In not considering this case law before it, the Tribunal made an error in law in paragraphs 26 and 27 which led it to not properly consider the issues before it on the proper merits.
23As a result of this error, the Tribunal must now consider the second part of the reconsideration test pursuant to section 18.2(b), and whether the Tribunal would likely have made a different decision had the error note been made.
The four treatment plans are reasonable and necessary
24The four treatment plans in dispute are payable as a result of being found to be reasonable and necessary.
25The issues in dispute were medical and rehabilitation benefits. Sections 14 and 15 of the Schedule state than an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 16(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society or the labour market.
26The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.
27In its decision, the Tribunal erred in paragraphs 26 and 27 by not considering the reasonableness and necessity of the following four treatment plans, which must now be reconsidered:
a. $4,788.50 for occupational therapy (OT) services, proposed by Andrea Dreifelds, in a treatment plan/OCF-18 (“plan”) submitted August 13, 2020;
b. $4,155.00 for home modification services, proposed by Modern OT in a treatment plan submitted August 4, 2020;
c. $1,221.92 ($3,441.90 less $2,219.98 approved) for physiotherapy services, proposed by Laura Tallen in a treatment plan dated September 16, 2020; and
d. $5,686.25 for OT services, proposed by Modern OT, in a treatment plan submitted April 28, 2022.
28On items (a), (b) and (d) I find that the proposed OT treatment plans and the home modification services are reasonable and necessary as they would assist in addressing many of her functional impairments related to the accident.
29The applicant argued that OT treatment plans and home modifications were reasonable and necessary as they would assist in addressing challenges related to home maintenance, pain management, and sleep management strategies. In the original hearing, the applicant testified convincingly to her challenges at home, including doing laundry, cooking, and yard work. This testimony was further supported by clinical notes and testimony of experts, including from OT Dreifelds, who noted that while the applicant could complete some functional tasks to some degree, her pain tolerance was low and her functional capabilities decreased over time due to this.
30The respondent argued in the initial hearing that these treatment plans were not reasonable and necessary because the applicant has demonstrated an ability to complete various functional tasks, including returning to work in the demanding profession of a nurse. Moreover, it pointed to surveillance footage which showed the applicant engaged in physically demanding tasks, like changing her tires, which suggested that the functional impairments were not as severe and did not require further treatment.
31Upon considering submissions, I agree with the applicant. I find the goals of the proposed OT treatment plans to be reasonable and well-founded in the applicant’s challenges. All of the plans speak to the goal of improving the applicant’s participation in meaningful occupations, reducing her stress and pain, and improving her sleep hygiene. The methods proposed of implementing assistive devices as well as providing education and practices are reasonable and I believe they would assist in achieving the treatment goals. I found the applicant’s testimony in the original hearing about her day-to-day challenges in self-care, home maintenance, and employment to be convincing. Moreover, her testimony on these functional challenges was backed up by clinical observations from the OTs who examined her. I am not satisfied that limited surveillance evidence disproves the applicant’s overall functional impairments. Moreover, the applicant’s desire to return to work is admirable and I do not agree that this suggests that the treatment plans are not reasonable and necessary. In fact, additional OT services and home modifications are reasonable treatments that could help address her ongoing accident-related impairments and make her return to work easier.
32On item (c) I find that the proposed physiotherapy treatment plan is reasonable and necessary as home-based physiotherapy may assist her in managing her ongoing accident-related pain.
33The applicant argued that the proposed home-based physiotherapy treatment plan was reasonable and necessary because: (1) the respondent had already indicated by approving a previous treatment plan that physiotherapy was a treatment service that could assist the applicant in addressing her impairments; and (2) in-home service would reduce lengthy drive time to and from the clinic which aggravated the applicant’s pain.
34The respondent argued that physiotherapy was not reasonable because the applicant testified that her previous attempts at physiotherapy were unhelpful and caused an exacerbation of her pain. Moreover, it suggested that in-home physiotherapy was unnecessary because the applicant already drove long-distances every day to get to work and was therefore capable of travelling.
35Upon considering submissions, I agree with the applicant. Physiotherapy could reasonably assist in addressing the applicant’s ongoing pain symptoms. Moreover, I am satisfied by the applicant’s testimony, supported by Dr. Bagg, that the lengthy travel time for physiotherapy in-clinic may have been the cause behind the previous treatment’s failure. I accept the applicant’s testimony that she reserved her energy and pain tolerance for her drive to work, which left her little resilience to drive to treatment or even take leisure trips (a pre-accident hobby). It is reasonable to attempt this treatment in-home as it may assist with the applicant’s accident-related pain.
36As a result of this reconsideration, I find that the applicant is entitled to the four treatment plans in dispute.
ORDER
37For the reasons noted above, I partially grant the applicant’s request for reconsideration.
38I vary the decision of June 6, 2023 to in paragraph 34 (ii), (iii), (iv), and (vi) and find that:
a. The applicant is entitled to $4,788.50 for OT services, proposed by Andrea Dreifelds, in a treatment plan submitted August 13, 2020.
b. The applicant is entitled to $4,155.00 for home modification services, proposed by Mordern OT, in a treatment plan submitted August 4, 2020.
c. The applicant is entitled to $1,221.92 for physiotherapy services, proposed by Laura Tallen in a treatment plan dated September 16, 2020.
d. The applicant is entitled to $5,686.25 for OT services, proposed by Modern OT in a treatment plan submitted April 28, 2022.
e. The applicant is entitled to interest on the above.
39The remainder of the Decision shall remain in full force and effect.
Jeremy A. Roberts
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: October 5, 2023