Hassan v. Wawanesa Mutual Insurance Company, 2023 CanLII 91445

Citation: Hassan v. Wawanesa Mutual Insurance Company, 2023 ONLAT 19-014256/AABS -R

RECONSIDERATION DECISION

Before: Brian Norris

Licence Appeal Tribunal File Number: 19-014256/AABS

Case Name: Abdiaziz Hassan v. Wawanesa Mutual Insurance Company

Written Submissions by:

For the Applicant: Michelle Velvet, Counsel

For the Respondent: Amanda Lennox, Counsel

BACKGROUND

1This request for reconsideration was filed by the Applicant. It arises out of a decision released June 21, 2023 in which I found that he was not entitled to the five treatment and assessment plans in dispute, nor interest.

2The Applicant submits that I violated the rules of procedural fairness, and that I made an error of law or fact such that the Tribunal would likely have reached a difference result had the error not been made.

3While not specifically plead, I infer from the Applicant’s submissions that he is seeking an order to vary the decision and find in his favour on all the issues in dispute.

RESULT

4The Applicant's request for reconsideration is dismissed.

BACKGROUND

5The Applicant was the driver of a vehicle which was struck from behind while stopped at a red light. He was examined at the hospital following the accident and diagnosed with soft-tissue injuries. He also developed psychological injuries following the accident. At the time of the hearing, the Applicant had incurred over 70 sessions of various treatments, including physiotherapy, massage therapy, and chiropractic treatment.

6At the hearing, the Applicant sought entitlement to a chiropractic treatment plan, as well as attendant care, chronic pain, social work, and neurological assessments. I found that he was not entitled to any of the benefits in dispute, nor interest.

ANALYSIS

7The grounds for a request for reconsideration 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.

8Reconsideration 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.

9The Applicant advances his request for reconsideration pursuant to criteria 18.2(a) and (b). Specifically, pursuant to 18.2(a), the Applicant submits that I violated the rules of procedural fairness by denying him the right to present evidence/be heard on the sufficiency of the Respondent’s denials for the social work assessment and neurological assessment plans. He also submits, pursuant to 18.2(b), that I erred in law as follows:

a. I wrongly found that the chiropractic treatment plan and the chronic pain assessment are not reasonable and necessary;

b. I “wrongly impugned” his entitlement to an attendant care assessment;

c. I wrongly concluded that he was not entitled to the social work and neurological assessments without considering the sufficiency of the denials; and

d. I wrongly concluded that the Applicant had to demonstrate on a balance of probabilities that the social work and neurological assessments were reasonable and necessary since he had not incurred them.

The chiropractic treatment and chronic pain assessment plans

10I find that the Applicant is attempting to relitigate his entitlement to these treatment and assessment plans, which is not an error of law or fact that would likely have reached a different result had the error not been made.

11The Applicant submits that I erred when I noted an absence of pain complaints during a certain period of time and an absence of a recommendation from his family physician for ongoing facility-based treatment. Further, he submits I failed to consider whether the treatment would improve his range of motion, and that I failed to consider his psychological symptoms when considering whether he is able to engage in a self-directed exercise program instead of the treatment proposed in the chiropractic treatment plan.

12With respect to the chronic pain assessment plan, the Applicant submits I erred in law when I found that the chronic pain assessment was a duplication of an approved orthopaedic assessment plan. He also submits that I erred in law when I concluded that the insurer’s examination by Dr. R. Harris, Psychologist, demonstrates that the chronic pain assessment was not reasonable and necessary in light of the approved orthopaedic assessment.

13I find that the Applicant is attempting to relitigate his entitlement to the treatment and assessment plans, which is not a reason for reconsideration. The core of the Applicant’s submissions relates to how I weighed the evidence. It is not an error of law to weigh evidence in favour of one party over another. I considered the submissions and evidence at the initial hearing, and it is within my adjudicative purview to weight the evidence as I see fit. In addition, the Applicant highlights evidence on reconsideration which he felt was not adequately considered in my decision, despite not directing me to it at the initial hearing. I am not required to refer to every piece of evidence in the decision, nor is it appropriate to direct the adjudicator to evidence at the reconsideration stage that was not otherwise raised at the hearing. Consequently, I find no error of law or fact that would have likely reached a different result had the error not been made.

The attendant care assessment plan

14I find that the Applicant is attempting to relitigate the issue, which is an insufficient ground for reconsideration and not an error of law or fact that would likely have reached a different result had the error not been made. The Applicant takes issue with my weighing of the evidence as it relates to his entitlement to the attendant care assessment. He also misconstrues the reasons for my decision to conclude that a singular element is dispositive to his entitlement to this plan.

15I find no error of law or fact and no reason to interfere with my reasons provided in paragraphs [18], [19], and [20] of the decision. There, I rejected the Applicant’s arguments that the plan was proposed in part to determine whether assistive devices were needed because there was no evidence to support the claim and the assessor was not qualified to opine on occupational therapy needs, as the Applicant argued. I also noted that the Applicant exhibits functionality that negates the need for an attendant care assessment. The Applicant fails to appreciate that none of my reasons are dispositive on their own and that it is the constellation of factors as I have outlined which led me to determine that the attendant care assessment plan is not reasonable and necessary.

16Again, the weighing of evidence is entirely within the purview of an adjudicator, and it is not an error of law to find that the Applicant’s submissions on the issue were not supported by the evidence. Accordingly, I find no error of law of fac that would likely have Reached a different result had the error not been made.

The social work and neurological assessments

17I find no violation of procedural fairness or error of law in my analysis of the Applicant’s entitlement to the social work and neurological assessments.

18The Applicant submits that the timing and sufficiency of the notice of denial is always an issue at a hearing. He submits that he does not need to incur the treatment and assessment plans in order for them to be payable pursuant to section 38(11) of the Schedule and that my disregard for the Respondent’s failure to provide sufficient notice on the grounds that he never incurred the plans is an error of law. The bulk of the Applicant’s submissions focus on the sufficiency of the Respondent’s notice of denials and the application of section 38(11) of the Schedule. He refers to Aviva Insurance Company v. Danay Suarez, 2021 ONSC 6200 (“Suarez”), which was issued prior to the hearing, and Aviva v. Catic, 2022 ONSC 6000, (“Catic”), which was issued after submissions were made for the hearing, but before the decision was released.

19Section 38(8) of the Schedule requires the Respondent to provide its medical and all other reasons for a denial within 10 business days of receipt of a treatment and assessment plan. Section 38(11) of the Schedule provides the two consequences for failing to comply with section 38(8). First, the insurer is prohibited from taking the position that the Applicant has an impairment to which the Minor Injury Guideline applies. Second, the insurer shall pay for all goods, services, assessments and examinations described in the plan that relate to the period starting on the 11th business day and ending on the day that the Respondent gives a compliant notice.

20I find that the Applicant’s argument fails on two grounds. First, he is relitigating his initial position because his submissions for the hearing were that the treatment and assessment plans are payable pursuant to section 38(8) of the Schedule due to an insufficient response from the Respondent. Second, I find his application of section 38(11)(2) is incorrect.

21The Applicant is relitigating his position from the hearing because he asserted then that the treatment and assessment plans are payable due to an insufficient notice from the Respondent. Here, his argument on reconsideration is an attempt to bolster his original position by now including reference to Suarez and Catic. He argues that Catic involves the requirement for the Respondent to provide a timely notice and Suarez provides the Tribunal with the discretion to deem the treatment plan expenses to be incurred, pursuant to section 3(8) of the Schedule.

22I found no reason to seek additional submissions from the parties on Catic and find no violation of procedural fairness. The Applicant had an opportunity at the hearing to make submissions on how his entitlement to the assessments flows from the operation of section 38(8) of the Schedule. Instead, he concluded that he was entitled to the assessments simply because the Respondent failed to provide a sufficient notice. According to Catic, this is not correct. The Applicant is expected to put his best foot forward at first instance and his failure to address the operation of section 38(11) at the hearing is not a violation of procedural fairness. Further, the Application of Catic is clear and required no additional submissions since the Applicant never incurred the assessments.

23I find that Catic is unhelpful to the Applicant. Paragraph 18 of Catic states that “… s. 38(11)2 operates so as to compel an insurer who fails to provide the statutory notice called for in s. 38(8) to pay for all of the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding.” The conclusion in Catic is in keeping with my interpretation and application of section 38(11)(2) of the Schedule at first instance. In the Applicant’s case, there is no dispute he never incurred the goods and services in the treatment plans. Thus, he is not entitled to payment pursuant to section 38(11)(2). Having failed to trigger the mandatory payment provisions in section 38(11)(2), it follows that the adjudicative decision reverts back to whether the treatment and assessment plans are reasonable and necessary, pursuant to section 15(1) of the Schedule.

24I find that Suarez is also not applicable. There the Court found that the Applicant does not have to incur the goods and/or services proposed in a treatment plan in order to access the Tribunal. Instead, the Applicant is permitted to submit an application and seek a finding that the goods and services are reasonable and necessary and, if successful at the Tribunal, the Respondent is liable to pay for said goods and/or services once incurred. In the Applicant’s case, he has not been barred from seeking a finding that the treatment and assessment plans are reasonable and necessary. Rather, he is barred from claiming payment under section 38(11) because he never incurred the treatment, as noted in paragraphs 28 and 32 of the decision.

25For the reasons above, I find that the Applicant’s request for reconsideration on the grounds that I erred in law in my application of section 38(11) fails.

CONCLUSION

26The Applicant's request for reconsideration is dismissed.

Brian Norris Adjudicator Tribunals Ontario – Licence Appeal Tribunal