RECONSIDERATION DECISION
Before: Harry Adamidis
Licence Appeal Tribunal File Number: 21-015634/AABS
Case Name: Yasmin Al-Baik v. Security National Insurance Company
Written Submissions by:
For the Applicant: Alex Nikolaev, Counsel
For the Respondent: Jonathan White, Counsel
OVERVIEW
1On June 5, 2024, the applicant requested reconsideration of the Tribunal’s decision dated May 16, 2024 (“decision”).
2In the decision, I found that the applicant was entitled to an orthopedic assessment and a psychological assessment plus interest, but that she was not entitled to not entitled to six treatment plans for physiotherapy, an occupational therapy assessment, or an award.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
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; or
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.
4The applicant submits that, pursuant to Rule 18.2(b), I made errors of fact and law such that I would likely not have found that the applicant is not entitled to the six treatment plans for physiotherapy. The respondent submits that the request for reconsideration should be dismissed.
RESULT
5The applicant’s request for reconsideration is dismissed.
ANALYSIS
6The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
7The insurer denied the treatment plan of $3,696.50 for physiotherapy services, dated July 16, 2020, because the applicant did not submit an application for accident benefits (OCF-1). In the decision, I found that there was no OCF-1 in evidence, and as such, s. 38(8) of the Schedule did not apply. The applicant submits that this is an error of fact because it is clear that the respondent received the OCF-1 and processed other claims for accident benefits. The applicant has now submitted an OCF-1 that post-dates the denial letter.
8The respondent submits that it properly denied this treatment plan because the applicant failed to complete an OCF-1. The applicant has now put into evidence a copy of an OCF-1 dated August 17, 2020, which post-dates the July 29, 2020 denial letter. The applicant has provided no explanation for why this evidence was not available during the hearing. Consequently, this document should not be considered in this request for reconsideration.
9At the written hearing, the applicant argued that if the Tribunal did not find that she is entitled to physiotherapy then, in the alternative, the Tribunal should find that she is entitled to payment for physiotherapy because no medical reasons were provided in the denials as required by s. 38(8) of the Schedule.
10In paragraph 12 of the decision, I noted that the respondent denied this treatment plan because, at the time, the applicant had not completed an OCF-1. Consequently, I found that s. 38(8) did not apply because no OCF-1 was in evidence.
11In her reply submissions at the written hearing, the applicant stated that the respondent has had the OCF-1 for three years. She did not make any other submissions on this issue.
12The applicant now submits that receiving medical rehabilitation and income replacement benefits, and being sent to section 44 assessments, is enough for the Tribunal to make a reasonable inference that the OCF-1 was received by the respondent. In my view, these are new arguments that were not previously before me. Requests for re-consideration are not a forum to re-litigate cases. Consequently, this new argument cannot be considered.
13The applicant seeks to enter the OCF-1 into evidence. This may be permitted under s. 18.2(c) of the Rules, but the applicant must first explain why this document could not have been obtained previously. No such explanation was provided to the Tribunal, and as such, this new document cannot be introduced into this proceeding.
14For these reasons, the applicant has not satisfied me that it was an error of fact to find that s. 38(8) does not apply to the treatment plan for $3,696.50 of physiotherapy.
Six treatment plans for physiotherapy
15According to the applicant, the s. 25 report dated October 26, 2021 of Dr. Getahun, orthopaedic surgeon, supported the six treatment plans for physiotherapy. I gave little weight to this report because he attributed the applicant’s pain to radicular symptomology, and the subsequent examination by Dr. Yahmad, neurologist, found no objective evidence of active, ongoing radiculopathy. The applicant submits that Dr. Getahun attributed the applicant’s chronic pain to multiple factors that were not dealt with in the decision and this resulted in an error based on unfounded, incomplete, and inaccurate conclusions about the report.
16The respondent notes that the applicant fails to address the central flaw of Dr. Getahun’s report, namely that he did not link the applicant’s psychosocial sequelae or self-reported neurological symptoms to her pain symptoms. In its view, it was open to me to weight the evidence as I did in the decision.
17The treatment plans for physiotherapy are dealt with in paragraphs 16 to 27 of the decision.
18In paragraph 17, I discuss the findings of various medical reports. I note that Dr. Deborah Rabinovitch, physiatrist, diagnosed the applicant with sprain and strain injuries that fall within the Minor Injury Guideline (MIG). I also note that the applicant was removed from the MIG based on psychological impairments.
19In paragraphs 22 and 23 of the decision, I review the reports of Dr. Debra Mandel, psychologist, and Dr. Fahimeh Aghamohseni, psychologist. Both psychologists diagnosed the applicant with somatic pain disorders.
20In paragraph 20 of the decision, I discuss the findings of Dr. Yahmad:
In the IE by Dr. Nagib Yahmad, neurologist, dated June 5, 2023, the applicant reported that she continues to experience pain more than three years after the accident. Dr. Yahmad noted that there was no objective evidence of myelopathy, plexopathy, active ongoing radiculopathy or neuropathy. He also noted that there was weakness throughout the upper and lower extremities, but this weakness could not be explained on a neurological basis. Dr. Yahmad concluded that the applicant exhibited pain-focused behaviour but there was no neurological impairment causing that pain.
21In paragraph 21 of the decision, I note that Dr. Getahun attributes the applicant’s chronic pain to radicular symptomology that he could not verify. This directly contradicts Dr. Yahmad’s finding that there is no ongoing radiculopathy.
22The applicant also argues that Dr. Getahun provided two other diagnoses for chronic pain, namely, chronic myofascial strain of the thoracic spine and chronic pain syndrome itself which were not addressed in the decision. I disagree. In paragraph 22, I found that the applicant’s pain focused behavior was better explained by her somatic symptom disorder. The applicant may disagree with how I weighed the evidence, however this does not constitute an error of fact.
23The applicant appears to be arguing that I erred by not addressing Dr. Getahun’s chronic pain analysis that he completed under the American Medical Association’s Guides, 6th Edition (Guides, 6th Edition). I note that the applicant made no previous submissions on Dr. Getahun’s analysis under the Guides, 6th Edition. I would also point out that decisions must address the main points and findings in medical reports. This was done in the decision in which various medical reports, along with Dr. Getahun’s report, were reviewed and I concluded that the evidence showed that the applicant’s pain was somatic in nature. Dr. Getahun’s chronic pain analysis under the Guides, 6th Edition, does not negate this finding. In fact, Dr. Getahun analysis under the Guides, 6th Edition recommends a psychological assessment to better understand how the applicant’s pain is linked to psychological factors.
24For these reasons, I find that there is no error of fact in manner I weighed Dr. Getahun’s report.
The occupational therapy assessment
25The applicant submits that it was an error find that the Occupational Therapy Assessment was not reasonable and necessary because there was no link between the treatment plan and the applicant’s needs even though the respondent is funding attendant care benefits for the applicant.
26The respondent submits that the applicant has not established a link between the treatment plan and the attendant care which the applicant is receiving. As such, it was appropriate for the Tribunal to find that this plan is not reasonable and necessary.
27In her written hearing submissions, the applicant argued that the occupational therapy assessment is reasonable and necessary because it will assist the applicant and the respondent in evaluating her ongoing attendant care needs. No other points were made in support of this benefit. In paragraphs 37 of the decision, I reviewed the last two pages of this treatment plan. These were the only pages of the treatment plan put into evidence at the written hearing. There is no mention of evaluating the applicant’s attendant care needs. Based on this evidence, I found that there was no nexus between the treatment plan and attendant care. I see no error of fact or law in the decision.
28The applicant submits that all the pages of the treatment plan are now before the Tribunal and that this benefit should be reassessed because of this new evidence. I disagree. There is an expectation that litigants put their best foot forward at the hearing. If documents were not reasonably available for the hearing, then the applicant must explain why. This has not been done. As such, this new evidence cannot now be introduced into this proceeding.
CONCLUSION & ORDER
29This request for reconsideration is dismissed.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: November 1, 2024