RECONSIDERATION DECISION
Before: Brett Todd, Vice-Chair
Licence Appeal Tribunal File Number: 21-007404/AABS
Case Name: Peter Kemp v. Aviva General Insurance
Written Submissions by:
For the Applicant: Gordon W. Harris, Counsel
For the Respondent: Natalie Spinelli, Paralegal
OVERVIEW
1This request for reconsideration was filed by the respondent on November 17, 2023. It arises out of a decision dated October 30, 2023 (“decision”) in which I found the applicant to be removed from the Minor Injury Guideline (“MIG”) on procedural grounds, that the applicant was entitled to three treatment plans due to contraventions of notice requirements, and that the applicant was entitled to an award as a result of the respondent’s unreasonable withholding of benefits.
2Grounds 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:
a) The Tribunal acted outside its jurisdiction or committed a material breach 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; or
c) 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 reconsideration process is not an opportunity for a party to re-litigate its position on the matter, disagree with a Tribunal decision, or challenge weight assigned to evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
4The respondent is seeking reconsideration under Rule 18.2(b). It submits that I made a significant error of law or fact in my application of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) such that I would likely have reached a different decision. Specifically, the respondent argues that I incorrectly removed the applicant from the MIG; that I incorrectly found that the respondent had contravened Schedule notice provisions in finding the applicant entitled to the treatment plans in dispute; and that I contravened the maximum amount established in the Schedule payable for an assessment.
5As relief, the respondent requests that the Tribunal vary the decision dated October 30, 2023 in accordance with Rule 18.4(b). It seeks that the applicant be found to be within the MIG; that the respondent be found to have cured its deficient notice with regard to the denial of two treatment plans (issues #2 and #3 in the decision); that the respondent be found to be compliant with the notice provisions of the Schedule with respect to issue #4 in the decision; that the applicant be found not to be entitled to all three treatment plans listed as issues #2, #3, and #4 in the decision; and that the respondent be found not liable to pay interest or an award.
6The applicant agrees that errors of law or fact were made in the decision, while holding that I would have likely reached the same decision if these errors had not been made and the law and facts correctly applied. The applicant agrees with the respondent’s position regarding how the MIG determination was made and that the Schedule was not correctly applied in the decision. However, the applicant asserts that the medical evidence supports the applicant’s removal from the MIG, and that this should be confirmed on this evidentiary basis via reconsideration.
7Further, the applicant holds that the Tribunal correctly found in the decision that the denial notices of the disputed treatment plans were not in compliance with the Schedule. The applicant agrees with the respondent’s argument regarding the misdating of a denial notice and a possible error with the amount awarded, both regarding issue #4 as listed in the decision, although he requests that he should still be found entitled to this plan on procedural and reasonable and necessary grounds upon reconsideration.
8Accordingly, the applicant requests that the alleged errors of law and fact are “nonfatal” and that they can be rectified upon reconsideration in such a manner that upholds the findings in favour of the applicant in the decision.
RESULT
9The respondent’s request for reconsideration is granted, in part, and I vary the result of the Tribunal decision dated October 30 2023 in the following ways:
i. I vary the decision as it relates to the MIG determination. The applicant remains within the MIG and its $3,500.00 limit on treatment, as he has not met his evidentiary burden that he suffers from injuries outside of the definition of a minor injury as listed in s. 3(1) of the Schedule.
ii. I dismiss the respondent’s request for reconsideration of the treatment plans listed as issues #2 and #3 of the decision.
iii. I vary the decision as it relates to the treatment plan listed as issue #4 of the decision and find that the applicant is not entitled to this plan, nor interest.
iv. I vary the decision to add—as a result of the applicant being found within the MIG and because there is funding remaining under the $3,500.00 MIG limit—that the applicant is entitled to medical or rehabilitation benefits or related assessments or examination benefits up to the amount remaining under the MIG limit as of the date of this decision. Such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest is applicable on any overdue and incurred amount, in accordance with s. 51 of the Schedule.
v. I vary the decision as it relates to the award. The respondent is liable to pay an award of 25 per cent of the amount of the treatment plans listed as issues #2 and #3 in the decision.
ANALYSIS
Incorrect MIG Determination – Rule 18.2(b) Error of Law or Fact)
10I find that the respondent has established grounds for reconsideration under Rule 18.2(b) with regard to the MIG determination in the decision.
11I agree with the positions of both the respondent and the applicant in their reconsideration submissions that I removed the applicant from the MIG incorrectly, and that this error is such that I would have reached a different result in the decision.
12As the respondent referenced in its reconsideration submissions, the Divisional Court held in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 that an applicant can be found to have minor injuries and be held within the MIG and its $3,500.00 limit at the same time as treatment plans can be deemed payable due to the insurer being found to have contravened the notice provisions of s. 38(8) of the Schedule.
13However, when I determined that the respondent had contravened s. 38(8) of the Schedule regarding the treatment plans in dispute, I then triggered s. 38(11)1. in reference to the entire MIG claim and not the specific treatment plans. This led to my finding that the applicant was removed from the MIG without a review of the medical evidence before me.
14As relief, I am providing a fulsome analysis and a determination of the applicant’s MIG claim based on the written submissions and medical evidence as adduced for the original hearing.
MIG analysis – the applicant remains within the MIG
15I find that the applicant has failed to demonstrate, on a balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG. Accordingly, I vary the Tribunal decision dated October 30, 2023. The applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.
16Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
17An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. An insured person can also be removed from the MIG, pursuant to s. 18(2) of the Schedule, if there is documentation of a pre-existing injury or condition, combined with compelling medical evidence stating that the injury/condition precludes recovery if kept within the MIG. In addition, the Tribunal has determined that chronic pain (with a functional impairment) or a psychological condition may warrant MIG removal.
18The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. Here, the applicant submits that he suffers from chronic pain as well as psychological impairments as a direct result of the accident, both of which warrant his removal from the MIG and its $3,500.00 limit on treatment.
19The respondent submits that the applicant has failed to meet his onus with regard to his chronic pain and psychological claims. Further, the respondent notes that the applicant has not provided any evidence regarding other factors that could warrant his removal from the MIG. Correspondingly, the respondent requests that the applicant be held within the MIG.
20I agree with the respondent. The applicant’s argument and evidence do not sufficiently demonstrate that he suffers from chronic pain or a psychological impairment related to the accident.
The applicant has not substantiated that he suffers chronic pain
21First, to address the applicant’s chronic pain claims. Evidence adduced by the applicant indicates that he sustained soft-tissue injuries in the accident and was appropriately treated within the MIG, not that these issues progressed into him experiencing chronic pain with a functional impairment.
22While the applicant sought medical attention for symptoms of pain beginning the day following the accident, all examinations and investigations demonstrate that he suffered from injuries within the minor injury definition in the Schedule. He was diagnosed with soft-tissue minor injuries at KW Urgent Care Clinic in Kitchener, ON on February 3, 2019. X-rays taken the following day showed no fractures or anything else remarkable. A visit to St. Mary’s Hospital, also in Kitchener, on February 6, 2019 resulted in a similar diagnosis of pain in the applicant’s right hip and right leg, along with prescriptions for pain-relieving medication and physiotherapy. None of the above indicates that the applicant sustained anything aside from minor injuries as a result of the accident.
23Clinical notes and records (“CNRs”) of Dr. John McCuaig, family physician, also show that the applicant suffered soft-tissue injuries as a result of the accident. In an assessment dated February 12, 2019, Dr. McCuaig noted that the applicant was experiencing back, hip, and right ankle pain and diagnosed him with lumbar discogenic pain with radiculopathy and a high right ankle sprain. He ordered more diagnostic imaging and recommended physiotherapy. Ultrasound tests and x-rays performed on March 1, 2019 suggested greater trochanteric bursitis in the right gluteus hip and confirmed no lumbar or ankle fractures. Again, these records support that the applicant suffered soft-tissue injuries in the accident.
24Further, the records of the MSK Centre in Waterloo, ON demonstrate that the applicant improved as a result of 13 sessions of physiotherapy attended between March 21, 2019 and June 10, 2019. On April 9, 2019, for example, the applicant reported that his symptoms were “definitely lessening with regards to intensity.” He spoke to similar results in his follow-up appointments. In the records of the applicant’s last physiotherapy appointment on June 10, 2019, it is noted that he reported feeling “[j]ust a mild level of discomfort now as compared to previous severe pain.”
25After this date, the applicant ceased attending MSK Centre. I accept that this was the choice of the applicant, as he did not challenge the respondent’s claim in its submissions that only $1,412.00 had been incurred of $2,200.00 in approved treatment when he stopped physiotherapy (in addition, the respondent noted in submissions that this $1,412.00 is all that had been incurred to date under the $3,500.00 MIG limit). No records have been adduced showing that he sought treatment at any other facility for accident-related physical injuries after this time.
26Also, the applicant saw Dr. McCuaig on just four occasions during February-May 2019. According to the CNRs produced by the applicant, he ended his treatment with the physician on May 13, 2019.
27Following this, the applicant did not seek out medical treatment in relation to the accident until he took part in an s. 25 assessment conducted by Dr. Dinesh Kumbhare, physiatrist, on October 27, 2022 (which resulted in a report dated January 12, 2023). While Dr. Kumbhare diagnosed the applicant with chronic pain affecting his right hip, greater trochanter bursa (bursitis), and low back pain resulting in functional limitations, I assign this report minimal weight. This assessment took place more than 3.5 years post-accident. Dr. Kumbhare’s conclusions rely heavily on the self-reporting of the applicant. And Dr. Kumbhare does not reference medical evidence indicating that the applicant suffered pain symptoms over the 40-some months between the time the applicant stopped attending Dr. McCuaig and MSK Centre and the date of this assessment.
28The applicant also seems to have been largely fully functional during the time period between 2019 and late 2022. He has not submitted evidence showing that he was significantly impaired by chronic pain. Most notably, he returned to a full-time job in construction in September 2019 and resumed taking on bathroom and basement renovation jobs over weekends as a self-employed contractor.
29This work is noted in a number of assessments. Victor Wu, occupational therapist, concluded in an s. 25 Functional Abilities Evaluation dated July 22, 2022 (the result of an examination held May 9-10, 2022) that the applicant currently met the essential physical demands of his position as a full-time carpentry (steel framer) contractor and that he demonstrated the ability to meet medium-to-heavy strength demands. Both the report of Dr. Kumbhare and an insurer’s examination (“IE”) report of Dr. John Heitzner, physiatrist, (this assessment was conducted on August 24, 2021, resulting in a report dated September 8, 2021) also reference the applicant working. The applicant informed both physicians that he was experiencing only minor limitations with work tasks, household chores, and playing sports. Such a level of functionality does not align with claims of chronic pain-related impairment that would warrant the applicant’s removal from the MIG.
30All of the above indicates that the applicant suffered soft-tissue injuries in the accident, that he was treated for these injuries with a course of physiotherapy, and that this care resolved his symptoms to the point where he chose to halt such treatment. Accordingly, this does not support the applicant’s appeal to be removed from the MIG on the basis of chronic pain.
The applicant has not substantiated that he suffers psychological impairments
31Second, to address the applicant’s claims of suffering from psychological impairments. The applicant has not presented sufficient evidence to demonstrate that he suffers from psychological impairments as a direct result of the accident that would warrant his removal from the MIG.
32Minimal objective medical evidence has been submitted by the applicant regarding psychological impairments. The applicant has not directed me to any evidence indicating that he sought psychological treatment in 2019 in the aftermath of the accident, or at any time in the three years after the accident.
33Virtually all of this argument is founded on an s. 25 psychological assessment conducted by Dr. Vuyo Mpumlwana, psychologist, on June 14, 2022. However, I assign the resulting report, dated June 15, 2022, little weight due to a number of inconsistencies between test results and diagnoses.
34Most notably, Dr. Mpumlwana’s concluding diagnoses that the applicant suffered from adjustment order with anxiety and depressed mood, post-traumatic stress disorder (“PTSD”), chronic pain due to trauma, and irritability and anger as a result of the accident seem largely based on the self-reporting of the applicant. Test results show that the applicant registered in the “Mild” range on the Beck Depression Inventory and the PTSD Checklist. Dr. Mpumlwana also scored the applicant in the average range for somatization, anxiety, and depression. Only the Quality of Life Assessment test indicated that the applicant was extremely dissatisfied with his life, although it is not noted what aspects of the applicant’s life were causing such dissatisfaction. In all, these contradictions cause me to doubt the reliability of Dr. Mpumlwana’s diagnoses.
35Further, the CNRs of Apex Health Network demonstrate that the applicant was not experiencing any noteworthy issues during the four psychological therapy sessions he took part in during 2022. The records of these sessions, which took place with Catherine Lynn Roach, registered psychotherapist, between June 23, 2022 and July 21, 2022, indicate that the applicant was experiencing only minor anxiety and anger about pain that resulted from the accident. He also reported that he was not depressed. Ms. Roach noted on multiple appointment records that the applicant’s mood was “good” or “upbeat.” None of this supports the applicant’s claims of suffering from psychological impairments.
36Given the factors noted above, the applicant has not substantiated that he suffers from a psychological impairment that would justify his removal from the MIG.
MIG determination conclusion
37For the aforementioned reasons, I vary the Tribunal decision dated October 30, 2023 and find that the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.
Occupational Therapy Treatment Plans Dated May 27, 2019 and July 19, 2019 – Rule 18.2(b) Error of Law or Fact
38I find that the respondent has not established grounds for reconsideration under Rule 18.2(b) with regard to my ruling on these two treatment plans in the decision, listed as issues #2 and #3.
39In reconsideration submissions, the respondent argues that I did not consider a second denial letter dated September 17, 2021 regarding two occupational therapy treatment plans dated May 27, 2019 and July 19, 2019 in the context of rendering my finding that the respondent had contravened s. 38(8) of the Schedule. The respondent notes that I considered only a first denial letter sent September 17, 2021, and that any deficiencies in this notice were corrected by a second letter, sent later that same day by regular mail. The respondent also states that this second denial letter was included with the respondent’s hearing submissions, and that the applicant confirmed receiving the second denial letter on September 23, 2021 in its reply submissions for the hearing.
40The respondent also submits that as these treatment plans were not incurred between their submission in 2019 and their final denial on September 17, 2021, any initially deficient notice was cured by the second denial. It references Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (“Catic”), in which the Ontario Superior Court held that an insurer is only required to pay for items in a disputed treatment plan if they were incurred and only for the period during which any denial notice remains outstanding or is found insufficient in accordance with ss. 38(8) and 38(11) of the Schedule.
41As relief, the respondent requests that I vary my decision to acknowledge the second September 17, 2021 denial letter, find that this letter met the provisions of s. 38(8), and that the applicant was accordingly not entitled to these treatment plans. Further, the respondent submits that since these plans were not incurred during the period when the insurer was not in compliance with s. 38(8), this means that I could not order them payable, pursuant to Catic.
42In his reconsideration response, the applicant acknowledges that I did not reference the corrected second notice dated September 21, 2021, but that this is only one aspect of the issues surrounding improper notification for these plans. The applicant maintains that my decision that the notice provided by the insurer with regard to these plans was in contravention of s. 38(8) is correct and that the respondent is attempting to re-litigate this issue with its reconsideration request.
43Also, the applicant re-asserts that these treatment plans were submitted on June 11, 2019 and July 19, 2019, respectively, and the initial denial notices of June 14, 2019 and July 31, 2019, respectively, were both sent solely to the HCAI system—not to the applicant or his counsel. Further, these notices were not fully corrected with sufficient denial reasons until the second denial letter mailed on September 17, 2021.
44I agree that I made an error in my decision regarding the second denial letter sent on September 17, 2021. I only referenced the first denial letter in the decision, specifically in paragraph 21. Further, I agree that this second notice cured one issue with the initial letter, in that it filled in blanks left in the first letter regarding the medical and other reasons for the insurer’s denial of the plan.
45However, I find that this error would not have likely resulted in my reaching a different result had this error not been made. As explained in my decision in paragraphs 19 and 20, I found that the respondent had contravened s. 38(8) with regard to these treatment plans primarily because the initial denial letters were provided solely via HCAI. I also explained my reasons for this finding in those paragraphs, noting how s. 38(8) specifies that “the insurer shall give the insured person” notice of a denial, not just that the insurer post a denial notice to a system that the insured person is not able to directly access.
46Accordingly, and even though I accept the error in paragraph 21 regarding the second denial letter, this letter was sent too late. Assessing this denial notice would not have resulted in my reaching a different result, as it would not have changed the principal material circumstances—that proper notice was sent directly to the applicant more than two years late—upon which I based my decision regarding these treatment plans.
47Further, I explained my opinion regarding Catic in paragraphs 24 and 25 of the decision. I thoroughly detailed how I deemed these plans to be incurred pursuant to s. 3(8) of the Schedule with specific reference to Catic. As a result, I find the respondent’s raising of this issue on reconsideration to be an attempt to have this argument re-heard.
48I also do not accept the respondent’s argument in paragraph 22 of its reconsideration submissions and again in paragraph 10 of its reconsideration reply submissions. That the applicant and his counsel knew or should have known about the denials via HCAI, and that the applicant had an opportunity to incur the treatments and engage the “automatic payment obligation” of the insurer, is immaterial to my finding that the notice was improperly sent in accordance with the requirements of s. 38(8).
49Adopting this approach would, in my view, make the applicant responsible for these treatment plans not being incurred or deemed payable—even though the entire issue here originated with the respondent’s failure to provide proper, direct notification of the denials to the applicant. The respondent characterizes that deeming these plans incurred and payable would result in a “financial windfall” for the applicant and be directly contrary to Catic. I fail to see how that decision obligates applicants to incur treatment in such a fashion or lose entitlement, as this would then abrogate the notice provisions and associated consequences as established by the Schedule.
50Correspondingly, the respondent’s request for reconsideration of my findings on the May 27, 2019 and July 19, 2019 treatment plans listed as issues #2 and #3 in the decision is dismissed.
Physiatry Assessment Treatment Plan Dated May 11, 2021 – Rule 18.2(b) Error of Law or Fact
51I find that the respondent has established grounds for reconsideration under Rule 18.2(b) with regard to my ruling on this treatment plan in the decision, listed as issue #4. I vary the Tribunal decision dated October 30, 2023 and find that the applicant is not entitled to this treatment plan, nor interest.
52In reconsideration submissions, the respondent notes that I misstated the date of the May 11, 2021 treatment plan as being May 11, 2019. Further, the respondent submits that it provided sufficient and timely denial notice to the applicant in the form of an Explanation of Benefits (“EOB”) letter dated May 26, 2021 (sent on May 25, 2021). In addition, the respondent argues that my awarding this assessment at a value of $5,850.00 contravened s. 25(5) of the Schedule, which holds that the maximum amount payable for any one assessment or examination is $2,000.00.
53The respondent argues that this error played a significant role in my finding that the insurer’s denial was in contravention of s. 38(8) of the Schedule and my deeming this plan was incurred in accordance with s. 3(8) for the same reasons as noted above regarding the other plans in dispute. It requests that I vary my decision and deny this treatment plan.
54In his response reconsideration submissions, the applicant agrees that the treatment plan was misdated in the decision and that the May 11, 2021 date is the correct one. However, the applicant notes that the first denial of this plan dated May 26, 2021 was posted solely to HCAI, and that a proper denial notice was only sent directly to the applicant on June 29, 2021, well beyond the 10 business days as allowed for in s. 38(8) of the Schedule. Further, the applicant claims that this later denial notice did not include sufficient medical reasons for the denial.
55As a result, the applicant submits that this dating error would not have likely resulted in my reaching a different result had the error not been made.
56I agree with the respondent. The dating error likely would have resulted in my reaching a different result had this error not been made. This was a fundamental component of my reasoning that the denial of this treatment plan contravened s. 38(8), which triggered s. 38(11). Also, my erroneous conclusion that the denial was submitted over two years late was a major factor in my decision to deem this plan incurred in accordance with s. 3(8).
57I still disagree with the respondent’s argument that the EOB denial letter dated May 26, 2021 constituted proper notice under s. 38(8), as it was sent via HCAI and not directly to the applicant. But I now find that this issue was cured by the respondent via a direct notice sent to the applicant on June 29, 2021. While this notice was still in contravention of s. 38(8) of the Schedule due to its lateness, it was provided well before the treatment plan was incurred on October 27, 2022.
58Also, this notice met the insurer’s obligations under the Schedule. The June 29, 2021 EOB letter requested that the applicant attend an IE before making a final determination on this treatment plan, in accordance with s. 44 of the Schedule. The respondent then sent a final EOB denial notice directly to the applicant on September 24, 2021 based on the result of this IE report, which was cited in the body of the letter and included in full.
59Further, given the dating error that resulted in my determining that the initially deficient HCAI notice was sent more than two years late, I now decline to deem this treatment plan incurred, pursuant to s. 3(8).
60As the respondent has cured the initially deficient notice within the “shall pay” period in accordance with s. 38(11) and as clarified by Catic, the applicant is not entitled to this treatment plan, nor interest.
61Lastly, as I am varying the decision to find that the applicant is not entitled to this treatment plan, I find that it is not necessary to provide a finding on the maximum amount issue of an assessment raised by the respondent.
62For the above reasons, I vary the Tribunal decision dated October 30, 2023. The applicant is not entitled to the treatment plan dated May 11, 2021 listed as issue #4 in the decision, nor interest.
Amount Remaining Under the MIG – Rule 18.2(b) Error of Law or Fact
63As I have varied the decision to find that the applicant remains within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
64However, the respondent indicated in its initial hearing submissions that $2,200.00 in treatment had been approved and only $1,412.00 of this amount had been incurred, leaving $2,088.00 remaining of the $3,500.00 MIG limit. This has not been challenged or qualified by the applicant in his submissions, so I accept that money for treatment remains under the MIG.
65I therefore vary the decision to add—as a result of the applicant being found within the MIG and because there is money remaining under the MIG limit—that the applicant is entitled to medical or rehabilitation benefits or related assessments or examination benefits up to the amount remaining under the MIG limit as of the date of this decision. Such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest is applicable on any overdue and incurred amount, in accordance with s. 51 of the Schedule.
Award – Rule 18.2(b) Error of Law or Fact
66I find that the respondent has established grounds for reconsideration under Rule 18.2(b) with regard to the award listed as issue #5 in the Tribunal decision.
67Although the respondent does not provide fulsome submissions on its request that the decision be varied to find that the applicant is not entitled to the 25 per cent award, this award must be varied due to my reconsideration finding above on the treatment plan listed as issue #4 in the decision. As my award ruling in the decision specifically notes that the 25 per cent award applies to all three treatment plans in dispute, this must now be corrected to note that the award applies to just the two treatment plans listed as issues #2 and #3 in the decision.
68I am not otherwise varying the award ruling. Despite varying some aspects of the decision on reconsideration, I find that the substance of my reasoning as detailed in paragraphs 32 and 33 of the decision is still applicable with regard to the award and the amount of the award.
69As a result, I vary the Tribunal decision dated October 30, 2023. The respondent is liable to pay an award of 25 per cent of the amount of the two treatment plans listed as issues #2 and #3 in the decision.
CONCLUSION AND ORDER
70For the reasons detailed above, I am partially granting the respondent’s request for reconsideration and varying the decision dated October 30, 2023 as follows:
i. I find that the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. I dismiss the respondent’s request for reconsideration of the treatment plans listed as issues #2 and #3 in the decision.
iii. I find that the applicant is not entitled to the treatment plan listed in the decision as issue #4, nor interest.
iv. I find that the applicant is entitled to medical or rehabilitation benefits or related assessments or examination benefits up to the amount remaining under the MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest is also applicable on any overdue and incurred amount of these benefits, in accordance with s. 51 of the Schedule.
v. I find that the respondent is liable to pay an award of 25 per cent of the amount of the treatment plans listed as issues #2 and #3 in the decision.
Brett Todd Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: April 4, 2024