RECONSIDERATION DECISION
Before: Alla Kadysh
Licence Appeal Tribunal File Number: 21-013035/AABS
Case Name: Daniela Aquino v. Novex Insurance Company
Written Submissions by:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Theomarcus Giannou, Counsel
OVERVIEW
1On March 5, 2024, the applicant requested reconsideration of the Tribunal’s decision dated February 13, 2024 (“decision”).
2The request arises out of a decision in which I determined that the applicant’s accident-related impairments are subject to the Minor Injury Guideline (“MIG”), and that she was entitled to the balance of a chiropractic treatment plan as a result of the respondent’s non-compliance with s. 38(8) of the Schedule. I also found that the applicant was not entitled to two remaining treatment plans in dispute or an award and dismissed her claim for costs.
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:
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.
4The applicant is seeking reconsideration pursuant to Rule 18.2 (b) in regard to two treatment plans in dispute with applicable interest, and a special award. She submits that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
5The respondent takes the position that the applicant has no grounds for reconsideration and is trying to re-litigate her initial submissions. The respondent further requests that the applicant’s request for reconsideration be denied.
RESULT
6The applicant’s request for consideration is dismissed.
ANALYSIS
7The 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.
The OCF-18 in the amount of $2,969.74 for chiropractic treatment
8I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) on this issue.
9With respect to the OCF-18 dated August 8, 2019, I found the respondent’s denial letter dated September 19, 2019 failed to comply with section 38(8) of the Schedule: the OCF-18 in dispute was not denied within 10 business days. However, I found that the treatment plan was not payable as the applicant submitted no evidence showing that the treatment was incurred between 11th business day after the day the insurer received the application and the day the insurer gave a notice, which was September 19, 2019, as prescribed in section 38(11)(2).
10The applicant submits that I made a significant error of law or fact in analyzing subsections of section 38(8) and 38(11), by neglecting to address the inadequacy of the medical and other reasons provided in the respondent’s denial notice dated September 19, 2019. The applicant further submits that once I made this error, I’ve applied Aviva General Insurance v. Catic, 2020 CanLII 103685 (ON LAT) (hereinafter “Catic”) erroneously and had I not made the error, I would have reached a different result.
11The applicant submits that Catic is distinguishable from the current matter in that its ruling only relates to the issue of timely notice. She submits that I failed to consider that the insufficiency of the Respondent’s denial of the subject OCF-18 hinged on more than just the issue of untimely notice. She also submits that I neglected to address the inadequacy of the medical and other reasons provided by the Respondent in their denial notice dated September 19, 2019.
12I disagree with the applicant. I addressed the deficiency in paragraph 31 of my decision and found the respondent’s argument that not listing every item in the treatment plan in the denial notice is not a violation of s. 38(8) to be persuasive. I see no error in this finding. Although the analysis I provided is somewhat truncated, whether the issue warranted a more comprehensive analysis is a separate consideration. The applicant is not arguing the necessity of a more comprehensive analysis; rather she is alleging that I erred in making this finding. I see no such error.
13Furthermore, I find that once I had established that the denial notice dated September 19, 2019 provided sufficient medical and other reasons, the application of Catic was appropriate.
OCF-18 for assistive devices in the amount of $1,831.39
14I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) on this issue.
15Similar to the issue addressed above, the applicant submits that I neglected to address her submissions on the deficiency of the denial letter in regard to medical and other reasons, dated June 22, 2020. In this case I agree. I examined the letter and found it to be proper notice in accordance with s. 38(8) of the Schedule at paragraph 33 of the decision. While I addressed the possible time violation, I did not specifically address the sufficiency of the language used in the denial letter. I note that the applicant herself did not address the issue in her original submission for the hearing. She did, however, address it in her reply submission.
16I find, however, that while I made an error, this error would likely not have changed the result as required by Rule 18.2(b). That is because I find the language in the denial letter dated June 22, 2020 is compliant with the Schedule with respect to medical and other reasons. While the applicant argues it is not, because all of the items in the treatment plan were not listed in the denial notice, I do not accept this argument. Similar to my decision in regard to the previous denial notice dated September 19, 2019, I find that not listing all the items in the treatment plan in the denial notice is not a violation of s. 38(8) and that the notice is compliant.
17In sum, while I find I made an error, I also find that it is not one that would likely have changed the result. I find the denial letter dated June 22, 2020 to be a proper notice in accordance with the Schedule.
Special Award in the amount of 50%
18I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) on this issue, as she made no submissions regarding errors of law or fact pertaining to the special award.
CONCLUSION & ORDER
19For the reasons set out above, the applicant’s request for reconsideration is dismissed.
Alla Kadysh
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: May 7, 2024