RECONSIDERATION DECISION
Before: Ludmilla Jarda
Licence Appeal Tribunal File Number: 21-014070/AABS
Case Name: Natalie Bowen v. Aviva Insurance Company
Written Submissions by:
For the Applicant: Alim Ramji, Counsel
For the Respondent: Geoffrey Keating, Counsel
OVERVIEW
1On April 8, 2024, the applicant requested reconsideration of the Licence Appeal Tribunal (“Tribunal”) decision dated March 18, 2024 (“decision”).
2In its decision, the Tribunal found that the applicant was not entitled to the disputed treatment plans nor interest, and it dismissed the application.
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 Rules 18.2(a) and (b). The applicant submitted that the Tribunal acted outside its jurisdiction and made significant errors of law and fact. The applicant submits that the Tribunal erred in finding that the applicant does not suffer from chronic pain syndrome and that her injuries fall within the Minor Injury Guideline (“MIG”). The applicant seeks a finding that she is entitled to a treatment plan dated October 25, 2021 for chiropractic services in the amount of $1,803.73, a treatment plan dated December 9, 2021 for chronic pain treatment in the amount of $8,485.00, a treatment plan dated May 2, 2022 for chiropractic treatment and massage therapy in the amount of $2,114.85, and interest. Alternatively, the applicant seeks a rehearing of all the issues.
5The respondent argues that the request for reconsideration should be dismissed.
RESULT
6The applicant’s request for reconsideration 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 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.
Rule 18.2(a): Lack of jurisdiction
8I find that the applicant has not established that the Tribunal acted outside its jurisdiction pursuant to Rule 18.2(a).
9The applicant submits that the Tribunal acted outside its jurisdiction when it determined that the applicant did not suffer from chronic pain. The applicant states that the Tribunal does not have jurisdiction nor the qualifications to apply the test for chronic pain as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”) for establishing chronic pain. The applicant argues that while the Tribunal can weigh the evidence of the experts applying the test, it is not the role of the Tribunal to determine whether the test for chronic pain has been satisfied.
10I do not agree with the applicant’s submissions, and I find that the Tribunal did not act outside its jurisdiction.
11I find that the applicant is attempting to relitigate the Tribunal’s findings that the applicant has reached maximal medical recovery of her accident-related injuries, and that further facility-based physical and psychological treatment is not reasonable and necessary. Indeed, as indicated at paragraphs 5 and 6 of the decision, the applicant argued at first instance that she suffers from chronic pain as well as physical and psychological impairments as a result of the accident and that the disputed treatment plans are reasonable and necessary. She relied, among other things, on the Guides and the clinical notes and records (“CNRs”) of Dr. Peter Dobson, family physician, and Dr. Osama Benmoftah, orthopaedic surgeon.
12As noted at paragraphs 21-42 of the decision, the Tribunal found that the applicant failed to prove, on a balance of probabilities that she was entitled to the treatment plan dated October 25, 2021 for chiropractic services in the amount of $1,803.73, the treatment plan dated May 2, 2022 for chiropractic treatment and massage therapy in the amount of $2,114.85, and the treatment plan dated December 9, 2021 for chronic pain treatment in the amount of $8,485.00. Specifically, the Tribunal found that the applicant’s submissions and evidence failed to establish that the disputed treatment plans were reasonable and necessary.
13The Tribunal further accepted the findings of Dr. John W. Lee, psychologist, and Dr. Ramunas Saplys, orthopaedic surgeon. Dr. Lee concluded that the applicant had reached maximum medical recovery from her accident-related psychological impairment and that her adjustment disorder was in the process of remission. Correspondingly, Dr. Saplys concluded that the applicant had achieved maximal medical recovery from her accident-related physical impairments and that further facility-based treatment was not reasonable and necessary.
14Further, as indicated at paragraph 30 of the decision, although the Guides provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain, the Guides are not incorporated in the Statutory Accident Benefits Schedule – Effective September 1, 2010 or otherwise binding on this Tribunal to determine if someone suffers from chronic pain.
15It was within the Tribunal’s jurisdiction to make a determination regarding the severity of the applicant’s accident-related injuries and the reasonableness and necessity of the disputed treatment plans. Further, contrary to the applicant’s reconsideration submissions, the Tribunal did not make a finding that the applicant’s injuries should be treated within the MIG and it’s $3,500.00 limit on treatment as the MIG was not an issue in dispute.
16Accordingly, I find that the Tribunal did not act outside of its jurisdiction. As such, the applicant has not established grounds for a reconsideration of the decision under Rule 18.2(a).
Rule 18.2(b): Error of law or fact
17I find that the applicant has not established that the Tribunal made an error of law or fact in its determination that the applicant is not entitled to the disputed treatment plans.
18The applicant submits that the Tribunal made an error of law and fact by deciding that the applicant’s injuries fall within the MIG and that she does not suffer from chronic pain. The applicant states that the Tribunal failed to give sufficient evidentiary weight to Dr. Benmoftah’s diagnosis of chronic pain syndrome, and Dr. Dobson’s finding that the applicant suffers from chronic back pain and knee pain. The applicant also submits that the Tribunal erred in finding that she had reached maximal medical recovery from her accident-related injuries. These submissions are closely tied to the argument made for reconsideration under Rule 18.2(a) set out above.
19I do not agree with the applicant’s submissions, and I find no error of law or fact in the Tribunal’s decision.
20As indicated at paragraphs 25-38, the Tribunal considered the applicant’s submissions and evidence, including the opinions of Dr. Benmoftah and Dr. Dobson, and found that the applicant had not met her burden of proof. I have already addressed the Tribunal’s findings that the disputed treatment plans are not reasonable and necessary and the MIG is not an issue in dispute above.
21The fact that the applicant would have preferred that the Tribunal reach a different conclusion based on its review of the evidence does not render the reasons provided insufficient nor does it demonstrate that the Tribunal made an error of law or fact. In its decision, the Tribunal highlighted the evidence that it considered more relevant to the issues in dispute, assigned the weight accordingly, and came to the conclusion that the applicant had not satisfied her burden of proving her entitlement to the disputed treatment plans.
22Accordingly, I find that the Tribunal did not make an error of law or fact. The fact that the applicant does not agree with the Tribunal’s decision is not ground for reconsideration under Rule 18.2(b).
CONCLUSION & ORDER
23The applicant has not established grounds for reconsideration under Rule 18.2(a) or (b).
24The applicant’s request for reconsideration is dismissed.
Ludmilla Jarda
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 13, 2024