Abuabdo v. Allstate Insurance Company of Canada
AMENDED RECONSIDERATION DECISION
Before: John Mazzilli, Adjudicator
Licence Appeal Tribunal File Number: 23-000442/AABS
Case Name: Saleh Abuabdo v. Allstate Insurance Company of Canada
Written Submissions by:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Simran Walia, Counsel
OVERVIEW
1On May 8, 2024, the applicant requested reconsideration of the Tribunal’s decision dated April 17, 2024 (“decision”), in which I determined that the applicant sustained a minor injury and as such remained within the minor injury guideline (“MIG”). I also found that the respondent’s notices complied with section 38 of the Schedule, and the applicant was not entitled to the disputed treatment plans, interest, or an award.
2The 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 of fact such that the Tribunal would likely have reached a different result had the error not ben 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.
3The applicant makes his request for reconsideration based upon Rule 18.2(a)(b) and (c), and requests that I:
(i) vary the decision such that the applicant is removed from the minor injury guideline; and approve the treatment plans for physical rehabilitation along with interest.
(ii) award costs in the amount of $1,000.00 from the respondent for failing to produce the complete Accident Benefits (“AB”) file in advance of the production deadline, the hearing and reconsideration submissions; and
(iii) in the alternative, an order to cancel my original decision.
4The respondent opposed the request for reconsideration of my decision and submits that my decision does not contain a reviewable error. It submits that the applicant’s reconsideration request is an attempt to re-litigate his case which ultimately failed at the hearing. Further, it submits that the applicant has failed in his onus to prove that I made a significant error or fact of law that would result in a different decision.
RESULT
5The applicant’s respondent’s request for reconsideration is granted in part.
6I vary my decision to find that the respondent’s explanation of benefits dated April 19, 2021, was deficient and as such the treatment plan for physiotherapy in the amount of $1,318.00 is payable, plus interest.
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.
MIG and the Accident benefits file
8The applicant alleges that it is procedurally unfair that he did not have the Accident Benefits (“AB”) file as per the Case Conference Report and Order’s production requirements or the or prior to the hearing. He further alleges that that I committed and error of law and introduces s.50 of the Schedule as a defence.
9The respondent argues that the applicant’s request for reconsideration is an attempt to re-litigate his case and does not satisfy the criteria for granting a reconsideration under Rule 18.2. It further submits that it served the applicant with an updated AB file on August 21, 2023, and November 29, 2023, and followed up with his counsel on May 9, 2024, via an e-mail however he did not respond to the e-mail.
10The Case Conference Report and Order dated September 12, 2023, notes that the parties will identify the amounts remaining in the MIG limit. At the hearing there was some discussion surrounding the amount remaining in the MIG. The applicant advised that he was unable to open the AB file due to a password protection on the file and as such he was unaware of how much was remaining in the MIG at the time of the hearing.
11At the hearing $3,353.00 had been identified as being used in the MIG by the respondent. This was not disputed by the applicant but rather the question became if the MIG had been exhausted. While not set out in my decision, at the hearing the adjustor testified that the closure statements from the treating facilities had not yet been produced by the treating facility and that once they were, this would exhaust the remaining MIG limits. I accepted this testimony. Although it might have been an error not to include this finding in my decision, such an error would not likely have changed the outcome of my decision as I accepted that there was $3,353.00 remaining in the MIG and that when the closure statement from the treatment provider were sent in then the MIG would be exhausted. Consequently, I find the applicant has not met the second part of the test in Rule 18.2(b).
12With respect to the applicant’s inability to access the AB file, I find this is not grounds for reconsideration. Although the applicant briefly touched on his inability to open the AB file disclosed by the applicant, he did not argue that he could not proceed because the AB file had not been disclosed. As the applicant withdrew his application for an Income Replacement Benefit at the outset of the hearing, he argued that the remaining issues in dispute could have been argued by way of written hearing, which I did not allow for reasons already addressed in my decision. He never suggested or implied that he could not proceed with the hearing because the AB file had not been disclosed. As such I am satisfied that the AB file was produced by the respondent on August 21, 2023, and November 29, 2023.
13I find that the applicant has not established that he has met the test in Rule 18.2(a)(b) because I accepted the AB file had been produced and I fail to see the relevance of s.50 of the Schedule. Further the applicant did not address s.50 at the hearing. A reconsideration is not an avenue to re-argue someone’s case and therefore I did not error in law in such that I would have reached a different result or acted outside of my jurisdiction or commit a material breach of procedural fairness.
Applicant Seeks Costs
14In his reply to submissions the applicant seeks costs in the amount of $1,000.00 to be paid by the respondent for failing to produce the complete AB file in advance of the production deadline, the hearing and reconsideration submissions.
15Rule 19.2 states that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. As such the applicant is not entitled to cost for the perceived failure by the respondent to produce the complete AB file.
Rule 18.2 (b)-Error of Fact: Applicants Evidence of a Psychological Condition
16For the reasons set out below, I find the applicant has not established grounds for reconsideration with respect to his psychological condition.
17The applicant argues that I did not consider a prescription in the family doctor’s records for Amitriptyline and questions my finding that the applicant does not have psychological impairments because of the subject motor vehicle accident.
18Although not included in my decision, I did consider that the applicant was prescribed Amitriptyline post accident, however I was not pointed to any compelling CNRs from a treatment provider regarding his psychological condition other than the prescription for Amitriptyline. Further there are no psychological treatment plans in dispute.
19Although not addressing the applicant’s past prescription for Amitriptyline in my decision was an error, I find it was not an error that would have changed the outcome of my decision. I did consider the totality of the evidence regarding his psychological condition, and I was not persuaded that the applicant suffers from a psychological condition that would warrant removal from the MIG.
20For these reasons I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b) with respect to his psychological condition.
Rule 18.2(b) – Error of Fact: Pre-Existing Back Condition
21The applicant submits that his pre-existing back condition of mild degenerative disk disease is grounds for the approval of the treatment plans for physiotherapy that were in dispute. He argues that I erred by not considering his pre-existing back condition for grounds that would allow him to be removed from the MIG.
22Although I find that I did inaccurately state that there was no medical evidence to persuade me that the applicant has a pre-existing back condition, I did review and analyze in my decision at paragraph 30 the totality of the pre-existing medical evidence, including the X-ray conducted after the accident. The medical evidence did not persuade me that such a condition would prevent his maximal recovery if he were kept within the MIG, as required by s.18(2) of the Schedule.
23Turning to the second half of the test in Rule 18.2(b), I find that this error of fact would likely not have caused the Tribunal to reach a different decision. Evidence of a pre-existing condition is not sufficient to remove the applicant from the MIG. The applicant must provide compelling medical evidence proving on a balance of probabilities that his pre-existing back injury precluded recovery if kept within the confines of the MIG. This is a high threshold for the applicant to overcome given that the treatment plans for physiotherapy were recommended by a physiotherapist at the treating facility and not his family doctor and his prescription for Celebrex had been changed to Tylenol by his family physician.
24The function of an adjudicator is to weigh evidence and make a finding of fact which is what I have done. It is well established that a reconsideration is not an avenue to re-litigate one’s case. I find that the applicant has not established grounds for reconsideration with respect to pre-existing back pain.
Rule 18.2(b) - Error of law by failing to correctly apply s.38(8), 38(9) and 38(11) of the Schedule
25The applicant alleges that I made a significant error of law such that I would of likely reached a different result because I erred and misdirected myself on a question of law.
26He submits that I incorrectly misinterpreted s.38(8) and s. 38(9) because I placed undue reliance on the applicant’s summoned witness (the accident benefits adjuster) and his alleged inaccurate testimony as opposed to reviewing the deficient denial letters produced at the hearing.
27The applicant alleges that I did not give any credence to his position with respect to his perceived deficient denial letters from the respondent dated April 20, 2021, April 23,2021, and July 12,2021.
28The respondent argues the disputed denial letters were argued at the hearing. It submits that all denial letters were compliant with the Schedule and that the denials were made in the timeline prescribed by the Schedule. It submits the denials contained sufficient medical or other reason required by the Schedule and are supported by the adjustor’s testimony and by their submissions by way of evidence in the document briefs.
29When reviewing the explanation of benefits dated April 19, 2021, I find that this notice was insufficient. The explanation of benefits focus is that the hourly rate of the physiotherapist is above the FSCO guidelines and states that they are unable to approve the full amount, however it later goes on to state that the treatment plan is denied and will require amendments and requests treatment fees and resubmission for their consideration. This to me is confusing to an unsophisticated individual and as such the consequences under s.38(11) are triggered and therefore the applicant is entitled to $1,318.00 plus interest for the physiotherapy treatment plan in dispute.
30The second letter dated April 22, 2021, does fulfill the statuary requirements under s.38. In this letter the respondent partially approves a treatment plan and advises that the MIG limits have been exhausted and advises the applicant to produce compelling medical documentation in order to be removed from the MIG. The applicant in his request for reconsideration argues that the MIG limits had not been exhausted and relies on the AB file and asserts that there is $945 remaining. This was not argued at the hearing as the applicant took the position that the AB file had not been disclosed prior to the hearing. As the respondent took the position that the MIG had been exhausted I found that the denial letter is compliant with the schedule.
31The third denial letter dated July 12, 2021 does fulfill the statuary requirements under s.38 as it does give reasons for the denial of the treatment plan and I do not consider these reasons to be boiler plate reasons as it identifies the person who prepared the treatment plan in question and also invites the applicant to submit further diagnostic reports, clinical notes and records or specialist reports or documented evidence from the applicants family physician.
32I find that I made an error in my decision, and I find that the explanation of benefits dated April 19, 2021, is not compliant with the Schedule therefore s.38 is triggered and the treatment plan for physiotherapy in the amount of $1,318.00 is payable. Since the treatment plan is payable interest is also payable.
CONCLUSION & ORDER
33The applicant’s request for reconsideration is granted.
34I vary my decision. The applicant is entitled to the disputed treatment plan for physiotherapy in the amount of $1,318.00. Since the benefit is payable interest is also payable.
John Mazzilli
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: October 9, 2024