RECONSIDERATION DECISION
Before: Tyler Moore, Vice-Chair
Licence Appeal Tribunal File Number: 22-013491/AABS
Case Name: Waheed Ali v. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Hooman Zadegan, Counsel
OVERVIEW
1On January 6, 2025, the applicant requested reconsideration of the Tribunal’s decision dated December 16, 2024 (“decision”).
2In that decision, I found that the applicant was not entitled to attendant care benefits from March 10, 2021 to date; a treatment plan for occupational therapy services and assistive devices in the amount of $3,533.35; and chiropractic and physiotherapy services treatment plans in the amounts of $3,088.64, $2,866.01, $3,715.00, and $3,088.64.
3I found that the applicant was entitled to $5,058.00 for cannabis medication services, $3,847.20 for psychological services, and interest.
4Given that this decision was released after August 21, 2023, this reconsideration is governed by the Licence Appeal Tribunal Rules, 2023 (“Rules”). The grounds for a request for reconsideration are found in Rule 18.2 of the 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.
5The applicant seeks reconsideration under Rule 18.2(b) and Rule 18.2(c). The applicant is asking for the decision to be varied to grant entitlement to all of the physiotherapy and chiropractic services treatment plans and attendant care benefits in dispute. The respondent opposes the reconsideration request.
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 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.
Did the Tribunal make an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made?
8I find that the applicant has not established grounds for reconsideration based on an error of law or fact under Rule 18.2(b).
9The applicant submits that I made an error in law because the case-law is clear that if a proposed treatment provides temporary pain relief, that is sufficient to determine that the treatment plan is reasonable and necessary.
10The applicant relies on a body of case-law to support his position, including Cubello v. Guidolin (2000) O.J. No. 1468; 96 ACWS (3d) 853, General Accident Assurance Co. of Canada and Violi, 2000 ONFSCDRS 177, 17-003906 v The Guarantee Company of North America, 2018 CanLII 39446, Brett v. Aviva General Insurance Company, 2023 CanLII 26939 (ON LAT), and Hoskins v. Co-operators General Insurance Company, 2023 CanLII 4455 (ON LAT).
11The applicant also highlights that, at paragraphs [48] and [53] of the decision, I accepted the position of Dr. Loritz that the accident exacerbated the applicant’s pain and that physical treatment provided temporary pain relief.
12The respondent submits that the applicant is attempting to re-argue his argument for “temporary relief” in his written hearing submissions. The respondent also submits that the case-law the applicant refers to has either already been presented to the Tribunal or was otherwise previously available but not provided.
13The respondent also argues that the case-law relied upon by the applicant ties pain relief back to some other positive and measurable consequence, namely, function.
14The respondent submits that, according to Cubello, it is about function and not just temporary relief of pain. In Violi and 17-003906, the court reinforced that pain relief is part of a broader treatment strategy to help maintain levels of functioning and found that an applicant needs to provide some type of compelling evidence that treatments are effective to justify extensive chiropractic treatment, particularly given a lack of improvement.
15According to the respondent, the applicant has not provided any such evidence, and temporary pain relief is not in itself sufficient to deem a treatment plan payable, especially with the applicant’s credibility issues. In 17-003906, the Tribunal relied on Violi in finding that the applicant was not entitled to benefits, because the evidence did not show that the proposed treatment would provide a permanent improvement in functional ability.
16With respect to Brett, the respondent submits that the Tribunal found that temporary pain relief, alone, was not sufficient to deem a treatment plan reasonable and necessary. In Hoskins, the Tribunal found that temporary pain relief was a reasonable goal, and not a sufficient basis to deem a treatment plan reasonable by itself.
17The respondent then argues that the Tribunal did not determine that “because treatment does not provide for lasting benefit it is not reasonable and necessary”, as the applicant contends, but rather that there was a consistency among medical reports that similar treatment did not meet the goals of treatment and rendered no lasting benefit.
18Finally, the respondent submits that the applicant presented with questionable credibility for which the Tribunal declared it would place less weight on his evidence, and the applicant provided no compelling evidence of any functional benefit to the therapies being proposed, which were largely unhelpful by his own admission.
19To start, I find that the applicant’s reconsideration submissions do not identify any error of law or fact related to his entitlement to attendant care benefits, but rather that the temporary pain relief arguments relate to entitlement to the chiropractic and physiotherapy services in dispute. As such, I find that the applicant has not demonstrated that I committed an error of law or fact related to the attendant care benefits.
20At paragraph [44] of the decision, I outlined the goals of the proposed treatment plans for chiropractic and physiotherapy, which did not include “temporary pain relief”. At paragraph [48], I addressed the fact that after 30 weeks of physiotherapy treatment, the applicant’s treating physiotherapist, Ms. Soever, reported that there was no significant pain relief from the proposed treatment, and that according to physiotherapist, Mr. Hawke, the applicant’s pain was worsening despite such treatment.
21At paragraph [53], I indicated that Dr. Loritz agreed that the applicant’s accident-related injuries likely contributed in an incremental fashion to the applicant’s pre-accident medical condition. I did not accept that the applicant experiences severe pain because of the accident in paragraphs [50] to [54] as submitted by the applicant. I also noted at paragraph [53] that Dr. Loritz found that the applicant had reached maximal medical recovery with his current treatment based on his treatment response to date, which included the treatments proposed on the treatment plans in dispute. These findings show that I engaged with the applicant’s evidence and arguments about pain and the impact of the treatment plans. The purpose of the reconsideration process is not to ask for a re-weighing of the evidence presented at first instance.
22I have considered the case-law relied upon by the applicant, but I am not bound by other Tribunal decisions. I find that determinations about impairments and treatment plans are highly fact specific. As such, comments from prior cases are often of limited value to these highly fact specific disputes. While I agree with the respondent that when the case-law is considered in its entirety, the decisions do not support the applicant’s position that temporary pain relief alone is sufficient to determine that a treatment plan is reasonable and necessary. The applicant has not tied any temporary pain relief to improvement in function.
23While I accept the applicant’s argument that temporary pain relief is a reasonable treatment plan goal and that it can be sufficient in determining whether a proposed form of treatment is reasonable, it does not automatically justify that the same treatment is necessary. As outlined in the decision, the applicant’s treatment providers reported that the efficacy of the proposed treatments had plateaued, and the applicant had reached maximal medical improvement utilizing those treatments which does not satisfy the “necessary” part of the test.
24At paragraph [39] I also found the applicant’s self-report to be inconsistent with the overall medical record and therefore unreliable. As a result, I placed little weight on the applicant’s self-report. That includes the applicant’s self-report that the proposed treatments provided temporary relief of up to 2 days.
25At paragraph [10] of the applicant’s reconsideration reply submissions he points to the fact that I determined that cannabis medication services was reasonable and necessary, and, as such, the treatment plans in dispute should also be reasonable because the treatment plan goals are identical. The applicant does not, however, point to any error of law or fact in that regard.
26In the applicant’s reply submissions, he argues that the respondent has wrongfully introduced a new argument that the goal of temporary pain relief is not the same as the goal of pain relief. I find, however, that the respondent is simply responding to the applicant’s reconsideration submission regarding “temporary pain relief” and that it is not a novel argument. The applicant also argues that the OCF-18 form does not provide boxes for different kinds of pain relief. I note, however, that there is a box in Part 9 of the OCF-18 for “other goals” where more detailed goal information can be included.
27I find that the applicant has not established that I made an error of law of fact such that I would likely have reached a different result had the error not been made.
Was there evidence not before the Tribunal when rendering its decision, that could not have been previously obtained by the party seeking to introduce it that would likely have affected the result?
28I find that the applicant has not established grounds for reconsideration based on evidence not before the Tribunal when rendering its decision, that could not have been previously obtained by the party seeking to introduce it that under Rule 18.2(c).
29There are three components to Rule 18.2(c) that a party requesting reconsideration under this rule must satisfy. First, there must be evidence not before the Tribunal when rendering its decision. The party must also demonstrate that the evidence could not have been previously obtained, and finally, the evidence would likely have affected the Tribunal’s decision result.
30The applicant included a report from his family physician, Dr. Hirsch, dated June 23, 2024, with his reconsideration submissions. The applicant submits that the report could not have been obtained previously because the hearing date for this matter was April 5, 2024, and his submissions were filed on March 5, 2024.
31According to the applicant, Dr. Hirsch confirms in his letter that the accident resulted in an inability to engage in sports, hobbies, cook, remove snow, and participate in house maintenance. The letter also notes that the applicant’s pain has worsened in the 6 years since the accident, and Dr. Hirsch recommended a neurosurgical consult, chronic pain consult, physiotherapy, massage therapy, chiropractic, acupuncture, as well as assistance with cleaning, cooking, shopping, and snow removal. Based on Dr. Hirsch’s letter, the applicant argues that he requires further chiropractic treatment and physiotherapy, as well as attendant care, as those treatment plans were unreasonably denied.
32The applicant argues that if the Tribunal agrees with Dr. Hirsch’s June 2024 report that attendant care is reasonable and necessary, then attendant care services must be deemed incurred because the respondent has had transcribed records of Dr. Hirsch since at least October 11, 2022, and the initial denial was March 10, 2021. The applicant argues further that the prejudice against him, if attendant care is found to be reasonable and necessary, can only be rectified by deeming the treatment incurred.
33The respondent submits that this medical report from Dr. Hirsch was prepared for a subsequent Tribunal application, and is therefore, irrelevant and inadmissible for the present purpose. According to the respondent, the applicant did not see fit to seek an updated report from Dr. Hirsch before the written hearing submission deadline, and that is no justification for allowing new evidence on reconsideration. There is no evidence that if the report had been sought earlier that it could not have been obtained, and there is no evidence that there was a significant change in the applicant’s condition after the submission deadline.
34The applicant has not persuaded me why an updated report from Dr. Hirsch could not have been sought and obtained prior to the written hearing submission deadline. As a result, I find that Dr. Hirsch’s report does not comply with Rule 18.2(c) and cannot be introduced at this stage as evidence for reconsideration.
35I find that the applicant has not established grounds for reconsideration based on Rule 18.2(c).
CONCLUSION & ORDER
36The applicant has not established grounds for reconsideration under Rule 18.2(b) or Rule 18.2(c).
37The applicant’s request for reconsideration is dismissed.
Tyler Moore
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: April 2, 2025