RECONSIDERATION DECISION
Before:
Harry Adamidis
Licence Appeal Tribunal File Number:
21-013958/AABS
Case Name:
Anna Ambrosini v. Aviva Insurance Canada
Written Submissions by:
For the Applicant:
Joshua Gautreau, Counsel
For the Respondent:
Yann Grand - Clement, Counsel
OVERVIEW
1On May 6, 2024, the applicant requested reconsideration of the Tribunal’s decision dated April 12, 2024 (“decision”).
2In the decision, I found that the applicant was entitled to a treatment plan for physiotherapy and interest. I further found that the applicant was not entitled to a neurological assessment, a chronic pain assessment, a second treatment plan for physiotherapy and assistive devices, and an additional treatment plan for assistive devices.
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 submits that I made errors of fact or law and that I would likely have reached a different result had such errors not been made. The applicant also submits that she has evidence that was not before the me when I rendered the decision that she could not have previously obtained, and that would likely have affected the result.
5The respondent submits that I did not make an error of law or fact and that this request for reconsideration should be dismissed.
6The applicant requests an order finding the applicant entitled to a neurological assessment, a chronic pain assessment, physiotherapy and assistive devices, and an additional treatment plan for assistive devices.
RESULT
7The request for reconsideration is dismissed.
ANALYSIS
8The 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.
18.2(b) Errors of fact and law and 18.2(c) new evidence
9I find that the applicant has not established grounds for reconsideration under Rule 18.2(b).
10According to the applicant, I made an error of fact when I found that the neurological and chronic pain assessments were not reasonable and necessary because OHIP funded assessments had already been completed. She submits that the accident benefit treatment providers do not offer specialized multidisciplinary care without doing their own assessments. To support her position, she references an email from MediAssess Evaluations located at TAB 5, page 50 of her reconsideration brief.
11The respondent submits that the applicant has not explained why the OHIP funded assessments cannot be utilized to formulate a treatment plan. The respondent also argues that the applicant is now attempting to re-litigate her case with a new email that should have been presented at the time of the hearing. In its view, this is inappropriate and this evidence should not be considered.
12The goals of the neurological assessment cited in paragraph 10 of the decision are:
pain reduction;
return to the activities of normal living;
determination of any accident-related neurological impairment;
obtain guidance on multidisciplinary care.
13In paragraphs [11] and [12] of the decision, I note that a neurological assessment has already been completed and that the applicant has not explained why a subsequent assessment is reasonable and necessary:
11The OHIP funded assessment of Dr. Neilank Jha, neurologist, dated June 19, 2019, states that the applicant sustained a traumatic brain injury with progression to post-concussive symptoms. He lists numerous limitations related to her vision, cognitive function, emotions, sleep, and others. He also makes extensive treatment recommendations that include, but are not limited to occupational therapy, physiotherapy, diet, supplements, and home care.
12Dr. Jha’s assessment fulfills the goals of the OCF-18. His assessment is quite detailed and provides numerous treatment and lifestyle recommendations that the applicant can pursue for her rehabilitation. The applicant has not explained why Dr. Jha’s diagnosis and treatment recommendations are not suitable for the purpose of obtaining accident benefits. In light of this, I find that the applicant has not established that this treatment plan is reasonable and necessary.
14The goals of the treatment plan for a chronic pain assessment stated in paragraph [16] of the decision are:
pain reduction;
to evaluate the extent of the patient's injuries;
to return to activities of normal living;
to get guidance on multidisciplinary care.
15Paragraph [17] of the decision also references the comments section of the treatment plan for the chronic pain assessment, which states that the “purpose of a Chronic Pain assessment is to establish the current diagnosis(es), extent of the injuries, prognoses and recommendations for recovery.”
16Paragraphs [18] and [19] note that three previous chronic pain assessments had been completed and that the goals of the treatment plan had already been achieved, as follows:
18The respondent cites three reports which it asserts fulfill the goals of the disputed treatment plan. These reports are summarized as follows:
Dr. Jha conducted a follow-up assessment on March 29, 2021 and issued a report that same day. He reviewed two MRI reports and the Assessment and Plan of neurologist Dr. Hussain with the applicant. He then proceeds to make treatment recommendations.
The report of Dr. Vincenzo Basile, neurologist, dated 10 December 2019. This report reviews her pre-accident medical history which includes fibromyalgia “at baseline with dizziness,” anxiety, and sleep apnea. He notes that she currently suffers from neck pain with radicular symptoms down the left arm and lower back pain with radiation into the left leg and has memory and concentration issues as a result of the accident. He also notes that her cognitive impairments are “features of post-concussive syndrome.” He conducted a physical examination, and an electrodiagnostic study of her nerve conduction. The results of the electrodiagnostic study were in keeping with radiculopathy on the left side of her neck. He also reviewed three MRI scans, including a scan from 2016 which indicates that he had mild to moderate central canal stenosis prior to the accident. He subsequently provides his impression of the applicant’s pain symptoms, including the pain caused by the accident, and makes extensive treatment recommendations.
A report from the Pain Clinic, dated January 28, 2020, by Dr. Dima Rozen. The applicant’s pain symptoms, background, and medical history are described. He provides details of a brief physical examination and advises that he can provide epidural steroid injections.
19I agree that these three reports by OHIP funded doctors have already fulfilled the goals of the treatment plan. In particular, the report of Dr. Basile identified and extensively assessed the applicant’s accident related injuries and made detailed treatment recommendations. For these reasons, I find that the chronic pain assessment is duplicative, and therefore, not reasonable and necessary.
17In both instances, for the chronic pain and the neurological assessments, the applicant had already been assessed by doctors. At the hearing, the applicant argued that these assessments were not suitable for obtaining accident benefit treatment because this was “beyond the purpose” of OHIP funded reports. The applicant now argues that accident benefit treatment providers are obligated to make their own assessments because it would be negligent to provide care without first making their own assessment of their client's needs. It is not clear to me that this is a new argument. Rather, this appears to be a further refinement of the applicant’s previous position. In any event, the applicant relies on new evidence to support this position; namely, the above noted email dated May 1, 2024 from MediAssess Evaluations on page 50 of her reconsideration brief.
18Rule 18.2(c) sets out a three-part test for reconsideration. The applicant must establish that there is evidence that was not before the Tribunal when rendering its decision, that the evidence could not have been obtained previously by the party seeking to introduce it, and that it would likely have affected the result.
19In this case, the applicant has not explained why the May 1, 2024 email could not have been previously obtained. Consequently, I find the applicant has not met the test for introducing this evidence set out in Rule 18.2(c). Further, I find that the email evidence does not meet the third part of the test under Rule 18.2(c), that it would not likely affect the result of the decision. The following is the complete statement in the May 1, 2024 email referenced by the applicant:
In order for our facility to apply for a Chronic Pain Management Program a Chronic Pain and Psychological Assessments must be completed first in order for the assessor to determine client’s treatment needs and current physical & psychological diagnosis, prognosis, barriers to recovery and limitations.
20This email confirms that an assessment is needed to determine treatment needs for the Chronic Pain Management Program. It does not say that the applicant’s OHIP funded assessment is unsuitable for this purpose. Consequently, even if this email met the first two prongs of the test in Rule 18.2(c), it does not show that the applicant cannot access specialized multidisciplinary care without completing the chronic pain assessment in the disputed treatment plan.
21I further note that the email makes no reference to the necessity of neurological assessments, and therefore, does not support the applicant’s position on the other disputed treatment plan for an assessment.
22For all these reasons, I find that the applicant has not established that I made an error of fact in my analysis of her entitlement to the chronic pain and neurological assessments.
18.2(b) Errors of fact and law
23In regard to the treatment plan for physiotherapy, the applicant notes that I found physiotherapy to be reasonable and necessary. Despite this, I determined that the applicant was entitled to only one of two treatment plans for physiotherapy. She submits that under these circumstances there is no onus on her to show why more than one treatment plan for physiotherapy is reasonable and necessary because she has already been found to be entitled to this type of treatment.
24In paragraphs 21 to 27 of the decision I reviewed the medical evidence and found that it supported the applicant’s entitlement a treatment plan for 108 sessions of physiotherapy.
25In paragraph 28 of the decision, I considered the second treatment plan for physiotherapy and found that the applicant had not established her entitlement to this plan, as follows:
28Issue 3 is a treatment plan for physiotherapy and assistive devices. The applicant makes no submissions on why two treatment plans for physiotherapy are reasonable and necessary. The applicant also makes no submissions on why she is entitled to the assistive devices. As such, the applicant has provided no basis for me to conclude that this treatment plan is reasonable and necessary.
26The applicant argues that this finding is flawed because her onus to establish entitlement to this second plan ended once physiotherapy was determined to be reasonable and necessary. I disagree. The onus to establish entitlement for each treatment plan cannot be overcome in this way. Otherwise, this would lead to an absurd result where the applicant would automatically be entitled to an unlimited amount of physiotherapy.
27I also note that the assessment in paragraphs 21 to 27 of the decision is limited to the treatment plan for 108 sessions of physiotherapy and includes evidence that does not apply to the second treatment plan for physiotherapy. In particular, the letter by Dr. Karen Dobkin, her family doctor, dated October 3, 2021 only recommends the treatment plan for 108 sessions of physiotherapy. For these reasons, the applicant has not persuaded me that I made an error in finding that entitlement to one treatment plan for physiotherapy does not automatically entitle her to the other treatment plan for physiotherapy.
28The applicant submits that the decision incorrectly states that she made no submissions on why this treatment plan for physiotherapy is also reasonable and necessary. She points to paragraphs 37 to 40 of her initial hearing submissions where she argued that this treatment plan was submitted shortly after the accident and is in line with the OHIP funded medical reports and their recommendations that physiotherapy is reasonable and necessary.
29I disagree with the applicant’s description of what is stated in the decision. As noted above, paragraph 28 of the decision says, “The applicant makes no submissions on why two treatment plans for physiotherapy are reasonable and necessary.” Paragraphs 37 to 40 of her initial hearing submissions do not address this point. More specifically, she has not explained why she is entitled to the total amount of physiotherapy being sought in both plans.
30The applicant further submits that it would be contrary to the nature of the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) if the applicant was forced to pay out of pocket treatment right after the accident but then have treatment 19 months later be deemed reasonable and necessary.
31The fact situation in this submission is inconsistent with the facts previously presented by the applicant. At the hearing, she cited documentation that confirms she received physiotherapy soon after the accident, but she gave no indication that she had to pay for this treatment out of pocket. In any event, she did not raise a lack of funding for the physiotherapy she received shortly after the accident as an issue at her hearing. As such, this submission cannot be considered because a reconsideration request is not an opportunity to raise new arguments.
32The applicant disagrees with my assessment of the second treatment plan for physiotherapy but, in my view, she has not identified any errors of fact or law. Consequently, I see no grounds for reconsideration.
33The applicant submits that I made an error of fact or law when I found that an OHIP funded doctor’s recommendation was insufficient to find that the treatment plan for assistive devices reasonable and necessary. She further submits that I provided no reasons to explain why a family physician must include details for why each assistive device is being recommended.
34I note that paragraph 33 of the decision states the following:
33The October 3, 2021 letter of Dr. Dobkin states that she is in agreement that the applicant will benefit from the devices. This brief statement provides no explanation or insight into how these devices will benefit the applicant. In my view, Dr. Dobkin’s statement lacks the sufficient detail that is needed to find that this treatment plan is reasonable and necessary.
35As noted above, Dr. Dobkin provided no details for why the devices would benefit the applicant. I found that this was insufficient to establish that this treatment plan is reasonable and necessary. The applicant disagrees with me. However, merely disagreeing with a decision does not constitute an error of law or fact.
36The applicant also argues that I accepted Dr. Dobkin’s recommendation for 108 treatments of physiotherapy at face value without requiring her to provide any specific details. In the applicant’s view, this constitutes a contradiction in how I weighed this evidence because I required details to justify entitlement for one treatment plan but not the other.
37Again, I disagree with the applicant’s position. The treatment plan for physiotherapy was found reasonable and necessary because it was supported by numerous medical reports and recommendations from doctors other than Dr. Dobkin. There was no medical evidence supporting the treatment plan for assistive devices other than a brief statement in Dr. Dobkin’s letter. Given these differing circumstances, I find that the applicant’s submission on the inconsistent weight given to Dr. Dobkin’s letter does not accurately reflect how I assessed the two treatment plans. I further find that the applicant has not identified an error of law or fact in my assessment of the treatment plan for assistive devices.
18.2(c) New Evidence
38I find that the applicant has not established grounds for reconsideration under Rule 18.2(c).
39The applicant submits that there is new evidence which was not available during the hearing because affidavits were not allowed. Her new affidavit speaks to her ongoing use of the devices in dispute, her regular use of the devices, and how the devices provide her with pain relief.
40I note that paragraph 8(ii) of the case conference order dated December 16, 2022 states, “The parties agreed that no affidavits will be submitted as evidence.” As such, the limitation on affidavits was not imposed on the applicant by the Tribunal. The applicant herself agreed to this limitation.
41If the applicant changed her mind about this limitation, then she could have submitted a motion in a timely fashion before the hearing. This was not done.
42The applicant submits that she must now seek to enter into evidence an affidavit to support her request for reconsideration because she was not previously permitted to do so at the hearing. I do not accept this explanation because she decided to proceed to the hearing without affidavit evidence and made no reasonable effort to amend her decision. As such, I find that she has not proved valid reasons for why she could not have previously obtained this evidence.
43Rule 18.2(c) requires the applicant to show that the new evidence she is seeking to introduce could not have been previously obtained. The applicant is unable to do this. Consequently, I find that she unable to establish grounds for reconsideration under Rule 18.2(c).
CONCLUSION & ORDER
44The applicant’s request for reconsideration is dismissed.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: January 28, 2025