LAT uses incorrect standard of proof, reconsideration allowed - AT v Aviva - 16-001934 v Aviva

October 24, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

AT v Aviva  - 16-001934 v Aviva Insurance Company of Canada, 2017 CanLII 59514 (ON LAT)

Date: August 14, 2017
Heard Before:  Linda P. Lamoureux, Executive Chair

ENTITLEMENT TO BENEFITS: wrong standard of proof used by the LAT; LAT fails to consider whether treatment is reasonable and necessary;

RECONSIDERATION DECISION

Overview

On March 15, 2017, the LAT issued its final decision in this matter arising under the SABs).  The main issues before the Tribunal were whether AT was entitled to certain medical benefits, specifically chiropractic and massage therapy treatment, as well as the cost of an examination for a chronic pain assessment.  The Tribunal determined that AT was not entitled to any of the claimed medical benefits, but found that AT should receive the chronic pain assessment.  Aviva asked that the decision be reconsidered.

The Facts

AT, was hurt in a car accident in May 2014. He applied for benefits pursuant to the SABs and some were denied. The first Treatment and Assessment Plan dated January 29, 2016, included a course of both chiropractic and massage therapy treatment at a cost of $2,554.27.  Aviva informed AT that it was unable to consider the plan given that, as it stated, AT’s impairment was a predominately minor injury, the maximum amount payable under the Minor Injury Guideline for such impairment was $3500, and that Aviva had already provided him with benefits in this amount.  (Aviva later conceded that the Minor Injury Guideline does not apply.)  It also sent AT a notice of IE scheduling him for two examinations.  Following one examination a report was issued which he opined that AT’s injuries were minor and that the services recommended in the Treatment and Assessment Plan were not reasonable and necessary.  On that basis, and by letter dated March 17, 2016, Aviva denied AT these benefits.

The second Treatment and Assessment Plan completed March 22, 2016, included a chronic pain assessment at a cost of $1950.  Aviva informed AT that it was also unable to accept this plan, noting that a chronic pain assessment did not appear consistent with AT’s diagnosis.  Aviva turned to the first IE physician who, after conducting a paper review, opined that AT did not have chronic pain and, therefore, that the assessment included in the plan was not reasonable and necessary.  For that reason, and by letter dated April 15, 2016, Aviva denied AT this benefit.

In August 2016, AT commenced this application to dispute his entitlement to the benefits included in both plans.

The matter was heard by way of written hearing on January 10, 2017, following which the Tribunal rendered its decision on March 15, 2017.  In its decision, the Tribunal denied AT the chiropractic and massage therapy treatment recommended in the first plan, but held that he should receive the cost of the chronic pain assessment recommended in the second plan.

Aviva now asks The Adjudicator to reconsider the Tribunal’s decision with respect to the cost of the chronic pain assessment.  The Adjudicator reviewed the case.

Why the Tribunal erred

Aviva’s principal argument is that the Tribunal made a significant error in law by applying the wrong standard of proof when considering AT’s entitlement to the cost of a chronic pain assessment. The civil standard of proof is one based on a balance of probabilities. In determining whether an injured person is entitled under the Schedule to the cost of an assessment, this Tribunal and the FSCO have routinely asked the same question: whether the injured person can establish on a balance of probabilities that the assessment is reasonable and necessary.  Ontario courts have also applied the same standard of proof to the question of one’s entitlement to a benefit under the Schedule.

In this case, Aviva submits that the Tribunal applied a different standard.  Rather than apply a standard based on a balance of probabilities, the Tribunal appeared to apply one based on a balance of possibilities. 

When assessing the reasonableness and necessity of an assessment as opposed to rehabilitative treatment, one must look at reasonable possibilities rather than probabilities.  Otherwise, one risks assuming the answer to the question underlying the assessment.  The purpose of AT’s assessment is to determine whether he has chronic pain syndrome.  He should not be denied the opportunity to answer this inquiry simply because, with the information available to him at this point in time, chronic pain is not a probable answer.

Aviva submits that the Tribunal created two different standards of proof: a balance of possibilities used to determine whether an assessment is reasonable and necessary, and a balance of probabilities used to determine whether a course of treatment is reasonable and necessary.  Aviva highlights that a standard based on a balance of possibilities has no legal foundation.  The Adjudicator agreed.

In order to determine whether the assessment was reasonable and necessary, the Tribunal was not required to find it more probable than not that AT has chronic pain syndrome.  That puts the onus too high and, as the Tribunal explained, would defeat the assessment’s purpose.  Nevertheless, the Tribunal’s finding that it was reasonably possible that AT has chronic pain syndrome does not alone satisfy the applicable evidentiary burden.

The Tribunal’s finding that there is a reasonable possibility that AT has chronic pain syndrome may be an important or even necessary part of the analysis.  After all, if there is no reasonable possibility that AT has chronic pain syndrome, then an assessment to investigate the condition further is, barring exceptional circumstances, neither reasonable nor necessary.  In this sense, the Tribunal’s finding that an assessment is reasonable and necessary is ordinarily predicated upon its finding, at least impliedly, that there is a reasonable possibility that the insured person has the condition that the assessment will then investigate.  However, although a large part of the inquiry, that is not the end.  The Tribunal must still determine whether, on a balance of probabilities, the evidence demonstrates that the assessment claimed is reasonable and necessary.  There may still be situations in which, despite the reasonable possibility of a suspected condition existing, an assessment is neither reasonable nor necessary, say for example where the insured person recently had the same assessment.  At any rate, the ultimate question that the Tribunal must answer is whether, on a balance of probabilities, a claimed assessment is reasonable and necessary.

In this case, the Tribunal did not complete this analysis.  More troublingly, it explicitly applied the wrong standard of proof.  Given these errors, the Adjudicator granted Aviva’s request for reconsideration and remit this matter back to the same Tribunal member to determine whether, on a balance of probabilities, the assessment at issue is reasonable and necessary.

Why a redetermination is not precluded

Despite being successful on this point, Aviva may still take issue with this outcome.  On this request for reconsideration, it argues that, even if the Tribunal applied the correct standard of proof, it could not have found that the assessment was reasonable and necessary given its observation that “chronic pain is not a probable answer.”  Based on this submission, Aviva would also likely argue that, given the same finding (i.e., that “chronic pain is not a probable answer”), the Tribunal is now logically precluded from finding that the assessment is reasonable and necessary and, thus, that remitting the matter back to the Tribunal is pointless.  The Adjudicator disagreed.

Again, the relevant test is whether, on a balance of probabilities, the assessment (i.e., an examination to determine whether in fact the possible or suspected condition exists) is reasonable and necessary.  As explained above, the Tribunal was not required to determine that it is more probable than not that AT has chronic pain syndrome in order to satisfy that threshold.  For the same reason, its observation that “chronic pain is not a probable answer” does not necessarily preclude its ability to find the assessment reasonable and necessary.  It may not be “probable” that AT has chronic pain syndrome, but the Tribunal may nonetheless find that, in the circumstances, it is reasonable and necessary that AT be assessed further.

Likewise, the Adjudicator did not give effect to two other arguments Aviva raises here that it would also suggest makes remitting the matter back to the Tribunal pointless.

• First, Aviva highlights the fact that the Tribunal denied AT the chiropractic and massage therapy treatment he claimed given his reliance on psychological reports, lack of credibility, and failure to adduce important objective medical documentation.  Aviva suggests that, given these concerns and the Tribunal’s resultant conclusion that AT was not entitled to chiropractic and massage therapy treatment, the Tribunal could not then – or could not now – find that there was an evidentiary basis for finding the chronic pain assessment reasonable and necessary.  The short response to this argument is that the evidentiary bases for these determinations can be different.  In determining that AT was not entitled to chiropractic treatment and massage therapy, the Tribunal was ultimately left to observe that there was no objective evidence as to whether these benefits would be an effective remedy for AT’s physical injuries or, instead, whether his recovery has plateaued: see para. 21.  Put another way, while the Tribunal was convinced that AT sustained an injury as a result of the May 2014 accident, it could not conclude from the evidence before it that chiropractic treatment and massage therapy were reasonable and necessary to treat AT’s injury.  Nevertheless, there might still be an evidentiary foundation supporting a finding that it is reasonable and necessary that AT receive a chronic pain assessment.  The Adjudicator leaves that for the Tribunal to determine.
   
• Similarly, Aviva also argues that, despite relying on the IE’s evidence, the Tribunal ignored the conclusion that AT did not suffer from chronic pain syndrome.  In Aviva’s view, all that can be drawn from Dr. Hanna’s evidence to support AT’s case is evidence of soft tissue injuries which, taken alone, cannot establish entitlement to a chronic pain assessment.

As the trier of fact, the Tribunal is entitled to weigh the evidence as it sees fit.  Although it is required to consider Dr. Hanna’s evidence, it is not bound to accept it wholesale.  There is other medical evidence in the record upon which the Tribunal might reasonably rely to conclude that it is reasonable and necessary that AT receive a chronic pain assessment.  Again, the Adjudicator leaves it to the Tribunal to evaluate and weigh this evidence, and draw the conclusion that it deems most appropriate.

In sum there is nothing in the Tribunal’s reasons or the record suggesting that this issue should not be re-determined in accordance with the appropriate principles.

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