Safety, Licensing Appeals and Standards Tribunals Ontario

Licence Appeal Tribunal

Automobile Accident Benefits Service

Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3

In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2

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Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest, Boîte n^o^ 250, Toronto ON M7A 1N3

Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2

Tél. : 416 314-4260 1 800 255-2214

ATS : 416 916-0548 1 844 403-5906

Téléc. : 416 325-1060 1 844 618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: June 20, 2017

File: 16-001031/AABS

Case Name: 16-001031 v. Aviva Insurance Canada

Written Submissions By:

For the Applicant: Rajiv Kapoor

For the Respondent: Elka Dadmand

Overview

[1]. On March 9, 2017, the Licence Appeal Tribunal (“Tribunal”) issued its final decision in this matter arising under the Statutory Accident Benefits Schedule – Effective after September 1, 2010¹ (the “Schedule”). The central issue: whether the applicant was entitled to a number of benefits under the Schedule in the amount of $1,160.50. The Tribunal held that he was. The respondent now asks me to reconsider the Tribunal’s decision. For the reasons that follow, I deny the respondent’s request.

The Facts

[2]. The applicant, J.J., was involved in two motor vehicle accidents, the first on February 7, 2014 and the second on March 21, 2014. Almost five months later, he then had a heart attack.

[3]. The parties’ dispute arises from a Treatment and Assessment Plan, dated December 4, 2015, completed by Dr. Justin Guy. The plan recommended a number of goods and services – specifically a TENS unit, two aqua pillows, a hot/cold gel pack, and support activity instruction – to reduce J.J.’s pain as well as to increase his range of motion and strength.

[4]. The respondent, Aviva Insurance Canada (“Aviva”), denied the plan. In an Explanation of Benefits dated May 17, 2016, Aviva explained to J.J. that it denied the plan based on an insurer’s examination conducted by Dr. Mark Goldstein, who concluded that the goods and services recommended in the plan were not reasonable and necessary.

[5]. In response, J.J. commenced an application with the Tribunal on June 29, 2016. In its decision of March 9, 2017, the Tribunal found that the goods and services recommended in the plan were reasonable and necessary. Accordingly, it ordered that J.J. receive them, along with interest on the overdue payment.

[6]. Aviva now asks me to reconsider the Tribunal’s decision. Its reasons for doing so are discussed below.

Discussion and Reasons

The preliminary issue

[7]. First, Aviva raises an evidentiary issue. It argues that J.J. served and filed certain hearing materials too late, thereby breaching the Tribunal’s Rules of Practice and Procedure. Consequently, Aviva argues, J.J. should not have been allowed to rely on those materials at the hearing.

[8]. Aviva’s argument is based on its interpretation of Rule 9.2 and, more particularly, the term “hearing” therein. Rule 9.2 provides as follows:

A party to a hearing shall, at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party:

(a) Disclose to the other parties the existence of every document and anything else the party intends to present as evidence at the hearing;

(b) Disclose a list of witnesses whom the party may call to give evidence at the hearing and a brief description of each witness’ anticipated testimony; and

(c) Serve a copy of the documents, numbered consecutively, on the other parties.

[9]. As Aviva correctly recognized in its hearing submissions, Rule 9.2 attempts to prevent “trial by ambush.” That is to say, the rule was implemented to ensure that parties know the case they have to meet and allow them to prepare accordingly. I would add that the disclosure process envisioned in Rule 9.2 also facilitates settlement, failing which it makes the hearing process more manageable, efficient and, given the parties’ advanced knowledge of the evidence and their ability to develop arguments about it, one that generally results in better fact-finding. Because of the importance of these aims, those who fail to comply with Rule 9.2 face the consequence outlined in Rule 9.4:

If a party fails to comply with any Rules or Orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.

[10]. It is this consequence that Aviva attempts to enforce and, thus, preclude J.J. – and, by extension, the Tribunal – from relying on certain evidence. How?

[11]. Aviva focuses on the word “hearing” in Rule 9.2. That word is defined in Rule 2.10 to mean the following:

a hearing (including a motion) before the Tribunal in which a party has the opportunity to participate in any of written, in-person, or electronic formats.

[12]. Aviva adds to this definition. It argues that a written “hearing,” like the one in this case, commences on the date upon which an applicant’s written submissions are due, analogizing this interpretation to an oral hearing commencing on the date upon which an applicant begins to present his or her case. In Aviva’s view, the word “hearing” must bear this meaning given the “logical consequence” of deciding otherwise.

[13]. Specifically, Aviva argues that, if the “hearing” in this matter was the date upon which, after the parties served and filed their submissions, the hearing adjudicator was then seized of the matter and began to consider those submissions – in this case, November 29, 2016 – then, working backwards from that date, J.J. would have been permitted under the Rules to disclose new hearing materials by November 19, 2016. The problem in Aviva’s view: Aviva’s Tribunal-ordered deadline to file its own submissions was November 17, 2016, meaning that J.J. would have had the ability to disclose new materials after Aviva filed its hearing submissions. That would obviously be unfair. Therefore, Aviva argues, the word “hearing” must be interpreted in a manner that would have avoided this potential unfairness. Its solution: Aviva argues that the word “hearing” in this case must be equated with the date upon which J.J.’s submissions were due, October 20, 2016. Based on this line of reasoning, Aviva asserts that anything J.J. disclosed after October 10, 2016 should have been excluded under Rule 9.4.

[14]. I have a number of difficulties with this submission. I need mention only one.

[15]. Rule 9.2 requires parties to make the requisite disclosure “at least 10 days before the hearing, or at any other time ordered by the Tribunal” [emphasis added]. In this case, J.J.’s disclosure complied with the Tribunal’s case conference order of September 22, 2016. That order outlined a timetable for the parties’ exchange of evidence and written submissions, according to which J.J. was required to serve and file his hearing materials by October 20, 2016. He did just that, providing Aviva with ample time to mount its response. Thus, even if Aviva’s interpretation of the word “hearing” were correct, the simple fact of the matter is that the definition is irrelevant – J.J. fulfilled his disclosure obligation by the “other time ordered by the Tribunal.” For that reason, I give no effect to any part of Aviva’s submissions suggesting that J.J. failed to make proper disclosure.

The applicant’s limitations

[16]. Moving to the substance of the Tribunal’s decision, Aviva makes a number of arguments suggesting that that Tribunal erred in the manner in which it weighed the parties’ evidence.

[17]. The first of these suggests that the Tribunal adopted Dr. Guy’s finding that J.J. has “extreme difficulty” in pushing, pulling, bending, sitting, and standing. Aviva argues that, in reaching this conclusion, the Tribunal ignored evidence that J.J. functions at a higher level than he reported to Dr. Guy.

[18]. The error in Aviva’s submission is that Tribunal did not find that J.J. has “extreme difficulty” in pushing, pulling, bending, sitting, and standing. It found that J.J. has “limitations” in engaging in those activities: see para. 18. Additionally, this conclusion was based not only on Dr. Guy’s Functional Abilities Evaluation, but also on the reports resulting from Aviva’s own insurer’s examinations conducted by Dr. Goldstein and Dr. Nemeth: see paras. 15-17. There may have been evidence suggesting otherwise. However, as the trier of fact, the Tribunal was entitled to weigh the parties’ evidence as it saw fit. The Tribunal’s conclusion concerning J.J.’s “limitations” was open to it on the record. I, therefore, see no reason to interfere with that conclusion.

The applicant’s post-accident work

[19]. Next, Aviva takes issue with the Tribunal’s finding that, as a result of his injuries, J.J. is unable to work full-time and, instead, works in a modified capacity, around 20-30 hours per week.

[20]. Although this detail was included in both Dr. Goldstein and Dr. Guy’s reports, Aviva argues that it is based on J.J.’s own assertions and is not supported by any corroborating evidence. In fact, Aviva highlights, before submitting the Treatment and Assessment Plan at issue, J.J. completed a questionnaire in which he indicated that he worked “full time,” was “self-employed – 24/7,” and that the level of activity his job required was “heavy/manual.” Additionally, Aviva underscores that J.J. was “ripping out a countertop in the course of his employment” when he suffered a heart attack, a fact that contradicts Dr. Guy’s statement elsewhere that J.J. has not returned to any work duties requiring physical labour. Based on all of these arguments, Aviva asks me to find that J.J. does not work reduced hours and that the assistive devices in the Treatment and Assessment Plan are not reasonable or necessary.

[21]. Again, Aviva is essentially asking me to reweigh the evidence, something beyond my role on a request for reconsideration. The Tribunal would have been aware that the detail in Dr. Goldstein and Dr. Guy’s reports concerning J.J.’s modified work capacity came directly from J.J. It certainly had the benefit of Aviva’s submission on this point before the hearing, at least insofar as Dr. Guy’s evidence was concerned.² The fact that there was no other evidence to corroborate J.J.’s assertion does not mean that the Tribunal was necessarily precluded from making the same finding. It should have treated the evidence cautiously, but the Tribunal was nonetheless entitled to consider and rely upon that evidence.

[22]. Moreover, while there may have been other evidence to suggest that J.J. did not work in a modified capacity, it is trite law that the Tribunal does not need to “refer to every piece of evidence or set out every finding or conclusion in the process of arriving at [a] decision” – provided the path in reaching its decision is clear from its reasons, the Tribunal need not “describe every landmark along the way.”³ There may have been any number of reasons why the Tribunal refused to interpret the questionnaire in the same manner that Aviva’s hearing submissions asked it to. I will not speculate on those reasons here. Suffice it say that there is evidence to support the Tribunal’s finding.

[23]. Lastly, while J.J. might have been “ripping out a countertop in the course of his employment” when he suffered a heart attack, this fact alone says little. It does not speak to the number of hours that J.J. works. Nor does it disprove that J.J. has certain “limitations” with various physical activities. Indeed, as he explained to Dr. Nemeth, J.J. performs certain work activities because, as a self-employed contractor, “he has to” but “he is limited and finds this extremely painful.”⁴ Likewise, J.J. reported to Dr. Guy that his injuries made work “very painful and difficult.”⁵ In short, I decline Aviva’s invitation to place greater emphasis on this fact than did the Tribunal.

The Tribunal’s finding on causation

[24]. Aviva also argues that J.J. did not suffer an impairment as a result of either accident and that Tribunal erred in concluding otherwise. More specifically, Aviva argues that Tribunal ignored the totality of the evidence.

[25]. The insurer’s examination report prepared by Dr. Goldstein concludes that J.J. “did sustain an impairment as a direct result of the subject motor vehicle accident,” and that he “presented with some decreased sensation in the right upper extremity” and “pain with muscular palpitation and range of motion limitations, again due to pain.”⁶ Aviva argues that, while the Tribunal cited these findings, it “did not comment on Dr. Goldstein’s conclusion that [J.J.’s sensory deficit] was likely not related” to a motor vehicle accident and “could be attributed to some non-accident related condition/injury.” Aviva’s account of Dr. Goldstein’s report is inaccurate. Dr. Goldstein opined that it was J.J.’s forearm complaint that was “likely not related to the subject motor vehicle accident.” As for J.J.’s sensory alterations, Dr. Goldstein opined that these “may also be related to some non-accident related condition/injury.” As I read the report, Dr. Goldstein is more certain of the former than he is of the latter.

[26]. At any rate, the Tribunal is the ultimate finder of fact and there was ample evidence in the record to support the Tribunal’s finding on causation. That is the determinative consideration, not whether there is evidence to suggest otherwise.

Whether the applicant suffered a concussion

[27]. The last line of argument Aviva pursues focuses on the Tribunal’s mention of Dr. Nemeth’s conclusion that J.J. had symptoms meeting the criteria for “post-concussion syndrome.” Aviva argues that J.J. did not suffer a concussion, that Dr. Nemeth did not have the complete medical records in rendering this diagnosis, that the evidence does not support this diagnosis and that, in any event, the diagnosis is irrelevant to the assistive devices recommended in the Treatment and Assessment Plan.

[28]. I agree with Aviva that, strictly speaking, any diagnosis that J.J. suffered a concussion is irrelevant to the assistive devices recommended in the Treatment and Assessment Plan. As I read it, however, the Tribunal’s decision places little emphasis on that diagnosis. Rather, the Tribunal relies on Dr. Nemeth’s observation that J.J.’s “symptoms are consistent with a head injury and the sequelae of limitations due to pain:” see para. 17. This observation, which distills Dr. Nemeth’s observations throughout the report, adds to the other evidence before the Tribunal about J.J.’s physical “limitations.” In this sense, the diagnosis is a distraction; what really matters are the symptoms that led Dr. Nemeth to draw this conclusion. These symptoms add to the other evidence in the record concerning J.J.’s limitations.

[29]. Even if I was persuaded by Aviva’s argument and, on that basis, discredited Dr. Nemeth’s evidence, the record still contains a sufficient basis for the Tribunal’s finding concerning J.J.’s limitations. Those limitations, the Tribunal held, make the goods and services recommended in the Treatment and Assessment Plan reasonable and necessary.

Costs

[30]. J.J. seeks costs for “having to respond to a Reconsideration Request from an Insurer that was unreasonable, frivolous and in bad faith.” I see nothing in Aviva’s conduct satisfying the threshold for an award of costs under Rule 19. Aviva’s submissions were well argued and founded on a thorough appreciation of the evidence. While I do not agree with Aviva’s view of that evidence, Aviva should not be sanctioned for offering that view.

Conclusion

The request for reconsideration is denied.

Linda P. Lamoureux

Executive Chair