D.D.D. v. RBC Insurance Company, 2017 CanLII 63631

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Date: August 24, 2017

File: 16-000097/AABS

Case Name: D.D.D. v RBC Insurance Company

Written Submissions By:

For the Applicant: Peter Pietraszek, Counsel

For the Respondent: Shikha Sharma, Counsel

Overview

1. On March 31, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter originating under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The central issue in dispute: whether the applicant is entitled to an income replacement benefit (“IRB”) in the amount of $400 per week from August 1, 2015 to March 29, 2016. Based on the evidence before it, the Tribunal found that the applicant was not.

2. On April 21, 2017, the applicant asked me to reconsider the Tribunal’s decision. She argues that the Tribunal erred in a number of respects, described below. For the reasons that follow, I deny her request.

The Facts

3. The applicant, D.D.D., was injured in a motor vehicle accident on January 4, 2015. At the time, she was employed by a transportation company as a Price Procurement Specialist. Four days after the accident, she returned to work on a full-time basis until January 29, 2015. D.D.D. claims that, on that date, her employment was terminated “due to multiple work absences as a result of pain and attending medical and physiotherapy appointments.”¹ The record shows, and the Tribunal found, that her position was in fact subject to a temporary layoff.²

4. At some point after the accident, D.D.D. also applied for and received an IRB from the respondent, RBC Insurance Company (“RBC”). RBC began paying the IRB effective mid-January.

5. RBC then received the results of two insurer examinations. The first examination was an Orthopaedic Assessment conducted by Dr. Mansour Alvi, an orthopaedic surgeon who outlined his findings in a report dated July 20, 2015. Dr. Alvi concluded that, from an orthopaedic perspective, D.D.D.’s injuries fell within the definition of a “minor injury” as outlined in the Minor Injury Guideline. The second examination was a Psychological Assessment conducted by Dr. Natasha Browne, a psychologist who outlined her findings in a report dated August 21, 2015. Dr. Browne concluded that, from a psychological perspective, D.D.D. did not suffer from a substantial inability to perform the essential tasks of her pre-accident employment.

6. On the basis of these two examinations and resulting reports, RBC informed D.D.D. that she was no longer entitled to receive an IRB effective July 31, 2015.

7. Some nine months later, D.D.D. secured a new job. As of April 4, 2016, she began full-time employment as a Customer Service Representative at another transportation company. Unfortunately, just over three months later, her employment was terminated. The reason indicated on the Termination Report included in her employment file was “shortage of work.”³

8. During her employment in this second role, D.D.D. applied to the Tribunal to dispute her entitlement to, among other things, the IRB. Before the Tribunal, the relevant claim period was identified as August 1, 2015 – i.e., immediately after RBC stopped paying the IRB – to March 29, 2016 – i.e., shortly before D.D.D. secured this second employment opportunity.

9. Before the hearing, the parties resolved all of their differences except with respect to the IRB.

10. In its decision of March 31, 2017, the Tribunal held that D.D.D. was not entitled to the IRB. In short, the Tribunal concluded that the evidence, including D.D.D.’s own evidence, established that D.D.D. did not suffer from a substantial inability to perform her pre-accident employment and that, instead, the reason she was not working was because she was laid off.⁴

11. D.D.D. now asks me to reconsider the Tribunal’s decision. In support of her request, she raises a number of alleged errors, discussed immediately below.

Discussion and Reasons

The applicable test

12. First, D.D.D. argues that the Tribunal misapplied the applicable test for determining her eligibility for an IRB.

13. D.D.D. acknowledges that the Tribunal correctly identified the applicable section in the Schedule, s. 5(1), establishing the test for determining one’s eligibility for an IRB. That section provides, in relevant part, as follows:

14. (1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

15. The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment

14. However, D.D.D. argues that the Tribunal failed to conduct the comparative exercise that this test requires and which the Tribunal has repeatedly applied in other cases, namely to compare the essential tasks of her pre-accident employment with her post-accident ability to perform them.⁵ Attempting to illustrate this point, she highlights that the Tribunal’s decision never identifies or discusses the essential tasks of her pre-accident employment or her evidence concerning them.⁶

15. I see no error in the Tribunal’s decision.

16. In the ordinary course, one would indeed expect the Tribunal to apply the test in s. 5(1) of the Schedule by, in turn, first identifying the essential tasks of an applicant’s pre-accident employment and then evaluating the applicant’s post-accident ability to conduct those tasks. In this case, this comparative analysis was unnecessary given the evidence and Tribunal’s findings. Specifically, the Tribunal’s finding that D.D.D. did not suffer from a substantial inability to perform the essential tasks of her pre-accident employment was supported by the following:

• D.D.D. returned to work on a full-time basis four days after the accident, and continued to work for almost three weeks until she was laid off;

• when applying for employment insurance, D.D.D. indicated that she was looking for work and, likewise, confirmed at the hearing that, during that time, she was actively seeking employment;⁷

• during the course of her insurer’s examination on July 7, 2015, D.D.D. informed Dr. Alvi that she was currently “applying for and seeking job opportunities;”⁸

• both of the independent insurer examination reports prepared by Drs. Alvi and Browne, discussed above, conclude that D.D.D. did not suffer from a substantial inability to perform her pre-accident employment as a result of the injuries she sustained in the subject motor vehicle accident;⁹

• D.D.D. testified that she “continued to look for work between layoffs and was available to work if a position was available.”¹⁰ Indeed, the record clearly illustrates that, during the claim period, D.D.D. sought a number of employment opportunities with analytical and physical demands appearing similar to those of her previous employment;¹¹

• the physicians who appeared on D.D.D.’s behalf did not advance her case. Her family physician, Dr. Paul Kwong, testified that he was “really surprised that [the applicant] was not working.”¹² For his part, Dr. Hany Youssef, a chronic pain specialist, made no conclusions with respect to D.D.D.’s ability to work; and¹³

• the Tribunal found that, while D.D.D. may have sincerely believed that she lost her employment because of her injuries, there was no evidence to support that assertion.¹⁴

17. Based on the above, the Tribunal found that D.D.D. “did not suffer from a substantial inability to perform her pre-accident employment and that she was not working because she was laid off.”¹⁵ This conclusion was open to the Tribunal and did not need to follow a particularized recitation of the essential tasks of D.D.D.’s pre-accident employment. Indeed, to require as much would miss the Tribunal’s point: D.D.D.’s inability to work was the result of her being laid off, not of any injury. D.D.D. may sincerely believe otherwise. But that is what the Tribunal found. I have no reason to interfere with the Tribunal’s conclusion.

The standard of proof

18. Next, D.D.D. takes issue with the Tribunal’s failure to state the standard of proof that it applied. She argues that this failure amounts to a denial of natural justice and procedural fairness.

19. I disagree.

20. In F.H. v. McDougall,¹⁶ the Supreme Court of Canada affirmed that there is only one civil standard of proof, that being proof on a balance of probabilities. The Court also affirmed that, where a trial judge does not express a particular standard of proof, one must presume that the correct standard was applied. This approach follows the presumption that trial judges “know the law with which they work day in and day out.”¹⁷ The same presumption applies to the Tribunal’s members.¹⁸ In this case, the decision offers no reason to suggest that the Tribunal applied anything other than the requisite standard of proof. D.D.D.’s argument must therefore fail.

The time period considered

21. D.D.D. also suggests that the Tribunal erred by, in effect, considering evidence that it should not have. To this end, D.D.D. highlights paragraph 36 of the decision, which reads as follows:

The applicant testified that prior to the subject accident, she had had jobs with similar duties each lasting less than a year and each time she was laid off and received EI.

22. She submits that, at the hearing, the Tribunal “ruled that pre-accident employment matters (questions, answers, and submissions) were to be confined to one-year pre-accident.” She argues that the Tribunal erred by “weighing the applicant’s pre-accident employment for more than one year prior to the accident.”¹⁹

23. Again, I see no merit to this argument.

24. In paragraph 36 of its decision, the Tribunal simply recites D.D.D.’s evidence. The Tribunal offers no suggestion elsewhere that it actually relies on this evidence. Indeed, the Tribunal’s central inquiry was whether during the claim period of August 1, 2015 to March 29, 2016 – i.e., a period commencing seven months post-accident – D.D.D. suffered a substantial inability to perform the essential tasks of her pre-accident employment. The fact that D.D.D. was laid off from other positions before the one she held at the time of the accident is irrelevant – the Tribunal would have no reason to rely on it. In any event, I read nothing in the Tribunal’s reasons to suggest that the evidence recited in paragraph 36 provided any basis for the Tribunal’s conclusion.

Other evidentiary concerns

25. D.D.D. makes a number of other arguments suggesting that the Tribunal misapprehended the evidence or, alternatively, heard misleading evidence from various witnesses. I give no effect to any of these.

26. In my view, this part of the request attempts to reargue the Tribunal’s interpretation and preference of the evidence. A fundamental part of the Tribunal’s role is to assess and weigh the evidence and, on that basis, make determinations of fact. It is also trite law that the Tribunal’s reasons need not mention every piece of evidence or every argument that it considered. While D.D.D. repeatedly avows that this part of her request is not an attempt to reweigh the evidence and instead highlights errors of fact, the invitation remains the same: I am asked to prefer different evidence from that relied on by the Tribunal. For that reason, I see no reason to interfere with the Tribunal’s findings.

Insufficient evidence to determine the IRB’s quantum

27. Lastly, D.D.D. alleges that the Tribunal erred in finding that there was insufficient evidence to determine the IRB’s quantum.

28. Unfortunately, the Tribunal did not offer any analysis to explain this finding. Had this been the only issue in dispute, this silence would have led me to grant this request for reconsideration. However, given my conclusions above, this issue is moot.

Conclusion

29. The request for reconsideration is therefore denied.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: August 24, 2017

Footnotes

1. 1Submissions of the Claimant (January 25, 2016) at para. 27.
2. 2Submissions of the Claimant (January 25, 2016), Tab O, p. 7 and Tab P, p. 39; Tribunal’s Decision at paras. 33 and 54.
3. 3Submissions of the Claimant (January 25, 2016), Tab R, p. 4.
4. 4Tribunal’s Decision at paras. 54.
5. 5Reconsideration Request at paras. 8-14.
6. 6Reconsideration Request at para. 15.
7. 7Tribunal’s Decision at para. 37.
8. 8Tribunal’s Decision at para. 38.
9. 9Tribunal’s Decision at para. 40.
10. 10Tribunal’s Decision at para. 54.
11. 11Submissions of the Claimant (January 25, 2016), Tab R, p. 4.
12. 12Tribunal’s Decision at para. 19.
13. 13Tribunal’s Decision at para. 28.
14. 14Tribunal’s Decision at paras. 49 and 54.
15. 15Tribunal’s Decision at para. 54.
16. 162008 SCC 53.
17. 17Ibid. at para. 54.
18. 18Baxter v. Registrar (REBBA), 2011 ONSC 2497 at para. 12.
19. 19Reconsideration Request at paras. 25-26.