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
Tel.: 416-314-4260
1-800-255-2214
TTY: 416-916-0548
1-844-403-5906
Fax: 416-325-1060
1-844-618-2566
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 no 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: April 7, 2017
File: 16-000929/AABS
Case Name: 16-000929 v. TD Home and Auto Insurance Company
Written Submissions By:
For the applicant: Stephen M. Werbowyj
For the respondent: Peter Mendelsohn
On February 3, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its final decision in this matter denying the applicant’s entitlement to income replacement benefits (“IRBs”) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
On February 16, 2017, the applicant requested a reconsideration of the Tribunal’s decision.
For the reasons that follow, I deny the applicant’s request.
The Facts
The applicant was injured in a motor vehicle accident on February 21, 2015. At the time, he owned and operated an automobile garage. After the accident, he claimed IRBs under the Schedule. The respondent initially paid them. However, on April 4, 2016, the respondent terminated the applicant’s IRBs on the basis that he did not satisfy the test required by ss. 5(1)1.i of the Schedule, namely that he suffered a substantial inability to perform the essential tasks of his employment. The applicant applied to the Tribunal.
The matter proceeded to a written hearing. The central issue between the parties was whether the applicant was entitled to IRBs from April 4, 2016 to the present and ongoing, and, in turn, whether he satisfied the threshold for entitlement required by ss. 5(1)1.i of the Schedule.
Offering careful and detailed reasons, the Tribunal held that the applicant failed to prove on a balance of probabilities that he was substantially unable to perform the essential tasks of his employment.
The Tribunal’s decision rested, in large part, on the contrast between the applicant’s medical evidence, which was based substantially upon his self-reporting to health practitioners, and the respondent’s surveillance evidence: see paras. 22-34. The Tribunal was troubled by the applicant’s “complete failure,” in light of this surveillance evidence, to “attempt to rehabilitate his credibility”: see para. 31. Ultimately, the Tribunal observed that it was “left with…an applicant whose medical reports rest heavily upon his credibility, and his credibility is cast in significant doubt:” see para. 32. The Tribunal held that it was unable to place “sufficient weight” on the applicant’s evidence and that there was “insufficient medical evidence to compensate for [its] inability to place much weight on [the applicant’s] self-reports:” see para. 33. Therefore, the Tribunal dismissed the application.
The applicant asks that I reconsider the Tribunal’s decision.
Decision
- The applicant offers a number of arguments suggesting that the Tribunal erred. I find no merit in any of these.
Dr. Goodfield’s evidence
To begin, the applicant takes issue with the Tribunal’s reliance on the respondent’s evidence from Dr. Goodfield. The applicant argues that Dr. Goodfield lacks the professional qualifications to respond to his own doctors’ evidence. Likewise, he also doubts Dr. Goodfield’s qualifications to “provide an expert opinion as opposed to an anecdotal summary.” There are at least two fundamental problems with these submissions.
First, the Tribunal was entitled to consider and weigh the evidence as it saw fit. I see no error in the Tribunal’s exercise of that discretion.
Second, and more importantly, the Tribunal’s main reliance on Dr. Goodfield’s evidence was not for her expert opinion. Rather, it was to highlight the contrast between, on one hand, the applicant’s description of his condition and appearance to Dr. Goodfield (e.g., the fact that he described himself as “handicapped” and “helpless” and walked with a cane) and, on the other hand, what the respondent’s surveillance evidence demonstrated about the applicant’s condition: see paras. 27-30. While the Tribunal did indeed rely on Dr. Goodfield’s assessment of the applicant, this reliance simply “reinforced” the Tribunal’s conclusion that, in light of this contrast and the applicant’s failure to address it, the applicant failed to prove his case.
The applicant’s medical evidence
The applicant argues that the Tribunal failed to “give proper credence to the diagnostic technique of the medical experts” whose reports supported the applicant’s case. In this vein, the applicant appears to argue that the Tribunal failed to properly weigh or appreciate his medical evidence.
Again, the Tribunal was entitled to consider and weigh the evidence as it saw fit. This observation is particularly apposite given the applicant’s failure at the hearing to provide any submissions in support of his case, let alone on what evidence he believed to be the most important to his case: see para. 20.
Moreover, the Tribunal’s central concern with the applicant’s medical evidence was that it rests “heavily upon his self-report of physical and psychological difficulties to the health practitioners:” see para. 24. As explained above, the Tribunal found that this self-reporting lacked credibility, a finding that it was entitled to make.
The St. Michael’s Hospital report
The applicant argues that the Tribunal makes no mention of the applicant’s report from St. Michael’s Hospital, suggesting that the Tribunal ignored it.
Administrative decision-makers are not obliged to refer to every piece of evidence put to them or that they consider in rendering their decisions.1 At any rate, I am confident that the Tribunal considered this evidence. Although the Tribunal’s decision does not mention the report by name, it referenced the “other medical reports” submitted by the applicant. The Tribunal was clear that it summarized only the “most relevant inferences” that it drew from the applicant’s evidence: see para. 20.
The surveillance evidence
Lastly, the applicant argues that the Tribunal places undue weight on the respondent’s surveillance evidence, something that, the applicant argues, cannot disclose pain or psychological distress.
The Tribunal recognized this limitation. It observed “surveillance does not capture pain that is experienced in [the applicant’s] body and not visibly expressed”: see para. 31. However, the Tribunal’s “difficulty” was “the applicant’s complete failure to attempt to rehabilitate his credibility” in light of this evidence. After all, he did not offer any submissions replying to the respondent’s surveillance and, with it, the challenge to his credibility: see para. 31. In sum, the applicant’s argument here, as with his argument elsewhere, essentially asks me to reweigh the evidence. That is not my task on a request for reconsideration.
Conclusion
- For these reasons, I therefore deny the applicant’s request for reconsideration.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: April 7, 2017
Footnotes
- .See Avery v Pointes Protection Association, 2016 ONSC 6463 (Div. Ct.) at para. 94.