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: January 16, 2018
File: 16-003336/AABS
Case Name: C.W. v. Unifund Assurance Company
Written Submissions By:
For the Applicant: Gavin Cosgrove and Casey Dorey
For the Respondent: Ken Yip
Overview
On August 4, 2017, the Licence Appeal Tribunal (“Tribunal”) issued its final decision in this matter arising under the Statutory Accidents Benefits Schedule – Effective September 1, 20101 (“Schedule”). The main issues before the Tribunal were whether the applicant, C.W., suffered predominantly minor injuries treatable under the Minor Injury Guideline (“MIG”), and whether he was entitled to outstanding payment for a job demands analysis as a medical benefit from his insurer, Unifund Assurance Company (“Unifund”).
The Tribunal found that C.W. sustained a superior labral tear from anterior to posterior (“SLAP tear”) in his left shoulder that was not a predominantly minor injury as defined by the Schedule. The Tribunal further held that C.W. had a pre-existing C7 (lower back) nerve root condition that would prevent maximal recovery if he were limited to treatment under the MIG. The Tribunal ordered Unifund to pay for the outstanding expenses for the job demands analysis as well as interest on any overdue payment of benefits.
On August 23, 2017, Unifund brought a motion asking me to reconsider the Tribunal’s decision on the basis that it made several significant errors of fact and law by ignoring evidence, failing to explain how it weighed the evidence, and making findings unsubstantiated by the evidence.
For the reasons that follow, I deny Unifund’s request.
Discussion and Reasons
The Tribunal’s Rules on requests for reconsideration
- Rule 18.2 provides that a request for reconsideration will not be granted unless the Executive Chair is satisfied that:
a) the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b) the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c) the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result.
Unifund’s request for reconsideration
Unifund argues that the Tribunal made various significant errors of fact or law such that the Tribunal would likely have reached a different decision.
In particular, Unifund argues that the Tribunal erred in assessing the evidence by:
i. ignoring the evidence C.W.’s family physician, Dr. Yates, that the accident could not have exacerbated a pre-existing lower back condition since C.W. was free of pre-existing back injury or symptoms for ten years
ii. ignoring the evidence of Dr. Faris who conducted an electromyography of C.W. showing no evidence of muscle atrophy, normal range of motion, no significant pain or radiation, and normal strength;
iii. providing insufficient reasons as to why the evidence of Dr. Delaney (physiatrist called by C.W.) was preferred over that of Dr. Harrington (orthopedic surgeon who conducted an insurer’s examination of C.W.); and
iv. not providing reasons as to why the evidence of Dr. Delaney was preferred over that of Dr. Yates.
- Unifund further argues that the Tribunal made significant errors of law by:
i. finding that C.W. "suffers from more than minor injuries as defined by the MIG" without evidence or a finding that the SLAP tear in question is a complete tear; and
ii. concluding that C.W.’s "injuries were not predominately minor ones as defined by the Schedule" based on a finding that he "suffers from more than minor injuries as defined by the MIG".
Analysis
I generally agree with Unifund that the hearing adjudicator could have provided further explanation in the decision to more thoroughly outline his line of reasoning. Regardless, it is the role of the adjudicator hearing the merits of an application to consider and weigh the evidence presented and make findings of fact. The hearing adjudicator has the discretion to make such determinations as he sees fit.
Although required to consider all of the evidence, the hearing adjudicator is not obliged to refer in his decision to every piece of evidence put to him or that he relied upon in ultimately rendering his order. Accordingly, the hearing adjudicator was not required to explicitly mention in the decision his specific consideration of the evidence provided by Dr. Yates regarding the history of C.W.’s pre-existing back condition or Dr. Faris regarding C.W.’s electromyography results.
There was other medical evidence in the record upon which the hearing adjudicator reasonably relied, including the disability certificate prepared by Dr. Gatterall dated March 24, 2014, the physiatrist’s reports prepared by Dr. Delany dated May 8, 2015 and March 11, 2017, and the occupational therapy report prepared by Ms. Marosi dated July 28, 2016. In particular, the Tribunal found especially compelling Dr. Delany’s evidence in concluding that C.W.’s left shoulder SLAP tear was not a predominantly minor injury as defined by the Schedule. This SLAP injury was enough to take C.W. out of the MIG. Regardless, the Tribunal also relied on Dr. Delany’s evidence to find that C.W.’s pre-existing lower back condition would prevent maximal recovery if he were limited to treatment under the MIG.
The hearing adjudicator carefully weighed all of the evidence and made clear findings based on a balance of probabilities. In assessing the evidence, the hearing adjudicator found some evidence more persuasive than others and gave weight to the evidence accordingly. The adjudicator found that evidence relied on by Unifund, in particular Dr. Harrington’s opinion that C.W.’s injuries were soft tissue in nature and therefore minor, did not address in sufficient detail C.W’s left shoulder injury or his pre-existing back condition that were emphasized in his medical documentation, including Dr. Delaney’s reports and the magnetic resonance imaging report by Dr. Abraham. The hearing adjudicator’s findings as the trier of fact should not be interfered with lightly.
Notwithstanding the Tribunal’s paraphrasing of the applicable test, which Unifund alleges resulted in an error, the hearing adjudicator properly applied his findings of fact to the correct law and ultimately found that C.W. falls outside of the MIG. The determinations made by the Tribunal in this case were within the jurisdiction of the hearing adjudicator to decide.
I am not satisfied that the hearing adjudicator made a significant error of fact or law such that the Tribunal would likely have reached a different decision.
Conclusion
- Based on the above reasons, I deny Unifund’s request for reconsideration.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: January 16, 2018