N.N. v. Allstate Insurance Company, 2018 CanLII 141007

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 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: Jonathan Batty, Associate Chair

Date: April 23, 2018

File: 17-000006/AABS

Case Name: N.N. v. Allstate Insurance Company

Written Submissions By:

For the Applicant: Meleni V. David

For the Respondent: Lauren Furukawa

Overview

1. In its final decision in this matter, the Licence Appeal Tribunal (the “Tribunal”) held that the applicant, N.N., was entitled to an income replacement benefit under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent, Allstate Insurance Company (“Allstate”), argues that the Tribunal’s decision was based on multiple errors and, thus, brings this request for reconsideration.

2. Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me her responsibility to decide this request.

3. As explained below, I disagree with Allstate’s arguments and refuse to intervene.

Background

4. On September 23, 2015, N.N. was on vacation with his family in Virginia, U.S.A. The car he was driving was stopped at a red light when it was rear-ended by a truck. As a result, N.N. was injured.

5. At the time of the accident, N.N. was employed as a machine operator in a marble company. (This is discussed in further detail below.) After the accident, N.N. did not return to work. Instead, he applied to Allstate for benefits under the Schedule. N.N.’s application was supported by a Disability Certificate (OCF-3), dated November 16, 2015, indicating that, as a result of the accident, he was substantially unable to perform the essential tasks of his pre-accident employment. Allstate then began paying him an income replacement benefit (“IRB”) as of September 30, 2015.

6. However, Allstate terminated the IRB as of July 5, 2016. While the record is not entirely clear, it appears that Allstate based this decision on a series of insurer’s examinations and the resulting multidisciplinary assessment report dated April 11, 2016. In short, the assessors who completed the report and who were asked to opine on the subject concluded that N.N. did not meet the Schedule’s eligibility test for an IRB.

7. In response, N.N. applied to the Tribunal to dispute his entitlement to the IRB. He also argued that he was entitled to physiotherapy and certain assistive devices recommended in three Treatment and Assessment Plans that Allstate also denied after terminating the IRB. The matter was heard in writing on May 17, 2017.

8. In its decision of October 6, 2017, the Tribunal held that N.N. was entitled to a weekly IRB of $400 from July 6, 2016 and “ongoing in accordance with the Schedule.” However, it held that N.N. was not entitled to the benefits included in the three disputed Treatment and Assessment Plans.

9. Allstate now raises a number of challenges to the Tribunal’s decision that N.N. is entitled to an IRB. These are discussed immediately below.

Discussion and Reasons

A. Rule 18: The Reconsideration Rule

10. Under Rule 18 of the Rules of Practice and Procedure, one or more of the following four grounds needs to be established:

1. the Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

2. the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

3. the Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or,

4. there is new evidence that could not have reasonably been obtained earlier and would have affected the result.

11. The rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions. If faced by such circumstances, the reconsideration process serves a curative role. In respect of final decisions or orders, it affords an opportunity for the Tribunal to correct a final decision made in error. In respect of interlocutory decisions or orders, it gives the Tribunal the necessary tools to get a proceeding back on track for a just and timely resolution.

12. A party seeking a reconsideration, and indeed the Tribunal itself, has a high onus to meet to engage this remedy. Minor or inconsequential procedural or substantive mistakes do not qualify for reconsideration. It is only warranted in cases where an adjudicator has either made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing.

13. A high onus makes sense because, once it has been met, the Executive Chair or her delegate has broad remedial powers to order a matter re-heard, or to cancel, confirm, or vary an order or decision.

B. The alleged breaches of procedural fairness

N.N.’s pre-accident intentions and post-accident activities

1. Allstate makes a number of arguments suggesting that the Tribunal’s decision was based on a number of breaches of procedural fairness. The first of these is that the Tribunal allegedly ignored Allstate’s submission that N.N. stopped working before the incident with no intention of returning. In the same vein, Allstate alleges that the Tribunal also ignored evidence in the record suggesting that, following the accident, N.N. had not only resumed work and certain lifting activities, but that he secured employment of a similar demand.

2. I agree that the Tribunal should have explicitly addressed these arguments in what otherwise were thorough reasons. These points were important to Allstate’s case and, thus, should have been directly addressed in the Tribunal’s reasons. That said, the Tribunal’s omission of either point is of no consequence, which is perhaps why they were not specifically discussed.

3. The record makes clear that, several days before the accident, N.N.’s employer, [...], approved N.N. for a 45-day leave of absence. It was during that leave that N.N. travelled to the U.S.A. and was injured. There is no evidence in the record to suggest that, when taking the leave, N.N. intended to leave [his employer]. To the contrary, the rest of the record reinforces the suggestion that N.N. secured his leave from [his employer] simply to take a family vacation.

4. Before the Tribunal, Allstate underscored the fact that N.N.’s Record of Employment (“ROE”) for his job at [his employer] indicates that the last day for which he was paid was September 17, 2015 – six days before the accident and the same date of the “Time Off Notice Form” approving N.N.’s leave of absence. However, I take nothing from this fact other than, after the accident and his leave of absence, N.N. was unable to return to work, making September 17, 2015 the last day for which he was paid.

5. Likewise, Allstate highlighted for the Tribunal that the reason the ROE was issued was listed as “Quit”, not “Illness or injury,” suggesting that this was evidence of N.N.’s pre-accident intention to leave [his employer]. I disagree. The ROE was issued on December 4, 2015, meaning that, assuming N.N. quit his job at [his employer], he did so well after the accident. Moreover, there may be any number of reasons why the ROE suggests that N.N. quit his job as opposed to leaving due to illness or injury. The most obvious is that N.N., whose first language is not English, may have simply “quit” as a result of his injuries. In any event, I see nothing in the ROE evidencing N.N.’s pre-accident intention to leave [his employer].

6. Allstate’s submissions concerning N.N.’s post-accident activities are also unpersuasive. Allstate points to a number of pieces of evidence suggesting that N.N. worked post-accident, the implication being that he was therefore not eligible for an IRB. In doing so, however, Allstate overlooks some larger picture.

7. For example, Allstate pointed out to the Tribunal that in April 2016, Dr. Viedlinger wrote a letter in which he stated that N.N. attended “the workshop just for a few hours from 9:30 to 4:30 p.m., but not on a regular basis.” However, in the sentence immediately before, Dr. Viedlinger confirmed that “N.N. has not returned to work since the accident,” leaving it unclear what exactly N.N. was doing irregularly at “the workshop.” The letter does not evidence that N.N. was working in the sense that Allstate suggests.

8. Allstate also highlights the fact that N.N. asked his family doctor for a letter effectively clearing him as medically fit to drive a taxi. Be that as it may, there is no evidence that N.N. actually drove a taxi. At best, the evidence suggests that N.N. attempted to pursue alternative employment in order to provide for his family, employment that he argues he never secured.

9. Lastly, Allstate points to the fact that N.N.’s physiotherapy records from May 2016 indicate that N.N. was “stable, getting a little stronger, can now lift 20kgs at work,” and that the two resumes that N.N. included in his hearing brief indicated that he was employed at some point in 2016 as a building maintenance worker. Again, Allstate relies on this evidence to suggest that N.N. was not substantially unable to perform the essential tasks of his pre-accident employment. I disagree.

10. At best, this evidence proves that N.N. was involved in some post-accident work. Still, the precise nature and length of that work remains critically absent. So too are the details about why that work ended. The key question in this matter was whether, as a result of the accident, N.N. was substantially unable to perform the essential tasks of his pre-accident employment. The fact that N.N. may have been involved in some sort of post-accident work does not mean, as Allstate suggests, that N.N. did not satisfy this test. To the contrary, the evidence is entirely consistent with N.N.’s position that he attempted to secure alternate employment, including by enrolling in a Building Maintenance and Repair Program, but found the work too physically demanding.

The alleged fairness resulting from a written hearing

1. Indeed, Allstate recognizes the frailty of this same evidence in its next line of argument. Allstate argues that it was “compelled to proceed to this hearing via written submissions” and, as result, was denied the opportunity to cross-examine N.N. on the inconsistencies in his file, particularly with respect to the “new evidence” offered through the two resumes in N.N.’s hearing brief. Allstate asserts that the hearing’s format prevented it from learning the full particulars of the post-accident maintenance worker job, and the ability to compare those job duties to the N.N.’s duties at [his employer].

2. The short answer to the first part of Allstate’s argument is that the parties agreed on the hearing’s format. The Tribunal’s Case Conference Report in this matter indicates that the parties consented to a written hearing.

3. Moreover, if indeed the resumes included in N.N.’s hearing brief contained “new evidence” that Allstate thought was as important as it now argues, Allstate had an opportunity to pursue this evidence further. It could have asked for an adjournment or sought an order requiring N.N. to disclose the full particulars of the post-accident work mentioned in the “new evidence.” (This second option would have been particularly appropriate given Allstate’s suggestion now, which it did not make before the Tribunal, that N.N. had an ongoing disclosure obligation.) But Allstate did neither. For that reason, it cannot now blame the Tribunal for its alleged inability to bolster its case after learning about this evidence. It must live with consequence of its own tactical choices.

C. The alleged errors of law and fact

1. Allstate argues that the Tribunal’s failure to discuss N.N.’s post-accident work also constituted an error of law. Allstate’s submission is essentially the same as discussed above, except that it attempts to attach a different legal consequence to the Tribunal’s silence on this issue.

2. As mentioned above, I agree with Allstate that this evidence should have been discussed. Nevertheless, for the reasons I have already explained, I am not satisfied that, even if it had been properly considered, this evidence would have had any bearing on the decision’s result. Again, all that this evidence suggests is that N.N. was involved in some post-accident work, a fact that is also compatible with N.N.’s own version of events.

3. Next, Allstate appears to take issue with the terms of the Tribunal’s order, which provides that the N.N. is entitled to a weekly IRB from July 6, 2016 “and ongoing.” Allstate argues that, given the change of test for entitlement at 104 weeks post-accident, the Tribunal should not have found that N.N. was entitled to an IRB beyond September 23, 2017 (i.e., after 104 weeks post-accident). For that reason, Allstate asks that the Tribunal’s order be amended.

4. The Tribunal ordered that N.N. was entitled to a weekly IRB from July 6, 2016 “and ongoing in accordance with the Schedule” (emphasis added). That order was based on its determination that N.N. satisfied the test for eligibility within, not after, the 104-week period. Accordingly, the Tribunal’s order does not compel Allstate to pay N.N. an IRB in perpetuity but, rather, only during the period before the 104-week mark and subject to the Schedule’s requirements. I do not read the Tribunal’s order as requiring Allstate to pay for the IRB beyond September 23, 2017.

5. Lastly, Allstate argues that the Tribunal erred in not considering s. 7(3) of the Schedule, which entitles it to make certain deductions from N.N.’s IRB based on his post-accident employment. Allstate argues that it should have the benefit of this section, especially given that it may have even overpaid N.N. benefits.

6. I agree that Allstate should have the benefit of that section. In fact, it does. Based on my review of the record, there was no information upon which the Tribunal could have ordered any such deduction. Again, this may have been possible if Allstate had have requested the relevant particulars or production in order to make that determination, but it did not. Thus, I see no error on the Tribunal’s part. Nevertheless, Allstate’s payment obligation is simply “in accordance with the Schedule.” In accordance with the Schedule, Allstate is still free to invoke ss. 33 and 52 to secure any available repayment.

D. The alleged error of law on causation

1. Additionally, Allstate suggests that the Tribunal was “misdirected” with respect to the issue of causation. In essence, it takes issue with the fact that the Tribunal did not state the test for causation that it applied and, further, argues that a proper application of the “but for” test would have resulted in the Tribunal deciding this matter differently.

2. The Tribunal is presumed to know the law with which it works on a daily basis. I see nothing in the Tribunal’s reasons to suggest that it failed to correctly apply a “but for” test to the facts at hand. The Tribunal was clearly aware of N.N.’s pre-accident ailments and, based on the evidence, it was open to the Tribunal to agree with N.N. that the accident exacerbated these ailments and caused the additional ones the Tribunal mentioned. Ultimately, the Tribunal was “persuaded that the motor vehicle accident [was] responsible for [N.N.’s] impairment:” para. 31. I see no indication in the Tribunal’s reasons that it misapplied the law, particularly in the absence of any submissions before the Tribunal on what that law should have been.

E. The alleged false or misleading evidence

1. Allstate also argues that the Tribunal heard false or misleading evidence. In sum, this evidence simply amounts to inconsistencies in N.N.’s position. Specifically, Allstate points out that, contrary to N.N.’s suggestion elsewhere that he was laid-off and remained unemployed after the accident, his ROE and resumes indicate otherwise.

2. I see no merit in this argument. Allstate pointed out these same inconsistences in its written submissions before the Tribunal. Thus, the Tribunal was well aware of them. Moreover, and as explained above, I do not see how the limited evidence concerning N.N.’s post-accident employment would have affected the Tribunal’s decision.

F. The new evidence

1. Lastly, Allstate argues that the resumes that N.N. filed as part of his hearing submissions were “new evidence” as that term is used in Rule 18.2(d) of the Tribunal’s Rules of Practice and Procedure. Again, assuming for the moment that Allstate is correct, I find that any inability that Allstate had to respond to this evidence was a result of its own failure to take appropriate action. Therefore, I give no effect to this argument.

Conclusion

1. This request for reconsideration is denied.

Jonathan Batty

Associate Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: April 23, 2018