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
File: 16-003195/AABS
Case Name: C.L. v. State Farm Insurance Company
Written Submissions By:
For the Applicant: Frank Benedetto and Bruce Chambers
For the Respondent: Catharine Simons
Overview
- This request for reconsideration arises from an application for Non-Earner Benefits (“NEBs”). The Licence Appeal Tribunal (the “Tribunal”) found that the applicant, C.L., was eligible for NEBs given that her level of functioning in all areas important to her pre-accident life was altered significantly because of the accident. C.L.’s insurer, State Farm Insurance Company, now asks me to reconsider the Tribunal’s decision. For the reasons below, I deny State Farm’s request.
The Facts
C.L. was involved in a motor-vehicle accident on February 2, 2015. As a result, she received NEBs from State Farm under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”), which State Farm eventually discontinued on August 13, 2015. C.L. applied to the Tribunal to dispute her entitlement to NEBs.
The issue before the Tribunal was whether C.L. suffered from a complete inability to carry out a normal life as a result of and within 104 weeks after the accident. This determination was made difficult as C.L. is still able to participate in most of her pre-accident activities, albeit not at the same level as she did before the accident.
C.L. testified that pain, psychological impairment, and fatigue resulting from the accident prevent her from engaging in activities related to four key areas of her life: childcare, homemaking, self-care, and maintaining her relationship with her common-law spouse. Ms. Chung, C.L.’s psychotherapist, Dr. Dowdell, C.L.’s family doctor, and Dr. Del Rosario, C.L.’s psychologist, provided opinion evidence in support of C.L.’s application.
State Farm argued that even though C.L. has some post-accident restrictions, those restrictions are not significant enough to continuously prevent her from engaging in these four key areas. State Farm also argued that C.L.’s psychological symptoms were caused by pre-existing psychological trauma preceding the accident. Dr. Fielden, orthopedic surgeon, and Ms. Seiling, occupational therapist, provided opinion evidence in support of State Farm’s position.
The Tribunal preferred the evidence of C.L. and her experts over those of State Farm’s, and provided its reasons for doing so. The Tribunal found that childcare and homemaking were the most important areas of C.L.’s life. Further, the Tribunal also found that, despite her ability to participate in most of her pre-accident activities, C.L. is so significantly restricted that she cannot be seen as engaging in those activities. Accordingly, the Tribunal found C.L. was eligible for NEBs.
State Farm now challenges the Tribunal’s decision. State Farm bases its challenge on essentially the same arguments it put forward at the hearing: that C.L.’s ability to participate in most of her pre-accident activities disqualifies her from receiving NEBs, and that C.L.’s psychological symptoms result from her pre-existing trauma. State Farm submits the Tribunal failed to consider relevant evidence in coming to its conclusion and thus requests an order setting aside the Tribunal’s decision and dismissing C.L.’s application.
State Farm also takes issue with the language of the Tribunal’s decision, which states that C.L. is entitled to NEBs “in the amount of $185.00 per week for the period of June 24, 2016, to date and on-going.” State Farm requests that this language be varied to state that NEBs will be payable to C.L. “until no longer owing in accordance with the applicable provisions of the Schedule.”
Decision and Reasons
The test for entitlement to NEBs (the “NEB test”) under s.12(1) of the Schedule is as follows:
(1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:
The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
“Complete inability to carry on a normal life” is defined under s. 3(7)(a) of the Schedule as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
The Ontario Court of Appeal in Heath v. Economical Mutual Insurance Company1 formulated the current analytical framework for the NEB test. This framework includes a number of principles to guide the determination of an insured person’s entitlement to NEBs. Two of these principles were especially relevant to the Tribunal’s consideration in this case. First, if an insured person experiences significant restrictions when participating in an activity, it may not count as “engaging in” that activity. Second, greater weight may be assigned to the activities that were important to the insured person’s pre-accident life.
Whether the Tribunal failed to consider fully certain evidence
State Farm claims that the Tribunal failed to consider relevant and uncontradicted evidence, specifically parts of C.L.’s testimony and two medical documents. State Farm contends that the Tribunal made a significant error of law by failing to acknowledge or to provide reasons for rejecting this evidence. State Farm also contends that the Tribunal failed to address the requirement that an impairment be both continuous and substantial under the NEB test.
I see no error in the Tribunal not specifically referring to each piece of evidence in its decision. It is well-established that administrative decision makers are not required to include every argument in their reasons or to make explicit findings on each constituent element leading to their conclusion.2 In this case, the Tribunal acknowledged C.L.’s ability to participate in most of her pre-accident activities in paragraph 59 of its decision. The focus of the Tribunal’s analysis was whether C.L. could be seen as engaging in these activities. The Tribunal reviewed the evidence relevant to its analysis and provided its reasons for preferring or placing limited weight on certain evidence. It was not necessary for the Tribunal to specifically address each piece of evidence that supported C.L.’s ability to participate in her pre-accident activities.
State Farm also claims the Tribunal failed to address the requirement that an impairment be continuous and substantial to satisfy the NEB test. Specifically, State Farm argues that, had the Tribunal properly considered the evidence, it could not have found C.L. to be continuously prevented from engaging in substantially all of her pre-accident activities. I disagree with State Farm for three reasons.
First, State Farm’s argument misses the basis of the Tribunal’s decision, summarized in paragraph 66:
I find that [C.L.’s] post accident activities are so significantly restricted compared to her pre-accident activities that it cannot be said that post-accident the applicant is able to “engage in” most of her pre-accident activities.
In other words, the Tribunal found C.L. is not able to engage in her pre-accident activities regardless of her ability to participate in them often. Simply put, the Tribunal’s decision was based on the quality, not the quantity or frequency, of C.L.’s participation in her pre-accident activities.
Second, State Farm is, in essence, asking me to review the Tribunal’s findings of fact by asserting that the evidence, if properly considered, leads to a contrary finding. I refuse the invitation. The Tribunal reviewed the evidence as a whole and focused, as it was required to, on whether C.L. is able to engage in her pre-accident activities despite significant restrictions on her ability to participate in these activities. The Tribunal found in paragraph 25 of its decision that C.L. provided credible and reliable testimony that “her level of functioning in all four categories was not merely different but significantly altered.” Reconsideration is not available simply because State Farm is of the opinion that the Tribunal should have viewed the evidence differently.
Third, State Farm is attempting to reargue the same position it put forward at the hearing. The Tribunal acknowledged State Farm’s position in paragraphs 19 and 56 of its decision. State Farm’s arguments were fully considered and rejected at the hearing. Reconsideration is not an opportunity to reargue arguments that previously failed before the Tribunal.
Whether the Tribunal made findings related to all four areas of C.L.’s pre-accident life
State Farm claims that the Tribunal made a significant error of law by basing its analysis on C.L.’s post-accident restrictions related to only two out of the four areas of her pre-accident life, namely childcare and homemaking. State Farm points out that the specific examples provided by the Tribunal in its analysis relate only to these two areas. State Farm contends that the Tribunal’s failure to include examples related to the other two areas, self-care and C.L.’s relationship with her common-law spouse, indicates an underlying failure to make findings that C.L. suffers from significant restrictions in these areas. I disagree.
At paragraph 24 of its decision, the Tribunal cited C.L.’s testimony regarding the restrictions in her ability to participate in each of the four areas important to her pre-accident life. The Tribunal then found C.L. had provided credible and reliable testimony that “her level of functioning in all four categories was not merely different but significantly altered:” see paragraph 25. Despite its failure to include specific examples from each of the four areas important to C.L.’s pre-accident life in its analysis, the Tribunal considered and made findings related to each.
The Tribunal focused its analysis on childcare and homemaking because it found those to be the most important areas to C.L.’s pre-accident life. Weighing these areas more heavily was consistent with the NEB test as laid out by the Ontario Court of Appeal in Heath. Although the Tribunal’s reasons would have benefited from the inclusion of specific examples in all four areas, their omission was not an error.
Whether the Tribunal failed to consider the effect of C.L.’s pre-existing trauma
State Farm claims the Tribunal failed to consider the causal connection between C.L.’s psychological symptoms and her pre-existing trauma.
State Farm’s claim is simply wrong. The Tribunal considered the evidence regarding C.L.’s pre-existing trauma in its review of Mr. Chung’s evidence, in paragraphs 29-30 of its decision, and Dr. Del Rosario’s evidence, in paragraph 43. Based on this evidence the Tribunal found in paragraph 57:
As a homemaker for a family of four it is clear from the evidence that prior to the accident [C.L.] had no difficulty completing all inside and outside household tasks despite her prior challenges with drugs, an abusive relationship, assault, death of friend, her autistic daughter, and her son. I accept that C.L. had turned a corner and was functioning well prior to the accident.
That finding is a full response to State Farm’s argument.
State Farm’s request regarding the language of the Tribunal’s decision
State Farm requests that the Tribunal’s decision be amended to state NEBs will be payable “until no longer owing in accordance with the applicable provisions of the Schedule” instead of “for the period June 24, 2016, to date and on-going.” State Farm claims this substitution would eliminate the need for a further application to the Tribunal in the event that the insurer is no longer obligated to pay the benefit.
The relief sought by State Farm is unnecessary. The Tribunal’s language does not require State Farm to pay benefits in the event that C.L. is no longer eligible to receive them, or to apply to the Tribunal in order to terminate the benefit.
Conclusion
- This request for reconsideration is dismissed.
Linda P. Lamoureux
Executive Chair
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: May 29, 2018
Footnotes
- 2009 ONCA 391
- Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at 14-17.