Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

RECONSIDERATION DECISION

Tribunal File Number: 16-004281

Between:

E.E

Applicant

and

Aviva Insurance Company

Respondent

BEFORE: D. Stephen Jovanovic

Written Submissions:

For the Applicant: Christopher Bialkowski and James Leone

For the Respondent: Kevin Griffiths and Christina Prawdzik

Heard: July 24, 2018

Overview

1This decision deals with a request for reconsideration by the respondent of parts of the decision issued by the Tribunal on January 16, 2018. In that decision, the adjudicator wrote the following:

a. The applicant did sustain a catastrophic impairment as defined by section 3(2)(e) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).

b. The Applicant is entitled to Attendant Care Benefits (ACBs) in the amount of $3,704.91 monthly from March 16, 2016 to the date of the decision and ongoing.

c. The applicant is not entitled to the January 14, 2016 OCF-18 submitted by ARCG or the three November 2016 OCF-182 submitted by Brockville Chiropractic.

d. The applicant is entitled to case manager service as set out in the August 30, 2016 OCF-18 submitted by Wright and Associates.

e. The applicant is entitled to interest on the benefits I have found owing.

2The respondent in its request for reconsideration under section 18.1 of the Tribunal’s rules of practice and procedure raised the following “objections” to the adjudicator’s decision.

a. The finding that the applicant suffered a catastrophic impairment was based on a significant error in law, namely, the adjudicator improperly admitted and relied on opinion evidence from a non-expert witness against its objection.

b. The finding that the applicant is entitled to ACBs was based on significant errors of law, including the following:

i. The adjudicator erred when she found that the applicant’s wife provided attendant care services in the course of her employment, occupation or profession in which she would ordinarily have been engaged, but for the accident.

ii. The adjudicator erred when she found that during the period from December 5, 2016 to December 5, 2017, the service provider provided ACB services in the course of her employment, occupation or profession in which she would ordinarily have been engaged, but for the accident.

iii. The adjudicator erred when she found that the applicant had paid, promised to pay or was legally obligated to pay his wife for services provided.

iv. The adjudicator erred when she found that the applicant incurred expenses, within the meaning of section 3(7) of the Schedule, for his wife to provide overnight supervision in the matrimonial home.

3For the reasons that follow, the request for reconsideration is denied.

The Facts

4The facts are fully set out in the decision of the adjudicator and to the extent necessary will be summarized here.

5The applicant was involved in a single motor vehicle accident on January 28, 2012 when the driver of the car in which he was a passenger lost control due to black ice causing it to roll over onto its side.

6The applicant’s physical and mental conditions appeared to deteriorate after the accident. The adjudicator wrote the following:

In the years after the accident, [the applicant] experienced several emergency hospital visits, dozens of medical appointments, numerous assessments, and a significant spinal surgery. He stopped working at his passion – car detailing and window tinting – and was able to play only a limited role in the care of his children and home. At the time of the hearing, he still had significant physical impairments as well as some mental and behavioural impairment.

[The applicant] believes that as a result of the accident he sustained a catastrophic impairment because he has a whole body impairment (“WPI”) significantly over the 55% threshold required by the Schedule. Aviva disagrees. It says his WPI is much lower – only 15% to 18% - and that his impairments are not caused by the January 12 accident.

7The applicant and his wife testified at the hearing together with Dr. Cushing, the applicant’s chiropractor; Dr. Lisa Becker, the applicant’s physiatrist and; Dr. Alborz Oshidari, a physiatrist called by the respondent. Dr. Becker and Dr. Oshidari were qualified as experts in physical medicine and rehabilitation and in rating impairments with the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition, 1993.

8The adjudicator, for reasons fully explained in her decision, preferred the evidence of Dr. Becker over that of Dr. Oshidari. She wrote the following:

I agree with Dr. Becker that Dr. Oshidari’s approach underestimates [the applicant’s] impairments. I accept Dr. Becker’s rating of [the applicant’s] WPI at 64% as the appropriate rating for physical impairment. When combined with a 15 to 18% rating for mental behavioural impairment, the resulting overall WPI Is 69 to 70%.

9The adjudicator, after finding that the applicant was not entitled to ACBs before March 16, 2016 when he first submitted Forms 1 to the respondent, went on to consider the applicant’s entitlement to ACBs under section 3(7)(e) of the Schedule for subsequent services provided by his spouse who was trained and certified as both a personal support worker and a registered practical nurse. The adjudicator wrote the following:

For the following reasons, I find [the applicant’s spouse] provided services in the course of her occupation, employment or profession in which she would have ordinarily been engaged but for the accident.

The duties that she performed in her work as a PSW and RPN mirror the services that she provided to [the applicant]. I accept [her] testimony that if not for the accident, she would have continued active employment with Bayshore [Healthcare] in December 2012 or January 2013. [She] continuously maintained her membership in the College of Nurses of Ontario and has kept her CPR certification current.

Given my finding that [she] meets the criteria in 3(7)(e), it is not necessary for her to establish economic loss.

10Section 3(7)(e) of the Schedule provides that an expense, such as an ACB, is incurred if:

i. The insured person has received the goods or services to which the expense relates,

ii. The insured person has paid the expense, has promised to pay the expense, or is otherwise legally obligated to pay the expense, and,

iii. The person who provided the goods or services,

(a) did so in the course of employment, occupation or profession in which he or she would normally have been engaged, but for the accident, or

(b) sustained an economic loss as a result of providing the goods or services to the insured person.

11The adjudicator went on to find that the applicant needed 321.78 hours of attendant care per month at a cost of $3,704.96. It was the respondent’s position that the applicant only needed 72.24 hours of attendant care per month at a cost of $1,024.92. The difference in the two amounts was due to a dispute as to whether the applicant required 8 hours of overnight supervision, provided by his spouse. The adjudicator concluded that such supervision was required and resolved the dispute in the applicant’s favour.

Decision and Reasons

12Rule 18.2 (a) and (b) of the Tribunal’s 2016 rules sets out the criteria that are relevant to this reconsideration request. It reads as follows:

A request for reconsideration shall not be granted unless the Executive Chair is satisfied that one or more of the following criteria are met:

(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;

13The grounds for the reconsideration request are summarized under the headings that follow.

Did the adjudicator commit a significant error of law in allowing Dr. Cushing to provide his opinion?

14Dr. Cushing was the applicant’s treating chiropractor and was not listed by the applicant as one of his “expert” witnesses. At page 175 of the transcript of the June 21, 2017 hearing he was asked the following question by the applicant’s counsel:

Q. Dr. Cushing, you were treating [the applicant] from before this accident, you treated him during the course of the accident, and you continue to treat him. In your treating opinion did trauma from the January 28th, 2012 accident materially contribute to his present condition?

15The respondent’s counsel objected to the question on the basis that the opinion was well beyond what a treating practitioner who had not dealt with causation in his report could provide. The applicant’s counsel responded by reading the following excerpt from a report of Dr. Cushing’s: “Locational activities and other activities of daily living adversely affected by the injuries sustained in the MVA of January 28, 2012.” The applicant’s counsel took the position that as a treating expert Dr. Cushing should be allowed to give the sought after opinion.

16The respondent’s counsel also objected to the question on the ground that the report obtained by the applicant from Dr. Lisa Becker “indicated causation” with the implicit suggestion that the evidence as to causation should come from Dr. Becker.

17The adjudicator’s response to the objection is found at pages 181-2 of the transcript of the hearing where she stated:

Okay, I’m going to allow the question. Dr. Cushing’s evidence on this point is relevant to an important issue in this application as a treating physician who saw the Applicant before and after the accident, and has treated him up to the present time. He has been in a position to observe changes in the Applicant’s condition.

We are in a tribunal setting where there is some flexibility with respect to the admission of evidence. I do not see a fairness issue such that any prejudice outweighs the advantage of admitting relevant evidence. The Respondent will be able to cross-examine Dr. Cushing on his answer to this question.

As noted earlier, causation is a legal question. I will make that determination after having heard all relevant evidence and weighing that evidence……

18The respondent submits that the adjudicator would likely have reached a different conclusion had she not been influenced by inadmissible evidence. The applicant submits that opinion of Dr. Cushing was admissible and if not argues that the adjudicator would have reached the same conclusion in any event.

19The adjudicator dealt with causation at paragraphs 12 to 19 of the decision. She explained why she rejected the evidence of the respondent and in particular that of Dr. Oshidari. She referred to the opinions of Dr. Cushing and Dr. Fern an orthopaedic surgeon. She did not specifically refer to the evidence of Dr. Becker in this portion of the decision. However, elsewhere in the decision when the adjudicator dealt with the catastrophic impairment issue she wrote that she preferred the opinion of Dr. Becker “in all respects.”

20In Dr. Becker’s report of May 2, 2017, provided as a critique to the report of Dr. Oshidari, she wrote, “It remains my opinion that the January 2012 motor vehicle accident materially contributed to [the applicant’s] current condition. At pages 22-23 of the transcript of her examination in chief, Dr. Becker testified that she agreed with the opinion of Dr. Fern when he wrote “I would consider his accident of January 28, 2012 to have more likely than not contributed to the progression of his problems that ultimately required cervical surgery.”

21Dr. Becker was asked if the trauma in the accident materially contributed to the applicant’s then current condition and she replied “yes.”

22The applicant relies on section 15 of the Statutory Powers Procedure Act, which gives a Tribunal the discretion to admit “…as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible in a court, (a) any oral testimony,” as a basis for the adjudicator allowing the opinion evidence of Dr. Cushing. In my view, this section gave the adjudicator the discretion to allow Dr. Cushing to answer the question on causation.

23Finally, the applicant submits that Dr. Cushing’s opinion was admissible under the analysis in Westerhof v. Gee Estate, 2015 ONCA 206.

24The issue is Westerhof was whether rule 53.03 of the Rules of Civil Procedure applies to experts “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding” or whether it applies to a broader group of witnesses such as treating physicians who form opinions based on their participation in the underlying events. The court termed this latter group of witnesses as “participant experts.” The court concluded that participant experts may give opinion evidence without complying with rule 53.03, writing the following at page 20 of its decision:

…I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where;

i. the opinion to be given is based on the witnesses observation of or participation in the events at issue; and

ii. the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

25Rule 53.03 is similar to the Tribunal’s rule 10, but the Tribunal does not have a rule equivalent 4.1.01 of the Rules of Civil Procedure which sets out the duty of every expert “engaged by or on behalf of a party…” The court in Westerhof used, in part rule 4.1.01 to distinguish between experts retained specifically for the purpose of the litigation and those who it termed “participant experts.” I see no reason why that distinction should not be applied to witnesses before the Tribunal.

26Even if that distinction did not apply to matters before the Tribunal, in my view, it cannot be said that the adjudicator, in allowing Dr. Cushing to give the opinion that he did, “made a significant error of law or fact such that the Tribunal would have likely reached a different decision.” Once the adjudicator discounted the evidence of Dr. Oshidari, the issue could be decided on the basis of the evidence of Dr. Fern and Dr. Becker. Accordingly, I do not conclude the respondent’s objection to the adjudicator allowing Dr. Cushing’s answer to the question as to causation posed to him as meeting the criteria for reconsideration in the Tribunal’s rule 18.

Did the adjudicator make significant errors of law in deciding the applicant was entitled to Attendant Care Benefits for services provided by his spouse?

27The adjudicator concluded that the applicant was entitled to ACBs because the criteria in section 3(7)(e) of the Schedule were met. The adjudicator concluded that the applicant’s spouse provided the attendant care services “in the course of her occupation, employment or profession”; that the applicant promised to pay his spouse for providing these services and; that the appropriate amount to be paid was $3,704.96.

28The respondent relies on the Tribunal decision in M.P. and Certas Home and Auto Insurance Company, 2017 CanLII 9810 (ON LAT) for the proposition that although a relative who was the service provider was also a professional, ACBs could not be claimed as the services were not rendered in a professional capacity. The respondent submits thee following at paragraph 29 of its request for reconsideration:

Aviva submits that the care provided by the applicant’s wife was provided in her capacity as a family member and not in her capacity as a professional. Again, the evidence was that the applicant’s wife was employed as a PSW and RPN for Bayshore - she treated Bayshore’s clients, she was never hired directly by clients. Thus, if the applicant’s wife had provided services to the applicant in her capacity as a professional, she would have done so because the applicant contracted with Bayshore – in which case the professional relationship would have been clearly defined (i.e. work hours would have been recorded, invoices would have been rendered by Bayshore, Bayshore would have paid the applicant’s wife…etc).

29In the M.P. decision the adjudicator denied a claim for ACBs provided by a spouse who was also professionally qualified to provide the requisite attendant care services. In doing so, the adjudicator wrote the following:

The evidentiary record suggests that:

i. the applicant’s wife would not have been engaged in providing her service even if the accident did not occur;

ii. she was not promised compensation by the applicant; and

iii. her service would have been provided even if she was not compensated by the applicant.

30This is precisely the type of work that the Legislature attempted to disqualify from compensation under section 3(7)(e)(iii)(A) when it amended the Schedule in 2010. The fact that the applicant’s wife is professionally accredited does not change this disqualification. She was a professional, but her service was not rendered in her professional capacity.

31The adjudicator distinguished M.P. on the basis that in the matter before her, she accepted evidence that the applicant did promise to pay his spouse.

32The applicant relies primarily on two decisions in support of his position: Josey v. Primmum Insurance Co. 2014 CarswellOnt 16385, [2014] O.F.S.C.D. No. 241; and Walsh v. Echelon General Insurance Co., 2016 CarswellOnt 14390.

33In Walsh, the insured’s spouse was a PSW who provided him with attendant care services while she was employed and while on an unpaid leave of absence from that employment granted to her so she could take care of her husband. The adjudicator in that case framed the issue before him as follows:

The sole question before me is whether the services provided by Mrs. Walsh to the Applicant were done in the course of the employment, occupation or profession in which she would ordinarily have been engaged. I find that the answer is yes, based on both the case law and the legislative intention presented to me.

34The adjudicator, following the decision in Josey, answered the question in the affirmative writing “…..if a family member is trained and/or working in the healthcare field, then the attendant care benefit ought to be payable for work they did in the course of the employment occupation or profession in which he or she would ordinarily have been engaged, but for the accident.

35At paragraph 39 of the decision in Walsh, the adjudicator added the following analysis:

It also fits with the legislature’s intention to restrict access to attendant care benefits by untrained family members and friends reflected in the 2010 and 2014 amendments. Where a family member is a trained professional working in the relevant field, concerns respecting qualification seem to be directly addressed. It would seem odd, as a matter of public policy, to mandate that insureds with a trained professional in their direct families who care for them be obligated to arrange equivalent support services from outside the family in order for it to be compensable. As Arbitrator Fadel noted [in Josey], there is no restriction in clause (A) of the Schedule that mandates a professional healthcare aide be arm’s length, nor do I find it appropriate to read one into it.

36The Walsh decision supports the adjudicator’s analysis that the attendant care services provided by the applicant’s spouse fell within the meaning of section 3(7)(e)(iii)(A) of the Schedule, unless one of the other objections raised by the respondent prevail. I do not agree with the respondent’s position that the services rendered by the applicant’s spouse had to be provided through Bayshore to qualify under this section.

Did the adjudicator commit a significant error in finding that the ACBs were payable for the period from December 5, 2016 to December 5, 2017?

37The respondent submitted that in order to satisfy the definition of the word “incurred” in the Schedule, there must be a finding that the applicant’s spouse would have been working in her profession when the services were provided and relies on the decision in Shawnoo v. Certas, [2014] ONSC 7014. In that case, the insured suffered a catastrophic brain injury in a 2010 accident. The insured’s mother (CB) was a certified healthcare aide (PSW) but had not been employed for remuneration in that capacity since 2006.

38On these facts, Justice Garson held the following:

52. Applying a broad interpretation to the legislative provisions in question and accepting that the goal of the legislation is to reduce hardship on accident victims, I am still unable to conclude that CB provided her services “in the course of the employment occupation or profession she would ordinarily have been engaged in, but for the accident.”

53. Prior to the accident, she was not employed for remuneration as a PSW or healthcare aide. There was no evidence she was actually seeking such employment or likely to receive an offer for such employment

54. I am not satisfied that, but for the accident CB would ordinarily have been engaged in healthcare services employment.

55. Although I am sympathetic to the plight of those healthcare professionals who may be recently unemployed due to work shortages or injury, I am left to conclude that section 3(7)(e)(iii)(A) requires that family members must prove that they have sustained an economic loss in order to be reimbursed for attendant care services from the accident benefit insurer.

39The applicant’s spouse had been working at Bayshore Healthcare since 2001 but started on maternity leave in December 2011 with the intention of returning to work, had the accident not occurred, in December, 2012 or January 2013. She had another child in June 2014, then returned to work in January 2016. In December 2016 she gave birth to her fourth child, but was “working” there at the time of the hearing which began in June 2017, according to the adjudicator. It appears that the adjudicator meant that she was “employed” at Bayshore in June 2017. These facts differentiate this matter from Shawnoo.

40The respondent takes the position, in its request for reconsideration, that if the evidence of the applicant’s spouse were taken at face value “…but for the accident the only periods she would have been working as [a] nurse was from January 2013 to June 2014 and from June 2015 to December 2016.” The respondent submits that the adjudicator made a serious error of law in concluding that the “incurred” definition had been met for the period from December 5, 2016 to December 5, 2017 because the applicant’s wife would not have been actually working.

41In my view, the adjudicator did not commit a serious error of law in deciding that ACBs were payable from March 16, 2016 onward. In Walsh, the insured’s spouse had taken a leave of absence to assist her husband. The adjudicator did not accept the position taken by the insurer that she was unemployed during that leave. Although it is not entirely clear from the decision, it appears that the adjudicator found that ACBs were payable during the time of the leave of absence.

42If the respondent’s position is correct, then any time a spouse who is providing needed services is on any type of leave, be it vacation, pregnancy, emergency, child death or disappearance, organ donor, emergency ill child care or parental, etc, the ACBs would not be payable. In my view, that would not be the correct interpretation of the relevant sections of the Schedule.

Did the adjudicator make a significant error when she found that the applicant had paid, promised to pay or was legally obligated to pay his wife for services provided?

43The respondent submits that there are two components to section 3(7)(e)(ii) of the Schedule: an expense for the attendant care service must have been incurred and the expense must have been paid, or there must have been a promise to pay or a legal obligation to pay. As set out in Henry v. Gore Mutual, 2013 ONCA 480: “To the extent that the word “incurred” restricts coverage available to the insured, it must be assigned a narrow meaning.”

44The adjudicator concluded that, based on the evidence of the applicant, his spouse and the Attendant Care Confirmation of Expenses for Services Provided, in which the applicant certified that he promised to pay his spouse for the service, the condition in section 3(7)(e)(ii) of the Schedule was satisfied.

45The respondent submits that the adjudicator erred by accepting the “vague” evidence offered by the applicant and his spouse and in determining that there was a legal obligation to pay for the services. One of the cases relied upon by the respondent is Terranova v. Economical Mutual Insurance Co. [2016] O.F.S.C.D. No. 135.

46In that decision, the insured was denied the payment for ACBs provided by his daughter for a number of reasons. One reason was that in order for there to be a legal obligation to pay a benefit there would typically have to be some type of contract. According to the Arbitrator: “Contracts imply significant record-keeping and reporting obligations , as well as the collection of appropriate taxes and other levies such as Employment Insurance, WSIB, and Canada Pension Plan deductions in an employment situation.” While that comment may be correct in a true “employment” situation, the Schedule does not require the establishment of an employment relationship in order for there to be a legal obligation to pay or for an expense to be incurred.

47I am not satisfied that the adjudicator made a significant error of law or fact. Trial judges are owed deference on findings of mixed fact and law, absent an overriding and palpable error: Housen v. Nikolaisen, [2002] 2 S.C.R. 231. The same principle could be applied on a reconsideration of the decision of an adjudicator. In this matter, there was evidence upon which the adjudicator could conclude that the services were rendered, to the extent claimed, in exchange for a promise of payment. Accordingly, I would not grant the request for reconsideration on this ground.

Did the adjudicator err in allowing payment for overnight supervision?

48The adjudicator found that the applicant required overnight supervision because he “…demonstrated decreased functional ability to exit the home safely in the event of an emergency due to right leg weakness and reported falls.” She calculated that the difference between the Form 1 provided by the applicant and the Form 1 provided by the respondent was essentially related to 8 hours of overnight supervision claimed on behalf of the applicant. The adjudicator ordered 321.78 hours of attendant care per month at a total cost of $3,704.96 per month.

49The respondent submits that there was no evidence that such overnight supervision was part of the duties of the applicant’s spouse at Bayshore. According to the respondent’s calculation the amount ordered for the overnight supervision was $2,648.80 per month (8 hours x 7 x 4.3 x $110.00). The applicant did not directly address this issue in his response to the request for reconsideration.

50The respondent relies on the decision in Y.D. and Aviva Insurance, 2017 CanLII 43883 (ON LAT), where certain personal services were provided by the insured’s spouse who was a physician practising as a fertility specialist. The adjudicator wrote that the test to be applied was whether the spouse/physician was providing services to his wife in the same manner as he was providing in his normal employment, not what he may have been otherwise qualified to do. A similar test has been applied in other cases: see Terranova.

51In my view, these cases involve very different circumstances that cannot be applied to the present matter. The applicant’s spouse was qualified to provide attendant care, a component of which is providing basic supervisory care. The fact that she may not have actually done so on an overnight basis in the course of working for Bayshore is, in my view, irrelevant.

52Basic supervisory care may be indicated where the “applicant lacks the ability to independently get in and out of a wheelchair or to be self-sufficient in emergency *24-hour in case of emergency to assist with stair negotiation and exiting the home safely.” The adjudicator, on the evidence before her, found that such care was required and this was a reasonable finding on the evidence presented.

53The respondent submits that “there was no analysis by the adjudicator as to whether such conversations were objectively sufficient to give rise to an expectation that the applicant would pay his wife while she slept at night.” These “conversations” are a reference to those between the applicant and his spouse. The adjudicator found that the applicant promised to pay his spouse for the attendant care services she provided. Those attendant care services included nightly supervision. While it might have been preferable for the adjudicator to have made it clear that she was including the overnight supervision, I do not see a failure to do so as constituting a significant legal or factual error.

Conclusion

54The request for reconsideration is denied and the decision of the adjudicator issued on January 16, 2018 confirmed.