A.S. v. Pafco Insurance, 2018 CanLII 83507

RECONSIDERATION DECISION

Before: Jonathan Batty, Associate Chair

Date: May 9, 2018

File: 16-003683/AABS

Case Name: A.S. v. Pafco Insurance

Written Submissions By:

For the Applicant: Geoffrey Bogo

For the Respondent: Richard Horst

Overview

1. A.S. applied to the Licence Appeal Tribunal (the “Tribunal”) to challenge Pafco Insurance’s (“Pafco”) termination of his income replacement benefits (“IRBs”). The parties provided contradicting medical reports and evidence. The Tribunal accepted Pafco’s evidence and denied A.S.’s application. A.S. now requests a reconsideration of the Tribunal’s decision on the basis that the Tribunal allegedly denied him natural justice and procedural fairness.

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 reconsideration request.

3. I grant his request for the reasons below.

The Facts

4. A.S. was injured in a motor-vehicle accident on July 17, 2013. As a result, he received IRBs from Pafco under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). On November 25, 2014, Pafco terminated the IRBs on the basis that A.S. no longer qualified for them.¹ In response, A.S. applied to the Tribunal.

5. Sections 5 and 6 of the Schedule provide the tests for an insured person’s eligibility for IRBs within and after 104 weeks of an accident in which he or she is injured. A.S. sought IRBs for a period spanning both periods. Accordingly, the Tribunal had two questions before it:

• whether A.S. suffered from a substantial inability to perform the essential tasks of his employment (the “substantial inability test”) for the period between November 25, 2014 and July 17, 2015; and
• whether A.S. suffered from a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience (the “complete inability test”) for the period after July 17, 2015.

6. Both parties submitted large volumes of evidence, including contradicting medical reports and opinions. A.S.’s evidence stated that he was unable to return to work in any capacity due to the constant pain he experienced as a result of the accident. In response, Pafco’s evidence questioned A.S.’s credibility and degree of pain, and linked his pain to the fact that he is overweight. A.S. denied the suggested link between his pain and weight.

7. Ultimately, the Tribunal accepted Pafco’s evidence and found that A.S. was not eligible to receive IRBs.

8. A.S. now challenges the Tribunal’s decision.

Decision and Reasons

9. All of the grounds raised in A.S.’s request for reconsideration are classified as denials of natural justice or procedural fairness. Pafco claims all but one of these grounds are misclassified and are, instead, alleged errors of law or fact. Thus, Pafco argues, they cannot form the basis for a reconsideration. I disagree. A.S. properly alleges that the Tribunal overlooked or mischaracterized parts of his evidence. Although such allegations are not typically branded as denials or natural justice and procedural fairness, they involve significant errors of law and fact, defects that Rule 18 of the Tribunal’s Rules of Practice and Procedure is intended to address. A.S. may not have cited the right subrule or have used the correct terminology. Nevertheless, his request raises serious problems requiring intervention.

10. Before I address those problems, let me first deal with A.S.’s arguments that should fail.

11. A.S. claims that the Tribunal denied him natural justice and procedural fairness by failing to consider evidence that he suffers from chronic pain syndrome. I disagree. The issue before the Tribunal was whether A.S. satisfied the substantial inability and complete inability tests under sections 5(1) and 6(2) of the Schedule, respectively. A diagnosis of chronic pain does not guarantee entitlement to benefits.² The Tribunal noted that A.S. was diagnosed with chronic pain syndrome in paragraph 19 of its decision before evaluating the evidence concerning A.S.’s capacity to return to work. This was not a denial of natural justice or procedural fairness.

12. A.S. also claims that the Tribunal denied him natural justice and procedural fairness by selectively referencing parts of a Job Site Analysis Report prepared on February 20, 2014 and, thereby, diminishing the nature of his job. This report describes the physical demand of A.S.’s work as casual, and the strength classification rating of the occupation as medium. A.S. takes issue with the Tribunal referring to the former without mentioning the latter. The job site analysis considered a number of factors, including the occupation’s strength classification, and concluded that the physical demand of the work was casual. The Tribunal did not deny A.S. natural justice or procedural fairness by accepting the conclusion of the report without referring to each factor considered within.

13. Lastly, A.S. claims that the Tribunal denied him natural justice and procedural fairness by holding a written hearing when the significance of the matter and the determination of A.S.’s credibility required an oral hearing. Again, I disagree. The parties were notified of the Tribunal’s decision to hold a written hearing in the Case Conference Report, dated February 6, 2017, and in the Notice of Written Hearing, dated March 20, 2018. Despite these notifications, the Tribunal has no record of A.S. having requested an oral hearing. If A.S. thought that an oral hearing was necessary for him to fully present his case, he should have requested one. In the absence of such a request, the Tribunal’s decision to proceed with a written hearing was not a denial of natural justice or procedural fairness.

14. I turn now to the problems with the Tribunal’s decision.

The Tribunal’s Assessment of Evidence Regarding A.S.’s Weight

15. The source of A.S.’s ongoing pain – i.e., whether it is due to his weight or accident-related injuries – was a contested issue. Pafco claimed that A.S.’s pain was caused by his weight. The Tribunal accepted Pafco’s evidence and found that A.S. had not presented evidence of having made a real effort to lose weight.

16. A.S. claims that the Tribunal denied him natural justice and procedural fairness by placing undue emphasis on Pafco’s evidence and finding that he presented no evidence regarding his attempts to lose weight. A.S. submits the Tribunal failed to consider evidence stating that he was pain-free prior to the accident despite also being overweight at that time, and that he was unable to adhere to an exercise plan due to his ongoing pain.

17. I note, the Tribunal’s decision does not address any of A.S.’s submissions or evidence regarding the impact of his weight. This is significant given that A.S.’s reply submissions, dated June 15, 2017, focused entirely on countering Pafco’s argument in this respect.

18. Generally speaking, administrative decision makers have broad discretion to weigh evidence and are owed deference to their findings of fact. In this case, however, the Tribunal appears not to have considered A.S.’s submissions and evidence regarding the relationship between his ongoing pain and weight – submissions and evidence that were critical to his case. That failure was a significant error or law.

The Tribunal’s Assessment of the Evidence of Dr. Knapp, Dr. Graham, and Dr. Efala

19. Likewise, A.S. takes issue with the Tribunal’s assessment of the evidence of Dr. Knapp, Dr. Graham, and Dr. Efala. In paragraph 22 of its reasons, the Tribunal wrote as follows:

I prefer the evidence of Dr. Knapp, Dr. Graham and Dr. Efala regarding the source of the applicant’s pain. All stated that there were mild degenerate changes of the lumbar spine, which was causing the pain claimed by the applicant. All agreed that the changes and the pain were not exacerbated as a result of the accident. [Emphasis added]

A.S. takes issue with the final sentence, and objects to the implication that he was suffering from pain prior to the accident.

20. I have reviewed the evidence of Dr. Knapp, Dr. Graham, and Dr. Efala. Dr. Knapp and Dr. Graham oversaw A.S.’s lumbar spine x-ray and MRI, respectively. As a result, their evidence was limited to the interpretation of the results of those diagnostic imaging procedures. Dr. Knapp reported a moderate disc space narrowing at the L5-S1 level. Dr. Graham reported mild degenerative changes of the lumbar spine, most significantly at L3-L5. Finally, Dr. Efala reported A.S.’s symptoms were compatible with degenerative disc disease of the lumbar spine.

21. Critically, none of the doctors opined, as the Tribunal suggests, that A.S.’s pain was not exacerbated as a result of the accident. Dr. Knapp’s evidence did not address the cause of the disc space narrowing at the L5-S1 level. Dr. Graham and Dr. Efala noted that A.S.’s symptoms were related to degenerative disease but did not claim degenerative disease was the exclusive cause. In short, the Tribunal’s finding that Dr. Knapp, Dr. Graham, and Dr. Efala agreed that A.S.’s pain was not exacerbated as a result of the accident is simply not supported by the Doctors’ evidence.

22. Thus, the Tribunal committed a significant error of fact by mischaracterizing the opinions of Dr. Knapp, Dr. Graham, and Dr. Efala.

The Tribunal’s Assessment of the Evidence of Dr. Kavanaugh

23. A.S. also takes issue with the Tribunal’s reliance on Dr. Kavanaugh’s statement that A.S. was able to sit through a 90 minute intake interview in order to find that he might have embellished his pain. The Tribunal referred to Dr. Kavanaugh’s report in paragraph 25 of its decision:

I accept the evidence in the report of Dr. Shawn Kavanaugh indicating that the applicant had no pain complaints during his intake for 1.5 hours in 2014. This suggests that the applicant was possibly embellishing the degree of pain as set out in the later medical reports, and as also noted in Dr. Mandel’s report.

24. Dr. Kavanaugh did not express that A.S. had no pain complaints while sitting through his intake interview. Instead, his report indicates that A.S. complained of numbness in his feet and knees while sitting. Indeed, Dr. Kavanaugh’s report indicates that A.S. complained of pain or discomfort while standing, walking, climbing stairs, reaching forward, and reaching above his shoulder. Furthermore, Dr. Kavanaugh noted that A.S. was unable to bend down, reach below his knees, squat, or kneel due to his pain and discomfort. Put simply, Dr. Kavanaugh’s evidence suggests the opposite of the Tribunal’s finding.

25. Further, the Tribunal failed to address contrary evidence in assessing A.S.’s credibility. Dr. Zahavi, Dr. Zarnett, and Dr. Pilowski reported that A.S. was in pain during their examinations which took place within the six months leading up to the hearing. Dr. Zahavi also noted that A.S. presented an honest representation of his status. Dr. Pilowski went further and stated that A.S. tended to minimize his symptomatology. The Tribunal did not address or acknowledge any of this evidence before finding A.S. “was possibly embellishing the degree of pain as set out in the later medical reports.”

26. The Tribunal’s substantial mischaracterization of Dr. Kavanaugh’s report and failure to address relevant contradictory evidence in assessing A.S.’s credibility were also, as a result, significant errors of fact.

Conclusion

27. Considered together, the Tribunal’s errors raise doubts about the disposition of this matter. The findings at issue formed a substantial part of the Tribunal’s analysis. The errors in relation to these particular findings, if they had not been made, would likely have yielded a different decision. I therefore order that the application be reheard by a different adjudicator.

28. That, of course, is not to prejudge the matter. The Tribunal’s final disposition may remain the same. I leave that to the Tribunal.

29. The application will be reheard, in writing, and be limited to considering anew the evidence and submissions already provided by the parties.

Jonathan Batty Associate Chair Safety, Licensing Appeals and Standards Tribunals Ontario

Released: June 15, 2018

Footnotes

1. 1Pafco also claimed it continued the payments until March 9, 2015 in error and sought the repayment of the overpaid amount. However, the Tribunal found this issue was not properly before it and did not address it.
2. 2Quattrocchi v. State Farm Mutual Automobile Insurance Co. (1997), 1997 CarswellOnt 3992.