A.A. v. RBC General Insurance Company, 2019 CanLII 101818

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Sandeep Johal, Adjudicator

Date: September 11, 2019

File: 17-003702/AABS

Case Name: A.A. v. RBC General Insurance Company

Written Submissions by:

For the Applicant: Alfred Kwinter and Dilenthi Warakaulle, Counsel

For the Respondent: Philip Pollack, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant (the insured). It arises out of a decision in which the Tribunal found that the applicant was not entitled to a pre-104-week income replacement benefit (“IRB”) or a post-104-week IRB. The Tribunal also found that the applicant was not entitled to interest or an award.

2The applicant submits that the Tribunal made several significant errors of law and fact such that the Tribunal would likely have reached a different decision.

3The applicant requests a finding that he is entitled to the a pre-104 week IRB in the amount of $138.46 per week from June 18, 2015 to December 22, 2016 and a post 104 week IRB in the amount of $185 from December 22, 2016 to the date of the decision.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

5The applicant’s request for reconsideration is denied.

ANALYSIS

6The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. More specifically, in relation to the present case, the applicant’s request for a reconsideration will not be granted unless the following criteria has been met:

i. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

7The applicant submits that Rule 18.2(b) applies as the Tribunal erred as follows:

i. The Tribunal erred in law by not properly considering the test for a pre-104 week and a post-104-week IRB as contemplated in the Schedule.¹

ii. The Tribunal erred in fact by discrediting the opinion of Dr. Mula.

The Tribunal did not err under Rule 18.2(b)

Pre-104-week IRB

8In order to interfere with the original decision of the Tribunal under Rule 18.2(b), the Tribunal must not only have made an error of law or fact, but that error must be significant enough that the Tribunal likely would have come to a different conclusion had the error not been made. On the evidence, I am not convinced that the applicant has met the criteria under Rule 18.2(b). I find it unlikely that the Tribunal would have come to a different conclusion based on the errors alleged by the applicant.

9The applicant submits that the Tribunal erred in law as the Tribunal in its decision did not provide a two-step analysis to determine if the pre-104 week IRB test has been satisfied. According to the applicant, the two steps are as follows:

a. What are the essential tasks of the employment; and

b. Is the applicant substantially unable to perform the essential tasks of his employment?

10The applicant relies on the Tribunal’s case law to support his position of the two-step IRB test.²

11The test for a pre-104 week IRB is as follows:

a. The insurer shall pay an IRB to the insured person who sustains an impairment as a result of an accident and was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.³

12The applicant further submits that the Tribunal did reiterate what the applicant stated in his affidavit about his work tasks and his inability to perform them, however, the Tribunal did not specifically address whether or not the applicant is able to perform his work tasks in the conditions required by his employment. (Emphasis in original).

13I do not agree with the applicant’s submissions for the following reasons.

14The Tribunal’s decision provided an analysis of the test for an IRB as set out in the Schedule and based on the medical evidence presented and from the testimony of the applicant, the Tribunal concluded that the applicant did not suffer a substantial inability to complete the essential tasks of his employment.

15I find that the Tribunal correctly interpreted the Schedule with respect to the pre-104-week IRB. In paragraphs 21, 22, 26, 27, 29 and 35 of the decision, the Tribunal states as follows:

21. In his affidavit, the applicant explains that his work as an apprentice carpenter involved heavy labour tasks, including installing structures and fixtures, measuring, cutting and shaping various materials including wood, steel and plastic, constructing, building frameworks, including walls, roofs, floors and inspecting and replacing damaged frameworks and other structures. His work was physically demanding. He carried a tool box weighing approximately 25-30 pounds and also had to climb ladders, crouch, bend, extend and reach.

22. Because of his back pain, the applicant states he is unable to lift any objects. He has difficulty performing certain tasks of his employment including standing, bending, reaching and squatting (he can only complete a partial squat). He cannot climb ladders, wear his tool belt, and lift industrial furniture, etc. On September 8, 2015 his family doctor noted the applicant told him had had quit his construction job due to pain.

23. The evidence concerning the applicant’s inability to perform the essential tasks of his employment is inconsistent with two reports provided by the respondent’s assessors…(it) was noted the applicant appeared generally well but was pain focused. Dr. O. found no reproducible musculoskeletal evidence of any substantial motor vehicle accident impairment. He found no evidence of any accident-related disability and, based on these findings, no substantial inability to perform his pre-accident employment. The injuries were soft-tissue injuries.

24. A Functional Abilities Evaluation (FAE)…was completed (the physiotherapist) reported that the applicant was able to walk, and had no issues while sitting. He was able to shift in his seat with no sign of pain. He was observed walking around the clinic freely. (The applicant) declined to perform low lift testing. He also declined all tests for carrying, kneeling, crouching and reaching, due to fear of aggravating pain…He was able to lift 10 pounds and hold it for 5 seconds. The evaluator concluded that there were no objective signs consistent with limitations. The FAE revealed inconsistent performance.

25. I also note a review of the clinical notes and records of his family doctor indicates that he suffered from certain medical conditions other than the neck and back pain prior to the accident…he was diagnosed with ADHD in 2011 and he reported to his doctor on May 2, 2013 that he felt “like a zombie” and was prescribed medication…The applicant had attended at the hospital after he had hit a wall with his right hand and injured it as a result of a fight with his father…

26. I find the evidence about ongoing back and neck pain and other pain complaints resulting from the accident in the years. 2015 to 2017 is contradictory and does not support the claim that the applicant suffered as a result of the accident a substantial inability to perform the essential tasks of his pre-accident employment. In conclusion, I find the applicant has failed to establish that from June 2015 to December 2016 he met the pre-104 test for an IRB.

16I am satisfied that the Tribunal applied the correct test for a pre-104-week IRB contained in the Schedule and the case law the applicant is relying on⁴ when it analyzed the evidence and rendered its decision.

17It is the role of the adjudicator hearing the merits of an application to consider and weigh the evidence presented and make findings of fact. Where oral evidence is heard, the adjudicator has the advantage of hearing the witnesses directly and being able to weigh that evidence. As a result, an adjudicator is entitled to have broad discretion to weigh evidence and are owed deference to their findings of fact.⁵

18The Tribunal provides an analysis of the medical evidence including the applicant’s affidavit and cross-examination that was conducted by the respondent. Based on that evidence, the Tribunal arrived at its conclusion that the applicant does not meet the test for a pre-104-week IRB. I do not see any significant error in the analysis such that the Tribunal would have reached a different decision and I see no reason to interfere with the decision.

The Tribunal did not err in fact by discrediting the opinion of Dr. Mula

19The applicant essentially disagrees with the weight that the Tribunal accorded to the evidence of Dr. Mula, who provided a chronic pain assessment report.

20The Tribunal was entitled to make a finding to assign weight to the parties’ expert reports. In paragraphs 30-35 of the decision, the Tribunal provides reasons why it chose to give less weight to the medical reports of the applicant and more weight to the reports of the respondent. The adjudicator carefully weighed all of the medical evidence and made clear findings based on a balance of probabilities. In assessing the evidence, she found some evidence more persuasive than others and gave weight to the evidence accordingly. I find no error in how or why the Tribunal made this finding and thus have no reasons to interfere with its assessment of the evidence or its decision.

21The applicant submits that the Tribunal erred in fact by misapprehending the evidence contained in the report of Dr. Mula by discrediting the report because the Tribunal found that the report is based, to a large extent, on self-reporting by the applicant.

22As a first-level trier of fact, the Tribunal had the responsibility to weigh the evidence before it and, on that basis, render a decision. As discussed above, the hearing adjudicator is entitled to deference.

23In paragraphs 30-33 of the decision, the Tribunal goes into a detailed analysis of the reasons it prefers the report of the respondent’s assessor rather than Dr. Mula.

24In paragraph 30, the Tribunal notes that the medical records indicate several other events that may be creating or exacerbating the applicant’s back pain such as the applicant re-injuring his back after he got into a fight and that the applicant injured his ankle playing road hockey.

25In paragraph 31, the Tribunal states that Dr. Mula’s diagnostic impression is that the chronic pain is likely due to the accident. In assessing the evidence, the Tribunal concludes that there may be a possibility of other reasons at play that prevent the applicant from performing the essential tasks of his employment and because of the timing of the assessment being 32 months post-accident.

26Paragraph 32 of the decision, states as follows:

…The applicant states to Dr. M. that he had no history of prior injury, existing pain or pre-existing medical conditions prior to the accident. He denied taking medications before the accident. I find these statements are not consistent with the medical evidence. The hospital records of December 5, 2014 and December 18, 2014 reflect an injury to his hand following altercations with his father and anger management issues. The family doctor notes, which were reviewed by Dr. M refer to the applicant being prescribed medication including for ADHD. The Clinic notes, also reviewed by Dr. M., refer to a past history of drug abuse including use of cocaine. He also mentioned to Dr. M that he attended physiotherapy a few weeks to a month after the accident, which continued twice a week until a few months before the assessment. The physiotherapy clinic records and discharge statement confirm he only attended eight visits in 2015 and was discharged from treatment in March 2015. …I find the self-reporting by the applicant inconsistent with the medical evidence, which leads me to question the reliability of Dr. M’s chronic pain assessment and his impression that chronic pain is most likely the result of the accident.

27The Tribunal goes into detail about the inconsistencies of the applicant’s medical evidence and provides further analysis of the reasons why the Tribunal discredits the report of Dr. Mula.

28I agree with the Tribunal’s reasoning and the decision it rendered. Based on the Tribunal’s analysis of the evidence, I find no reason to interfere.

Post 104-week IRB

29It is my finding that the Tribunal did not err in its finding that the applicant does not meet the test for a post-104 week IRB for the following reasons.

30The applicant submits that the post-104 week IRB test is a two-pronged test. First, the applicant has the onus to prove that he is disabled from returning to his pre-accident work tasks. Once the applicant proves his disability and his inability to continue his chosen employment and he failed to engage in the chosen line of work in a real world setting and meets his employers demands for reasonable hours and productivity, then the respondent has the onus to provide probative evidence that the applicant is capable of performing alternative employment.⁶

31I disagree with the applicant’s submissions. The test for a post-104-week IRB is for the applicant to show a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.⁷ The test is not met if the applicant merely proves his disability and then an inability to continue his chosen employment as submitted by the applicant. The language in the Schedule requires more. Furthermore, the case law the applicant relies upon is distinguishable. The Ontario Superior Court decision in Allen was a dispute that was not in relation to any version of the Schedule or in the context of an accident benefits claim but was with respect to a long-term disability insurance policy. In the Howden case was from a prior version of the Schedule, and the arbitrator agreed that the onus was on the applicant to establish on a balance of probabilities that he is totally disabled and then the onus shifts to the respondent to prove that there is a specific occupation that the applicant is capable of substantially performing.⁸ This was a decision by the Financial Services Commission of Ontario (“FSCO”) and the Tribunal is not bound by FSCO case law.

32However, even in accordance with Howden, the applicant has not met the first step of the post-104-week test to prove that he has a total disability or as the current version of the Schedule requires, a complete inability.

33The applicant submits that he has no formal education or training other than carpentry and he cannot return to work because of his physical limitations.

34In paragraphs 37-40 of its decision, the Tribunal provides its reasons for coming to the conclusion that the applicant has not satisfied the Tribunal that he suffers from a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. In paragraph 38, the Tribunal states the applicant attended college for a business degree program which suggests he could pursue a college degree in business. In paragraph 39, the Tribunal states the applicant could use his carpentry skills and ability to read building plans and know and understand building codes. In paragraph 40, the Tribunal states that the applicant had work experience in other fields. In paragraphs 42 and 43, the Tribunal concludes that the applicant has not made out a primie facie case for the post 104-week IRB, that he has failed to establish that he suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

35The hearing adjudicator determined that the applicant did not meet the test to show that he had a substantial inability and no additional evidence was provided that satisfied the adjudicator that the applicant now had a complete inability and therefore, the applicant did not qualify for the post-104-week IRB.

36The purpose of the reconsideration process is not to interfere with a discretionary decision properly made by the Tribunal simply because one party does not agree with it. A request for reconsideration is not an opportunity to have a different adjudicator rehear the evidence or to re-litigate the matter, which is essentially what the applicant is asking me to do.

37For these reasons, I find that the Tribunal did not commit a significant error of law or fact under Rule 18.2(b) such that the Tribunal would likely have reached a different conclusion had the error not been made.

CONCLUSION

38For the reasons noted above, I dismiss the applicant’s request for reconsideration.

Footnotes

1. 1Sections 5 and 6 of the Statutory Accident Benefits Schedule (“the Schedule”), O. Reg. 34/10
2. 216-000179 v. Old Republic Insurance Company, 2016 CanLii 73692 (ON LAT). (“Old Republic”)
3. 3Section 5(1)1i of the Schedule.
4. 4Old Republic.
5. 516-003683/AABS v. Pafco Insurance, 2018 CanLII 83507 (ON LAT) at para 18.
6. 6Allen v London Life Co, 1999 CarswellOnt 3219 (Allen) and Lorna Howden and Pembridge Insurance Company (PAFCO Insurance Company, FSCO A01-000333. (Howden)
7. 7Section 6(2)(b) of the Schedule.
8. 8Howden, at page 19.