S.M. v. Aviva General Insurance Company, 2019 CanLII 126110

Tribunals Ontario Safety, Licensing Appeals and Standards Division

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

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: Robert Watt

Date: December 18, 2019

File: 18-003786/AABS

Case Name: [S.M.] vs. Aviva General Insurance company

Written Submissions by:

For the Applicant: Aliza Karoly

For the Respondent: Amanda Fowler

OVERVIEW

1This Request for Reconsideration arises from a decision of the Licence Appeal Tribunal (the "Tribunal") denying that the applicant's claims for an income replacement benefit (IRB), an award, and interest. The applicant now asks that I reconsider the Tribunal's order and order a new hearing.

2Pursuant to 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 matter.

3As explained below, the request for reconsideration is dismissed.

FACTS

4The applicant filed a Request for Reconsideration in this matter on June 4, 2019 in respect of a decision dated May 28, 2019.

5The applicant applied to the Tribunal on the issues of entitlement to IRB, award, interest. The matter proceeded to an in-person hearing. The Tribunal's decision found that the applicant was not entitled to an IRB, award, or interest.

6The applicant requests that the decision be reconsidered on the basis that; the Tribunal acted outside its jurisdiction; the Tribunal violated the rules of natural justice or procedural fairness and the Tribunal made several significant errors of law and fact such that the Tribunal would likely have reached a different decision had the error not been made.

DECISION AND REASON

7Rule 18.1 requires a request for reconsideration to include the reasons for the request, specifying the applicable criteria under Rule 18.2.

8Under Rule 18.2, one or more of the following four grounds needs to be established

1. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
2. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
3. The Tribunal heard false evidence or misleading evidence from a party or witness, which was discovered only after the hearing and affected the result; or
4. There is new evidence that was not before the Tribunal when rendering its decision that could not have reasonably been obtained earlier by the party now seeking to introduce it and would likely have affected the result.

9The Rule affords the Tribunal the ability to remedy serious breaches of procedural fairness or errors that materially affect decisions.

10Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake, preventing a just outcome, where false evidence has been admitted or where genuinely new and indiscoverable evidence comes to light after a hearing

ANALYSIS

The Tribunal acted outside its jurisdiction

11The applicant claims that the case conference order of Adjudicator Monica Purdy dated July 23, 2018, set out that the issue to be determined at the hearing was the length of time for which IRB should be paid, and not whether the applicant was entitled to the benefit.

12The order of Adjudicator Purdy is clear that it applies to both the entitlement of the IRB and the time period from September 2, 2017, and ongoing. This means that both the benefit and the time periods (post 104 weeks after accident and post the first 104 weeks of disability) have to be looked at, because the Schedule sets out different criteria for entitlement to an IRB for the period of 104 weeks post-accident and the period after the first 104 weeks of disability.

13All evidence post-accident therefore has to be reviewed, to decide whether the applicant meets the Schedule's requirement for both time periods. The Tribunal in this matter looked at all relevant evidence which included medical reports and the applicant's own testimony which covered both periods of time as required by the Schedule.

14The Tribunal therefore in acting on the order of adjudicator Purdy and in looking at all of the relevant evidence for both time periods, acted within its jurisdiction.

The Tribunal violated the rules of natural justice or procedural fairness

15The applicant claims that Adjudicator Watt failed to come to grips with the issues and decide them impartially and independently. The applicant bases this on a discipline issue Adjudicator Watt had over 26 years ago with the Law Society, which was eventually resolved by the courts in Adjudicator Watt's favour.

16There is no evidence submitted by the applicant that Adjudicator Watt failed to carry out his duty independently and impartially or failed to come to grips with the issues. A discipline issue over 26 years ago has no relevance to an adjudicator fulfilling his or her current responsibilities, independently and impartially.

17I find that the Tribunal acted within its jurisdiction.

The Tribunal made several significant errors of law such that the Tribunal would likely have reached a different decision had the error not been made

Omission of essential tasks

18The applicant claims that the Tribunal made an error in law when determining his entitlement to IRB because the Tribunal did not specify the applicant's essential tasks of his employment in order to assess whether he suffered a substantial inability to perform those tasks as a result of the accident.

19However, the Tribunal set out in detail, the essential tasks of the applicant's job requirements in paragraph [13] of its decision, and referred to the Work Assessment Report dated September 28, 2018, in paragraph [20] of the decision. The Tribunal considered the essential tasks of the applicant's employment in the family business as a supervisor/painter/interior finisher in the industrial, commercial and residential homes markets. However the Tribunal noted that the evidence clearly showed that the applicant was able to, and indeed did engage in the essential tasks of his pre-accident employment following the accident.

Omission of evidence

20The applicant also argues that the Tribunal failed to consider relevant evidence in reaching the conclusion that he is not entitled to IRB. He argues that the Tribunal did not consider Dr. Henriques medical report, Dr. Tommy Chan's evidence, the evidence of Dr. Rajani indicating that the applicant was unfit for work and the evidence of D'Orazio about a surveillance video submitted by the respondent showing the applicant working after the accident.

21The Tribunal reviewed all the medical evidence presented by the applicant and set out in its reasons what medical reports and what other evidence, the Tribunal based its decision on. There was a contradiction in the medical reports and in the applicant's own evidence and his working post accident, that contradicted the reports of Dr. Henriques, Dr. Rajani and Dr. Wong.

22The Tribunal spent a considerable time discussing the reports of Dr. T. Chan set out in paragraph [33] of the decision and noted the inconsistent conclusion in the reports. Even so, Dr. Chan did set out that the applicant had regained full range of motion of the head and shoulders and knees and had no pain in the right knee. The evidence of A. D'Orazio was limited in its relevance and did not contradict the medical evidence accepted by the Tribunal.

23An adjudicator is required to consider all the evidence put before the Tribunal but is not obligated to refer in the decision every aspect of that evidence put to the Tribunal or that was relied on in ultimately rendering their decision.

Failure to apply the proper test of disability

23The applicant states that the Tribunal misstates the test for entitlement to IRB.

24However. the test is properly set out in para [11] and [30] of the decision.

25The question raised in para [31] of the decision:

"Is the applicant entitled to receive income replacement benefits for the period following 104 weeks after the accident, because he suffers a complete inability to perform his pre-accident employment:"

is a correct statement requirement, as set out in the Schedule. The test for entitlement to IRB post 104 weeks is even more stringent than just being unable to perform pre-accident employment. S 6(2) of the Schedule sets out that an insurer is not required to pay IRB after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self employment for which he or she is reasonably suited by education, training or experience.

26The statement by the Tribunal in paragraph [35] of the decision:

"The applicant raises the issue of chronic pain which apparently prevents him from working. I find based on the applicant's self-reporting that he may have chronic pain, but the issue is does this pain result in a substantial inability or complete inability to perform his pre-accident employment?"

This is a correct application of the Schedule.

27I find that the Tribunal applied the correct test for IRB contained in the Schedule and in the case law when it analyzed the evidence and rendered its decision.

Considering only objective impairments.

28The applicant states that the Tribunal only looked at the applicant's impairments from an objective perspective. The applicant appears to be arguing that the Tribunal looked only at the medical evidence. However, the Tribunal took into account the oral evidence of the applicant, and other witnesses.

29I find that the Tribunal took into account all evidence given, objective and subjective, to come to the conclusion of whether the applicant met the requirements set out in the Schedule, including the issue of impairment.

Stating that Dr. Chan is not an expert in chronic pain

30The applicant argues that the Tribunal made an error in law by not accepting that Dr. Chan was an expert in chronic pain, such that the Tribunal would have reached a different decision had the error not been made. The Tribunal indicated in paragraph [22] that Dr. Chen stated in his oral evidence that he is not a specialist in chronic pain. Reconsideration is not an avenue to re-argue the evidence.

31I am not satisfied that the Tribunal made an error in law such that the Tribunal would likely have reached a different result had the error not been made.

The Tribunal made several significant errors of fact such that the Tribunal would likely have reached a different decision had the error not been made

32The applicant claims that the Tribunal failed to list the essential tasks of the applicant's pre-accident employment. This claim has been already raised in paragraph's [18] and [19], above

33The applicant claims that the Tribunal made numerous errors of fact at paragraph [14] of the decision in considering the video evidence showing his return to work. In particular the applicant claims that the tribunal erred by stating that the applicant was seen removing doors. The applicant also argues that the Tribunal erred by stating that he took Tylenol every three hours when he actually took Tylenol every two hours while doing work at his sister's dental clinic. This is a minor difference in the interpretation of the evidence by the Tribunal and the applicant, noting that the applicant took Tylenol every three hours is incorrect and should have been noted as every two hours. This is a minor difference of interpretation of the evidence by the Tribunal and the applicant. Even if this minor inconsistency amounted to an error of fact, the applicant has not shown that the Tribunal would likely have reached a different result had the error not been made. Regardless of whether the applicant happened to take the Tylenol every two or three hours that day or was removing doors, the totality of the evidence before the Tribunal showed that the applicant did not meet the test for entitlement to IRB.

34The applicant claims that the Tribunal failed in paragraph [16] to explain the evidence. Paragraph [16] is quite clear as to what Dr. Rabinovitch noted in his report.

35The applicant states that the issue of whether he hit his head in the accident as addressed set out in paragraph [18] of the decision is not relevant to any issue before the Tribunal. The applicant however claimed that he was dizzy after the accident and therefore could not go up and down ladders, which his pre-accident work required him to do. The applicant argued that the hitting of his head was therefore relevant to the dizziness and whether the dizziness was a result of the accident and whether it prevented him from retuning to his pre-accident work. The applicant also claims Dr. Katyal made different conclusions than Dr. Ganguli who completed the C. T. There is a difference of interpretation by the Tribunal and the applicant of the evidence. The Tribunal did not make the error of fact as alleged.

36The applicant complains that the Tribunal noted Dr. Rockman's comment in his report that "the applicant may not have answered in a completely forthwith manner and exaggerated certain problems". The Tribunal noted this because it is a comment that goes to the credibility of the applicant's claims. This observation was also noted in the report of Dr. Alo Seki-Out, set out in paragraph [23] of the decision.

37The applicant essentially disagrees with the weight, the preference and interpretation of some pieces of evidence over others, that the adjudicator gave. The Tribunal has looked at the medical reports of Dr. Chan, Dr. Seky-Otu, Dr. Haight and Dr. Godfrey and interpreted the evidence as it saw fit. The Tribunal does not on a reconsideration request, question the weight, or preference of evidence, or interpretation of that evidence. It is the role of the Tribunal in hearing the merits of an application to consider and weigh the evidence presented and apply its findings of fact to the law. A request for reconsideration is not an opportunity to rehear the evidence or to re-litigate the matter.

38Reconsideration on the basis of an error of law, or fact, is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome.

39I find that the Tribunal made no significant errors of fact such that the Tribunal would likely have reached a different decision, had the errors not been made.

CONCLUSION

40For the reasons noted above, I dismiss the applicant's Request for Reconsideration.

Robert Watt Adjudicator