M.F. v. RSA Insurance, 2019 CanLII 22212

Tribunals Ontario Safety, Licensing Appeals and Standards Division

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: D. Stephen Jovanovic, Member

Date: February 14, 2019

File: 17-000502/AABS

Case Name: M.F. v. RSA Insurance

Written Submissions by:

For the Applicant: Ashu Ismail, Chagpar & Associates

For the Respondent: Anju Sharma, AMR LLP

OVERVIEW

1The applicant has submitted a request for reconsideration of a Tribunal decision dated February 23, 2018, which dismissed her application for certain benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg 34.10 (the “Schedule”).

2In that decision, the adjudicator set out the issues as follows:

1. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from: a. July 16, 2015 to December 10, 2016? b. December 11, 2016 and ongoing?
2. Is the applicant entitled to medical benefits outlined in the following chiropractic treatment plans submitted by Dr. Mohammed Agyemang: a. Treatment plan dated May 12, 2015 in the amount of $2,424.00? b. Treatment plan dated September 8, 2015 in the amount of $2,163.00? c. Treatment plan dated January 19, 2016 in the amount of $1,608.00?
3. Is the applicant entitled to the cost of completion of the Disability Certificate (OCF-3) dated October 5, 2015?
4. Is the applicant entitled to interest on any overdue payment of benefits?

3The adjudicator found that the applicant was not entitled to any of the foregoing benefits or interest, and also dismissed the respondent’s request for costs of a motion brought by it during the second day of the two-day hearing.

4I have been delegated the authority to decide this matter by the Executive Chair of the Tribunal. For the reasons that follow, the request for reconsideration is dismissed.

BACKGROUND

5The applicant was fifty years old when she was involved in an automobile accident on December 10, 2014. She had been working as a dietary food aide at a long-term care facility since 2008. The adjudicator found that her duties included the following:

• preparing snacks and deserts, loading them onto carts and transporting them to various floors;
• cutting up fruits for lunch;
• serving lunch or dinner from food warmers;
• transporting dirty plates between floors;
• cleaning dirty plates using an assembly line type dishwasher;
• cleaning and maintain the dishwasher; and
• taking out the garbage and mopping.

6The applicant did not return to work after the accident, complaining about a variety of injuries discussed below. The adjudicator found that the applicant was not a reliable witness and discounted much of her evidence and the evidence of a number of health professionals who relied on her “self-reporting” to form their conclusions.

7The adjudicator held that the “applicant does not suffer from any physical or psychological impairments as a result of the accident that would render her unable to perform the essential tasks of her employment within 104 weeks of the accident” and dismissed her claim for the pre-104 week income replacement benefits.

8The adjudicator dismissed the applicant’s claim for post-104 week income replacement benefits finding that she failed to meet the “complete inability” test set out in section 6(2)(b) of the Schedule. That section reads as follows:

The insurer is not required to pay an income replacement benefit 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.

9The chiropractic treatment plans were rejected by the adjudicator on the basis that the applicant did not prove on a balance of probabilities that they were reasonable and necessary. The adjudicator noted that physiotherapy was recommended by the applicant’s physician rather than chiropractic treatment.

10The 11-page decision by the adjudicator has spawned a 30 page reconsideration request.

ANALYSIS

11Rule 18.2 of the Tribunal’s rules, applicable to this matter, provides the criteria for granting a reconsideration request and reads as follows:

A request for reconsideration will 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 fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

(c) The tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

12The applicant bases her reconsideration request on sections 18.2(a)(b) and (d) submitting that there are the following seven issues to be determined. The first six would appear to fall under rule 18.2(a) and (b) while the last one would be considered under 18.2 (d):

1. Did the Tribunal display an apprehension of bias toward the applicant?
2. Did the Tribunal improperly fail to account for the clinical opinions of the treating family physician, treating internal medicine specialist, treating psychiatrist, treating neurologist and the vocations assessor?
3. Did the Tribunal fail to consider the treating practitioners’ diagnosis of chronic pain?
4. Did the Tribunal fail to consider the proper causation test?
5. Did the Tribunal fail to consider the correct post-104 disability test?
6. Did the Tribunal misapprehend the nature of the treatment sought by the applicant?
7. Is there new evidence which could not have reasonably been obtained in advance of the hearing?

13The respondent raises a preliminary issue. It submits that the request should be dismissed as it was not served by May 23, 2018 as ordered by the Tribunal. However, the respondent has not alleged any prejudice by the late delivery of the request and, in my view, the matter should be dealt with on the merits of the request.

1. Did the Tribunal display an apprehension of bias toward the applicant?

14The test used to assess whether a reasonable apprehension of bias exists was set out in Commission for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), in which the Supreme Court of Canada wrote:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not the [the decision-maker], whether consciously or unconsciously would not decide the matter fairly?”

15In Ontario Provincial Police v. MacDonald, 2009 ONCA 805, the Court of Appeal wrote the following:

There is one final, essential element that informs this analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one.

16The presumption of impartiality and integrity applies to administrative decision makers, like the Tribunal.¹

17The applicant cited a number of rulings made by the adjudicator during the hearing that she submits establish bias. The first such ruling dealt with the respondent’s motion to exclude a Vocational Evaluation Report tendered by the applicant. The adjudicator allowed the report to be admitted but, in the final decision wrote: “Any prejudice to the respondent could be remedied through the weight placed on the report.” The intent of this sentence is not clear.

18The adjudicator’s actual ruling on the admissibility of the report, at page 32 of the transcript was as follows:

So it is going to be my decision to enter the report and the reason for that is the case conference brief – or sorry, the order was clear that further expert reports were able to be served up until June 16 and just from the evidence before me today, it was properly served. There was no late service.

So I’m going to be entering that report and then since there are no other issues, we’re just going to proceed as is based on the case conference order with the issues outlined there.

19At paragraph 25 of her decision, the adjudicator gave three reasons why she was placing little weight on the report, reasons that appear to be valid. Whatever she may have meant by her earlier statement about the weight to be given to the report, she did explain her rationale later in her decision and I do not find that this exhibited bias on her part.

20The applicant next cites a number of additional evidentiary rulings made by the adjudicator in support of the submission that the adjudicator displayed a “closed mind” and, thus, exhibited a reasonable apprehension of bias. To this end, the applicant relies on the decision in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC). In that decision, the member of a tribunal, during a hearing, made comments on a radio programme that indicated a predilection to a certain outcome. The Supreme Court held that such a “closed mind” was an indicator of a reasonable apprehension of bias.

21Rulings made by the adjudicator that the applicant submits support her argument that there was an apprehension of bias include:

• No weight would be given to the opinion of Dr. Silverman, an internal medicine specialist;
• Dr. Saito, the applicant’s family physician was not allowed to give his opinion as to the applicant’s ability to work and his recommendations for treatment;
• Did not allow the applicant an opportunity to cross-examine Dr. Jana Atkins, the respondent’s psychologist, on findings of Dr. Rodica Stefaniu a psychiatrist who treated the applicant five times from April 2016 to February 2017;
• Did not allow the applicant’s counsel to cross-examine Dr. Saplys, the respondent’s orthopaedic specialist, on chronic pain;
• The adjudicator’s comments on the applicant’s ability to communicate in English and the misstatement that she studied English literature.

22In reviewing the parties’ submissions on the alleged bias of the adjudicator and the available transcripts of the rulings, I am not satisfied that the applicant has met the onus to establish a reasonable apprehension of bias. The adjudicator gave her reasons for making the disputed rulings. Whether the rulings were correct is another issue, but I cannot find that the adjudicator had a closed mind to the position of the applicant.

2. Did the Tribunal improperly fail to account for the clinical opinions of the treating family physician, treating internal medicine specialist, treating psychiatrist, treating neurologist and the vocations assessor?

23The applicant submits that the adjudicator ignored the principles set out in Westerhof v. Gee Estate, 2015 ONCA 206 and, in particular, what was stated by the court at para. 60 of the decision, which reads as follows:

Instead, 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 five opinion evidence for the truth of its contents without complying with rule 53.03 where:

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
• 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.

24It appears that the applicant has two concerns. First that the adjudicator refused to allow opinion evidence to be given by Dr. Saito, the applicant’s family physician. Second, that the adjudicator dismissed the observations, findings and conclusions/opinions of the internal medicine specialist, treating psychiatrist and vocational evaluator, both during the hearing and then on the basis that the applicant was an unreliable witness.

25Dr. Saito was asked in his examination-in-chief if he wanted to send the applicant for any other kind of treatment and replied that he thought she needed more “rehab and physiotherapy.” The respondent’s counsel then objected, stating that the witness was not an expert and was giving opinion evidence. The adjudicator instructed Dr. Saito not to answer the question, after he had given the answer. The adjudicator was then asked by counsel for the applicant if he could ask Dr. Saito if he had in the past made any other therapeutic recommendations. The adjudicator noted that he had recommended “physio” in the past.

26In my view, the question put to Dr. Saito about what treatment he was recommending for the applicant was proper and the objection, upheld by the adjudicator, was not. The fact that Dr. Saito was giving his opinion was not a basis for disallowing the question. It made no sense to deal with his past recommendation for physio but to not allow his future recommendation for more. However, this one error does not of itself constitute a “significant error of law” such that the adjudicator “would likely have reached a different conclusion.”

27The adjudicator explained in her decision why she attributed little weight to the evidence of various physicians. She found that Dr. Silverberg’s opinion that the applicant’s soft tissue injuries were the result of the accident was predominately based on the self-reporting of the applicant and that there was no reference to her pre-existing conditions.

28The adjudicator did not place “much” weight on the evidence of Dr. Stefaniu as she testified that all her conclusions were based on the self-reporting of the applicant who the adjudicator found to be an unreliable witness. In my view, a reconsideration request is not a vehicle by which a party can seek to have the evidence reweighed.

29I have dealt with the adjudicator’s reasons for not accepting the opinion of the vocational assessment above and need not comment further. To conclude on this issue, I cannot find that the adjudicator’s treatment of the evidence justifies granting the reconsideration request.

3. Did the Tribunal fail to consider the treating practitioners’ diagnosis of chronic pain?

30It does not appear that the adjudicator dealt directly with this issue and the evidence was somewhat equivocal. Dr. Silverberg in his report of May 3, 2016 noted that the applicant “demonstrated signs of a chronic pain syndrome in anticipation of pain at the right shoulder.” Dr. Stefaniu testified that she discussed chronic pain with the applicant and prescribed medication, Cymbalta, given for patients with chronic pain. She also testified that she believed the applicant had a referral for chronic pain syndrome. It was not put to her in chief if she diagnosed the applicant with chronic pain and how such a diagnosis would have affected the applicant’s ability to return to work. Dr. Saito diagnosed the applicant with chronic pain in her right ankle prior to the accident but did not otherwise mention chronic pain.

31Given the state of the evidence about chronic pain, I cannot say that the adjudicator committed an error by not dealing specifically with the issue while finding the applicant was not entitled to income replacement benefits.

4. Did the adjudicator consider the proper causation test?

32There was no discussion by the adjudicator of causation. Accordingly, I do not see where the adjudicator misdirected herself on the legal test for causation as submitted by the applicant.

5. Did the Tribunal fail to consider the correct post-104 disability test?

33The applicant submits that the adjudicator misdirected herself in considering the test for income replacement after the 104-week mark. The adjudicator noted that the “complete inability” test is a higher bar than the “substantial inability” test. The applicant does not dispute this. Once the adjudicator held that the applicant did not qualify for benefits during the first 104 weeks because she did not suffer the requisite “physical or psychological impairments” it was a logical next step to determine if the applicant’s condition deteriorated to the point that she met the “complete inability” test. I see no error in the adjudicator having done so.

6. Did the Tribunal misapprehend the nature of the treatment sought by the applicant?

34The initial application to the Tribunal listed the medical benefits in dispute as being chiropractic as did the three treatment plans. The provider was a chiropractor. The adjudicator noted that while Dr. Saito recommended physiotherapy, the plans were for chiropractic treatment. She further noted that “the applicant did not argue that the three treatment plans were reasonable and necessary.” Accordingly, the decision of the adjudicator to deny payment for the plans was one available to her and the denial does not justify granting the reconsideration request.

35I am of the view that for the foregoing reasons, the applicant has not satisfied the criteria under rule 18.2 (a)(b) for the granting of the reconsideration request.

7. Is there new evidence which could not have reasonably been obtained in advance of the hearing?

36The applicant wished to submit the following additional evidence:

• the updated Canada Pension Plan (CPP) file;
• the file of Dr. Silverberg;
• the applicant’s employment file;
• a second vocational report; and
• surveillance of the applicant.

37In short, all of the foregoing “new” evidence could reasonably have been obtained in advance of the hearing with some diligence. A request for reconsideration is not an opportunity for a losing party to supplement the evidence once the deficiencies in his or her case have been exposed in a decision. If the applicant required the updated CPP file to properly present her case, then a request for an adjournment on that basis should have been made. The applicant’s counsel had an obligation to prepare for the hearing and obtain the files or reports necessary, especially the employment file and that of Dr. Silverberg. A second vocational report should not be the basis for a reconsideration request as one could clearly have been obtained before the hearing.

38The respondent has not acknowledged if there was surveillance of the applicant. The time for obtaining particulars of surveillance, assuming it was conducted, would have been at the Case Conference stage of the proceeding, with a motion for disclosure if necessary and a determination as to possible privilege.

39Accordingly, I am of the view that the applicant should not be allowed to take advantage of rule 18.2 (d) to obtain a new hearing as she has requested.

COSTS

40The respondent seeks cost of the request for reconsideration. Tribunal rule 19.1 states: “Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” The respondent submits that the entire reconsideration application was unreasonable and frivolous. I do not agree. While unsuccessful, I do not find that the applicant’s conduct in making the request comes within rule 19.1.

ORDER

41Based on the foregoing reasons, the applicant’s request for consideration is dismissed as is the respondent’s request for costs.

Footnotes

1. 1Raba v Criminal Injuries Compensation Board, 2015 ONSC 5893 (Div. Ct.); Terceira v. Labourers International Union of North America, 2014 ONCA 839; Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856; Sigesmund v. Royal College of Dental Surgeons of Ontario, 2005 CanLII 27325 (Div. Ct.)