T.C. v. Aviva Insurance Canada, 2019 CanLII 51300

RECONSIDERATION DECISION

Before: Jesse A. Boyce, Adjudicator Date: May 23, 2019 File: 17-008107/AABS Case Name: T.C. v. Aviva Insurance Canada

Written Submissions by: For the Applicant: Louis J. DelSignore, Jr., counsel For the Respondent: Monica Pathak, counsel

OVERVIEW

1This request for reconsideration was filed by the applicant, T.C. It arises out of a written decision in which the Tribunal found that T.C. was not entitled to income replacement benefits in the amount of $302.48 per week as a result of her alleged physical and psychological impairments suffered in a 2016 accident.

2T.C.’s submission is two-pronged. First, she submits that the Tribunal made a significant error of fact when it made incorrect credibility findings. Second, on a motion following her initial request, she submits that there is new evidence in the form of a report that could not have reasonably been obtained prior to the written hearing that, if placed before the Tribunal, would likely have resulted in the Tribunal reaching a different decision.

3T.C. is seeking an order that the Tribunal vary its decision and award her income replacement benefits, or, in the alternative, order a re-hearing on the matter.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act¹, 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 dismissed.

ANALYSIS

6The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one 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;

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.

7Here, T.C. submits that section 18.2(b) and (d) apply, arguing the Tribunal made an error of fact that led to an error of law when it made incorrect credibility findings and that new evidence that was not available during the written hearing and would have affected the result.

The Tribunal did not err under Rule 18.2(b)

8In order to interfere with a decision under Rule 18(b), the Tribunal must not only have made an error of fact but that fact must be significant enough that the Tribunal likely would have come to a different decision. On the evidence, I find it unlikely that the Tribunal would have come to a different conclusion but for the errors alleged by T.C.

9In her submissions, T.C. focuses on two of the Tribunal’s findings, arguing that the Tribunal made two errors of fact that led to an incorrect finding regarding her credibility. In turn, she argues that these errors of fact led to an error of law because the Tribunal did not consider how the offer of modified work would affect the test for income replacement benefits.

10I disagree. In its decision, the Tribunal provided four reasons for denying T.C.’s claim for income replacement benefits—beginning at paragraph 14—with the first two being the subject of her reconsideration request. First, the Tribunal found that T.C.’s alleged failure to disclose the availability of modified work to her assessors “seriously weakens any prognostic conclusion about [her] inability to return to employment.” Second, the adjudicator found that T.C.’s alleged failure to report a previous back injury from 2008 “raises doubts about the causation of her impairments.”

11T.C. argues the first reason is an error of fact because the assessors were aware of the availability of modified work since the OCF-2 and relevant clinical notes and records were before the assessors and because T.C. did not return to work on modified duty on the recommendation of her treating physician. The Tribunal’s reliance on this error, she argues, was then compounded by an error of law because the Tribunal should have considered how the offer of modified work would enable T.C. to substantially perform the essential tasks of her pre-accident employment. On review of the evidence, while I agree the OCF-2 and clinical notes and records were before the assessors, an offer of modified work is just one factor in the analysis for income replacement benefits. I do not find the Tribunal’s lack of engagement with this factor to be an error of law that would have led to a different result on entitlement, as I find the other reasons for the denial are sufficient.

12T.C. argues the Tribunal’s second reason—that she failed to disclose her 2008 back injury to assessors—is an error in fact. T.C. argues she did disclose the injury to all of the assessors via the medical documentation provided, but only one assessor included it in their report. In any event, she argues that it is irrelevant because it was over eight years prior to the accident and she was not experiencing symptoms from this injury pre-accident. Again, while her 2008 injury was not a focus of the materials or the reports, I do find that it was disclosed in the medical records available to assessors. However, I disagree that this is a significant error that is likely to have resulted in a different outcome on T.C.’s entitlement to an income replacement benefit, as the remaining reasons support the Tribunal’s denial.

13It is well-settled that a Tribunal is entitled to prefer some pieces of evidence over others and to assign more or less weight depending on what is before it. In this case, the Tribunal assigned weight to the applicant’s credibility based on the submissions before it. This finding is within the purview of the Tribunal when conducting a hearing and is a valuable evaluative tool for an adjudicator. I note that in the written hearing, T.C. had the opportunity, on reply submissions, to rebut Aviva’s initial submissions on credibility but chose not to. Similarly, T.C. could have submitted an affidavit with her written materials but did not. On reconsideration, T.C. also did not explain how the errors of fact, if corrected, would have resulted in a different outcome on entitlement.

14Indeed, even when the two credibility findings T.C. disputes are removed, what remains are two reasons that succinctly outline the Tribunal’s preferred evidence. For example, at paragraph 14(iii), the Tribunal indicates that it prefers the psychological findings of Aviva’s Dr. Bradbury because she incorporates validity testing over T.C.’s report, which is based on self-reporting. Further, after detailing the findings of the various insurer’s examinations earlier in the decision, at paragraph 14(iv), the Tribunal finds Aviva’s reports to be more thorough and well-supported by appropriate testing. In my view, it is clear that the basis for the Tribunal’s decision was not strictly on credibility but also on the objective medical evidence before it. On this basis, I fail to see how the alleged errors are significant enough that it would result in a different conclusion on T.C.’s entitlement.

15For these reasons, I find the Tribunal did not commit an error of fact or law under Rule 18.2(b) such that the Tribunal would likely have reached a different decision.

Motion to exclude new report filed under Rule 18.2(d)

16On motion filed after her initial reconsideration request, T.C. argues for the inclusion of a report by Dr. Sequeira, filed in September 2018. She submits that this report was not available at the time of filing, at the written hearing or when she submitted her initial request for reconsideration. In response, Aviva submits that the inclusion of the report—completed and submitted long after the hearing and request for reconsideration—is procedurally inappropriate and an attempt by T.C. to re-argue the case for a third time.

17I agree with Aviva. After reviewing the report, I find that it is not new evidence in the substantive sense to satisfy Rule 18.2(d). Rather, I find the report is simply a new opinion based largely on a rehashing of information found elsewhere in the file. I find this report could have been reasonably obtained earlier and, in any event, was improperly submitted into evidence by T.C. Accordingly, T.C.’s motion to include the new report in her request for reconsideration, pursuant to Rule 18.2(d), is dismissed.

CONCLUSION

18For the reasons noted above, I dismiss the applicant’s Request for Reconsideration under Rule 18.2(b) and (d).

Jesse A. Boyce Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 12009, S.O. 2009, c. 33, Sched. 5.