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: Jesse A. Boyce, Adjudicator

Date: August 30, 2019

File: 18-000169/AABS

Case Name: [The Applicant] v. TD Insurance

Written Submissions by:

For the Applicant: Doug Wright Tricia McAvoy

For the Respondent: John Dean Stephania C. Sdao

OVERVIEW

1This request for reconsideration was filed by the applicant, [the applicant]. It arises out of a decision in which I found [the applicant] catastrophically impaired¹ on the basis that he sustained a marked impairment under the mental and behavioural category of the Guides.² I determined that [the applicant] was not entitled to post-104 income replacement benefits, or to attendant care, housekeeping and home maintenance benefits. While I did find [the applicant] entitled to a pre-104 income replacement benefit, I found it was offset by TD’s claim for repayment and therefore not payable. A number of medical and rehabilitation benefits were also the subject of the 10-day in-person hearing, however the parties were able to settle these issues prior to the release of the decision.

2Despite my finding that he sustained a catastrophic impairment because of the accident, [the applicant] submits that I made significant errors of law and fact that directly affect the outcome of the decision. First, [the applicant] submits that I erred in not awarding post-104-week income replacement benefits. Second, he submits that it was an error to deny him attendant care benefits and to deem them not incurred. Third, he argues that it was an error to deny the housekeeping and home maintenance benefit. Fourth, [the applicant] argues that it was an error to find no basis for an award under s.10 of O. Reg. 664 enacted under the Insurance Act.

3[The applicant] requests the Tribunal reverse my decision on the denied benefits and award all the benefits outlined above. Pursuant to Rule 18.1 of the Tribunal’s Common Rules of Practice and Procedure, I have been delegated responsibility to decide this matter.

RESULT

4[The applicant]’s request for reconsideration is dismissed.

ANALYSIS

5The 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.

6Here, the basis of [the applicant]’s request is Rule 18.2(b). Specifically, he argues that I made significant errors of law and fact when I denied post-104 income replacement benefits (“IRB”), attendant care benefits, housekeeping and home maintenance, and the requested award. He argues, in turn, that these errors would have resulted in a different decision. I disagree.

The Tribunal did not make significant errors or law or fact that would have resulted in a different decision

7[The applicant] argues the determinations in the decision are incongruous or inconsistent with the findings of fact, submitting that a CAT determination is logically inconsistent with the denial of post-104-week IRB’s and attendant care. In my view, the facts, medical evidence and testimony, as presented to the Tribunal, were voluminous and, at times, inconsistent and vague. I find the outcome is not an error, as [the applicant] alleges, but rather is indicative of what was before the Tribunal and a reasonable result given the complexities of the case and the applicant’s injuries, the language of the Schedule and the nuances of the Guides.

8Despite my finding that [the applicant] be designated as catastrophically impaired, I would reiterate that I found his entitlement to this extended tier of benefits via Criterion 8 to be somewhat tenuous on a balance of probabilities. Over 10 hearing days and nearly two thousand pages of evidence, I find [the applicant] struggled to articulate the exact details surrounding the denied issues despite myriad reports, experts and his arguments otherwise. For example, the details of [the applicant]’s alleged pre-accident “occupation” that entitles him to an IRB and his father’s alleged role in providing attendant care would not, in my view, have satisfied the burden of proof in a non-catastrophic case.

9In the decision, I reference an imaginary fence between classes three and four and how I found, based largely on hearsay evidence and self-reporting, that there was enough to tip [the applicant] over that fence and into the Marked category. I also remarked how I found [the applicant]’s potential for emotional and behavioural outbursts to be the sole reason for his placement in the catastrophic tier. I stated this result was necessary so [the applicant] may continue accessing psychological treatment which was purportedly helping to pre-emptively address potential harm to himself and perhaps even the community.

The Tribunal did not err in denying post-104 income replacement benefits, attendant care benefits, housekeeping and home maintenance or the s. 10 award

10[The applicant]. conflates this catastrophic designation with automatic entitlement to all the benefits in dispute. I disagree and find there was no error. As stated in the decision, I find this is a case where [the applicant] may very well need psychological treatment but that he is otherwise independent in his personal care and capable of the solitary physical labour he did prior to the accident, and that he has been functional for quite some time.

Post-104 Income Replacement Benefit

11[The applicant] offers several arguments to support his belief that the determination that he meets the pre-104 IRB test is inconsistent with the finding that he does not meet the post-104 IRB test. I disagree.

12First, [the applicant] argues that it is patently unreasonable—and inconsistent with my findings—that he would have been unable to do the essential tasks of his employment up to two years post-accident because of his psychological impairments, and then be able to do them the following day. Obviously, I agree – such a finding would be absurd. Nowhere in the decision do I indicate that a switch is flipped at the two-year mark—or identify any time before that—that allows [the applicant]to perform the tasks of his alleged employment. Neither the Schedule nor Guides require an adjudicator to identify the precise moment in time when an applicant becomes able to work. Suffice it to say, however, I found it clear that at some point before the two-year mark, [the applicant]no longer had a substantial inability to perform the essential tasks of his employment. In addition, the decision notes that due to a lack of compelling evidence to grant TD’s repayment request, I saw no reason to interfere with TD’s initial decision to pay [the applicant] pre-104 IRB’s.

13Second, [the applicant] argues that the decision’s comment that he could return to his pre-accident job on a part-time or graduated basis implies that [the applicant] was not then capable of working competitively and, if he were, he would not require a graduated return to work. [The applicant] argues this is inconsistent with a determination that he is not entitled to post-104 IRBs. I disagree. First, by all accounts, [the applicant] ’s “work” was part-time or casual in nature to begin with. Second, his work was largely solitary, undocumented, unsupervised and featured very little interaction with others. Third, paragraph 33 of the decision states that [the applicant] may experience some limitations due to his psychological impairments but “I therefore see no reason why he could not successfully return to these pursuits on a part-time or graduated basis, as he did prior to the accident.” This reasoning is based on evidence of [the applicant]’s physical abilities which indicate there is nothing that would prevent him from engaging in the type of casual work he did prior to the accident which he is suited for. In my view, considering the nature of the work and his physical abilities, it is unlikely that his pre-accident work would be hampered by his marked impairment in the adaptation sphere. Further, I am not convinced that [the applicant] ’s inability to complete his high school diploma post-accident is evidence of his inability to perform his pre-accident work, which required no formal education or training at all.

14Finally, [the applicant] argues that the decision imports a consideration from the catastrophic impairment determination that is not part of the post-104 IRB test when it “relied” on the evidence of useful function provided by Dr. Levitt, who was not asked to provide an opinion on post-104-week IRB’s. While I agree with [the applicant] that the post-104 IRB test does not entail a consideration of useful function, I disagree that this reference to Dr. Levitt amounts to an error of law that would have resulted in a different decision.

15First, the legal tests for both catastrophic impairment and post-104 IRB’s are clearly laid out in respective sections and addressed separately in the decision. I do not find this is a case where I failed to “direct myself to the correct test for entitlement.” Second, and for completion, the remark in the decision is not an importation of an incorrect test or irrelevant evidence, but rather a summation of what I gathered from the evidence of [the applicant]’s physical capabilities: “In fact, I find that a return to his pre-accident self-employment may even be beneficial to [the applicant] as he clearly enjoyed it and was good at it. To return to Dr. Levitt’s remarks: I find that [the applicant]’s physical function as it pertains to this type of employment is useful function.” I regret the confusion this may have caused but find it quite a stretch to conclude that this remark is an indication that I “relied” on inappropriate evidence, cited an incorrect legal test or that the result would be different.

Attendant Care Benefits and Housekeeping/Home Maintenance

16In submissions, [the applicant] offers several arguments when revisiting his entitlement to attendant care and housekeeping benefits. However, the basis of the denial was because these benefits were not incurred, so these submissions are largely moot on reconsideration. On the issue of incurred, [the applicant] argues three points: first, that the evidence was that his father remained off work because of his own impairments and his need to care for [the applicant].; second, had TD produced a knowledgeable representative at the hearing, he would have been able to prove that the benefits were incurred; and third, that the benefits should have been deemed incurred under s. 3(8) of the Schedule. I disagree.

17First, it is generally agreed that [the applicant]’s father was off work because of his own impairments. The issue is that he failed to demonstrate how his alleged provision of attendant care services, while being off work, qualified under s. 3(7)(e), which identifies three components to prove that a service is incurred: 1) [the applicant] needs to have received the goods or services related to the expense; 2) [the applicant] has to have paid the expense or promised to pay the expense; and, 3) [the applicant]’s father must have provided the services in the course of his employment, occupation, or profession or sustained an economic loss as a result of providing the services. [The applicant] makes an assertion in submissions that there was evidence of economic loss sufficient to overcome potential double-dipping due to IRB and CPP payments to his father. However, he makes no specific argument as to why or how this evidence that was allegedly ignored is an error of law or fact. Accordingly, I see no reason to depart from my findings in paragraphs 36-39 of the decision as a result.

18Second, [the applicant] argues that TD’s failure to provide a knowledgeable representative at the hearing to speak to attendant care prevented him from satisfying his onus. In my view, this is not an error of fact or law, as [the applicant] had the opportunity to summons the witness of his choice to prove his case and chose not to do so.

19Third, [the applicant] argues that TD denied attendant care because he was not CAT and could not afford an attendant and, because of my CAT finding, TD’s refusal to pay attendant care past two years is, by definition, unreasonable under s. 3(8). He argues that this is “exactly the circumstances the Schedule is intended to address.” I disagree. I find no evidence that TD unreasonably withheld or delayed the payment of the benefit to [the applicant] that prevented the benefit from being incurred. Further, a CAT determination following a good faith disagreement on entitlement does not automatically make TD’s adjusting practices unreasonable, nor does it make benefits that were not incurred deemed to be so. In any event, I find there was no error of law in the application of this discretionary section.

Award

20[The applicant] argues that TD’s representative at the hearing admitted that not all the information available was provided to assessors and that he could not speak to why, which are grounds for a s. 10 award. I disagree. While I note [the applicant]’s accident was serious, and his impairments required attention in the weeks and perhaps months following the accident, I find that there was no compelling evidence to warrant payment beyond what TD already paid out to [the applicant]—which I considered to be rather significant on the evidence—as the $50,000 non-catastrophic limit had been exhausted. On the evidence, I found TD’s handling of the file to be entirely reasonable and in good faith, which is why I found an award was not justified. Here, I see no reason to depart from this discretionary finding.

The reconsideration submissions are attempts to reargue the evidence

21On reconsideration, I find [the applicant] largely used submissions to reargue the merits of his case and attempt to redirect the Tribunal’s preference of the evidence. While the decision does not explicitly address every report or word of testimony submitted during the 10-day hearing, it is well settled that the trier of fact is not required to refer to every piece of evidence before it. On review of the decision, I find there were no errors in my articulation of the legal tests for any of the benefits in dispute or in how my analysis was conducted.

22Finally, as mentioned, I find the errors alleged were not errors of law that affect the outcome of the decision. Instead, I find the decision indicative of a careful wading through and weighing of the evidence before the Tribunal to arrive at what is, in my view, a correct and just outcome on the merits of a complex case. While [the applicant] is certainly entitled to a different viewpoint, I find no reason on reconsideration to interfere with my original decision.

CONCLUSION

For these reasons, [the applicant]’s request for reconsideration is dismissed.

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

Footnotes

1. 1Defined in s. 3(2)(f) of O. Reg. 34/10 [“the Schedule”] as a marked (Class 4) or extreme (Class 5) psychological impairment that affects useful function in any one of the four functional domains. “Impairment” is defined in s. 3 of the Schedule as “a loss or abnormality of a psychological or anatomical structure or function.”
2. 2Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, at Ch. 14. [“Guides”, “Criterion 8”]