RECONSIDERATION DECISION
Before: Brian Norris, Adjudicator
File: 18-008059/AABS
Case Name: A.M. vs. Aviva Insurance Company of Canada
Written Submissions by:
For the Applicant: Kwaku Bona
For the Respondent: Catherine H. Zingg
OVERVIEW
1A.M., the applicant, filed this request for reconsideration. It arises out of a decision in which I found he was not entitled to a non-earner benefit and sustained a minor injury as defined by the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").
2The applicant makes this request pursuant to Rule 18.2(b) of Common Rules of Practice and Procedure, October 2, 2017 ("the Rules"). He submits that I erred in law and in fact such that I would likely have reached a different decision had the error not been made.
3The applicant submits that I erred in law by allowing the respondent to file insurer's examination ("IE") reports and violated the rules of procedural fairness by failing to impartially assess his evidence. The respondent submits that there is no evidence to support the applicant's claims.
RESULT
4The applicant's request for reconsideration is denied.
BACKGROUND
5The applicant was the driver of a car which was stuck on the side by another vehicle. He submits that he sustained psychological and physical injuries and, thus, claimed entitlement to benefits from the respondent. The respondent determined that the applicant sustained a minor injury as defined by the Schedule and, therefore, subjected him to the Minor Injury Guideline (the "MIG") and its $3,500.00 funding limit on treatment. The respondent also determined that the applicant was not entitled to non-earner benefits ("NEBs").
6A hearing on the issues was scheduled to proceed in person. However, the parties later agreed to proceed in writing, which the Tribunal allowed. During the written hearing, the applicant requested that I exclude the respondent's evidence on the basis that the respondent failed to provide proper disclosure of an expert witness pursuant to Rule 10.2 of the Safety, Licensing Appeals & Standards Tribunals Ontario: Common Rules of Practice and Procedure ("the Rules"). I denied the applicant's request because it failed to provide any of the requisite supporting details – the request identified no specific witness or document which the applicant sought to be excluded.
7The hearing proceeded. I reviewed the submissions and evidence, and ultimately found that the applicant's injuries fell within the minor injury definition and that he was not entitled to NEBs.
8The applicant submits that I erred in law by permitting the respondent's evidence. He also submits that I failed to impartially assess his evidence which, to him, violated the rules of procedural fairness. The respondent submits that the applicant's request to omit evidence was incorrectly raised during reply submissions, was not sufficiently specific to enable the respondent to respond, and that the evidence was fairly and carefully reviewed and appropriately weighed and assessed.
9The onus is on the applicant to establish that a significant error of law occurred such that I would have likely reached a different decision had the error not been made or that a violation of the rules of natural justice or procedural fairness occurred.
10Upon review of the submissions and evidence, I find no evidence of an error in law that, if it had not occurred, would likely have resulted in a different decision. Likewise, I find no violation of the rules of natural justice or procedural fairness. My reasons are as follows.
THE APPLICANT'S MOTION TO EXCLUDE EVIDENCE
11No error in law occurred when the applicant's motion to exclude evidence was denied because the applicant provided no information to support the request.
12The applicant's verbatim request to exclude the respondent's evidence, which he made in reply, was as follows:
[The Applicant] finally submits the respondent has failed to comply with Rule 10.2 Expert witness (Identification and Disclosure). Accordingly, he invokes Rule 10.4 of the Rules to exclude any "document or thing as evidence" the respondent intends to rely on at the hearing.
13The request to exclude evidence was denied because it lacked the details required to enforce it. It failed to identify the expert witnesses the respondent failed to properly disclose, or the documents he wished to have excluded. Pursuant to Rule 10.4, the applicant shall give notice, with reasons, for the challenge to an expert's qualifications, report, or witness statement. He made no such challenge to any expert and failed entirely to identify what he wished to have excluded. As the adjudicator, I require the moving party to identify the specific witness(es) or document(s) they wish to have omitted in order to consider whether to omit them. An analysis of whether evidence or witnesses ought to be excluded from a hearing cannot occur without knowing what evidence or witnesses the moving party wishes to exclude.
14I reject the applicant's submission that the burden to identify any witness or document he wishes to exclude is "inexplicable and implausible" and that such conditions are improper. He provides no explanation why requiring him to identify the reports or witnesses he wishes to exclude is an onerous burden, let alone inexplicable and implausible. In the initial hearing, the respondent submitted three insurer examination reports by different authors, the clinical notes and records of Dr. J. – L. Oguamanam, the applicant's family physician, and several other documents. Requiring the applicant to identify which of the above-noted witnesses or documents he wished to omit is reasonable given the circumstances.
15Further, the applicant provides no credible reason why he is precluded from challenging an expert's qualifications and impartiality due to the absence of an expert confirmation form. There is no allegation that any report was disclosed in an untimely fashion. Thus, the applicant had adequate opportunity to challenge the qualifications and impartiality of the author of any of the reports.
16The case law provided by the applicant in his request for reconsideration is not relevant. First, he relies on Cyr and State Farm Mutual Automobile Insurance Company,1 which is distinguishable because it involved evidence which was not disclosed in accordance with the applicable timeline and thus prejudiced the other party which, given the late disclosure, was unable to review it. Similarly, Blake and Dominion of Canada General Insurance Company2 is also distinguishable because it involved a scenario in which, during an in-person hearing, the judge advised parties that their voluminous briefs would not be admitted into evidence in their entirety but, instead, the documents in the briefs would be entered into the record only once referred to by the witnesses. The plaintiff in that matter was denied leave to enter reports into the hearing record during closing submissions because they were not referred to by the witnesses. To me, neither case is applicable to the one at hand.
17I make no finding on the impact of the timing of the applicant's request to exclude witnesses and evidence. This was not considered in the initial decision and, considering my finding that the request lacked the requisite specificity for me to consider it, an analysis on this issue is unnecessary.
PROCEDURAL FAIRNESS AND NATURAL JUSTICE
18The applicant claims I violated the rules of natural justice in two ways. First, he takes issue with my finding that the respondent characterized his impairments as falling within the minor injury definition and that there was no evidence suggesting he had an impairment that would remove him from the MIG. Second, he suggests that I erred in my assessment of his NEB and MIG claims because, according to him, I advanced my "own arguments to reach certain findings and conclusions, when there was no evidence to support such conclusions and findings." I will address these issues in turn.
The application of the MIG
19The applicant submits that I misrepresented the respondent's submissions by stating that the respondent characterized his injuries as predominantly minor injuries and subject to the MIG and its $3,500.00 funding limit on treatment. The respondent did not reply to this position directly but noted that the evidence was appropriately weighed and assessed.
20I find no error in stating that the respondent characterized the applicant's injuries as predominantly minor injuries. One of the issues for the hearing was whether the applicant sustained a minor injury as a result of the accident. Whether the characterization of the applicant's injuries is expressly stated in the evidence or submissions, the nature of the issue on its own permits me to reasonably conclude that the respondent characterized the applicant's injuries as a minor injury and falling within the MIG. Otherwise, there would be no purpose to address the issue in a hearing.
21The applicant also submits that the respondent provided no evidence to subject the applicant to the MIG and that the reports submitted by the respondent failed to provide an opinion on the application of the MIG. The respondent submits that there is no evidence of a failure to impartially assess the evidence.
22I find no error in law in my analysis of the evidence with respect to the application of the MIG because there is no onus on the respondent to prove that the applicant suffered a minor injury. Instead, it is the applicant that bears the burden of proving his case3.
23I weighed the evidence and determined that it showed nothing more than a minor injury as defined by the Schedule. This included a review of the clinical notes and records ("CNRs") from Dr. Oguamanan, the applicant's family physician, the orthopaedic report of Dr. P. Tansey, and the psychological reports of Dr. A. Marino and Dr. A. Shaul. Dr. Oguamanan's CNRs were devoid of any compelling evidence of a psychological injury which would remove the applicant from the MIG. Likewise, Dr. Tansey's report found he sustained soft tissue injuries which fit the definition of a "minor injury." I preferred Dr. Marino's report over Dr. Shaul's report because Dr. Shaul's report found the applicant suffered from severe depression when there was no other evidence to support the finding. In contrast, Dr. Marino conducted a similar assessment of the applicant and determined that the applicant did not present with any significant psychological impairment or diagnosis. I accepted Dr. Mariano's diagnosis, or lack thereof, as it was consistent with the balance of the applicant's medical record.
The Non-Earner Benefit Claim
24The applicant submits that I fundamentally ignored or failed to meaningfully grapple with the key issues or central arguments raised by the parties and "advanced my own arguments." First, he argues that I wrongly found that he failed to submit a disability certificate and submits there was evidence in the respondent's materials that, in fact, he did submit one and implies that the submission of the disability certificate in question entitles him to NEBs. Second, he submits that I advanced my own arguments and wrongly found that the respondent did not pay the benefit because it did not know when the January 18, 2017 disability certificate was submitted. Lastly, he submits that I overlooked his evidence that supports his case.
25The respondent submits that the applicant's NEB claim was considered, that the evidence was weighed, and the findings in the decision were reasoned.
26Upon review of the submissions and evidence, I find no breach of procedural fairness. My reasons are as follows.
27The applicant provided no evidence to support his claim that he submitted a disability certificate, completed by his family doctor, dated in June 2016. The applicant never submitted the disability certificate for the hearing and, in his reconsideration submissions, confirmed that he failed to include it in his evidence for the initial hearing. Likewise, the disability certificate was not submitted for this reconsideration hearing. Further, the applicant's reconsideration submissions also confirmed that the disability certificate in question was completed by a different healthcare provider and not his family doctor, contrary to his claims in the initial hearing. Adjudicators are unable to consider evidence not before them.
28The applicant provided no information on when he submitted a second disability certificate, dated January 18, 2017, and misinterprets my finding with respect to Aviva's response to the disability certificate. The applicant advanced the argument that he is entitled to NEBs because the respondent failed to respond to his application for the benefit in accordance with section 36(4)(b) of the Schedule. This, according to the applicant, entitles him to the benefit until April 10, 2017, when an explanation of benefits was provided. However, regardless of whether any party raised the issue, such a determination cannot be made without first finding if or when the applicant applied for NEBs. The onus is on the applicant to prove his entitlement to benefits, statutorily or otherwise, and he failed to meet that onus. As noted in the initial decision, the June 2016 disability certificate was incorrectly identified and not before me and the applicant has yet to state when the January 18, 2017 disability certificate was submitted - which would start the clock for the respondent to uphold its obligations in section 36(4) of the Schedule. As a result, I was unable to determine if or when the respondent failed to fulfill its section 36(4) obligations which could have statutorily entitled the applicant to the benefit.
29The applicant suggests that I found that the respondent refused to pay NEBs because it was unknown when the January 18, 2017 disability certificate was submitted. This is not my finding. I found that the respondent does not have to pay NEBs immediately upon receipt of a disability certificate and that it may request an insurer's examination. I noted that it appeared that the respondent requested the applicant participate in IEs. I was unable to establish this as fact because the IE notice was not provided for the hearing. However, the applicant nonetheless participated in IEs in March 2017 and the respondent gave the applicant and relied on those IE reports when it denied the applicant's entitlement to NEBs on April 10, 2017.
30At any rate, the applicant provided no compelling evidence of a complete inability to carry on a normal life, which is required to qualify for NEBs. According to the applicant, he is entitled to NEBs because his accident-related injuries prevented him from playing soccer, attending classes, and attending Mosque. He submitted three documents to support his position: his application for accident benefits, the January 18, 2017 disability certificate completed by Dr. Oguamanam, and the psychological assessment report of Dr. Shaul. None of these documents provide a reliable account of the applicant's pre-accident functionality for which his post-accident functionality could be measured against. The applicant's self-reported statements in the various assessment reports were discounted due to the inconsistencies amongst them. His claim that he is unable to play soccer or attend Mosque or classes was not supported by the medical evidence. Dr. Oguamanam's CNRs noted that the applicant returned to playing soccer by October 16, 2016, although it may not have been on a regular basis, and there is no medical reason why he was unable to attend Mosque or class – he provided no recommendation or explanation from a healthcare professional for such absences. Lastly, Dr. Oguamanam's CNRs, which the respondent submitted for the hearing, included a Ministry of Transportation medical report form completed by Dr. Oguamanam, dated May 16, 2017, which noted no disability at all and expressly stated that the applicant "is in good health and he is fit to drive the truck." The form is a medical document completed by the applicant's family physician and is relevant to the applicant's claim. As noted by the respondent, the fact that the applicant claims a complete inability to carry on a normal life while simultaneously asking his family physician to complete a medical report to certify that he is fit to become a truck driver is fatal to his claim that he suffers a complete inability to carry on a normal life.
CONCLUSION
31Considering the above, I find that the applicant's request for reconsideration is an attempt to re-litigate the issues after not meeting his onus to prove his entitlement to the benefits claimed.
32For these reasons and the details noted above, I deny the applicant's request for reconsideration.
Released: December 4, 2020
Brian Norris
Adjudicator
Footnotes
- FSCO 4910
- 2015 ONCA 165
- Scarlett v BelAir Insurance, 2015 ONSC 3635