RECONSIDERATION DECISION

Before:

Chloe Lester, Adjudicator

Date:

February 27, 2020

File:

18-006148/AABS

Case Name:

J.M. v. Wawanesa Mutual Insurance Company

Written Submissions By:

For the Applicant:

Jillian Carrington, Counsel

For the Respondent:

Darrell March, Counsel

OVERVIEW

1On September 27, 2019, the respondent, Wawanesa Mutual Insurance Company (“Wawanesa”), filed a request for reconsideration of the July 15, 2019 decision (the “Tribunal’s decision”)¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the “Tribunal”).

2This request is made pursuant to Rule 18.2 (b) of the Common Rules of Practice and Procedure (October 2, 2017) (“the Tribunal’s Rules”), with the February 7, 2019 amendment to Rule 18 on reconsiderations

3Rule 18.2(b) of the Tribunal’s Rules states that a request for reconsideration may not be granted unless the Tribunal is satisfied that the Tribunal made an error of law or of fact such that the Tribunal would likely have reached a different result had the error not been made.

4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

BACKGROUND

5J.M. was injured in a car accident on April 21, 2015. The applicant was deemed catastrophically impaired in the spring of 2018. In accordance with the Statutory Accident Benefits Schedule (“Schedule”), this designation allowed the applicant to apply for entitlement to greater benefits including attendant care benefits (“ACB”) up to a maximum of $6,000.00 per month.

6The applicant was assessed by an occupational therapist and an Assessment for Attendant Care Needs (“Form 1”) was filled out recommending $8,467.65 worth of ACBs per month. The respondent conducted its own assessments and determined that the applicant was entitled to $1,583.45 of ACBs per month. The applicant disagreed with that determination and filed an Application for Dispute Resolution with the Tribunal.

7The merits of the case were heard at an in-person hearing in April and May 2019. In its decision, the Tribunal found J.M.’s Form 1 to be reasonable and necessary, which entitled her to ACBs up to the prescribed maximum of $6,000.00. The Tribunal found that J.M. was largely independent prior to the accident, despite having significant pre-existing injuries, and the accident had caused the injuries set out in paragraph 30 of the Tribunal’s decision.

8The ACBs and the applicant’s Form 1 were considered reasonable and necessary because the applicant is not capable of completing her personal care and hygiene requirements, needs basic supervision, and lacks the motivation and confidence to perform these activities.

9Relying on Rule 18.2(b) in its request for reconsideration, the respondent submits that the Tribunal’s decision erred in 4 ways by:

(i) Failing to apply the “but for” test for causation;

(ii) Failing to apply the Tribunal’s Rules for admitting late evidence;

(iii) Failing to apply the appropriate test for awarding ACBs by not addressing whether the benefit was incurred or whether it was reasonable and necessary; and

(iv) Failing to apply the law with respect to the catastrophic impairment.

RESULT

10The respondent’s request for reconsideration is dismissed.

ANALYSIS

Error #1: Failing to apply the “but for” test for causation

11The “but for” test is recognized as the leading test for causation arguments.²

12The respondent submits that the Tribunal’s decision failed to apply the “but for” test. Since the applicant had a significant amount of pre-existing injuries, the respondent submits it was incumbent on the Tribunal to determine whether the applicant would have required medical benefits and attendant care if the accident had not incurred. It submits that it is only at that point, the Tribunal could have determined whether the attendant care and medical benefits were as a result of the accident. The respondent provides two examples:

(a) first, if the applicant’s complaints of dizziness were determined to exist before the accident, then any attendant care services related to dizziness should be excluded. The respondent submits that the applicant relied on her dizziness and cognitive issues to justify her claim for ACBs as reasonable and necessary; however, since the Tribunal determined that both did not result from the accident, the applicant should not be entitled to the benefits.

(b) second, medical cannabis was recommended for both the applicant’s pre-existing and post-accident injuries.

13The applicant submits the Tribunal’s decision used the appropriate test in determining whether the applicant was entitled to the medical and attendant care benefits because of her accident related injuries. The applicant also submits that it is evident by the extensive reasoning in the Tribunal’s decision that the “but for” test was in use. The applicant submits that the benefits were awarded for the accident related injuries. The applicant submits that the mere fact that the benefits may be incidentally beneficial for a pre-existing injury does not render the benefit not reasonable or necessary.

14The “but for” test is an exclusionary test used to rule out incidental factors. The question is whether the applicant would have had these impairments “but for” the accident. I agree this is the leading test for causation for accident benefit cases and I agree I did not explicitly state the “but for” test in my decision. That being said, I agree with the applicant, that the decision is clear that the reasoning of the “but for” test was analyzed in connection with the applicant’s injuries. The Tribunal’s decision established her pre-accident injuries, established that the applicant was credible and in paragraph 30 outlined the applicant’s accident related injuries. The decision also outlined why I found that some of her pre-accident injuries were exacerbated by the accident. Two examples are in subparagraphs 30(v) and 30(vi). Paragraphs 31-35 outline the injuries the applicant claimed were from the accident, but I did not find that there was enough evidence to support her position. So, in other words, paragraph 30 establishes the if it was not “but for” the accident the applicant would not have sustained those injuries. That is why the injuries are referred to as her accident-related injuries.

15Even though the applicant suffered from pre-existing injuries, I had enough evidence to support that she was largely stable prior to the accident regarding her mental and physical state, that she was independent, and capable of working. This is outlined in paragraphs 13 and 14 of the Tribunal’s decision. During the hearing, I had no evidence to support that the applicant’s pre-accident injuries would have deteriorated to a level requiring attendant care had the accident not occurred. Therefore, it can only be “but for” the accident that her conditions significantly worsened, affected her abilities to complete her activities of daily living and necessitated the benefits. It was only on those injuries that benefits were awarded.

16The respondent also submits that, at the hearing, the applicant’s main argument for attendant care was due to her dizziness and her cognitive impairment. That is incorrect. The applicant’s testimony, the testimony of the occupational therapist and the applicant’s concluding arguments³, demonstrate that there was an exhaustive list of reasons why the applicant claims she requires attendant care. Again, ACBs were only awarded to address her accident related injuries.

17The applicant submits with respect to the entitlement for medical cannabis that the Tribunal’s decision acknowledges that it would be used to treat some pre-existing injuries and that I ought to have excluded any benefits for treatment of pre-existing injuries. In the Tribunal’s decision, I found the medical cannabis reasonable and necessary due to her accident related injuries. However, I had no evidence to suggest the medical cannabis would have been the course of treatment for her pre-accident injuries, if the accident had not occurred. The medication was prescribed after her accident and mainly for her accident related injuries, and on that basis, it was found to be reasonable and necessary.

18The fact that the “but for” test was not outlined in the decision, did not change result because the analysis of the “but for” test was conducted. In order for a decision to be reconsidered under Rule 18.2(b), the error would have led to a different outcome. In this case, it does not.

Error #2: Failing to apply the Tribunal’s Rules for admitting late evidence

19The respondent submits that despite the mandatory rules for admitting evidence, the Tribunal allowed the admittance of late evidence that had not been disclosed in the hearing brief. The respondent submits that the decision to include the evidence was in violation of the case conference order and the Tribunal’s Rules which caused prejudiced to the respondent because it did not have the document in preparing for the hearing. It submits that the decision to admit the evidence was contrary to another Tribunal’s decision in S.G and Unifund Assurance Company⁴ where the adjudicator did not admit the evidence at the hearing.

20The applicant submits that the failure to disclose the evidence was an error on their part and Rule 3.1 of the Tribunal’s Rules calls for a liberal interpretation of the Rules in order to facilitate a fair, open and accessible process and to ensure the efficient, proportional and resolution of the merits. The applicant also submits that, although Rule 9.2 states a timeline for mandatory disclosure and Rule 9.4 states that noncompliance may result in the document not being admitted into evidence, the document may yet be admitted into evidence upon the consent of the adjudicator.

21In this hearing, the applicant failed to include the Form 1 in her disclosure of documents, the very document at issue in the hearing. I agree with the respondent that the applicant ought to have disclosed the document in accordance with the Tribunal’s Rules and the case conference order. But mistakes do happen. In this case, the applicant submits that it was an error. The applicant accurately recites Rules 3.1, 9.2 and 9.4. The test becomes whether the document is relevant to the issues in dispute for the hearing, whether it causes any prejudice for the opposing party, and whether that prejudice can be remedied.

22S.G. and Unifund can be differentiated because, in that case, the applicant requested that two new documents to be admitted into evidence and, notably, they were served in the reply submissions of a written hearing. Given that the documents were new and that reply submissions are not the avenue to introduce new evidence, the adjudicator in S.G. declined to admit them. In this case, subparagraphs 10(i) and (ii) of the Tribunal’s decision articulate the reasons for allowing the Form 1 from 2018 (while disallowing the Form 1 from 2016 for lack of relevance). The Form 1 from 2018 was determined to be relevant as it was the very document that gave rise to the dispute, the respondent had seen this document before, and the respondent’s prejudice was remedied with time to prepare additional questions for the witnesses and the ability to recall any witnesses. Therefore, I fail to see how my decision to allow the document into evidence violates the Tribunal’s Rules or that I failed to apply the appropriate test for admitting documents into evidence.

23I also note that, during the hearing, the respondent wished to have their Form 1 admitted into evidence, even though it was not included in their brief. The applicant’s counsel did not object, and I allowed it into evidence.

Error #3: Failing to apply the appropriate test for awarding ACBs by not addressing whether the benefit was incurred or whether it was reasonable and necessary

24The respondent submits that the Tribunal’s decision failed to apply the appropriate test for awarding ACBs by not addressing whether the benefit was incurred. The respondent submits that it is only required to pay for the benefit, in accordance with s. 19(1)(a), if the benefit is incurred, in accordance with s. 3(7)(e) of the Schedule⁵. The respondent submits there was no evidence before the Tribunal that would prove the benefit was incurred.

25The applicant, in the reconsideration submissions, articulated the applicant’s needs for attendant care, but did not address the alleged error argued by the respondent or whether the benefit being incurred was at issue.

26In review of the respondent’s submissions, I agree the issue of whether the ACBs was incurred was not addressed in the Tribunal’s decision because that was not an issue in dispute for the hearing. The question was whether the applicant was entitled to ACBs; in order to establish that, the parties relied on their respective Form 1s. It was a question of whether the benefit was considered reasonable and necessary. For an ACB to be payable, the applicant needs to prove two things:

(a) One, they are entitled to the benefit by proving the request for ACBs is reasonable and necessary; and

(b) Two, for it to be payable, that it is incurred.

27My decision only concerned the first part of the test. I agree with the respondent that I have no evidence to support whether the benefit was incurred. That is why nowhere in the decision is the respondent obligated to pay for the benefit. Echoed in paragraph 56 of the Tribunal’s decision, the applicant was only entitled to the benefit. In other words, the applicant’s request for ACBs was considered reasonable and necessary, the Tribunal’s decision did not order payment of the benefit. I cannot see how the Tribunal’s decision failed to address something that was never asked of it in the first place. On that basis, no error has been committed.

28The respondent also submits that the Tribunal’s decision failed to address whether the attendant care services were reasonable and necessary. The respondent submits that the Tribunal’s decision was supposed to determine whether the applicant required attendant care as a result of the accident and if so, what services. In this case, the Tribunal’s decision failed to make those determinations because it simply accepted that the applicant’s Form 1 as being reasonable and necessary without assessing whether the services listed on the form were reasonable and necessary.

29The applicant submits that the Tribunal’s decision preferred the applicant’s Form 1 over the respondent’s because it was the most consistent with the medical evidence. The decision noted deficiencies in the respondent’s Form 1, namely how it failed to address the applicant’s needs for emotional support and safety concerns. The applicant submits that the Tribunal’s decision provided 10 reasons why it accepted the Form in its entirety and there is no requirement for the Tribunal to consider each category separately and allot a quantum to each. She submits that the Tribunal’s decision determined the applicant’s needs and determined the services and time allotment to be reasonable and necessary.

30I find the respondent is mischaracterizing the decision regarding attendant care and whether it was considered reasonable and necessary. In order to determine the amount of the monthly attendant care required, s. 19(2) of the Schedule requires that a Form 1 be filled out. The Form 1 lists the various attendant care services that may be required and separates them into three parts. This is noted in paragraph 45 and 46. In my decision, I explained why I preferred the applicant’s Form 1 over the respondent’s Form 1. There was no obligation for me to go through each line of the Form 1 to determine whether each service was reasonable and necessary.

31The testimony of both the applicant’s and respondent’s occupational therapists explained, in general, why their respective Form 1s were being recommended. They did not go through each line of the Form 1 to explain their reasons behind the recommended services. In comparison of both Form 1s the parties mainly agree on the services the applicant requires. Where they disagree, is on the amount of time required to do the service, and whether someone is required to do it for the applicant or whether she just requires cuing. My decision made it clear that the applicant’s psychological condition is in such a state that cuing her to complete a task is not enough, and at times, it may be required that someone do it for her. The reasons why I accepted the applicant’s Form 1 and the services contained within part 1 and 3 of that Form 1 are contained in subparagraphs 52(i) and 52(iii). The largest difference between the Form 1s is whether she required supervisory care. The reasons why I found she required that level of care, i.e. part 2 of the Form 1, are noted in subparagraphs 52(ii) and 52(iii).

32Having considered the submissions of the parties, I see no error has been committed.

Error #4: Failing to apply the law with respect to the catastrophic impairment.

33The respondent submits that the Tribunal’s decision relied on the fact that the applicant had been deemed catastrophically impaired in assessing the entitlement to benefits. The respondent quotes paragraph 20 of the decision. The respondent submits that simply meeting the definition of being catastrophically impaired does not automatically entitle the applicant to benefits and relies on the Liu et al v. 1226071 Ontario Inc. decision.⁶

34The applicant agrees that, even though she was deemed catastrophically impaired by the respondent, the designation alone does not entitle someone to benefits. The applicant submits the information pertaining to the catastrophic designation was contained in the background section and that the catastrophic designation is important to understand the statutory ACB limits. The applicant submits that her catastrophic determination was in the decision to provide context, not to support any of the Tribunal’s findings.

35I agree with the applicant. The respondent has cherry picked one paragraph from the decision to support its arguments without looking at the entire context of the decision. The information regarding the catastrophic designation was contained in the background section to provide context regarding the timeline of events, how the injuries had involved, and what injuries the respondent acknowledged the applicant suffered from. The information was not used to support why the ACBs were reasonable and necessary. No error was committed.

CONCLUSION

36I have reviewed the respondent’s alleged errors in the framework of a request for reconsideration. I cannot conclude all the alleged errors have been committed. On that basis, the request for reconsideration is dismissed.

Chloe Lester

Vice-Chair

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1J.M. v. Wawanesa Mutual Insurance Company, 2019 CanLII 76963 (ON LAT)
2. 2Sabadash v. State Farm Mutual Insurance Company, 2019 ONSC 1121, [2019] O.J. No. 788 (Div. Ct.) at para 31.
3. 3Transcripts beginning at page 305
4. 42017 CanLII 9811 (ON LAT)
5. 5Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
6. 62009 ONCA 571