C.A. v. Aviva Insurance Canada, 2020 CanLII 30364

RECONSIDERATION DECISION

Before:

Lindsay Lake, Adjudicator

Date:

March 26, 2020

File:

18-005878/AABS

Case Name:

C.A. v. Aviva Insurance Canada

Written Submissions By:

For the Applicant:

Daniel Hynes, Counsel

For the Respondent:

Annemarie White, Counsel

OVERVIEW

1The applicant, C.A., filed a request for reconsideration of the October 22, 2019 decision (the "decision")¹ of the Licence Appeal Tribunal – Automobile Accident Benefit Services (the "Tribunal").

2In the decision, the Tribunal found that C.A. was entitled to income replacement benefits ("IRBs") for the period of September 15, 2016 to December 11, 2017 with interest in accordance with s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule"). The Tribunal also found that C.A. was not entitled to IRBs beyond this period, as C.A. failed to prove on a balance of probabilities that she suffered from a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. The Tribunal further found that C.A. was entitled to certain assistive devices as set out in an August 1, 2017 treatment plan, but that C.A. was not entitled to the remainder of the disputed treatment plans for occupational and rehabilitative therapy and massage therapy. The Tribunal also held that C.A. was not entitled to her costs of the proceeding.

3C.A. submits that the Tribunal made significant errors of fact and law regarding its determination as to her entitlement to IRBs 104-weeks post-accident such that the Tribunal would likely have reached a different decision. More specifically, C.A. argues that the Tribunal abdicated its role as a trier of fact and ignored certain expert evidence advanced by C.A. C.A. did not request a reconsideration of the remainder of the decision.

4The respondent, Aviva Insurance Canada ("Aviva"), requests that C.A.'s request for reconsideration be denied.

5Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,² I have been delegated the responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

6C.A.'s request for reconsideration is dismissed.

ANALYSIS

7The grounds upon which a request for reconsideration can be granted are set out in Rule 18.2 of the The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission's Common Rules of Practice and Procedure, Version I (October 2, 2017) (the "Rules"). The ground that C.A. submits applies in this matter is Rule 18.2(b), that the Tribunal made errors of fact and law.

8In order to interfere with a decision under Rule 18.2(b), the Tribunal must not only have made an error of law or fact, but that error of law or fact must be enough that the Tribunal likely would have come to a different decision. Minor or inconsequential procedural or substantive mistakes are not enough to interfere with a decision made at first instance.

9C.A. argues that the Tribunal made two errors of fact and/or law regarding its determination on the issue of her entitlement to IRBs 104-weeks post-accident, namely:

(i) The Tribunal abdicated its role as a trier of fact by disregarding Dr. Harnadek's expert evidence on the basis that his report did not specifically address the legal test for IRBs 104-week post-accident; and

(ii) The Tribunal erred by ignoring the evidence of C.A.'s treating psychologist, Dr. Catherine Bart.

10Although not set out as a separate alleged error, C.A. also submitted that the Tribunal erred by ignoring the clinical notes and records (CNRs) of Dr. Cheryl Letheren, optometrist.³

11I find that C.A. has failed to prove on a balance of probabilities that the Tribunal made an error of law or fact such that the Tribunal would have come to a different decision regarding C.A.'s disentitlement to IRBs 104-weeks post-accident.

The Tribunal did not fail to fulfil its role as a trier of fact

12I find that C.A. has failed to prove on a balance of probabilities that the Tribunal made an error of law and/or fact by failing to fulfil its role as a trier of fact by disregarding Dr. Harnadek's expert evidence.

13C.A. argues that the Tribunal erred by disregarding Dr. Harnadek's expert evidence, who was not called as a witness at the in-person portion of the hearing, because his report did not specifically address whether the legal test for entitlement to IRBs 104-weeks post-accident had been met and, as a result, made a significant error of fact by abdicating the Tribunal's role as a trier of fact. To support her position, C.A. highlighted the following excerpt from the decision:

...while Dr. Michael Harnadek, psychologist, diagnosed C.A. with an unspecified mild neurocognitive disorder in his May 10, 2018 Neuropsychological Assessment Report, Dr. Harnadek did not provide any explanation or analysis regarding his diagnosis of C.A. and her ability to work and, more specifically, to work as a medical office administrator.⁴

14C.A. relied upon the reconsideration decision in D.P. v Chieftan Insurance⁵ where it was found that the Tribunal did not properly assess or give appropriate weight to the applicant's experts' reports. In that reconsideration decision, it was found that the Tribunal disregarded the applicant's experts' reports because the reports failed to explicitly address the test for entitlement to IRBs. In arriving at its reconsideration decision, the Tribunal also stated that, "the role of witnesses and medical experts is to provide medical diagnoses and opinions with respect to how an individual's disability or diagnosis impacts their ability to function (my emphasis added)."⁶

15While I agree with the principles set out in D.P. Reconsideration, the decision in this matter is distinguishable from the underlying decision at first instance in that matter as the Tribunal explicitly stated that the applicant's experts' reports did not address the correct test for entitlement to IRBs.⁷ Here, no such statements were made by the Tribunal. In contrast, the Tribunal correctly weighed and analyzed Dr. Harnadek's report according to the principles set out in D.P. Reconsideration. In this matter, the Tribunal found that Dr. Harnadek's report failed to provide any explanation or analysis regarding his diagnosis of C.A. and her ability to work and, more specifically, to work as a medical office administrator. As such, while Dr. Harnadek provided a medical diagnosis, he failed to provide an opinion, any discussion or any analysis with respect to how his diagnosis impacted C.A.'s ability to function, specifically in a work setting, which was correctly identified by the Tribunal. This finding was consistent with the considerations set out in D.P. Reconsideration and further bolstered by the following statement by the Tribunal in the decision not referred to by C.A. in her reconsideration submissions that, "C.A. failed to submit any medical evidence regarding the level of her impairments and functionality in terms of her employment for the period of 104 weeks post-accident."⁸ As a result, I find no error by the Tribunal regarding its consideration of Dr. Harnadek's report.

16Even if I was incorrect and the Tribunal did not consider Dr. Harnadek's report as required by D.P. Reconsideration, I disagree that any such error would have led to a different result.

17C.A. submits that Dr. Harnadek's report was clear that C.A. suffered a concussion in the accident and "has serious impairments concerning her cognition as a result."⁹

18I disagree. Dr. Harnadek found that C.A. suffered functional impairments classified as either mild, mild to moderate or moderate in several areas including auditory-verbal working memory, visual-spatial speed of processing, visual-spatial skills of construction visual-perception as well as speed of visual-spatial processing, some aspects of C.A.'s executive functioning, new learning and encoding/acquisition of auditory-verbal material and visual-spatial material into memory and speeded manual dexterity in either hand. The only mention of any severe functional impairment found by Dr. Harnadek was regarding C.A.'s verbal skills which he noted ranged from mild (reading and category fluency) to more severe (confrontation naming). Dr. Harnadek also noted that C.A. exhibited normal range functioning in her basic attention span for verbal and visual-spatial information, processing speed for auditory-verbal information, concept-formation and some aspects of her verbal skills. In the end, Dr. Harnadek diagnosed C.A. with an unspecified mild neurological disorder and, as such, I disagree that Dr. Harnadek's report confirmed that C.A. had serious cognitive impairments.

19For all of the reasons set out above, I find that C.A. has failed to prove on a balance of probabilities that the Tribunal made an error of law and/or fact by not fulfilling its role as a trier of fact and/or by disregarding Dr. Harnadek's report.

Dr. Bart's evidence

20I find that C.A. failed to prove on a balance of probabilities that the Tribunal erred by not referring to the April 5, 2017 Psychological Report by Dr. Catherine Bart, C.A.'s treating psychologist, in the Tribunal's determination of C.A.'s entitlement to IRBs 104-weeks post-accident.

21I agree with C.A. that Dr. Bart's report was not referred to in the portion of the decision that addressed her entitlement to IRBs for the period beginning 104-weeks post-accident. However, it is trite law that the Tribunal is not obliged to refer to every piece of evidence put to it or that is considered in rendering its decision. As a result, the failure to refer to Dr. Bart's report in this portion of the decision does not, in and of itself, constitute an error.

22I also do not dispute C.A.'s position that her counsel noted in his closing submissions that he was relying upon Dr. Bart's report regarding C.A.'s entitlement to IRBs. However, no submissions were made on how Dr. Bart's report should be applied to the Tribunal's determination of C.A.'s entitlement to IRBs 104-weeks post-accident especially in light of Dr. Bart's report being dated well before this period. Furthermore, Dr. Bart's report was considered by the Tribunal in its determination of C.A.'s entitlement to IRBs within 104-weeks of the accident as it was discussed in the decision at paragraph [17].

23Even if I was incorrect and the Tribunal did err regarding Dr. Bart's report, I do not agree that the Tribunal would have come to a different decision. I disagree with C.A.'s submission that Dr. Bart's report "fully supports" her position that C.A. could not perform the job duties required for competitive employment as a medical office administrator.¹⁰ Dr. Bart noted that at the time of her report, which was completed eight months prior to the period in dispute, she discussed with C.A. whether employment in the area of medical office administration was "premature,"¹¹ which suggests to me that it would be appropriate at some point in the future. Further, while I accept that Dr. Bart did opine that C.A. would likely fail at sustaining work in a busy medical office and that such employment would have negative effect on her mood and overall psychological functioning,¹² Dr. Bart qualified this position stating that it was at the time of her report and depended upon a scheduled optometry assessment.¹³ Moreover, Dr. Bart opined that, "at this time, [C.A.'s] severity of the cognitive and emotional symptom[s] prevent her from working as a PSW and Doula and proceeding with a job search for a medical office position (my emphasis added)."¹⁴ Therefore, I disagree that Dr. Bart's report supports the position that C.A. could not perform the job duties as a medical office administrator; rather, Dr. Bart's report only spoke to C.A.'s function at the time of her report, which was well before 104-weeks post-accident.

Dr. Letheren's CNRs

24C.A. submits that the Tribunal erred by failing to refer to Dr. Letheren's CNRs in the decision. C.A. further submits that if this medical evidence had been reviewed, it would have been clear that Dr. Letheren's concerns only increased as time went on that C.A.'s vision issues were worsening.

25As discussed above in paragraph [21], the failure to refer to Dr. Letheren's CNRs in the decision does not, in and of itself, constitute an error.

26Further, while C.A. reports that her counsel stated in his closing submissions, "the evidence that we are relying on, we've elected to file the evidence as we've discussed. The evidence includes all of the documents contained in the joint document brief,"¹⁵ and went on to flag important reports concerning the issue of C.A.'s entitlement to IRBs, Dr. Letheren's CNRs were not identified or flagged as important by C.A.'s counsel. Furthermore, while Dr. Letheren's CNRs were included in the joint document brief, C.A. made no submissions on how this evidence should be applied to the Tribunal's determination of C.A.'s entitlement to IRBs 104-weeks post-accident. As a result, I find that C.A.'s reconsideration submissions regarding Dr. Letheren's CNRs are arguments that could have been made at first instance and, therefore, are not properly before me as a ground for reconsideration.

27Even if I am incorrect and the Tribunal did err by not considering Dr. Letheren's CNRs, I do not agree that the Tribunal would have come to a different decision regarding C.A.'s entitlement to IRBs 104-weeks post-accident.

28Dr. Letheren's CNRs show that C.A. attended for an assessment that began on May 25, 2017 and continued on September 22, 2017. Despite this two-part assessment, Dr. Letheren's CNRs include a report dated May 2017 that refers to both parts of C.A.'s assessment. In this report, Dr. Letheren diagnosed C.A. with binocular vision disorder, hyperopia, astigmatism, post trauma vision syndrome and visual midline shift syndrome. Dr. Letheren's treatment recommendations included:

(i) Prescription change for occupational lenses, non-polarized sunglasses and binasal occlusion on all glasses;

(ii) Compression therapy to improve grounding: posturemedic – for busy environments;

(iii) In office vision therapy – 6 sessions;

(iv) Vestibule-ocular Reflex training – yoked prism in clip to be used during therapy;

(v) Computer training – Wii, Luminosity to improve visual motor integration;

(vi) A referral to specific online resources;

(vii) Follow-up in 6-8 weeks after glasses; and

(viii) Syntonacs light therapy – mu upsilon.

29Despite the numerous diagnoses and recommendations for treatment, Dr. Letheren's subsequent treatment and assessment plan ("OCF-18") dated September 28, 2017 only sought funding for the prescription change, a web vision therapy system, which was not included in her list of treatment recommendations in her May 2017 report, and completion of the OCF-18. Further, the September 28, 2017 OCF-18 only listed concussion, subjective visual disturbances and diopia in the injury and sequelae information portion.

30C.A.'s next visit to Dr. Letheren was on February 2, 2018. Dr. Letheren's CNRs note, "a few mos [months] ago os eye became blurry overtime Nov 2017...eye got red GP gave antibiotics" and "Lt side of face is numb." The same day, Dr. Letheren referred C.A. to the Emergency Eye Clinic and noted on the referral that she had completed a brain injury assessment on C.A. on May 25, 2017 and that there was "no Horner's then" and that C.A.'s symptoms started in November 2017.

31Dr. Letheren's CNRs include a clinic note dated February 7, 2018 by Vlad Diaconita, resident, in the department of ophthalmology at St. Joseph's Health Care London. In his note, Mr. Diaconita diagnosed C.A. with the following conditions: left eye ptosis, likely levator dehiscence; likely left eye traumatic myosis; left eye trigeminal neuralgia; and left eye exposure keratopathy. Mr. Diaconita also stated:

At this point, [C.A.'s] findings and investigations are more suggestive of a traumatic cause behind her symptoms and signs rather than Horner's or a vascular event. However, to rule out Horner's, we will do a pharmacological testing including apro-clonidine and cocaine testing. We will give her 24 hours to wean off the dilating drops, and we will reassess her tomorrow in the after to 1:00 p.m. Should her Horner testing be normal at that time, we can conclude that her ptosis is likely levator dehiscence as it appears clinically and that her exposure kerotopathy is the main cause for her blurring of vision. We will reassess the left pupil as well tomorrow, but it may be a traumatic miosis which is to blame rather than Horner's (my emphasis added).¹⁶

Mr. Diaconita also noted that he would update Dr. Letheren again tomorrow after C.A.'s Horner's pharmacological testing. Unfortunately, there are no future entries in Dr. Letheren's CNRs except two prescriptions dated November 24, 2017.

32Nonetheless, there is a communication entry in the St. Joseph's Health Care London CNRs¹⁷ dated March 23, 2018 by Dr. Alain Proulx, ophthalmologist, that stated that C.A. presented with "a Horner syndrome of unknown etiology" and that he would see C.A. again in a few months' time for a reassessment. The only other evidence submitted at the hearing from Dr. Proulx is a March 19, 2018 note included in C.A.'s family doctor's CNRs, Dr. Kimberly Gilmour. In this note, Dr. Proulx stated that he suspects that C.A.'s pain is likely related to her "interesting" ocular surface issues that include numerous punctate epithelial erosions and an inflammatory pannus given that she has no other cause for her discomfort. Dr. Proulx confirmed that he was discharging C.A. as she did, "not appear to have any underlying neuro-ophthalmic disease."¹⁸

33What I can discern from Dr. Letheren's CNRs and the hearing evidence discussed above is that C.A.'s vision issues were either caused by trauma or by Horner's syndrome. Dr. Proulx confirmed that C.A. was diagnosed with Horner's syndrome of "unknown etiology" in March 2018. As such, I do not agree with C.A. that the Tribunal would have come to a different conclusion in light of Dr. Letheren's CNRs regarding C.A.'s entitlement to IRBs 104-weeks post-accident because C.A.'s vision issues, which C.A. submits prevent her, in part, from working as a medical office administrator, were found to be caused by Horner's syndrome as opposed to the accident.

CONCLUSION

34For the reasons outlined above, C.A.'s request for reconsideration is dismissed.

Lindsay Lake

Adjudicator

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 1C.A. vs. Aviva Insurance Company, 2019 CanLII 119767 (ON LAT).
2. 2S.O. 2009, c. 33, Sched. 5.
3. 3Applicant's Request for Reconsideration, paras. 49 and 55.
4. 4Supra note 1 at para. 35.
5. 52019 CanLII 83888 (ON LAT) ["D.P. Reconsideration"].
6. 6Ibid. at para. 15.
7. 717-007909 v Chieftain Insurance, 2017 CanLII 147726 (ON LAT) ["D.P. Decision"] at paras. 56-57.
8. 8Supra note 1 at para. 35.
9. 9Applicant's Request for Reconsideration dated October 22, 2019, para. 35.
10. 10Applicant's Request for Reconsideration dated October 22, 2019, para. 6.
11. 11Joint Document Brief, tab 78, page 8.
12. 12Ibid. at page 10.
13. 13Ibid.
14. 14Ibid. at page 10.
15. 15Applicant's Request for Reconsideration dated October 22, 2019, para. 41.
16. 16Joint Document Brief, tab 65.
17. 17Joint Document Brief, tab 72.
18. 18Joint Document Brief, tab 63.