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: Paul Gosio, Adjudicator
File: 18-000854/AABS
Case Name: P.W. vs. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Maria Mikhailitchenko, Counsel
For the Respondent: Suhasha Hewagama, Counsel
OVERVIEW
1Requests for reconsideration were filed by both the applicant and the respondent. They arise out of a decision dated March 19, 2020 in which the Tribunal found that the applicant was not entitled to an income replacement benefit but was entitled to an examination expense in the amount of $1,131.44 for an attendant care assessment pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2With respect to the applicant’s request for reconsideration, the applicant submits that the Tribunal made significant errors of fact and law and requests that the Tribunal reconsider its decision with respect to the applicant’s past and ongoing entitlement to income replacement benefits.
3With respect to the respondent’s request for reconsideration, Aviva submits that the Tribunal violated the rules of natural justice and procedural fairness and requests that the Decision be varied, and a finding be made that the applicant is not entitled to the cost of the attendant care assessment nor interest.
4Pursuant to Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Tribunal Common Rules”), I have been delegated responsibility to reconsider this matter.
RESULT
5After reviewing the submissions of the parties and for the reasons articulated below, I have dismissed the applicant’s request for reconsideration. I also grant the respondent’s request for reconsideration but find that the appropriate remedy is that the applicant’s entitlement to the attendant care assessment shall be re-heard.
ANALYSIS
6The grounds for a request for reconsideration are contained in Rule 18.2 of the Tribunal’s Common Rules. A request for reconsideration will not be granted unless one or more of the following criteria are met:
I. The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
II. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
III. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
IV. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
The Applicant’s Request for Reconsideration
A. Error in Law
7The applicant submits that the adjudicator erred in law as "he interprets “but for test” for “thin skull” cases, as applied in 16-001535 v. Wawanesa Mutual Insurance Company1 [R.D. v Wawanesa], to mean that the adverse sequelae from the stress (such as heart failure or stroke) must be temporally linked to the accident itself”.
8The applicant then discussed how the ratio in R.D. v. Wawanesa applied to this case. These submissions were not made in the applicant’s initial written submissions or in reply. The reconsideration process cannot be used to relitigate matters that should have been addressed in the first instance nor is it opportunity to ask the Tribunal to reweigh the evidence.
9The adjudicator correctly identified the “but for” test as the default causation test in accident benefit cases. He further correctly decided that the present case was not one where the “material contribution” test would apply. The applicant did not challenge this finding in his Request for Reconsideration.
10The adjudicator reviewed and weighed the evidence and found that there was no causal link between the accident and the applicant’s congestive heart failure, stroke, and cardiac arrhythmia. At paragraph 25 of the Decision, the adjudicator agreed with the applicant’s position that cardiac failure can be caused by the stress and fear from the accident, however, in this case, based on the evidence, the applicant did not satisfy him that this was the case. This does not constitute an error of law.
B. Error in Fact and Law
11The applicant submits that the adjudicator erred in fact by finding that an intervening event, “nearly falling on ice”, was communicated to Ms. Kurtach. The adjudicator did not make this finding of fact, rather, at paragraph 29 of the Decision, the adjudicator simply repeated a fact relied upon by the respondent in its submissions: “The respondent…raises a causation issue as the applicant reported that he slipped on ice and “almost fell” approximately two to three months after the accident.”
12The adjudicator did not find that this constituted an intervening act. In fact, the adjudicator stated that he was not persuaded by the respondent’s submission and at paragraph 30 of the Decision, found that the Applicant’s torn right shoulder ligaments were as a result of the accident. In addition, the adjudicator never concluded that the “slip and almost fall” on ice caused the applicant’s congestive heart failure and stroke. I find no error in Fact in this regard.
13The applicant also submits that the adjudicator erred in law as he articulated a need for “a conclusive link between subject accident and the applicant’s subsequent cardiac issues and stroke”. The applicant submits that a conclusive link between subject accident and the applicant’s subsequent cardiac issues and stroke was “neither medically possible nor legally required for the “but for” test or for the standard of proof on the balance of probabilities.”
14The adjudicator did not articulate a legal requirement for a “conclusive link” between subject accident and the applicant’s subsequent cardiac issues and stroke. The adjudicator simply stated, at paragraph 27 of the Decision, that the applicant’s own treating cardiologist was unable to opine conclusively on any link between the subject accident and the applicant’s subsequent cardiac symptoms and stroke.
15The adjudicator also clearly outlined both the burden and standard of proof at paragraph 21 of the Decision. This does not constitute and error of law.
C. Error of Fact
16The applicant submits that the adjudicator erred when he indicated that the accident took place on August 22, 2015 in paragraphs 2 and 14 of the Decision. The applicant submits that this mistake of fact led the adjudicator to miscalculate the period of time between the “initial onset of symptoms and period of time between the accident and first visit to the doctor”. The applicant submits that adjudicator would have likely not concluded that the “triggering event is not temporally connected to the accident” had the error not been made.
17The adjudicator did incorrectly indicate that the accident took place on August 22, 2015. The accident took place on September 29, 2015. The adjudicator however, would not have reached a different conclusion had the error not been made.
18The error appears to be an inadvertent one. At paragraph 27 of the Decision, the adjudicator correctly identified that the applicant sustained heart failure approximately 3 months after the subject accident and suffered a stroke approximately 10 months after the subject accident. This timeline is consistent with the evidence and indicates that the adjudicator was aware of the correct date of loss. He used this timeline to analyze whether the accident and the applicant’s subsequent cardiac issues and stroke were temporally linked.
19The applicant also submits that the adjudicator made an error in fact at paragraph 20 of the Decision. The applicant submits that the adjudicator indicated that the applicant’s pre-accident cardiac history was not provided to Dr. Drzymala and that Dr. Drzymala’s conclusions are based on the applicant’s own words.
20This is not what the Decision indicates. At paragraph 20 of the Decision, the adjudicator states:
Dr. Drzymala was not the applicant’s treating cardiologist prior to the subject accident and did not have a complete (emphasis added) picture of the applicant’s pre-existing health history as it was not provided to him. Dr. Drzymala’s conclusion seem to be based mainly on the applicant’s self reports and are speculative in nature.
21This statement of fact is supported by Dr. Drzymala’s letter dated August 17, 2018 wherein he stated that he reviewed the “very limited health records” at his disposal and relied on the applicant’s own account. Dr. Drzymala also indicated that he first met the Applicant on November 25, 2015, i.e. after the subject accident.
22I find no error in fact in this regard.
The Respondent’s Request for Reconsideration
23The respondent submits that the adjudicator’s finding that the applicant was entitled to the cost of the attendant care assessment was based on an argument that was not raised by the parties.
24The Decision clearly indicates that the adjudicator relied on section 25(1)4 of the Schedule, in order to find that the applicant was entitled to the cost of the attendant care assessment. Neither the applicant nor the respondent addressed this section in their submissions and focused their attention on whether the assessment was reasonable considering the applicant’s accident related injuries.
25The respondent submits that the adjudicator essentially stepped into the shoes of the applicant in relying on section 25(1)4 of the Schedule. The respondent submits that the parties are entitled to know the case against them and that it is procedurally unfair if an issue is decided on something not argued by the applicant without giving the respondent an opportunity to respond.
26The applicant has the obligation to make their own case, and the Tribunal should not satisfy the evidentiary onus for them. Adjudicators are also expected to know and follow the Schedule. In this case, the adjudicator should have contacted the parties in order to get their submissions on the applicability of section 25(1)4 of the Schedule. The adjudicator did not do this which was not procedurally fair to the respondent.
27The appropriate remedy in this case however, is not to vary the decision as requested by the respondent. The Tribunal has broad remedial powers which include having a matter re-heard. In this case, procedural fairness would demand that the parties be given an opportunity to make submissions on the applicability of section 25(1)4 of the Schedule.
28With that in mind, I find that the applicant’s entitlement to the attendant care assessment shall be re-heard. The parties shall exchange with each other and file with the Tribunal their written submissions on the applicability of section 25(1)4 of the Schedule to the applicant’s entitlement to the attendant care assessment according to the following timetable:
Due Date
Page Limit
Applicant’s submissions and evidence:
November 30, 2020
5 pages
Respondent’s submissions and evidence:
December 7, 2020
5 pages
Applicant’s reply submissions or notice that no reply submissions will be filed:
December 14, 2020
5 pages
CONCLUSION
29For the reasons noted above, the applicant’s request for reconsideration is dismissed. The respondent’s request for reconsideration is granted, however, the appropriate remedy is that the the applicant’s entitlement to the attendant care assessment shall be re-heard.
Paul Gosio
Adjudicator
Tribunals Ontario – Safety, Licensing Appeals and Standards Division