RECONSIDERATION DECISION
Before: Jesse A. Boyce, Vice-Chair
File: 17-004536/AABS
Case Name: I.D.C. v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Reynold Kim
For the Respondent: Petros Yannakis
OVERVIEW
1This request for reconsideration was filed by the respondent, Aviva. It arises out of a decision dated September 26, 2019 in which the Tribunal found that the applicant was not subject to the Minor Injury Guideline (“MIG”) and that she was entitled to a non-earner benefit (“NEB”) and two treatment plans for physiotherapy, as well as interest.
2Aviva submits that the Tribunal acted outside of its jurisdiction and violated the rules of natural justice and procedural fairness. Further, Aviva alleges significant errors of fact and law that would have resulted in a different outcome had the errors not been made. It requests that the decision be varied to dismiss the applicant’s claims, to find that the applicant’s injuries are within the MIG and to award its costs. In the alternative, Aviva seeks a rehearing on all of the issues.
3Pursuant to Rule 18 of the Tribunal’s Common Rules of Practice and Procedure1, I have been delegated responsibility to reconsider this matter, as the original hearing adjudicator is no longer with the Tribunal.
RESULT
4Aviva’s request for reconsideration is dismissed.
ANALYSIS
5The 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 of the following criteria are met:
(a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
(b) 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;
(c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
(d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6Aviva’s reconsideration request falls under Rule 18.2(a) and (b). For the reasons below, I deny Aviva’s request for reconsideration.
Causation
7Aviva submits that the adjudicator erred in relying heavily on the applicant’s affidavit evidence, ignored relevant medical evidence and came to a conclusion that the 2015 accident was the cause of the applicant’s impairments despite the absence of a report linking the accident to her impairments and a pre-accident report that implicates the 2013 accident as the cause of her impairments.
8To begin, I find no error of law or fact in the adjudicator’s reliance on the applicant’s affidavit to demonstrate her pre-accident condition. The NEB test prescribed in Heath v. Economical, 2009 ONCA 391 invites a comparison of the applicant’s pre- and post-accident activities in order to assess whether they suffer a complete inability to carry on a normal life. While I agree with Aviva that this consideration typically includes medical evidence or a report, there is no specific requirement that it must, nor does it mean that an adjudicator cannot afford significant weight to an affidavit (or viva voce evidence) that they find persuasive. This is not an error.
9On review of the decision and the affidavit, I agree with the applicant that the alleged inconsistencies between the affidavit and the medical reports that Aviva highlights are relatively minor and, in any event, that any inconsistencies in the evidence go to weight. Here, I find the adjudicator acknowledged the inconsistencies that Aviva highlighted at various points in its submissions at para. 44 of the decision, where he “finds that these discrepancies are minor in nature and do not override the fact that the applicant is suffering from a continuous impairment of chronic pain resulting from the accident.” In my view, this was a finding that the adjudicator was entitled to make based on the evidence before him. Moreover, where Aviva elected not to cross-examine the applicant on her affidavit—which may have been helpful in reinforcing its position to the Tribunal that the affidavit was inconsistent or should be assigned less weight—I find that these submissions are largely attempts to reargue its case rather than evidence of actual error that would have affected the outcome of the decision.
10In a similar vein, while I am alive to Aviva’s arguments, I do not find that the adjudicator “ignored” relevant medical evidence, as alleged, but rather that the adjudicator highlighted the evidence that he found to be most persuasive in arriving at his decision. It is well-settled that this is within an adjudicator’s purview. On review, I note the extensive submissions offered by Aviva that the reports of Dr. Joo and Dr. Ghouse contain contradictions of material facts, however, I find that the adjudicator engaged with the medical evidence at various points in his NEB analysis and articulated why he assigned each report the weight he did. For example, at para. 33, he discusses discounting Dr. Tile’s opinion based on an incomplete file; at para. 34, he highlights Dr. Blitzer’s findings on chronic pain; at para. 46, he indicates why he afforded weight to the applicant’s affidavit based on the findings of Dr. Joo; then at paras. 39-43, while not medical evidence, per se, he identifies the applicant’s accident-related impairments and activities that inform the Heath analysis. While these examples are contained in the NEB section, I find similar engagement with the medical evidence in the sections dedicated to the MIG and the treatment plans that precede the NEB analysis.
11Next, while I agree with Aviva that the adjudicator did not specifically indicate that he was applying the “but for” test articulated in Sabadash v. State Farm et al., 2019 ONSC 1121 (Ont. Div. Ct.) to the causation issue raised by Aviva, I find the adjudicator did make a clear finding on causation. For example, at para. 17, citing Dr. Blitzer’s opinion that the applicant had significantly higher levels of chronic pain after the 2015 accident, the adjudicator states, “I find that the applicant’s chronic pain was worsened by the accident.”; at para. 44, the adjudicator found that “the applicant is suffering from a continuous impairment of chronic pain resulting from the accident”; then, at para. 47, he states, “I find that the impairments which were exacerbated by the accident clearly impacted substantially all of the activities in which the applicant engaged prior to the accident.” Further, the adjudicator’s Heath analysis between paras. 36-43 of the decision provides more evidence of his “but-for” consideration, as it wrestles with the applicant’s pre-accident improvement and how the 2015 accident then affected her activities of daily living.
12Accordingly, I disagree with Aviva’s submission that it is “impossible” to discern from the decision whether the adjudicator applied the “but for” or “material contribution” test on causation. While it is best practice to clearly articulate the test that an applicant must meet and provide headings to guide the parties, I do not find that the absence of a specific citation to Sabadash was a significant legal error that would have affected the outcome of the decision. On review, I find that the adjudicator considered the causation elements of the dispute at various points in his decision and provided appropriate reasons, outlined above, to support his causation determination that the applicant was improving and, but for the 2015 accident, she would not be suffering from her impairments. I see no reason to interfere with the decision based on the grounds articulated by Aviva.
Pre-Accident Medical Records
13Here, Aviva asserts that the adjudicator made a significant error of fact when he made the mistaken assumption that Aviva withheld all of the past medical records from Dr. Tile, which led to his conclusion that Dr. Tile’s report was incomplete and therefore should be afforded less weight. Aviva submits that the applicant withheld the pre-accident records and by the time Aviva received same, it could not complete an addendum because Dr. Tile was retired. To this end, Aviva submits that the adjudicator should have afforded less weight to the affidavit due to the applicant “misleading” the assessor about her pre-accident chronic pain. In turn, Aviva argues that this was an error of fact that led to the adjudicator’s conclusions on all the issues in dispute.
14I find no evidence to suggest that the applicant mislead Aviva or Dr. Tile, as alleged, a finding also made by the Tribunal at para. 23. Similarly, I find no evidence to suggest that Aviva withheld medical evidence from Dr. Tile, as the Tribunal’s decision incorrectly finds in its second sentence at para. 23. Indeed, the applicant’s reconsideration submissions concede that the adjudicator was incorrect in concluding that Aviva withheld past medical records. This was clearly an error of fact and a finding that was not supported by the evidence.
15However, while I agree that it was an error of fact, I do not find that this error likely would have resulted in a different outcome had it not been made. I agree with the applicant that despite the error, the adjudicator did not actually dismiss Dr. Tile’s report in its entirety based on a mistaken assumption over the past medical records. Rather, I agree that the adjudicator reviewed the reports in evidence and preferred the findings of Dr. Joo and Dr. Blitzer because they aligned with the applicant’s complaints in her affidavit.
16For example, at para. 23, the decision indicates that Dr. Tile’s opinion was afforded less weight because the adjudicator found the applicant’s affidavit to be more credible and consistent; at para. 24, because Dr. Blitzer’s report provided a “more complete historic, current and future picture of the applicant”; and again, at para. 24, because Dr. Tile’s “notes and records could not be found to verify the basis of his conclusions.” Ultimately, I disagree with Aviva that this error of fact would likely have resulted in a different outcome, as the decision provides a clear rationale that the applicant’s affidavit and medical evidence were more persuasive in the adjudicator’s analysis than Dr. Tile’s opinion, which only found soft-tissue injuries and did not meaningfully engage with the applicant’s pre- and post-accident activities. Accordingly, while I find an error of fact was made, I see no reason to interfere with the decision based on this ground, as I do not find that this error likely would have resulted in a different outcome had it not been made.
Exceeding Jurisdiction on NEB Order
17Next, Aviva asserts that the adjudicator exceeded his jurisdiction when he ordered that “The applicant is entitled to the remainder of the [NEB] claimed in issue (ii), in accordance to the relevant Schedule.” Aviva submits that this appears to be declaratory relief that is outside of the Tribunal’s jurisdiction as it seems to award NEBs into the future. Aviva asks that it be corrected.
18While I agree that this phrasing is rather clunky and certainly deserving of a copy edit, I note that it is contained in the “Results” section of the decision, whereas the language used by the adjudicator in the “Order” section at the end of the decision—which provides direction to the parties based on the Tribunal’s decision—omits the odd “remainder” language. In any event, I do not find that the adjudicator exceeded his jurisdiction in making this order, as there is nothing to suggest that the applicant is entitled to, or that Aviva is required to pay for, NEBs at any point in the future when she is no longer entitled to the benefit.
Costs – Denial of Procedural Fairness
19Finally, Aviva submits that, regardless of the outcome of the hearing, the adjudicator’s failure to entertain its costs submissions amounts to a denial of procedural fairness. Aviva asserts that it ought to be have been entitled to its costs of the written hearing based on the applicant’s withholding of records and her misleading the assessor, which prejudiced Aviva’s ability to respond.
20I disagree that Aviva was denied procedural fairness where the adjudicator did not engage with its cost submissions in a written hearing where it was not successful. Costs are discretionary under Rule 19 of the Tribunal’s Common Rules and are only awarded when there is evidence that one party acted unreasonably, frivolously, vexatiously or in bad faith. As noted, the adjudicator made specific findings that the applicant did not withhold information and that she was credible, so there is no basis to find that she acted unreasonably, frivolously, vexatiously or in bad faith. In my view, it would be reasonable for an adjudicator not to address a costs claim that would not be successful. Further, where the Tribunal found in favour of the applicant, I am not persuaded that Aviva’s procedural rights were affected by the adjudicator not addressing costs or that this omission should result in a rehearing on all of the substantive issues.
21In conclusion, on review, I find that Aviva has not met the reconsideration criteria under Rule 18.2(a) or (b) and therefore has failed to established that the Tribunal made an error of law or fact, or any other error such that its decision should be reconsidered or reheard.
ORDER
22The request for reconsideration is dismissed.
Released: February 3, 2021
_________________________
Jesse A. Boyce
Vice-Chair