RECONSIDERATION DECISION
Before: Theresa McGee, Vice-Chair
Tribunal File Number: 19-004820/AABS
Case Name: Alysia Chance-Guppy v. Aviva General Insurance Company
Written Submissions by:
For the Applicant: Kateryna Vlada, Paralegal
For the Respondent: Maggie Morgan, Counsel
OVERVIEW
1The respondent, Aviva, requests reconsideration of a decision dated November 17, 2020 (the “decision”). In the decision, the Licence Appeal Tribunal (the “Tribunal”) found the applicant, Alysia Chance-Guppy, entitled to receive a non-earner benefit with interest. The Tribunal also decided the applicant was not entitled to receive the medical benefits she claimed.
RESULT
2The request for reconsideration is granted in part and denied in part. The period of the applicant’s entitlement to a non-earner benefit in the Tribunal’s November 17, 2020 order contained an error. However, the error in the order is not fatal to the outcome and the decision on the applicant’s entitlement to a non-earner benefit stands.
3The respondent has failed to establish the other factual and legal errors it asserts in its request for reconsideration.
4The respondent shall pay the applicant a non-earner benefit from October 13, 2017 to 104 weeks after the accident plus interest on the overdue payment of the benefit, calculated in accordance with the Schedule.
5The applicant has requested a further order for interest from the date of the decision to the date of the reconsideration decision. No further order is necessary. Section 51 of the Schedule provides that interest on the overdue payment of a benefit accrues until the date the overdue amount is paid.
ANALYSIS
6The grounds for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended:
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 likely 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.
7The respondent requests reconsideration on the second of these grounds: it submits the Tribunal made factual and legal errors such that it would likely have reached a different result had the errors not been made. Specifically, the respondent submits that the Tribunal erred:
a) in law, by ordering payment of a non-earner benefit in the amount of $185.00 per week from October 13, 2017 to date and ongoing, because under s. 12(3)(c) of the Schedule, an insurer is not required to pay a non-earner benefit for more than 104 weeks after the accident;
b) in law, by finding that the applicant is not required to present quantitative evidence detailing the time she spent on pre- and post-accident activities, misapplying the test in Heath v. Economical Mutual Insurance Company (“Heath”);1
c) in fact, by only relying on the applicant’s unsupported self-reports about her alleged inabilities without considering evidence supporting her abilities; and
d) in fact and law, by concluding based on the evidentiary record that the applicant was entitled to a non-earner benefit.
The period of entitlement in the November 17, 2020 order is amended
8The respondent is correct that the Tribunal’s order exceeded the maximum length of entitlement to a non-earner benefit set out in s. 12(c)(3) of the Schedule. The period listed in the order reflects Tribunal’s December 23, 2019 consent order, but it exceeds the maximum period during which a non-earner benefit is payable. An insurer is not liable to pay a non-earner benefit beyond 104 weeks after the accident. The November 17, 2020 order requires amendment to correct the entitlement period.
Did the Tribunal properly apply the test in Heath?
9The Tribunal did not err in its application of the Heath test. The Tribunal’s analysis of whether the applicant suffered a complete inability to carry on a normal life is consistent with the approach articulated in Heath.
10The respondent submits that the Tribunal misapplied the test, erring in law. As evidence of legal error, the respondent highlights the following holding, made by the Tribunal at paragraph 33 of the decision:
Nowhere does Heath require that an applicant present quantitative evidence detailing the time spent on pre- and post-accident activities. Heath expressly requires a comparison of activities and circumstances before and after the accident that is qualitative, the parameters of which will depend on the facts of the case.
11There is no error in this statement. To reiterate, Heath does not specifically require an applicant to tender quantitative evidence to establish a pre-accident baseline of activities. The Court of Appeal specifically adopts the general principle that the phrase “engaging in” in s. 12(1) of the Schedule’s definition of a “complete inability to carry on a normal life” should be interpreted from a qualitative perspective: see Heath at paragraph 50. Quantitative evidence may aid in the inquiry, but it is not required.
12The decision sets out the Tribunal’s findings about the applicant’s activities and circumstances before and after the accident. The decision references the applicant’s educational, employment, and social activities, her health history and its impact on her functioning, and her caregiving duties.
13In line with Heath, the decision addresses all activities in which the applicant ordinarily engaged before the accident. As Heath permits, the Tribunal assigned greater weight to those activities which she reported to assessors and her family doctor as being important to her pre-accident life. The Tribunal found that the applicant was continuously prevented from engaging in substantially all of her pre-accident activities. In doing so, the Tribunal properly applied the relevant legal test. At paragraph 21, the Tribunal held:
Heath makes it clear that a claimant who merely “goes through the motions” cannot be said to be “engaging in” an activity. […] In my view, the factual record shows a young woman “going through the motions” of caring for her children and herself in the face of incapacitating mental illness and persistent physical limitations. Alysia Chance-Guppy was struggling to provide care for herself and her dependants in the aftermath of an accident that had taken her life significantly off course. […] Considering the manner and quality of her engagement in those activities, I find that the nature, extent and degree of Alysia Chance-Guppy’s disability meets the requisite threshold.
14The Schedule sets a high threshold for entitlement to a NEB. In this case, the Tribunal found that the applicant experienced a level of accident-related incapacity satisfying the high threshold for entitlement. An applicant’s “complete inability” as defined in the Schedule and interpreted in Heath is assessed in relation to what was a “normal life” for her before the accident. The inquiry is both legally exacting and heavily fact-dependant.
15The parties do not dispute that the accident itself was relatively minor. But the severity of an accident does not always correlate with the severity of an accident-related impairment. In this case, the evidence supported a finding that the applicant’s pre-existing psychological condition made her particularly vulnerable to an accident-related impairment, leaving her with a “complete inability to carry on a normal life”. There is no error in the Tribunal’s application of the legal test.
Did the Tribunal err in weighing the evidence?
16The remaining errors asserted by the respondent relate to the weight the Tribunal gave to the evidence at the hearing. The respondent disputes the Tribunal’s reliance on records of the applicant’s self-reports. It also submits that the Tribunal erred by concluding the applicant is entitled to a non-earner benefit.
17I find that the respondent has failed to identify errors of fact or law capable of satisfying the grounds for reconsideration set out in Rule 18.2.
a) Did the Tribunal err in relying on records of the applicant’s self-reports?
18The respondent contests the weight the Tribunal gave to records documenting the applicant’s subjective reports. Factual errors arise, the respondent submits, from:
(a) the Tribunal’s reliance on the clinical notes and records of Dr. Eisen, the applicant’s family doctor, because they consist primarily of the applicant’s self-reports, not objective physical or psychological findings;
(b) the absence of corroborative evidence for the applicant’s self-reports;
(c) the absence of sworn testimony from the applicant, which leaves no evidentiary basis for certain of the Tribunal’s findings, such as which of the applicant’s pre-accident activities were most important to her;
(d) discrepancies in the applicant’s reports to assessors which the Tribunal failed to reconcile; and
(e) the Tribunal’s reliance on the applicant’s self-reports of inability over her self-reports of ability.
19The Tribunal’s reasons for relying on the clinical notes and records of Dr. Eisen are set out at paragraph 22 of the decision. As the applicant’s treating physician of many years, the Tribunal found that Dr. Eisen’s records provided objective, clinical insight into the applicant’s personal circumstances before and after the accident.
20Gathering and documenting relevant information about a patient’s history is an integral part of any physician’s clinical assessment. Every assessor relied upon by the parties in this proceeding gathered a history from the applicant. Dr. Eisen’s attention to the applicant’s reported history is not a reason to discount his evidence as to her circumstances or impairments. Her reports to him are internally consistent and the respondent presented no evidence to suggest that Dr. Eisen’s records contained reported falsehoods.
21The respondent submits that the applicant’s reports of her circumstances are “self-serving” and are therefore unreliable. This is incompatible with the respondent’s submission that the applicant gave self-reports to assessors of both ability and inability. The Tribunal did not, as the respondent submits, rely solely on the applicant’s reports of her inability, disregarding her reports of her ability. The Tribunal’s finding that the applicant is not entitled to specialized interventions for chronic pain rests on evidence of the applicant’s physical tolerances. As the Tribunal held at paragraph 39 of the decision, it is primarily the applicant’s psychological impairments that hinder her ability to carry on a normal life.
22There is no factual error owing to the Tribunal’s reliance on the documentary record for central findings like the importance of caregiving and vocational activities in the applicant’s pre-accident life. The Tribunal reasonably inferred the pre-accident activities that were important to the applicant from the records in evidence.
23There is no requirement, procedural or substantive, for sworn testimony to establish entitlement to benefits under the Schedule. The applicant discharged her evidentiary burden on the written record. Credibility can be assessed in the absence of oral testimony. The respondent has provided no evidentiary basis for a finding that those reports were false or deceptive. It was open to the respondent to call for an oral hearing to test the applicant’s credibility under oath. It consented to a written hearing.
24The respondent submits that the Tribunal erred by relying on the applicant’s reports that she could not return to work after the accident, because her Application for Accident Benefits (OCF-1) indicates she was unemployed at the time of the accident. The Tribunal’s finding is supported by the record: the applicant had worked full-time as a hairdresser’s assistant from 2011-2016, and part-time from home in the year before the accident, weaving hair for two to three referrals each week. At the time of the accident, while the applicant was unemployed, she had recently enrolled in full-time school. From the date of the accident until the evidentiary record ends in 2019, the applicant was unable to return to any form of employment resembling her pre-accident activities. This is the comparison called for in Heath.
25The respondent submits that if the applicant was unable to work, it was because of the needs of her children, not her accident-related impairments. It submits that Dr. Eisen’s note that she required childcare to go out and earn a living supports an inference that she could work. The Tribunal rejected these submissions when they were made at the hearing.
26The needs of the applicant’s children were not the sole impediment to her returning to work. That conclusion is not supported by the record. The applicant had three children prior to the accident. She was able to work full-time for five years after graduating from high school, and part-time from home in the year before the accident. After, she was unable to maintain employment of any kind.
27The applicant’s childcare needs feature significantly in the clinical notes and records of Dr. Eisen, particularly due to his advocacy on her behalf with children’s services. The evidence shows that the accident compounded barriers to the applicant’s employment and other activities – barriers like her lack of affordable childcare. The applicant’s accident-related incapacity magnified the challenges that she managed before the accident. The Tribunal made these findings based on the evidence.
28The respondent submits that the Tribunal erred by finding that the applicant was unable to continue in school because of the accident. It submits there is no evidence the applicant was even in school, or if she was, that her accident-related impairments prevented her from meeting the demands of the program. It submits the reasons the applicant gave assessors for not returning to school were inconsistent: to Dr. Goldstein, she cited difficulty with getting a rental car, caring for children, and commuting to school; to Dr. Hewchuk, she reported that not having a car for two months limited her mobility, and she was hoping to enroll in a business course. By failing to reconcile this inconsistency, the respondent submits, the Tribunal erred in fact.
29The respondent’s submission that there is “no evidence” that the applicant’s accident-related impairments prevented her from meeting the demands of her program is inaccurate. The applicant’s reports to assessors about her post-accident difficulties in returning to school are not uniform, but they are compatible. The respondent submits the Tribunal erred by not reconciling these discrepancies. They do not call for reconciliation. As the Tribunal observed at paragraph 31, it is unsurprising to find variation in the secondary reports of medical experts, who spend a short time gathering a history from a subject. The discrepancies the respondent highlights in the evidence are immaterial and do not undermine the applicant’s credibility.
30Rule 18 does not provide for a re-hearing of the evidentiary record. Disagreeing with the weight accorded to the evidence is not a basis for reconsideration. The evidentiary record underpins the Tribunal’s factual findings and the respondent has identified no error of fact or law that would have led the Tribunal to a different conclusion had such an error not been made.
b) Did the Tribunal err in concluding the applicant is entitled to a non-earner benefit?
31The respondent submits that the Tribunal erred in fact and law by finding that the applicant is entitled to a non-earner benefit. This submission essentially calls for a redetermination of the ultimate issue. Dissatisfaction with the outcome is not a basis for reconsideration. The respondent has identified no factual or legal error that would have likely resulted in a different outcome had it not been made.
CONCLUSION AND ORDER
32The respondent’s request for reconsideration is granted in part and denied in part. Consistent with my discussion above, I order that the Tribunal’s November 17, 2020 Decision and Order on the applicant’s entitlement to a NEB plus interest in accordance with the Schedule stands, but the period of entitlement is varied pursuant to Rule 18.4(b) as follows:
i. In the decision’s “Order” section at paragraph 41, the words “to date and ongoing” are stricken and replaced with “to 104 weeks after the accident”.
33No further order for interest is necessary, as interest accrues under s. 51 of the Schedule until the date an overdue amount is paid.
Theresa McGee
Vice Chair
Tribunals Ontario - Safety, Licensing Appeals and Standards Division
Date of Issue: February 25, 2021