Z.R. v. Gore Mutual Insurance, 2021 CanLII 18915

RECONSIDERATION DECISION

Citation: Z.R. v. Gore Mutual Insurance, 2021 ONLAT 18-000017/AABS - R

Before: Rebecca Hines, Adjudicator

Date: February 4, 2021

File: 18-000017/AABS

Case Name: Z.R. vs. Gore Mutual Insurance

Written Submissions by:

For the Applicant: M. Aftab Alam, Counsel

For the Respondent: Arthur Robert Camporese, Counsel

OVERVIEW

1This reconsideration request follows a Tribunal decision dated April 6, 2020 in which Adjudicator Punyarthi and I determined that the applicant sustained a catastrophic (“CAT”) impairment pursuant to the Schedule. We also found that the applicant was entitled to a Non-Earner Benefit (“NEB”). We issued that decision shortly after the Order-in-Council appointing Adjudicator Punyarthi a Tribunal Member expired, something permitted by s. 4.3 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22.

2The respondent has requested a reconsideration of the decision on both issues. The respondent argues that we made a significant error of fact and/or law on multiple issues, misapprehended the evidence, and failed to give fulsome reasons in our decision.

3The applicant objects to the request for reconsideration, stating that our decision is correct. He takes the position that the respondent’s request is an attempt to reargue its case which ultimately failed at the hearing. Further, the applicant submits that the respondent failed in its onus to prove that we made a significant error in fact or law that would have resulted in a different decision.

RESULT

4After reviewing the parties’ submissions and evidence, I order as follows:

(i) The respondent’s request regarding our determination that the applicant suffered a CAT impairment is dismissed. Although I have determined that we erred in accepting that the applicant has a 3% WPI for medication use, the applicant still meets the CAT threshold pursuant to the Schedule.

(ii) The respondent’s request concerning the applicant’s entitlement to the NEB is dismissed.

RECONSIDERATION CRITERIA

5The grounds for a request for reconsideration are contained in Rule 18 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (Effective February 7, 2019 (“Rules”).

6Rule 18 states that a request for reconsideration will not be granted unless one or more of the following criteria are met:

(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

7The respondent relies on Rule 18.2 (b) and argues that we made several significant errors of fact and/or law and that, had these errors not been made, we would have likely reached a different decision. It maintains, we erred in making the following findings in relation to the Whole Person Impairment percentages (“WPI%”) in determining that the applicant sustained a catastrophic impairment:

(i) 3% WPI for Medication Use;

(ii) 2% WPI for Sleep Disorder;

(iii) 10% WPI for Occipital Neuralgia; and

(iv) 29% WPI for Mental and Behavioural Disorder.

8The respondent also submits that we made significant errors of fact and/or law regarding our determination that the applicant was entitled to a NEB. Specifically, the respondent submits that we applied the wrong legal test, misapprehended the evidence, and failed to give fulsome reasons on this issue. The respondent purports that we did not assess or give appropriate weight to its expert reports.

9The applicant submits that we made no error and that our decision was correct.

10The following remedies are available to the Tribunal on a request for reconsideration:

(i) dismiss the request;

(ii) confirm, vary or cancel the decision or order; or

(iii) order a rehearing on all or part of the matter.

11The respondent requests that we cancel our decision and make an alternative finding that the applicant did not sustain a CAT impairment and is not entitled to a NEB.

ANALYSIS

Did the Tribunal err in fact or law in its determination on the applicant’s catastrophic impairment?

12I find that we erred in law in our determination that the applicant sustained a catastrophic impairment. In particular, I agree with the respondent that we erred in finding that the applicant sustained a 3% WPI for medication use.

3% WPI for Medication Use

13The respondent submits that we applied the wrong test in accepting that the applicant had a 3% WPI for medication use. It asserts that we did not apply the test provided for in Chapter 2.2 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). Chapter 2.2 only permits a rating for medication where it is being used to mask an impairment that could otherwise not be rated but for the medication. In its submissions, the respondent provided examples from the Guides for when it is appropriate to assign a WPI% for medication use such as a person who takes insulin to treat diabetes. In this scenario, the insulin allows for lower blood sugar, but in the absence of taking it the person would have an impairment relating to diabetes.

14The applicant argues that the respondent is attempting to reargue its position by making new arguments on how the Guides should be interpreted. Further, the applicant submits that the respondent has not cited any evidence given by a witness at the hearing or any case law that contradict the findings of fact made by the Tribunal. For the following reasons, I agree with the respondent.

15The respondent argues that our determination was contradictory because in paragraph [83] of the decision we state “there may be some masking going on due to the medication” taken by the applicant. However, in paragraph [84] of the decision we state that “the medication does not have the effect of cancelling out the applicant’s sleep issues, depression or chronic pain.” I agree with the respondent that we applied the wrong test in our interpretation of the Guides in accepting that the applicant had a 3% WPI rating for medication use. Ultimately, while the medication taken by the applicant assisted in managing some of his symptoms it did not mask an impairment which could otherwise not be rated which is the test provided for in the Guides. In fact, the applicant was assigned WPI ratings by assessors for depression, sleep and chronic pain under Chapters 4 and 14 of the Guides which supports that we incorrectly applied the test in rendering our determination.

16The test to be met on a request for reconsideration is that the error must be significant enough that the Tribunal likely would have reached a different decision. I find that despite our error in finding that the applicant has a 3% WPI once that number is deducted from the 55% WPI, his total WPI would be 53% which is then rounded up to 55% WPI. Therefore, despite our error the applicant still meets the threshold for CAT status under the Schedule. However, for clarity, I will address the respondent’s arguments pertaining to the remaining categories.

2% WPI for Sleep Disorder

17The respondent submits that we made an error in law as there was no neurological basis for our determination that the applicant has a 2% WPI for sleep disorder. It maintains that our finding was based on the psychiatric opinion of Dr. Zielinsky who opined that the applicant’s sleep would be disrupted due to pain, which is the incorrect test to apply under Chapter 4 of the Guides.

18The applicant argues that we did find a neurological basis for our finding that the applicant had an impairment of 2% WPI for sleep. He refers to paragraphs [85] and [86] of our decision in which we accept Dr. Basile’s opinion.

19I find the respondent submitted new legal arguments on this reconsideration request that were not before the Tribunal during the course of the hearing. For example, in its reply submissions on this reconsideration request, the respondent submitted 16-000013 v. Peel Mutual¹ in support of its position that the Tribunal erred in accepting the 2% WPI proposed by Dr. Basile for sleep. In that decision the adjudicator found that there was objective evidence of a neurological origin for the insured’s sleep disorder.

20I disagree with the respondent that we erred in law by applying the incorrect legal test. The respondent’s submission that there was no neurological basis for Dr. Basile’s finding in relation to this case is not accurate. Dr. Basile explained in his report and in cross-examination that his finding in relation to sleep was based on his diagnosis of post concussive syndrome which is within the realm of a neurologist to diagnose. In paragraph [88] of our decision we state that Dr. Basile’s opinion was consistent with the other medical evidence. The evidence as a whole, supports that the applicant was consistent in reporting complaints about post-concussive symptoms. Ultimately, we accepted Dr. Basile’s opinion as he was the only neurologist to testify and his opinion was consistent with the other evidence before us.

21While I agree with the respondent that the Tribunal’s decision should have been clearer in providing its rationale for accepting Dr. Basile’s opinion, I find it would not result in an alternative finding. The Tribunal does not need to refer to every piece of evidence it considered in justifying its determination. Further, the reconsideration process is not meant to provide the losing party with the opportunity to present new evidence or legal arguments that were not made or were unsuccessful at the hearing.

22Although I acknowledge that the reasons provided could have been more fulsome, I do not find it resulted in an error of law. The reasons make it clear that we reviewed and considered all of the evidence provided to us at the time. Further, I do not find we applied the incorrect legal test.

23Consequently, I do not find that we erred in finding that the applicant had a 2% WPI for sleep in rendering our decision on the applicant’s catastrophic impairment.

10% WPI for Occipital Neuralgia

24The respondent argues that the Tribunal erred in fact and in law in accepting that the applicant has a 10% WPI for occipital neuralgia (5% left) and (5% right) based upon Chapter 4, Table 23 of the Guides. Specifically, the respondent alleges that we:

(i) misapprehended the evidence as Dr. Basile did not diagnose the applicant with occipital neuralgia. Instead, Dr. Basile noted in his report that the applicant has features of occipital neuralgia. Further, under cross-examination Dr. Basile acknowledged that he suspected the applicant had occipital neuralgia based upon the applicant’s reported symptoms. The respondent asserts that a mere suspicion is not enough to warrant a WPI rating; and

(ii) mischaracterized the evidence of Dr. Basile in our decision as in paragraph [79] we incorrectly concluded that Dr. Basile testified that upon physical examination, the applicant experienced pain in the greater occipital nerves. The respondent alleges that Dr. Basile makes no reference to the greater occipital nerves anywhere in his report and based his diagnosis on the applicant’s reported symptoms. Nor did Dr. Basile distinguish between the greater or lesser occipital nerve or indicate which nerve was affected in his report.

25The respondent submits that as a result of the above mistakes we erred in coming to the factual conclusion that the applicant had a 10% WPI for greater occipital neuralgia.

26The applicant submits that the respondent mischaracterized our findings. The applicant maintains that we distinguished between written and oral evidence in our decision. Further, that under cross-examination Dr. Basile described the methodology for how he assessed the applicant for occipital neuralgia. Dr. Basile found the applicant experienced pain in both the greater occipital nerves. In addition, the applicant asserts that Dr. Basile did in fact diagnose the applicant with occipital neuralgia (right and left) which is listed on page 14 of his CAT report.

27I agree with the respondent that we did not accurately describe the evidence of Dr. Basile in our decision. In particular, I agree that we erred in how we depicted Dr. Basile’s evidence as he did not testify that he conducted a physical examination of the applicant in regards to his diagnosis of occipital neuralgia, nor does Dr. Basile’s report reference a physical examination in rendering this diagnosis. However, on pages 10 and 11 of his report he does diagnose the applicant with this impairment. On page 11, under accident related diagnosis Dr. Basile states that the applicant “has features of posttraumatic headaches including occipital neuralgia.”

28Dr. Basile testified that he was conservative by assigning each left and right side 5% which represented numbers for both the greater and lesser occipital nerves. This was referenced in our decision in paragraphs [78 to 79]. Dr. Basile opined that from the medical documentation he reviewed, the impairment sustained in the accident along with the applicant’s reported symptoms are consistent with a diagnosis of occipital neuralgia. We accepted Dr. Basile’s opinion.

29The respondent spent little time on this issue in its closing submissions and did not submit any case law to support the interpretation it puts forward on this reconsideration request. In this case, the respondent did not retain a neurological expert and we accepted the evidence of Dr. Basile as we found his opinion consistent with the impairment the applicant sustained in the accident, as he fractured his neck and he sustained a mild traumatic brain injury. In addition, the applicant complained of multiple symptoms post-accident consistent with this diagnosis. Therefore, we were persuaded on a balance of probabilities that the WPI of 10% assigned by Dr. Basile was supported by the evidence.

30The respondent also submits that we ignored the evidence of Dr. Paitich, orthopaedic surgeon, who, upon examination of the applicant, found normal occipital nerve findings. As a starting point, our decision carefully weighed the evidence of Dr. Paitich and on many occasions we accepted his evidence. For example, in paragraph [91] there are numerous examples where we accepted Dr. Paitich’s opinion over the applicant’s assessors. Ultimately, we did not find Dr. Paitich’s evidence helpful on this issue. In paragraph [15] of our decision we highlight the fact that the respondent did not call a neurologist at the hearing. As a result, we preferred Dr. Basile’s evidence on this issue.

31For all of the above reasons, I do not find we erred in fact or law in accepting that the applicant had a 10% WPI for occipital neuralgia.

29% WPI for Mental and Behavioural Disorder.

32The respondent argues that we made multiple errors of fact and or law in our determination that the applicant had a moderate impairment in all four spheres of functioning under Criteria 8. In particular, the respondent asserts that we erred:

i) by accepting Dr. Waisman’s psychological diagnosis as grounded in the facts; and by providing insufficient reasons for why we did not accord the opinions of Dr. Zielinsky and Dr. Watson much weight;

ii) in our characterization of the applicant’s pre-accident employment history;

iii) by considering the applicant’s pre-accident diagnosis of ADHD in discussing his validity results in relation to the neurocognitive and psychometric tests administered by Dr. Zielinsky and Dr. Watson;

iv) by determining that the applicant had an inability to maintain a romantic relationship post-accident;

v) in considering the applicant's "physical injuries, ongoing limitations from his neck surgery .... and limited employability" in our determination relating to a mental and behavioural impairment, which resulted in an inflated WPI for mental and behavioural disorders;

vi) by considering the applicant's physical limitations in the sphere of Activities of Daily Living which resulted in an inflated WPI for mental and behavioural disorder; and

vii) by selecting the highest score within the range for a moderate impairment and failing to provide sufficient reasons for doing so.

i) Acceptance of Dr. Waisman’s Psychological Diagnosis

33The respondent submits that we erred in accepting Dr. Waisman’s psychological diagnosis as reasonable and grounded in the facts as the applicant did not provide the doctor with an accurate history. For example, Dr. Waisman thought that the applicant had taken some time off of work when he had been off for over one-year pre-accident. Further, Dr. Waisman was not aware of the applicant’s alcohol consumption or his fall in January 2017. The respondent maintains that these facts can impact mood and depression and, because Dr. Waisman was not aware of these issues, we should have given his opinion and report no weight. In addition, Dr. Waisman recommended a situational assessment to understand the applicant’s function, which was never completed. Therefore, the respondent argues that Dr. Waisman’s opinion is of limited value without the benefit of a situational report and we should not have accepted it.

34I disagree with the respondent that we erred in law by accepting Dr. Waisman’s opinion. Further, we considered the arguments raised by the respondent in paragraph [63] of our decision. During cross-examination, Dr. Waisman was asked whether the applicant’s employment history, alcohol consumption or the fall in January 2017 would change his opinion – he indicated that it would not. Further, the medical evidence supports that the applicant had post-concussive complaints prior to the fall in 2017 and no evidence was submitted that the applicant had any psychological issues pre-accident despite having issues with substance abuse. It is important to note that we did not fully accept all of Dr. Waisman’s evidence as we did not agree with his opinion that the applicant had a marked impairment in adaptation.

35Ultimately, we determined that the applicant’s assessors over-rated his impairments, while the respondent’s assessors underestimated them. We accepted and rejected parts of each expert’s evidence. We preferred Dr. Waisman’s psychological diagnosis over Dr. Zielinsky’s and in our decision we explained why. We also determined that the evidence supported that the applicant had a moderate impairment in the four spheres of functioning. Further, Dr. Waisman’s evidence was more consistent with the past psychological diagnoses rendered by experts throughout the history of the claim. In paragraphs [28-37] of the decision we specifically addressed the problems we had with the opinions of Dr. Zielinsky and Dr. Watson. Therefore, the respondent’s allegation that we provided insufficient reasons has no merit. Throughout the balance of our reasons we explained why we preferred Dr. Waisman’s opinion and how we came to determine that the applicant had a moderate impairment in the four spheres of functioning.

ii) Characterization of the Applicant’s Pre-accident Work History

36The respondent’s allegation that we made a factual error in how we described the applicant’s pre-accident employment history in the decision is correct. In paragraph [10], we incorrectly state that in the four years prior to the accident the applicant worked in the oil fields of Alberta. However, the evidence supports that the applicant was not working in the year prior to the accident, but that he had been employed in the four years prior doing contract construction work in the oil fields of Alberta. In addition, the Tribunal’s use of the word “lucrative” in paragraph [96] of its decision was also a factual error as no evidence was submitted at the hearing to confirm his salary. As set out below, although we made these errors, I find these errors inconsequential to our ultimate decision.

37Throughout the course of the hearing and in its closing submissions, the respondent did not argue that there was a reason to doubt the applicant’s credibility regarding his self-reports about his employment history in construction or contract work in Alberta. Further, the respondent did not make a case that an adverse inference should be drawn by the fact the applicant did not submit his employment records to prove these facts at the hearing, or that the records were ever requested and not produced.

38During his testimony, the applicant gave a thorough overview of the nature of his contract work in Alberta and explained that, before the accident, he was in-between construction contracts. The applicant went into extensive detail that his contracts in Alberta involved him working long hours over two-week periods doing very physical work and he would stay in a worker camp and would come back to Ontario in-between contracts and for vacation. The applicant testified that he has worked in jobs involving heavy labour since dropping out of school in grade 10. We found the applicant’s testimony about the nature of his contract work credible. Further, the applicant consistently reported to all assessors the nature of his employment, with the exception that some of the reports note that he was in-between contract work, and some did not.

39Of importance, the applicant’s pre-accident employment and his inability to work in the same capacity post-accident was reflected in the applicant’s treating orthopaedic surgeon’s reports, his family doctor’s CNRs, and it was reported to all of the assessors. Therefore, while we made a factual error in how we described the applicant’s pre-accident employment history, I do not find that we erred in considering it in our analysis for the catastrophic impairment under Criteria 8. Nor do I find that this error would have resulted in us reaching an alternative decision.

iii) Diagnosis of ADHD and Validity Results

40I disagree with the respondent that the Tribunal erred in considering the applicant’s diagnosis of ADHD in considering his validity results. Dr. Zielinsky testified that people with ADHD could tend to rush and not take the time to do things appropriately, and that the validity results did not mean he was deliberately malingering. Therefore, this was evidence before us and was considered in our analysis; however, it was not the main reason why the Tribunal did not give more weight to the applicant’s validity results.

iv) Inability to Maintain a Romantic Relationship

41I do not agree with the respondent that we erred in our finding regarding the applicant’s inability to maintain a romantic relationship. Our finding in relation to this issue was not connected to the applicant’s sexual and erectile dysfunction. Instead, our finding was related to the breakup of the applicant’s long-term relationship post-accident. The applicant testified that because of his physical and psychological impairments he was no longer interested in doing things and was not very nice to his partner. As a result, the relationship ended and post-accident he has not been motivated to engage in any romantic relationships. While I agree that the Tribunal’s decision could have been clearer, I find this error would not result in an alternative decision. In addition, we discuss this issue further in paragraphs [106-107] where we address the applicant’s entitlement to a NEB.

v) Consideration of Physical Injuries and Limitations

42I do not agree with the respondent that we erred in considering the applicant’s physical injuries and limitations in our finding that the applicant had a moderate impairment under the four spheres. Throughout our analysis under Criteria 8, we clearly state that the applicant’s physical injuries and impairments had a psychological impact resulting in reduced motivation to engage in employment and his daily activities. The Tribunal’s findings were based on the psychological impact of the physical impairments on the applicant’s ability to function and did not result in an inflated WPI.

vi) Assigning 29% - Maximum Range for Moderate Impairment

43Finally, the respondent argued that we erred in selecting the highest number within the range for a moderate impairment under the Guides in determining the applicant’s WPI% under Criteria 8. I disagree as we did not arbitrarily select the highest number in the range without providing our rationale for our decision. I find we provided a detailed explanation for how we came to the WPI% in paragraphs [67-72] of the decision. Significantly, Dr. Zielinsky used the same method in assigning 14% WPI for a mild impairment under Criteria 8. Dr. Zielinsky determined that the applicant had a mild impairment under the four spheres of functioning and consequently assigned the highest range for a mild impairment. Therefore, I find the respondent’s allegation that the Tribunal erred in relation to this issue to be without merit.

Did the Tribunal make a significant error of fact and law in its determination that the applicant is entitled to a NEB?

44The respondent argues that we made significant errors of mixed fact and law in that we misapprehended the evidence in finding that the applicant is entitled to a NEB. In particular, the respondent alleges that we:

i) applied the wrong legal test which was inconsistent with previous case law;

ii) our analysis was inconsistent with findings of fact made earlier in the decision;

iii) did not properly assess or give appropriate weight to the respondent’s expert’s reports; and

iv) failed to address any of the arguments the respondent made in its closing submissions.

45The applicant submits that the respondent has failed to point out any error of fact or law in its submissions that would result in an alternative decision. The applicant maintains that we also did not address any of his expert reports in assessing his entitlement to the NEB. However, he asserts that when the decision is read as a whole, we provided very detailed well-balanced reasons to justify our findings on the applicant’s impairments and resulting functional limitations.

i) Applied the Wrong Legal Test

46I do not find that we applied the wrong legal test in our determination that the applicant is entitled to a NEB. In paragraphs [93] to [110] of our decision I find that we completed a thorough Heath² analysis in assessing the applicant’s pre- and post-accident activities and how his accident related impairments resulted in several functional limitations. We addressed several areas of the applicant’s life such as his ability to work, recreation and leisure, social activities, his ability to maintain a relationship and his ability to drive.

47The respondent argues that we should not have placed any weight on the applicant’s pre-accident employment history in determining his entitlement to the NEB because he had not worked for over a year prior to the accident. The respondent argues that the Tribunal’s decision was inconsistent with previous jurisprudence on the time frame it evaluated. It relied on the Financial Services Commission of Ontario’s (“FSCO”) decision in AK v. Allstate³ in support of same. As a starting point, I am not bound by FSCO decisions.

48In AK v. Allstate the Director’s Delegate determined that the adjudicator did not err by not considering the insured’s work history as part of the NEB analysis as the insured had been unemployed for eight months pre-accident. The Director’s Delegate highlights that the analysis should not include speculation about what the insured might have done. As already acknowledged above, I agree with the respondent that we made a factual error in how we characterized the applicant’s pre-accident employment history. To be fair, the respondent did not argue in its closing submissions that we should not consider the applicant’s work history in assessing his entitlement to NEBs because of the time he was not employed pre-accident. Nor did the respondent submit the above decision for our consideration in its closing submissions. I find the respondent is making new arguments that were not initially put before the Tribunal during the hearing. I also find the present case distinguishable from AK v. Allstate as the insured in that case did not have the same type of occupational history working contract jobs in construction. As per the principles outlined in Heath, I find the we reviewed a reasonable period of time based upon the unique facts of the applicant’s case. Further, the applicant’s pre-accident employment was not the only factor we considered in our analysis.

49The respondent refers to various entries in the CNRs and reports of Dr. Kwok and Dr. Knox which it maintains supports that the applicant had made improvements. Therefore, the applicant was not continuously prevented from carrying out his activities of daily living. While a few of these records refer to improvements in the applicant’s neck impairment following surgery, I find these records also support that the applicant had serious functional limitations post-accident. For example, Dr. Kwok’s entry dated November 25, 2015 states that the applicant can start doing modified work. However, Dr. Kwok’s next report dated May 4, 2016 recommended that he pursue another trade. The next entry of Dr. Knox confirms the need for the applicant to find alternative work.

50I find the CNRs and reports of both of Dr. Kwok and Dr Knox support that the applicant sustained a serious impairment that affected his ability to work post-accident. The Tribunal expressed this rationale in paragraphs [14, 24 and 27] of its decision. Further, the Tribunal goes on to state in paragraphs [97-99] that someone with the applicant’s education level, diagnosis of ADHD and occupational history working in construction would not easily be able to retrain.

51In my view, even if we were wrong in considering the applicant’s pre-accident employment history, I still find that the evidence supports that he has a complete inability to carry on a normal life as a result of his accident related impairments. We determined that the applicant sustained serious physical and psychological impairments as a result of the accident and these impairments were supported by objective medical evidence. In our analysis on the CAT determination we provide a detailed overview of the applicant’s pre- and post-accident activities as a result of his physical and psychological impairments.

52The respondent submitted two decisions of this Tribunal to support its position that we erred in finding the applicant had a complete inability to carry out “substantially all” his activities.⁴ In both of these decisions the adjudicators defined the term “substantially all” to mean “more than most, a majority but not all.” Ultimately, we determined that the applicant had a complete inability to meaningfully engage, in the majority, of his pre-accident activities from a qualitive perspective. In my view, even if I take his pre-accident employment out of the equation the applicant is still unable to complete “the majority of” his pre-accident activities in any meaningful way. We expressed these reasons in paragraphs [93 to 111] of the decision. We also gave greater weight to the pre-accident activities that were more meaningful to the applicant pre-accident which is consistent with the guidance provided for in Heath.

53The respondent also argues that we disregarded the surveillance evidence as it showed that the applicant had mobility tolerance inconsistent with an impairment that prevented him from continuously engaging in his activities of daily living. However, in our analysis on the NEB the Tribunal’s finding did not solely focus on the applicant’s ability to physically do things. I find that we approached our analysis by looking at the combination of the applicant’s physical and psychological impairments and its impact on his ability to function in his post-accident activities. In my view, we applied the principles outlined by Heath and this is reflected in paragraphs [93 to 111] of the decision.

ii) Decision Inconsistent with earlier Findings of Fact

54Finally, the respondent argues that our decision was inconsistent with a finding of fact made earlier in the decision regarding the applicant’s CAT impairment as we determined that the applicant had a moderate versus a marked impairment. The respondent argues that the complete inability test requires a significant degree of impairment and a marked measurable impact on levels of function. It relies on FSCO decisions in Bobeta v. Aviva and Buccellato Estate v. Allstate in support of its position that we did not apply a stringent enough test in our analysis.⁵ I disagree with the respondent that we did not apply a strict enough test. Moreover, the respondent did not submit these decisions for our consideration during the course of the hearing. Therefore, I find it is relitigating its position which already failed at the hearing. Furthermore, as highlighted in Bobeta v. Aviva the test to qualify for a NEB is not so stringent to make it impossible to qualify.⁶

55The respondent submitted the FSCO decision in Shabo v. Royal (“Shabo”) in support of its position that a finding of four moderate impairments does not amount to an insured being continuously prevented from engaging in substantially all activities.⁷ I disagree with the respondent that because we determined that the applicant had a moderate impairment in the four spheres of functioning under Criteria 8 that he cannot qualify for a NEB. I also find the facts in Shabo distinguishable from the present case as in that decision the insured was only assessed for a CAT impairment under Criteria 8 and did not have the combined physical impairments that the applicant has under Criteria 7 which have also resulted in functional limitations. Our findings were related to the applicant’s combined physical and psychological impairments. I also find the respondent’s argument irrelevant as the analysis for a CAT impairment and a NEB require two very different tests.

56For all the above reasons, I do not find that we erred in applying the wrong legal test in our determination that the applicant is entitled to a NEB.

iii) Insufficient Reasons

57The respondent argues that we erred by not providing fulsome reasons for our decision in relation to the applicant’s entitlement to the NEB. It contends that our analysis on this issue lacked any reference to the evidence of its medical experts. Further, we did not address any of the arguments raised by the respondent in its closing submissions. The respondent submitted my decision in D.P. v. Chieftan⁸ and the Supreme Court of Canada’s decision in Baker v. Canada⁹ in support of its position that a lack of reasons is grounds for reconsideration. These decisions set out the importance of a decisionmaker’s obligation to provide fulsome reasons to allow transparency in the decision-making process so a reviewing court can review a decision maker’s reasons considering the record.

58The applicant submits that the respondent’s argument that we failed to give fulsome reasons for our decision is not appropriate for a reconsideration request. Instead, he argues that it is grounds for a judicial review.

59I agree with the respondent that a lack of reasons may be an error in law and possible grounds for a reconsideration request. However, I do not find that to be the case before me. It is well-established law that administrative decision makers are not required to include every argument in their reasons or make explicit findings on each factor leading to their conclusion. As set out by the Supreme Court of Canada in Newfoundland and Labrador Nurses’:¹⁰

Reasons are not meant to be an exhaustive transcript of everything that each witness said, and the Tribunal is not required to refer in its reasons to every piece of evidence before it. In my view, the Tribunal’s reasons meet the standard of allowing for an understanding of why the tribunal made its decision and whether the conclusion is within the range of acceptable outcomes.

60I acknowledge that our reasons in assessing the applicant’s entitlement to the NEB could have been more fulsome. However, I find our reasons were sufficient enough to allow both parties to understand how and why we arrived at our determination which is the standard that must be met. In my opinion, we provided a very detailed overview of the medical evidence of both parties’ experts in our analysis on the applicant’s CAT impairment and indicated why we preferred one expert’s evidence over another. Our findings in relation to the CAT issue revealed that the applicant sustained serious physical, psychological and neurological impairments which resulted in serious functional limitations. I find that repeating this evidence within our NEB analysis would have been a duplication and unnecessary.

61Furthermore, the fact that we did not refer to the expert’s medical evidence in our analysis addressing the NEB does not mean that we did not consider it. In fact, in paragraph [4] of our decision we explicitly state that we considered all the evidence submitted by both parties in reaching our determination on the issues and we highlighted the evidence we found important.

62The NEB section of the decision focused on a comparison of the applicant’s pre- and post-accident activities and the impact of his impairments on his ability to function as required by Heath. In paragraph [96] of our decision we make findings of fact in relation to the applicant’s pre-accident activities and in paragraphs [97] to [111] we provide our rationale for how we came to the conclusion that the applicant has a complete inability to carry on a normal life as a result of his accident related impairments.

63Despite the fact that I find that our reasons could have been more fulsome, we did consider the evidence of both parties’ experts in coming to our determination on the applicant’s entitlement to the NEB. Ultimately, we did not find the reports of the insurer examination (“IE”) assessors helpful as they were inconsistent, un- neutral and lacking in analysis. As highlighted in D.P. v. Chieftan, it is not up to the experts to determine whether an individual meets the legal test for a benefit. That responsibility lies with the adjudicator based on a full evidentiary record. In my view, this is exactly what we did in coming to our determination.

64I do not find that we made a significant error in law by failing to provide sufficient reasons for our decision. The respondent’s request for reconsideration is dismissed.

CONCLUSION

65The respondent’s request for reconsideration regarding the Tribunal’s finding that the applicant sustained a CAT impairment is dismissed. In light of the Tribunal’s error on assigning 3% for medication the applicant still meets the CAT threshold.

66The respondent’s request for reconsideration regarding the Tribunal’s determination on the applicant’s entitlement to a NEB is dismissed.

Rebecca Hines Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 116-000013 v. Peel Mutual Insurance Company, 2017 CanLII 33649 (ON LAT)
2. 2Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
3. 3AK v. Allstate Insurance Co. of Canada, [1999] O.F.S.C.I D. No.111, para 22.
4. 416-003195 v. State Farm Insurance Company, 2017 CanLII 99136, paras 9-10; and A.V. v. Certas Home and Auto Insurance Company, 2020 CanLII 19562.
5. 5Bobeta v. Aviva Canada Inc., [2016] O.F.S.C.D. No.299, para 60; and Buccellato Estate v. Allstate Insurance Co. of Canada, [2004] O.F.S.C.D No. 50, para 18.
6. 6Bobeta, page 2.
7. 7Shabo v. Royal and Sunalliance Co. of Canada, [2017] O.F.S.C.D. No. 243.
8. 8D.P. v. Chieftan Insurance, 2019 CanLII 83888 (ON LAT) at para 11.
9. 9Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817
10. 10Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para.16.