R.K.K. v. Cooperators General Insurance Co., 2021 CanLII 18934

R.K.K. v. Cooperators General Insurance Co.

Citation: R.K.K. v. Cooperators General Insurance Co., 2021 ONLAT 19-002834/AABS - R

RECONSIDERATION DECISION

Before: Theresa McGee, Vice-Chair

Date of Order: 03/02/2021

Tribunal File Number: 19-002834/AABS

Case Name: [R.K.K.] vs. Cooperators General Insurance Co.

Written Submissions by:

For the Applicant: Ryan M. Naimark, Counsel

For the Respondent: Emily Schatzker, Counsel

OVERVIEW

1The applicant’s request for reconsideration arises from a decision dated June 17, 2020 (the “decision”). In the decision, the Licence Appeal Tribunal (the “Tribunal”) dismissed the applicant’s claims for an income replacement benefit and a medical benefit upon determining that the treatment of her injuries was subject to the Minor Injury Guideline. The decision followed a four-day oral hearing conducted via teleconference in late February 2020. At the hearing, the applicant and six expert witnesses testified.

2The applicant seeks reconsideration on the grounds that the adjudicator mischaracterized and failed to consider important evidence, incorrectly applied the test for entitlement to medical benefits, and made bald conclusions unsupported by meaningful analysis. She seeks a finding that her injuries warrant treatment outside the Minor Injury Guideline and an order granting her the income replacement and medical benefits in dispute. In the alternative, she asks that the matter be re-heard by a different adjudicator.

3The respondent submits that the adjudicator based his conclusions on the totality of the evidence and that his reasons, although brief, were adequate. The respondent further submits that the Tribunal is not required to address every argument or make explicit findings on each constituent element leading to its conclusion. The respondent submits that the adjudicator is entitled to deference on the way he weighed the evidence. It asks that the request for reconsideration be denied, or in the alternative, that the matter be referred back to the same adjudicator for a re-hearing.

RESULT

4The request for reconsideration is granted in part. The matter is referred back to the original adjudicator for a re-determination on the existing record.

ANALYSIS

5The grounds for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (the “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 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.

6A reconsideration is not an opportunity for the parties to relitigate the issues in dispute. In considering the applicant’s reconsideration request, is not within my jurisdiction to re-weigh evidence that was before the trier of fact at the original hearing. Nor is it appropriate for me to substitute factual findings for those made by the hearing adjudicator. Under Rule 18, I must only consider whether the applicant has established any of the grounds advanced for reconsideration and to make an order consistent with the remedial purpose of the rule.

7I must address the threshold required for reconsideration under Rule 18.2(b), namely that “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” [emphasis added]. In this case, the reasons for decision were inadequate. To conclude that The Tribunal would likely have reached a different outcome had it not made these errors would require me to weigh evidence and substitute my own findings for those of the hearing adjudicator.

8Rule 3.1 provides that the Common Rules are to be liberally interpreted and applied and may be varied on the Tribunal’s own initiative to facilitate a fair, open and accessible process and to ensure the efficient, proportional and timely resolution of proceedings on their merits.

9I refrain from determining whether the outcome would have been different had the hearing adjudicator drafted transparent, intelligible and justified reasons for decision. However, given it is not my role to re-weigh the evidence, it is necessary for me to vary Rule 18.2(b) to permit an order granting reconsideration without a positive finding that the Tribunal would likely have reached a different result had the errors not been made. Without this step, the errors in the decision would go uncorrected. In my view, varying the requirement in Rule 18.2(b) is consistent with the general interpretive principles set out in Rule 3.1. and the broad remedial purpose of Rule 18.

The Tribunal misapprehended key evidence and made bald conclusions unsupported by analysis

The positions of the parties

10The applicant submits that the hearing adjudicator made significant errors of law and fact such that the Tribunal would likely have reached a different conclusion had the errors not been made. She submits that the adjudicator mischaracterized and failed to consider evidence about her chronic pain and functional limitations, and that his determination on both the Minor Injury Guideline and income replacement benefit issues would likely have been different had he properly considered the evidence.

11Specifically, the applicant submits that the hearing adjudicator mischaracterized the evidence of her family physician, Dr. Masud, relating to a diagnosis of chronic pain syndrome. She highlights the first two sentences of paragraph 33 of the decision, which read as follows:

Dr. Masud treated the applicant for a long time and knew what her medical conditions were. He did not state that the applicant could not go back to work. Dr, [sic] J. M [sic] Lang also supported Dr. Masui’s [sic] position indicating that the applicant did not have chronic pain syndrome.

12The applicant submits that Dr. Masud never took a “position” that she did not have chronic pain syndrome. In fact, she submits, he referred her twice to a chronic pain clinic, in January and June of 2019. The applicant submits that the adjudicator’s finding is unsupported in the evidence and constitutes a serious error.

13In addition, the applicant submits that the adjudicator failed to properly consider the evidence of Ms. Farhana Jessa, an occupational therapist. Ms. Jessa issued a 63-page report outlining her findings after a two-day Functional Abilities Evaluation of the applicant. Ms. Jessa’s findings, the applicant submits, were not mentioned in the decision.

14The applicant submits that the hearing adjudicator’s failure to consider Ms. Jessa’s evidence in reaching a determination on the income replacement benefit issue amounts to an error. At paragraphs 45 and 46 of the decision, the adjudicator gave two reasons for assigning “very little weight” to Ms. Jessa’s evidence on the ability of the applicant to return to work:

i. Ms. Jessa acknowledged under cross-examination that the injuries and functional limitations the applicant described to her during the Functional Abilities Evaluation were not listed in Dr. Masud’s file [transcript February 28 p. 39]; and

ii. Ms. Jessa indicated that she relied on the applicant’s self-reports of her best capabilities in reaching her conclusions [transcript February 28 p. 68].

15The applicant submits that Ms. Jessa’s evidence was central to her case because Ms. Jessa was the only witness capable of giving evidence of her functional abilities.

16The applicant submits that the hearing adjudicator placed undue significance on Ms. Jessa’s reliance on the applicant’s subjective reports. While subjective reports provided background, the applicant submits, they were not the foundation of Ms. Jessa’s functional assessment. Rather, Ms. Jessa’s opinions were based on 13 modules of work sample testing; physical tolerance testing; work behaviours; and gridwork to test numeracy – all of which showed poor stamina and productivity and an overall deterioration in the applicant’s work performance over two days. The applicant submits that Ms. Jessa considered whether her deterioration, measured in movement, blood pressure and heart rate, were consistent with her subjective reports.

17The applicant submits that this Tribunal has found error where an adjudicator misapprehended key evidence in determining entitlement to benefits by not properly assessing the substance of expert reports or giving them appropriate weight: see D.P. v Chieftan Insurance.¹ She submits that the hearing adjudicator’s failure to properly assess or consider the substance of Ms. Jessa’s report constituted such an error.

18The respondent submits that the hearing adjudicator’s inaccurate characterization of Dr. Masud’s “position” is insignificant because the adjudicator based his conclusion about chronic pain on the totality of the evidence, including surveillance showing the applicant had no issues with function. The hearing adjudicator reached a reasonable conclusion, the respondent submits, and that conclusion cannot be overridden due to one sentence.

19The respondent submits that the hearing adjudicator is entitled to deference as to why he discounted the evidence of Ms. Jessa. The applicant reported a different level of function to Ms. Jessa than to Dr. Masud. The respondent takes the position that the applicant’s inconsistent reporting, together with surveillance evidence that raised credibility concerns, was an adequate reason to assign minimal weight to Ms. Jessa’s evidence. The respondent further submits that there were other valid criticisms of Ms. Jessa’s evidence which it identified in its submissions, and that her testimony under cross-examination showed her conclusions to be unreliable. In sum, the respondent submits that the Tribunal may weigh evidence as it sees fit. The hearing adjudicator was not bound to accept Ms. Jessa’s evidence.

20The respondent submits that the Tribunal is not required to make explicit findings on each constituent element leading to its conclusion: C.L. v. State Farm Insurance Company¹ citing Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) ["Newfoundland Nurses"].¹ Reasons must only be clear enough to show the basis for the trier of fact’s conclusions. The respondent submits that the hearing adjudicator’s explanation of why he preferred the evidence of some experts over others with reference to the other evidence in the file meets this standard.

Findings

21I find the hearing adjudicator misapprehended the evidence and erred in fact by stating that Dr. Masud took a “position” in relation to chronic pain syndrome. This error is significant in view of the hearing adjudicator’s heavy reliance on the evidence of Dr. Masud for key findings in the decision.

22Contrary to the applicant’s submission that the hearing adjudicator failed to consider Dr. Masud’s chronic pain clinic referrals, paragraph 15 of the decision does reference the referrals, accompanied by a finding that the applicant failed to attend the assessments. However, the decision does not account for why Dr. Masud made the referrals in the first place.

23The hearing adjudicator also appears to place significant weight on the fact that Dr. Masud did not state the applicant could not return to work, citing this fact more than once. However, no clear analysis on this point is offered. It appears that the absence of a notation from Dr. Masud stating the applicant could not return to work is relied on as evidence that she could return to work. The hearing adjudicator’s reasoning on this critical point is logically flawed. Adjudicators are not expected to conform to the formalistic constraints and standards of academic logicians, but their reasoning, particularly on central issues and concerns raised by the parties, must be seen to “add up”: see Canada (Minister of Citizenship and Immigration) v. Vavilov ["Vavilov"].²

24Reasons guard not only against arbitrariness, but the perception of arbitrariness. They justify and explain the result so that the losing party knows why they have lost and interested members of the public can satisfy themselves that justice has been done: see Wawanesa Mutual Insurance Company v. Renwick.³ The process of drafting reasons is a ‘discipline,’ one that “necessarily encourages administrative decision makers to more carefully examine their own thinking and to better articulate their analysis in the process.”⁴

25It is open to an administrative decision-maker to assign less weight to the evidence of one expert over another, but his or her reasons for doing so must demonstrate a meaningful grappling with key issues and central arguments raised by the parties.⁵ Failing to do so “may call into question whether the decision maker was actually alert and sensitive to the matter before it.”⁶

26I find that the hearing adjudicator fundamentally misapprehended the evidence of Ms. Jessa. He gave two reasons for giving “very little weight” to her evidence on the applicant’s ability to return to work: the injuries reported to her differed from those noted by the family physician, and she relied on the applicant’s self reports as to her best capabilities. The hearing adjudicator does not explain how these findings justify discounting Ms. Jessa’s evidence in its entirety.

27The hearing adjudicator’s analysis does not deal adequately with the objective testing upon which Ms. Jessa based her conclusions or give justification for disregarding her findings because she relied partly on the applicant’s self-reported history. Some degree of reliance on self-reports is a necessary part of a clinical assessment. Indeed, other assessors whose opinions were relied on by the parties interviewed the applicant to gather a history of her complaints. The fact that Ms. Jessa’s assessment was informed by the applicant’s self-reports is not, on its own, a justification for assigning less weight to Ms. Jessa’s evidence than to other expert witnesses.

28The hearing adjudicator reduced Ms. Jessa’s evidence to the unfiltered self-reports of the applicant, and in so doing failed to meaningfully account for central concerns raised by the applicant. While an adjudicator cannot be expected to respond to every argument or line of possible analysis, his summary of the evidence must make it clear that he was “alert and sensitive” to the matter before him and, in this respect, meaningfully grappled with the key issues and parties’ central arguments.⁷ By discounting Ms. Jessa’s evidence as merely reflective of the applicant’s subjective reports, the hearing adjudicator misapprehended the evidence. The cumulative impact of the hearing adjudicator’s errors is to raise doubt that he was alert and sensitive to the matter before him.

29The respondent’s submission that there were other valid criticisms of Ms. Jessa’s evidence and that her cross-examination showed that her evidence was unreliable does not remedy the flaws in the hearing adjudicator’s reasons. As the Supreme Court of Canada held in Vavilov, “it is not enough for the outcome of a decision to be justifiable….the decision must also be justified” by the decision-maker to those to whom the decision applies, by way of reasons.⁸ If reasons, read in conjunction with the record, do not make it possible to understand the decision-maker’s reasoning on a critical point, a decision will be unreasonable.⁹

30The decision fails to make transparent or intelligible whether the hearing adjudicator accepted the criticisms the respondent highlighted and whether or how he concluded, based on Ms. Jessa’s testimony under cross-examination, that her evidence was unreliable. Although the hearing adjudicator cites the discrepancy between the injuries reported to Ms. Jessa and Dr. Masud, he does not make transparent the significance he attaches to this fact. The reader can only speculate that the hearing adjudicator found Ms. Jessa untrustworthy, or that he concluded the applicant was dishonest with her.

31The Supreme Court of Canada’s jurisprudence on the adequacy of reasons for administrative decision-making has evolved since Newfoundland Nurses. As the court made clear in Vavilov, a decision-maker need not make explicit findings on each constituent element leading to a conclusion, but,

[r]easons that ‘simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion’ will rarely assist a reviewing court in understanding the rationale underlying a decision and ‘are no substitute for statements of fact, analysis, inference and judgment’.

32In Fordjour v. Royal and Sun Alliance Ins. Co. of Canada,¹⁰ the Divisional Court set aside a decision of this Tribunal because the reasons lacked crucial findings on a key legal issue. An analytical approach to applying the relevant legal test was absent, and there was no basis to infer that the proper test and analysis were applied. The court observed, at paragraph 10, that “[r]easons are not to be subjected to a minute analysis, but in this case the failure of the reasons renders them insufficient. We cannot be satisfied that the proper test was applied or that the factual findings were made to support the decision.”

33The hearing adjudicator’s analysis of the income replacement and Minor Injury Guideline issues included ultimate findings, general statements of law, brief summaries of evidence, and reiterations of the ultimate findings. On the Minor Injury Guideline issue, the reasons state that the evidence “clearly show[s] that the applicant had no issues with her functioning in her normal daily tasks” but there is no actual finding that the applicant’s injuries meet the definition of a minor injury, and no discussion of how her chronic pain complaints factor into the analysis.

34The reasons given for the income replacement benefit determination state the applicable test and summarize the evidence. However, the reasons neither identify the key factual findings the hearing adjudicator is making or demonstrate how the relevant legal test applies to those facts, and no clear reasons are given for the hearing adjudicator’s ultimate finding.

35In conclusion, I find that the reasons for the decision fail to meet the standards of justification, transparency and intelligibility established in the case law. Reconsideration is warranted on this basis alone. I need not consider whether the Tribunal misapplied the test for medical benefits.

The appropriate remedy

36This matter proceeded before the hearing adjudicator in a four-day teleconference hearing. Testimony was heard by the applicant and six expert witnesses. It would be inappropriate for me to substitute findings for those of the hearing adjudicator, as the applicant requests, based solely on my review of the transcript and documentary record.

37Of concern in these circumstances is the unnecessary cost and delay that convening a new hearing before a different adjudicator would occasion. The Tribunal’s Common Rules are to be interpreted to ensure the efficient, proportional, and timely resolution of the merits of proceedings. Absent a clear, cogent and compelling reason to order a new hearing before a different adjudicator, in my view such a remedy would run contrary to these objectives. A redetermination on the existing record by the original adjudicator is the appropriate mechanism for the errors I have outlined to be corrected.

CONCLUSION AND ORDER

38The request for reconsideration is granted. The matter is referred back to the original adjudicator for a redetermination on the existing record.

Theresa McGee

Vice Chair

Tribunals Ontario - Safety, Licensing Appeals and Standards Division

Footnotes

1. 12019 CanLII 83888 (ON LAT) at para. 11.
2. 22019 SCC 65 at para. 104.
3. 32019 SCC 65 at para.128; 2020 ONSC 2226 at para. 54.
4. 42019 SCC 65 at para. 80.
5. 52019 SCC 65 at para. 128.
6. 62019 SCC 65 at para. 128.
7. 72019 SCC 65 at para.128.
8. 82019 SCC 65 at para. 86 [emphasis in original].
9. 92019 SCC 65 at para. 103.
10. 102019 ONSC 6268.