Colleen Patchett v. Optimum Insurance Company, 2021 CanLII 30271

Citation: Patchett v. Optimum Insurance Company, 2021 ONLAT 19-008902/AABS – R

RECONSIDERATION DECISION

Before: Jesse A. Boyce, Vice-Chair

Date of Order: 03/16/2021

Tribunal File Number: 19-008902/AABS

Case Name: Colleen Patchett v. Optimum Insurance Company

Written Submissions by:

For the Applicant: Allen J. Wynperle, Counsel

For the Respondent: Amanda Lennox, Counsel

OVERVIEW

1This request for reconsideration was filed by the applicant. It arises out of a decision dated November 26, 2020, in which I determined that the applicant did not meet the criteria for catastrophic impairment (“CAT”) under s. 3.1(1)2(iii) of the Schedule because her accident-related impairment did not result in a permanent mobility score of 0 to 5 on the Spinal Cord Independence Measure III (“SCIM”).

2In her request, the applicant submits that I erred by not accepting an agreed fact; by inserting a permanency requirement into the SCIM disability test; by narrowly interpreting an exclusion of benefits and the definition of CAT; by characterizing her mobility impairment as temporary; by suggesting that other criteria under s. 3.1 require a permanent impairment of function; and, generally, by not accepting her plain reading of the Schedule, which is consumer-protection legislation.

3The applicant is seeking an order varying the decision to find that she meets the criteria under s. 3.1(1)2(iii) of the Schedule and has therefore suffered a CAT impairment as a result of the accident of February 3, 2018.

RESULT

4The applicant’s request for reconsideration is dismissed.

ANALYSIS

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, Version I (October 2, 2017), as amended (“Common Rules”). A request for reconsideration will not be granted unless one or more of the criteria are met. For the purposes of this request for reconsideration, the applicant relies on criteria 18.2(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.

6In response, Optimum submits that I did not make any errors of law, let alone a significant error of law or fact such that the Tribunal would likely have reached a different decision, as alleged. It submits that the applicant’s request should be denied and the Tribunal’s decision upheld.

7The unique facts of this case and a detailed explanation of s. 3.1(1)2(iii) and the SCIM are contained in paras. 9-16 of my decision and need not be repeated here. While I agree that I made no errors of law or fact that would have resulted in a different conclusion, I address each of the applicant’s arguments in turn, the majority of which were made at first instance.

Disregarded an agreed statement of fact

8The applicant alleges that I erred by not accepting the agreed statement of facts that the applicant suffered a permanent and severe alteration of prior structure and function in her right leg as a result of the accident of February 3, 2018 and that it was an error to disregard the agreement of the parties on the facts and to impart my own analysis where the facts were not in dispute.

9With respect, I find that I did not disregard the agreed statement of facts or impart my own analysis. The issue before me was whether the permanency requirement applied to the applicant’s functional impairment under the SCIM. As submitted by Optimum, para. 26 of the parties’ Agreed Statement of Facts provided that as of July 2019, the applicant no longer suffered a functional impairment which resulted in a score between 0 and 5 on the SCIM. On this fact, and on review of my decision, I find that I properly addressed whether a permanent score between 0 and 5 on the SCIM was necessary to be declared CAT under s. 3.1(1)2(iii) of the Schedule. Indeed, at para. 13, I provided the pertinent facts as agreed to by the parties. I then laid out the dispute at para. 14 of the decision:

14The resulting disagreement giving rise to this hearing is whether criteria 2(iii) requires the applicant’s score of zero to five under Item 12 of the SCIM to be a permanent mobility impairment or whether a score of zero to five at any point post-accident, even temporarily, results in a CAT designation.

10I agree with Optimum that the applicant’s position seems to imply that the only logical conclusion based on the Agreed Statement of Facts was to find in her favour. If Optimum agreed that the applicant suffered a severe and permanent alteration of prior structure and function to meet the SCIM test then there would have been no dispute before the Tribunal, as the applicant would be CAT. However, Optimum did not agree with this position, despite the applicant framing the facts as such, and therefore a decision was required. I see no error.

Inserting a permanency requirement into the SCIM disability test

11Here, the applicant asserts that instead of addressing when it is appropriate to administer the SCIM and whether to accept that score once administered, that I instead inserted the requirement of permanency to the SCIM score, where no such language exists. The applicant submits that I erred by interpreting that the mobility requirement as set out under the SCIM requires a permanent score between 0 and 5 and that I failed to make note that s. 3.1(1)2(iii) does not specifically require that the mobility impairment as measured by the SCIM must be permanent. The applicant submits that it was never in dispute that she suffered a permanent and severe loss or alteration of function and that decision-makers cannot insert language into legislative provisions that does not exist.

12I disagree and find no error. In my initial decision and again on reconsideration, I find the language of s. 3.1(1)2(iii) to be clear in its requirements. At first instance, the parties provided their respective interpretations of the plain meaning of the section, which led me to my finding that a CAT designation like the one the applicant seeks requires a permanency of mobility impairment. After first outlining the parties’ positions, at paras. 19-20 of my decision, I provided my plain reading analysis of s. 3.1(1)2(iii):

19However, my plain reading of the language of the first component of criteria 2(iii) leads me to believe that there must be “severe and permanent alteration of the structure of one of both legs” (“structure”), and “severe and permanent alteration of function of one or both legs” (“function”). On a plain reading, I find that the “function” referenced by the latter relates to mobility, namely the ability to traverse across a flat surface for a distance of 10 metres with or without a mobility aid. The SCIM scale is the test that is to be used to determine the applicant’s functional mobility. While there is no dispute that the “structure” of the applicant’s leg has been severely and permanently altered, I find the language of the “function” condition also requires the applicant’s alteration of function to be “severe and permanent”. As we know, the severity and permanency of the “function” condition is assessed using Item 12 of the SCIM. As a result, on my plain reading, I find criteria 2(iii) requires a permanent alteration of function in the leg, measured by a permanent score between zero and five on Item 12 of the SCIM.

20In my view, registering a score between zero and five on the SCIM on a temporary basis at any single point post-accident is not sufficient to receive a CAT designation where that mobility impairment (in this case, the use of two crutches) is not a permanent one. I find further support for this interpretation in a purposive analysis based on the context of criteria 2(i-ii), every other CAT criteria under s. 3 and in the expert panel materials cited by the parties.

While Optimum’s interpretation is phrased slightly differently, I agreed with its position that the section requires a permanent alteration of mobility function in the leg, which is measured by a permanent score between 0 and 5 on the SCIM. Contrary to the applicant’s submission, I did not insert language into the section that was not already there, as the word “permanent” is contained within subsection (iii) and it is modified by the “as a result of” language that refers to the SCIM test that measures function. On reconsideration, my plain meaning interpretation remains the same.

Interpretation of the Superintendent’s and Expert Panel Reports

13The applicant asserts that I erred in my interpretation of the Superintendent’s Report and the Expert Panel Recommendations for Changes to the Definition for Catastrophic Impairment Final Report of the Catastrophic Impairment Expert Panel Superintendent, April 8, 2011. While she agrees that the reports asked that the mobility impairment be permanent and constant, she submits that this language was not adopted by the legislature in s. 3.1 and this should be interpreted as a legislative intent not to require a permanent SCIM score of 5 or less.

14Again, I found s. 3.1(1)2(iii) to be clear on its face. Despite this, I only engaged in a purposive analysis of the Reports thereafter to provide further support for my finding because this specific issue was, by all accounts, a novel one at the Tribunal. The Reports I considered were not determinative on their own—as I found a permanency requirement on a plain reading of the section and the Reports are outside of the Schedule—so I find it cannot be said that this was an error that would have affected the outcome of my decision. In any case, the language in s. 3.1(1)3(iii) contains the word permanent and, given that the applicant made this same argument at first instance, I rely on my finding at para. 28 of the decision and find no error:

28I disagree. As discussed above, on its face and contrary to the applicant’s interpretation, I interpret s. 3.1(1)2(iii) as requiring a permanent loss of mobility function that is measured by a score of zero to five on the SCIM on a permanent basis. I do not accept the applicant’s position that the Legislature’s decision to re-arrange the language recommended in the Reports is an indication that it intended to broaden the scope of the CAT designation to specifically include the very rare category of individuals involved in an accident who have permanent structural damage to a leg but have only temporary mobility impairments requiring the use of bilateral aids. I agree with Optimum that this interpretation would lower the threshold for a CAT designation.

Characterizing the applicant’s mobility impairment as temporary

15The applicant submits that I erred by characterizing her mobility impairment as temporary. I disagree. To go back to the Agreed Statement of Facts, the parties agreed that as of July 2019, the applicant no longer registered a score between 0 and 5 on the SCIM. This was because her mobility had improved between assessments: she had progressed from using two crutches to a single crutch and, according to the report in evidence, progressing to the use of a cane. In my view, I addressed this issue squarely at paras. 21-22 of my decision:

21First, in the micro context of criteria 2, I reject the applicant’s assertion that a temporary mobility impairment (such as a relying on two crutches for less than a one year period) was intentionally lumped together with the much more severe and obviously permanent impairments contained in criteria 2(i) and (ii), which are (i) “amputations of the leg” and (ii) “amputation or the permanent loss of use of an arm.” With great respect to the applicant, I acknowledge that her injury was severe and that she has permanent structural damage, but I do not accept that her mobility impairment is permanent or of comparable severity to the amputation of an arm or leg, which most certainly requires ambulatory devices of some sort on a permanent basis.

22Indeed, it appears on the evidence that the applicant was using a single crutch (and progressing to a cane, according to the report) at the time of the s. 44 IEs in June 2019 and admits that she no longer registers a SCIM scale of zero to five. On these facts, I struggle to reconcile how the applicant’s temporary requirement to use two crutches in order to move across a flat surface (and progression to a single crutch and, eventually, a cane) is akin to an insured who loses a limb for the rest of their life as a result of an accident. I do not accept the applicant’s narrow interpretation of this section that these two insureds—one with a permanent loss of functional mobility after losing a limb and requiring a mobility aid on a permanent basis, the other with only a temporary loss of functional mobility—would both be CAT under this section, which, in my view, governs rather severe and permanent ambulatory impairments.

16While I am alive to the applicant’s position that her mobility impairment should be measured at a specific point in time¹, I agree with Optimum that had the Legislature intended for the level of impairment to be anything but a permanent one, it would have specified the appropriate time to measure the impairment on the SCIM, as it did under the other criteria for CAT under s. 3, addressed below.

Other criteria under s. 3 require permanent impairment of function

17The applicant submits that I erred at para. 24 by suggesting that all the other criteria under s. 3.1 of the Schedule require a permanent impairment of function. As an example, she states that neither of criteria 7 nor 8 mention a permanency requirement, but that I inserted the word “permanent” under both criteria, despite that language not existing. She submits that it was an error to conclude that all of the other criteria for CAT under s. 3.1 require permanency.

18I disagree and find no error. First, all of the other criteria under s. 3.1 do require a permanent impairment of function. Each criteria either explicitly says so or, in the case of criteria 7 and 8, designate a period in time where the insured’s condition is unlikely to improve and is therefore permanent (i.e.: at the two-year mark, or earlier if a physician determines the condition is unlikely to improve). Second, I find the applicant’s characterization of my analysis on this issue to be inaccurate, so I present paras. 23-24 in their entirety to demonstrate that I did not arbitrarily insert a permanency requirement; that each of the other criteria in s. 3.1 does require permanency; and that the applicant’s interpretation of CAT would be inconsistent with the rest of the section:

23Next, moving to a more macro viewpoint of s. 3, I find that to accept the applicant’s interpretation that a temporary SCIM score between zero and five at any point post-accident on a temporary basis would render s. 3.1(1)2(iii) the only criteria in the entire section governing catastrophic impairments where a permanent impairment is not required. Indeed, as both parties assert, there are seven other criteria (six for adults, one to measure children) under s. 3 of the Schedule that can lead to a CAT designation, all of which require a permanent impairment: (1) paraplegia or tetraplegia under the ASIA impairment scale; (3) loss of vision of both eyes; (4) a traumatic brain injury objectively identified on diagnostic testing and meeting requirements under the Glasgow Coma Scale; (6) a permanent physical Whole Person Impairment score of 55% under the AMA Guides; (7) a permanent physical and mental/behavioural Whole Person Impairment score of 55% under the AMA Guides; or (8) three permanent marked impairments or one extreme impairment that precludes useful function due to a mental/behavioural disorder under the AMA Guides.

24There is no dispute that all of the other criteria under s. 3 require permanency of impairment and are required to be evaluated at certain points in order to determine same, primarily at the two years post-accident mark or earlier if there is indication that the impairment will not improve. The applicant argues that the lack of a permanency element or dedicated period of time for evaluation in criteria 2(iii) is an indication that the legislature did not want to include a permanency element to a mobility impairment, opting instead to have the threshold be more inclusive. That is, on the applicant’s interpretation, while she concedes that she only met the 2(iii) criteria for a temporary period and agrees that her mobility impairment is not permanent, she would still be entitled to the enhanced benefits that accompany a CAT designation, even though she is progressing from her impairments, no longer requires the use of two mobility aids and will seemingly have no permanent mobility impairment. I find this interpretation would not only be inconsistent with the rest of s. 3 but also contrary to the underlying recommendations, discussed below, that led to the amendments of s. 3.

19On reconsideration, I again find that the applicant’s position on s. 3.1(1)2(iii) would lead to an absurd result where out of all of the CAT impairments under s. 3.1—paraplegia, amputation, loss of vision in both eyes and traumatic brain injuries among them—that the severe impairment of ambulatory mobility is the only criteria that would qualify for CAT despite being temporary, as in the applicant’s case where her condition improved to the point where she was no longer able to meet the SCIM score requirement. I see no error that would have affected my decision.

Narrowly interpreting an exclusion of benefits and the definition of CAT; absurd interpretation; consumer protection legislation

20The applicant submits that I erred by narrowly interpreting the section in dispute, and therefore, narrowing the definition of CAT under the Schedule.² In making these errors, the applicant submits that the plain language of s. 3.1(1)2(iii) was ignored and a new definition of permanency was added to the SCIM score where none existed, resulting in an absurdity and a narrow and restrictive interpretation of what is meant to be consumer protection legislation. To this end, she submits that had the medical evidence been accepted alongside the Agreed Statement of Facts, the only finding that could have been made was that, as of September 2018, the applicant met the criteria for CAT.

21Again, with respect, I disagree and find no error. In my decision, I stated that I found the plain language reading of s. 3.1(1)3(iii) to be clear at paras. 19 and 28, so I find it cannot be said that I somehow ignored the section or added a new definition of permanency where the word permanent is actually contained in the section in dispute. Further, while the plain meaning was clear to me, I engaged in a purposive analysis of the rest of the Schedule and the materials provided by the parties to provide further support for my finding to ensure that the words were read in their entire context, in their grammatical and ordinary sense and, importantly for a novel CAT issue like this one, harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament.³ Contrary to the applicant’s submissions, I do not find that this resulted in a narrow or restrictive interpretation of a CAT designation or of consumer-protection legislation.

22I also disagree that my interpretation and ultimate finding resulted in an absurdity. Indeed, I considered the same arguments the applicant is making on reconsideration at the conclusion of my decision. At paras. 29-30, I provided reasons why her interpretation would be inconsistent with the rest of s. 3 while also examining the potential ramifications of my interpretation on insureds seeking CAT benefits of this kind, given the consumer-protection nature of the Schedule:

29Further, I find the applicant’s argument that any interpretation other than her own would lead to an absurd result because it would permit CAT denials based on the timing of IEs to be somewhat tenuous, especially so where the applicant herself is attempting to benefit from the timing of her own SCIM assessment (three months into her rehabilitation and with a positive prognosis) to receive a CAT designation even though she concedes that she no longer meets the scoring requirements (and where two s. 44 IEs determined that she did not meet them) and would not meet the CAT test under criteria 2(iii) moving forward. In my view, an interpretation of 2(iii) deeming an insured CAT based on a temporary mobility impairment that will, by all accounts, improve, would lead to an absurd result.

30For completion, I also considered the consequences of this interpretation. As this is a novel issue, I find it is clear that requiring a severe and permanent alteration of structure and a permanent mobility score between 0 and 5 on the SCIM would not unfairly punish a large group of insureds, nor the applicant. The facts of the applicant’s specific impairment, the temporary duration of same, the narrow window during which she required two mobility aids and her positive prospects for recovery, are a seemingly rare combination of facts. Indeed, s. 3.1(1)2(iii) has never been addressed before. Accordingly, I do not find that denying the applicant’s CAT application on the basis of her admittedly temporary mobility impairment would violate the consumer-protection norm of the Schedule or the way that CAT matters have been interpreted by the Tribunal, generally: as being a permanent impairment requiring access to an enhanced level of benefits in order to aid in and recover from that permanent impairment.

23On review, my finding remains unchanged. In order to be designated CAT under s. 3.1(1)2(iii), an insured requires a permanent alteration of function, measured by a score between 0 and 5 on Item 12 of the SCIM. On the facts, the applicant does not meet the criteria for CAT under s. 3.1(1)2(iii) as her mobility impairment is not a permanent one, as measured by her SCIM score that did not result in a score between 0 and 5. I see no error, let alone a significant error of law or fact, in my plain reading or in my purposive analysis that would have resulted in a different conclusion. Accordingly, the applicant’s request for reconsideration is dismissed, as she has not satisfied the criteria under Rule 18.2(b) of the Tribunal’s Common Rules.

ORDER

24For the reasons above, the applicant’s request for reconsideration is dismissed.

Jesse A. Boyce

Vice Chair

Tribunals Ontario – Licence Appeal Tribunal

Footnotes

1. 1Rick Hanson Institute, Clinical Guide for Performing SCIM III Assessments.
2. 2July v. Neil, 1986 CanLII 149 (ONCA), at 10; Kusnierz v. Economical, 2011 ONCA 823, at 25.
3. 3See, Rizzo v. Rizzo Shoes Ltd., 1998 CanLII 837 (SCC) [1998] 1 SCR 27.