GT v. The Guarantee Company of North America, 2021 ONLAT 18-003334/AABS - R
RECONSIDERATION DECISION
Before: Kate Grieves, Adjudicator
Tribunal File Number: 18-003334/AABS
Case Name: GT v. The Guarantee Company of North America
Written Submissions by:
For the Applicant: Carlo Tittarelli, Counsel
For the Respondent: Patrick Brennan, Counsel
OVERVIEW
1The respondent’s request for reconsideration arises from a decision in which the sole issue in dispute was whether the applicant should be designated as catastrophically impaired under Criteria 7: that is, whether she suffered an impairment or combination of impairments that, in accordance with the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition, 1993, (the “Guides”) results in an impairment of 55% or more of the whole person.
2The Tribunal concluded that the applicant had sustained 54% WPI.1 After rounding, as permitted by the Guides, the applicant meets the threshold of 55% and therefore had sustained a catastrophic impairment. The respondent has requested that the Tribunal reconsider its decision.
3The parties’ impairment ratings and the Tribunal’s findings are summarized as follows:
| Impairments | Applicant’s Assessments | Respondent’s Assessments | ACCEPTED RATING |
|---|---|---|---|
| Mental/Behavioural | 29 | 18 | 18 |
| Left Lower Extremity | 15 | 15 | 15 |
| Right Lower Extremity | 7 | 0 | 7 |
| Face: Disfigurement + Cranial Nerve v2 | 10 + 5 | 5 + 5 | 10 + 5 |
| Spine: cervical-thoracic + lumbar-sacral | 5 + 5 | 0 + 0 | 0 + 0 |
| Headaches | 10 | 0 | 0 |
| Disfigurement | 9 | 0 | 5 |
| Sleep Disorder | 9 | 0 | 9 |
| Chronic Pain/Burden of Treatment | 3 | 2 | 3 |
| TOTAL | 67 | 39 | 54 |
4Rule 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 (“Rules”) 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 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.
5The respondent submits that the Tribunal made the following errors of law and/or fact in assigning three of the WPI ratings: for the left leg disfigurement (5% WPI), sleep disorder (9% WPI) and discretionary increase (3% WPI) on the basis that the Tribunal:
a. Erroneously relied upon the findings of the assessment team and the clinical coordinator, Dr. Persi, despite finding in the decision that Dr. Persi was “unreliable”.
b. Failed to consider critical and relevant evidence concerning the applicant's functionality and return to activities, supported by surveillance evidence, which violated the rules of natural justice and/or procedural fairness.
c. With respect to the WPI ratings in the identified areas, that the Tribunal misapplied the evidence at the hearing resulting in a significant error of fact, and a significant error of law in failing to properly apply the Guides, case law, and tests prescribed in assessing catastrophic determination, which would have resulting in a different decision.
6The respondent requests reconsideration and submits that the ratings should be 0% WPI for left leg disfigurement and sleep disorder, and 2% WPI for the discretionary increase. That would have resulted in a 45% WPI, and the applicant would therefore not meet the 55% threshold for catastrophic impairment.
RESULT
7The respondent’s request for reconsideration is dismissed.
ANALYSIS
8The respondent has the onus of proving on a balance of probabilities that the request for reconsideration should be granted based on one or more of the above criteria.
9The respondent submits that the Tribunal made errors of law and fact. I am not persuaded by the respondent’s arguments. I find that the Tribunal did not make any error of law or fact in rendering its decision.
Findings Regarding Dr. Persi
10At paragraphs 12 to 17 of the decision, the Tribunal rejected Dr. Unsal and Dr. Persi’s mental and behavioural portion of the AssessNet report as unreliable. The respondent also points to other parts of the decision where the Tribunal rejected Dr. Persi’s findings. The respondent submits that Dr. Persi’s entire multidisciplinary report is discredited as a result of the Tribunal’s findings.
11I am not persuaded by the respondent’s arguments. It is open to the Tribunal to accept a portion of evidence while rejecting other evidence of any witness. The Tribunal specifically found the portion of the report related to mental and behavioural impairment to be unreliable, and adopted the impairment rating of the respondent’s assessor. The Tribunal carefully reviewed each sphere of possible impairment and provided sufficient explanations for accepting or rejecting evidence.
Consideration of Evidence
12The respondent correctly acknowledges that the Tribunal is not obligated to explicitly address all evidence put before it. However, the respondent submits that the Tribunal made a significant error of fact in failing to review or appreciate all the evidence in coming to its decision. The respondent submits that Tribunal failed to consider the surveillance, evidence of her functionality, and return to regular gym attendance and other exercise. The respondent submits that this is a significant error which would result in a different decision.
13The Tribunal reviewed the surveillance during the in-person the hearing, and the permitted the respondent to cross-examine the applicant on the content of the surveillance. At Tab B to their reconsideration submissions, the respondent even included transcripts from the hearing when the surveillance reviewed. It cannot be said that the Tribunal did not review the evidence in coming to its decision.
14Furthermore, even if the Tribunal failed to consider this evidence, the error would not likely have led it to reach a different decision. I agree that evidence with respect to the applicant’s function is important. The surveillance showed the applicant attending the gym and exercising, using elliptical machines and weights. However, it doesn’t always have a role to play in the calculation of WPI using the Guides. The parties agreed upon the impairment rating of the left lower extremity. The Tribunal accepted the applicant’s impairment for the right lower extremity, which is not disputed. The Tribunal accepted the respondent’s impairment rating for spinal impairment and mental/behavioural impairment (which includes activities of daily living). The respondent is only disputing the Tribunal’s WPI ratings for the left leg disfigurement, sleep disorder and the discretionary increase. The Tribunal considered each heading of impairment individually, weighed the evidence and provided detailed reasons. At paragraph 63, the Tribunal accepted that the applicant’s left leg disfigurement was consistent with a Class I impairment, but rejected the applicant’s rating of 9% because “it results in few limitations to her activities, and requires only that she either cover her scars or apply topical sunscreen. Considering the evidence as well as the examples provided in the Guides… the most appropriate rating is 5% WPI”.
15As noted by the respondent, the Tribunal is not obligated to refer to every piece of evidence it considered in reaching its decision. Despite not having specifically referred to the surveillance, the Tribunal considered the evidence before it regarding the applicant’s activities and level of function. The decision was well reasoned, and based on a balanced and fair assessment of the submissions and evidence filed by both parties.
Impairment Rating for Left Leg Disfigurement
16The respondent submits that the Tribunal erred in apportioning 5% WPI for the left leg disfigurement, and that it should be 0%.
17First, the respondent has mischaracterized the disfigurement rating: it is not solely for the left leg, but for both of the applicant’s legs. The scarring on the left leg is more significant, but the applicant sustained significant scarring to her legs as a result of the accident and subsequent surgeries to both knees.2
18The Tribunal rejected the impairment ratings of both assessors with respect to leg disfigurement. As noted at paragraph 63 of the decision, the Tribunal considered the evidence and the examples found in the Guides in coming to a rating of 5% WPI. The respondent submits that the Tribunal misapprehended the evidence and the examples from the Guides in reaching that assessment, and submits that the applicant’s impairments more closely match the examples that resulted in a 0% impairment.
19The Tribunal made a finding of fact in applying a 5% WPI rating for the disfigurement, and provided sufficient reasons for doing so. Reconsideration is not an opportunity to reargue positions which were unsuccessful at the hearing. Although the respondent may not agree with the Tribunal’s reasoning or finding, it is not grounds upon which a request for reconsideration should be granted. I find no error in how or why the Tribunal reached this impairment rating and thus have no reason to interfere with its assessment of the evidence or its decision.
Impairment Rating for Sleep Disturbance
20The Tribunal accepted the impairment rating of 9% set out by Dr. Persi. The respondent submits that the Tribunal failed to explain how it overcame its earlier findings of flaws in Dr. Persi’s conclusions, and the decision is therefore incongruent and inconsistent. The respondent submits that in accepting Dr. Persi’s findings with respect to the sleep disorder category, the Tribunal is contradicting its findings at paragraphs 12 to 17 of the decision.
21As noted above, it is open to the Tribunal to accept a portion of evidence while rejecting other evidence of any witness. At paragraphs 12 to 17, the Tribunal specifically took issue with the mental and behavioural portion of the evaluation, and adopted the impairment rating of the respondent’s assessor. The Tribunal carefully reviewed each sphere of possible impairment and provided sufficient explanations for accepting or rejecting evidence.
22The Respondent also submits that the 9% rating must be discounted because the mental/behavioural rating included sleep disorder, and the justification for the did not speak to physical pain, and were a duplication of ratings addressed in the WPI discretionary increase.
23I am not persuaded that the Tribunal made an error of fact or law. At paragraph 65, the Tribunal acknowledged that there is both a mental and physical component to the applicant’s sleep disorder, and the physical component wasn’t captured under in the impairment rating of Dr. Gnam adopted by the Tribunal. At paragraph 64 the Tribunal considered the applicant’s testimony regarding her physical pain, and initiating and staying asleep.
24The Tribunal considered Table 6 at page 143 of the Guides which sets out ranges of impairment and accepted that the applicant fell into the lowest range, defined as “reduced daytime alertness with sleep pattern such that patient can carry out most daily activities”.3 In accepting that the upper end of the lowest range was appropriate, the Tribunal considered constant disruption of sleep, the fatigue she experienced during the daytime and her use of medication. The applicant had stopped taking the sleep medication, Zopiclone, when she became pregnant. There is no duplication between this section and the discretionary increase alleged by the respondent. At paragraphs 68 to 70 the Tribunal addressed the discretionary increase. The applicant’s use of the sleep medication, Zopiclone, was not included. The Tribunal found that her ongoing use of pain medication, the impact of her medications on her sexual functioning and her weight gain warranted the discretionary increase. There is no overlap with the sleep disruption impairment rating. The Tribunal considered and weighed the evidence. I find no error in how the Tribunal reached this impairment rating.
Impairment Rating for Discretionary Increase
25Dr. Persi assigned 3% because of the applicant’s chronic residual pain limiting function, medication use and weight gain of about 15 lbs due to decreased physical activity.4
26Dr. Kurzman assigned 2% due to medication use and the side effects of her antidepressants on her sexual functioning.5
27The respondent submits that the applicant returned to the gym, as described in her testimony and in the surveillance footage showing her exercising. The respondent submits that the Tribunal failed to consider that evidence, which contradicts the lack of physical activity noted by Dr. Persi to justify his discretionary increase rating.
28There was no factual dispute that the applicant gained weight since the accident. The Tribunal made no finding regarding the applicant’s ability to exercise or go to the gym. The Tribunal accepted that the applicant gained weight. The Tribunal also accepted the respondent expert’s conclusions that her medication side effects were affecting her sexual function. Taken together, the Tribunal accepted that 3% was an appropriate discretionary increase.
29The respondent raised no errors of law or fact that meet the standard required for reconsideration of the Tribunal’s decision. The respondent may disagree with the Tribunal’s assessment of the evidence but there is no basis to interfere with the decision.
CONCLUSION
30For the reasons noted above, the respondent’s request for reconsideration is dismissed.
Kate Grieves
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: April 23, 2021