RECONSIDERATION DECISION
Before:
D. Gregory Flude, Vice-Chair
07/12/2021
Tribunal File Number:
18-000957/AABS
Case Name:
Prokopios Papadakis v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant:
Tina D. Radimisis, Counsel
For the Respondent:
Paul Omeziri, Counsel
OVERVIEW
1This request for reconsideration was filed by the Applicant. It arises out of a decision in which the I found the Applicant was not entitled to a declaration that he was catastrophically impaired, that he was not entitled to an income replacement benefit or a housekeeping and home maintenance benefit, and that he was not entitled several medical and rehabilitation benefits.
2The Applicant submits that I made errors of fact and law and, in the absence of such errors, I would likely have come to a different conclusion.
3It is unclear from his submissions what order the Applicant is seeking beyond the reconsideration as it is not specified. Reading the Applicant’s submissions as a whole, I conclude that the Applicant is seeking that the decision be varied to declare that he is catastrophically impaired and to award all of the benefits sought.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The Applicant's request for reconsideration is dismissed.
BACKGROUND
6The Applicant was injured in a motor vehicle collision on December 3, 2014. Prior to that, he had had a major workplace accident in 2010 that required surgery on his right shoulder. His treating orthopedic surgeon certified that he was no longer able to carry out the essential tasks of his employment as a self-employed contractor. Notwithstanding that he had been found to be unable to return to working, he started working again in 2012, hiring help to deal with heavier lifting jobs.
7In September 2014, the Applicant suffered a myocardial infarction, colloquially known as a heart attack, while playing soccer. He has neither played soccer nor worked as a self-employed contractor since. Approximately 3 months later he was involved in the subject accident. Through 2015 and ongoing he has suffered a general deterioration in his health. This includes the onset of depression and increasing issues with his left shoulder. He is of the view that his condition has deteriorated as a result of the accident to the point that he meets to definition of catastrophic impairment. He claims entitlement to a housekeeping and home maintenance benefit, but a finding that he is catastrophically impaired is condition precedent to entitlement to this benefit. He also seeks an income replacement benefit from one-week post-accident and to several treatment plans for medical and rehabilitation benefits.
ANALYSIS
8The 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 (“Rules”). A request for reconsideration will not be granted unless one or more of the following criteria found in Rule 18.2 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.
9In this case, the Applicant seeks reconsideration under Rule 18.2 b), on the ground that I made a significant legal or evidentiary mistake preventing a just outcome.
10In the original decision, after reviewing the Applicant’s medical history and concluding that he had suffered predominantly soft tissue injuries in the accident, I started by addressing the question of catastrophic impairment, followed by the question of the applicant’s entitlement to an income replacement benefit and finally entitlement to treatment plans and costs of the preparation of 3 Disability Certificates (“OCF-3”). I will follow that order here, but first I will address the scope of review.
Scope of Review
11On a reconsideration, the moving party, in this case the Applicant, carries the onus to establish that the Tribunal made a material mistake of fact and law. It is not an opportunity to ask that the Tribunal reweigh evidence and come to a different conclusion or give greater weight to the moving party’s submissions on the applicable law. As Vice-Chair Helt said in M.H. v. T.D. Insurance Meloche Monnex 2019 CANLII 72230 (ON LAT)
Rule 18.2(b) allows the Tribunal to review a decision for “significant errors”. This Rule does not mean that on a reconsideration the Tribunal should reweigh all the evidence. Rather, the errors of fact or law must be significant such “that the Tribunal would likely have reached a different decision.”
12In K.M. vs. Aviva General Insurance Company, 2020 CANLII 45491 (ON LAT), Vice-Chair Farlam stated:
In this particular case, because the applicant has requested reconsideration, the onus is on the applicant to prove her grounds and she has not done so. Instead, the applicant’s submissions appear to be an attempt to reargue the case made before the adjudicator in a new way. A reconsideration is not an opportunity to reargue one’s case or an appeal.
13In reviewing the Applicant’s submissions, I find the applicant has failed to point any material error of fact or law that would likely have affected the outcome.
Alleged Errors of Law Generally
14The Applicant asserts that I “failed to consider settled case law from the License Appeal Tribunal” and failed to apply the tests in the Statutory Accident benefits Schedule, O. Reg. 34/10 (“SABS”) correctly and/or at all, and as per section 18.2(b) of the Rules, [I] made a significant error of law and fact such that [I] would have reached a different decision had those cases been properly considered.”
15Further, the Applicant asserts in her submissions that I failed to consider “binding” decisions from the Financial Services Commission of Ontario (“FSCO”). She states: “However, this line of reasoning was distinguished by Dir. Delegate Blackman in Bains v RBC General Insurance Co. [2010] O.F.S.D. No. 65 which is a binding decision on the [Licence Appeal Tribunal].” Given both parties’ reliance on Bains v RBC General Insurance Co. [2010] O.F.S.D. No. 65 (“Bains”) I will deal with it further later in these reasons.
16While I acknowledge that prior Licence Appeal Tribunal decisions and FSCO decisions may be persuasive, I would point out that they are not binding. Each case before the Tribunal is unique. Previous decisions provide guidance and insight into interpretation of SABS, but they do not bind.
Catastrophic Impairment
17The Applicant argues that I made two significant errors of law in considering whether he was catastrophically impaired: I disallowed a 3% Whole Person Impairment (“WPI”) rating for medications added by Dr. Sangha in his assessment of the Applicant and I disallowed 18% WPI for a potential future operation. In this last submission, the Applicant relies on Bains.
18With respect to the 3% for medication, a reading of the decision makes clear that I did not consider it to be significant in arriving at my decision. My focus, and the material part of the decision is set out at paragraph [36], where I state”
It [Wawanesa] also questions the assignment of a score of 18% for future surgery applied by Dr. Harold Becker in the Omega Summary & Analysis Report. It submits that the Guides do not account for future surgery in assigning scores. Mr. Papadakis asserts that it does. From the analysis performed by Omega above, it can clearly be seen that without the score for future surgery, Mr. Papadakis does not currently achieve the required 55% WPI.
19In dealing with the 3% for medication, I stated: “I am satisfied that Dr. Sangha has misapplied the 3% rating for medication use. While, superficially at least, deducting 3% would suggest a 52% WPI, the fact that scores are not calculated linearly calls the simple mathematical calculation into question.” Thus, I was aware that disallowing the 3% for medication did not automatically result in the Applicant being found not to be catastrophically impaired and that that issue largely turned on the 18% WPI score for future surgery.
20Notwithstanding the lack of materiality of the 3% medication issue, the Applicant adds a gloss to Dr. Sangha’s rationale that is not there in his original notes. The Applicant lists a number of drugs he is now taking that he did not take pre-accident and suggests that it was those drugs Dr. Sangha was referring to. There are two flaws in this argument addressed in paragraphs [35] through [45] of the decision. Firstly, Dr. Sangha himself states that the drugs in question are drugs related to the previous myocardial infarction. Secondly, the addition of 3% is not for the possible future impact of extended drug use, it is for the manner in which the drugs may mask the Applicant’s true condition at the time of the assessment. Dr. Sangha makes no attempt to address this issue.
21The Applicant relies on Bains and related cases for the proposition that future surgery should be considered in assigning a WPI. With respect, the Applicant has completely misconstrued the reasoning in Bains. Bains deals with an applicant who met the test for catastrophic impairment. The insurance company argued that future surgery was likely to remediate Ms. Bains condition so that she would no longer meet the test. The Director’s Delegate was critical of the insurer’s expert witness, Dr. Oshidari, who testified that, only once all future surgery was completed and a period of rehabilitation had passed, could an assessment of catastrophic impairment be completed. The Director’s Delegate rejected that approach, as do I.
22Bains stands for the proposition that adjudicators must assess the applicant they have before them and not some future version of that applicant following surgery. Where the AMA Guides talk about the need for stability, the SABS has adopted a 2-year period to allow for stability, thereafter it is the current condition of the applicant that is to be assessed. In the current case, the Applicant did not meet the test for a determination that he was catastrophically impaired, a fact with which both parties agreed. In disallowing 18% for future surgery, I was, in fact, adopting the reasoning in Bains.
23The Applicant also submits that I failed to follow settled Tribunal case law on this point. He cites no Tribunal cases in his submission in support of that proposition. All the cases he cites are from FSCO. In fact, recent case law from the Tribunal comes to the same conclusion that I do. In N.C. v. TD Insurance Meloche Monnex, 2020 CANLII 27411 (ON LAT) the Tribunal held that future surgery was not to be considered. Adjudicator Nielson stated at paragraphs [18] and [19]:
18The respondent relies on the Financial Services Commission of Ontario (“FSCO”) decision of Taylor and Pembridge. I am not bound by FSCO decisions, but I find the reasoning in Taylor v. Pembridge persuasive. In that case, the Arbitrator rejected a WPI% rating based on the applicant undergoing future hip replacement surgery. The Arbitrator determined that those ratings were not in accordance with the AMA Guides, which require estimates based on current and not future findings. I also reject the applicant’s submission that any WPI% rating ought to be applied for future hip surgery.
19In addition, the wording of s. 3(5) of the Schedule does not support the applicant’s submission. Section 3(5) states that the WPI percentage does not apply unless two years have passed since the accident or a physician confirms it is unlikely that the applicant will cease to be catastrophically impaired. The two year mark shows an intention by the Legislature that the potential for improvement or deterioration is not a factor to consider in determining CAT after two years. Further, the definition of “catastrophic impairment” in the Schedule that applies in this case refers to an insured person who “has” a combination of impairments that results in 55 % WPI as opposed to “will have” or “would have” or “could have”. The plain, grammatical and ordinary meaning of the definition requires an actual present rating or opinion as to the actual rating and not a prediction, projection or estimate of the future. This is not a case of wording being ambiguous where it would be appropriate to construe the Schedule in a manner that favours the insured person.
24In A.M. v. Wawanesa Mutual Insurance Company, 2020 CANLII 45490 (ON LAT), Adjudicator Lake came to the same conclusion concerning future deterioration of a psychological condition. She stated at paragraph [42]:
I find that the wording of s. 3(5) of the Schedule does not support Dr. Milad’s explanation for his 49% WPI assignment. Section 3(5) states that the WPI percentage does not apply unless two years have passed since the accident or a physician confirms it is unlikely that the applicant will cease to be catastrophically impaired. The two-year mark shows an intention by the Legislature that the potential for improvement or deterioration is not a factor to consider in determining CAT after two years. Further, the definition of “catastrophic impairment” in the applicable version of the Schedule refers to an insured person who has a combination of impairments that results in 55 % WPI as opposed to could have. The plain, grammatical and ordinary meaning of the definition requires an actual present rating or opinion as to the actual rating and not a prediction, projection or possibility into the future which is what Dr. Milad testified that he took into consideration in assigning the highest value of 49% WPI in the range.
25It would appear that there is a substantial body of Tribunal case law that makes similar findings as I with respect to future treatment. The Applicant has failed to point to any significant error of fact or law that would have impacted the decision.
Income Replacement Benefit
26The Applicant asserts two propositions in support of his position that I made a significant error of law or fact. The first, a proposition of law, is that I misinterpreted s. 5 of SABS defining entitlement to an income replacement benefit (“IRB”). The second is factual. He asserts that there is clear medical evidence that he was cleared by his cardiologist to return to work on December 1, 2014, two days before the accident. Both of these questions were argued at the hearing and are addressed fully in the decision. The Applicant has not pointed to a significant error.
27To qualify for an IRB, the applicant was required to show that he was self-employed at the time of the accident. In the decision I review the evidence and conclude that he was not. This conclusion was broad based on a wide range of evidence. His sole effort to secure further contracts was limited to one phone call in November 2014 while he was not working due to his heart attack, with no follow-up. There was no attempt to seek work after he was cleared to work, he asserts on December 1, 2014, the evidence shows mid-January 2015. Other than making wide sweeping statements in his submissions such as: “The Decision disregards the fact and the clear medical documentation that the Applicant had recovered sufficiently from his heart attack and was cleared to return to work by his treating cardiologist” and “The occurrence of a heart-attack does not render an individual completely unable to return to work,” the Applicant points to no error in the evidentiary analysis.
28The Applicant also misreads s. 5(1) of SABS. In his submissions he states: “In the alternative, the test states that the Applicant must be “either employed or self-employed for at least 26 out of 52 weeks prior to the collision.” The Applicant was clearly eligible for income replacement benefits.” Section 5(1) does not extend the 26 weeks out of the prior 52 weeks qualification to self-employed persons. It sets out three categories of person who are entitled to an IRB: a person who was employed at the time of the accident, or a person who was not employed at the time of the accident but was employed for 26 out of the prior 52 weeks in 5(1)1., or a self-employed person in 5(1)2. The applicant was self-employed so the 26 out of the prior 52 weeks does not apply to him. It was his onus to show that he was self-employed at the time of the accident and, in a lengthy analysis, I outline why he did not satisfy that onus. There is no error of fact or law in the denial of an IRB.
29In the section of the decision regarding the treatment plans in dispute, I acknowledge at the outset that there is conflicting evidence. I review that evidence and come to a conclusion that the treatment plans were not reasonable and necessary. Part of that analysis comes from the report of Dr. Al-Samak, a chronic pain specialist, detailing the lack of effectiveness of the proposed treatment and proposing a multidisciplinary approach to deal with the Applicant’s condition. At no point did I state that the Applicant is not in need of further treatment. I stated that Dr. Al-Samak suggests other treatment. There was little medical support for continuing largely ineffective treatment. No error of law or fact has been identified. The Applicant simply does not like the result.
Disability Certificates (“OCF-3”) and Parking
30In the decision I reject the claims for 3 OCF-3s and the parking charge. The decision is clear that the Applicant simply failed to justify the charges. I see no error of fact or law.
CONCLUSION
31For the reasons noted above, I deny the Applicant's request for reconsideration.
D. Gregory Flude
Vice Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: July 12, 2021