RECONSIDERATION DECISION
Before: D. Gregory Flude, Vice-Chair
Licence Appeal Tribunal File Number: 19-010824/AABS
Case Name: Amanda Howe v. The Commonwell Mutual Insurance Group
Written Submissions by:
For the Applicant: Joseph G. Falconeri, Counsel
For the Respondent: Linda Matthews, Counsel
BACKGROUND
1The applicant, Amanda Howe, asks the Tribunal to reconsider its decision released on November 26, 2021, wherein the Tribunal found that the Ms. Howe had failed to meet her onus to show that her August 1, 2012 ATV accident had cause her to suffer a catastrophic impairment. Having considered Ms. Howe’s submissions, I find that she has not established grounds for a reconsideration. Her submissions ask me to reweigh the evidence and overturn findings of fact that were well supported in the record before the adjudicator. There is no error of fact or law such that that the Tribunal would likely have reached a different result had the error not been made (“material error”).
2Catastrophic impairment is a defined term under the Statutory Accident Benefits Schedule – Effective September 1, 2010 O. Reg 34/10 (“SABS”).1 The definition has eight applicable criteria ranging from severe physical and neurological impairment through to significant psychological impairment. Ms. Howe relied on a psychological impairment in the area of adaptation that, she submits, significantly impedes useful functioning in work or work like settings.
3The respondent, The Commonwell Mutual Insurance Group (“The Commonwell”), defended on the grounds that the accident on August 1, 2012 did not cause Ms. Howe’s post-accident psychological, and in any event, her psychological condition, even when combining pre- and post-accident impacts did not reach the required level of significant impediment in adaptation. The decision agreed with both of The Commonwell’s grounds, thus, to be successful on this reconsideration, Ms. Howe must show that both of the Tribunal’s key findings represent material errors.
ANALYSIS
4To succeed on reconsideration, Ms. Howe must satisfy one of the four grounds set out 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). Ms. Howe relies on the material error ground in Rule 18(2)(b).
5In Caputo v Aviva General Insurance Company, 2021 CanLII 124042 (ON LAT) at paragraphs [5] and [6], Vice-Chair Boyce encapsulated the test for reconsideration as follows:
The test for reconsideration under Rule 18.2(b) involves a high threshold. Reconsideration is only warranted in cases where an adjudicator has made a significant legal or evidentiary mistake preventing a just outcome, where false evidence has been admitted, or where genuinely new and undiscoverable evidence comes to light after a hearing. The reconsideration process is not an invitation for the Tribunal to reweigh evidence or an opportunity for a party to re-litigate its position where it disagrees with the decision or the weight assigned to the evidence. In a similar vein, an adjudicator is not required to refer to every piece of evidence or submission before them.
While I am alive to the arguments in her submissions, I find the applicant’s assertions can be whittled down to a disagreement over the weight that I assigned to the evidence at first instance, particularly the recommendations of her family physician, Dr. Langer, regarding passive therapy. It is well-settled that this is not the purpose of reconsideration. The function of an adjudicator is to assign weight to the evidence before them to arrive at a determination.
6There are three alleged errors relied on by Ms. Howe: misapplication of the “but for” test, misinterpretation of her mental health history, and failure to consider the effects of the accident on employment. In first two cases, the Tribunal extensively reviewed the evidence in making its findings, assigning weight as necessary and explaining why it preferred some evidence over other evidence. In the third case, the Tribunal placed little weight on the evidence of Dr. Keightley because, in arriving at her opinion, Dr. Keightley had not reviewed Ms. Howe’s pre-accident medical records, thereby attributing all of Ms. Howe’s difficulties to the accident.
“But For” Test
7The Tribunal begins its analysis of the evidence and law relative to the “but for” test at paragraph [59]. Ms. Howe agrees that the test is correctly identified. In paragraph [60] the Tribunal makes the statement: “I find that the accident was not the main cause of bringing about the applicant’s psychological impairments or injuries,” thereby calling into question whether the adjudicator applied the right criteria to inform himself that Ms. Howe had not satisfied the “but for” test.
8When the whole context of the “but for” analysis is taken into account, it is clear that the Tribunal did not misapply the test. Paragraph [61] through paragraph [79] is a review of the evidence relating to the impact of the accident on Ms. Howe’s pre-existing psychological condition and finds that there was no lasting impact. Particularly, at paragraph [75] the Tribunal acknowledges some exacerbation of pre-existing symptoms but notes that the effects are largely resolved. It also notes the lack of impact the accident and the pre-existing condition had on Ms. Howe’s lifestyle.
9At its heart, the Tribunal’s analysis focuses on the evidence of Dr. Ali, a psychiatrist retained by The Commonwell to assess Ms. Howe, and Dr. Keightley, a psychologist retained by Ms. Howe to conduct an assessment. The Tribunal weighed the competing evidence and preferred Dr. Ali’s evidence. It is not my function on this reconsideration to weigh the evidence differently.
10Notwithstanding the misstatement in paragraph [61], it is clear from reading the whole decision that the Tribunal properly applied the “but for” test.
Misinterpretation of Evidence Re: Past Mental Health
11At paragraph 10. of her submissions Ms. Howe excerpts the decision to state that the Tribunal based its findings on an “extensive, well-documented pre-accident history of developmental issues…pervasive development disorder or mild Asperger’s.” The original list is much more extensive than the quote would suggest, and it is, indeed, well-documented. Ms. Howe’s family doctor, Dr. Bugdahn, noted borderline Asperger’s as early as 2009. In fact, the Tribunal’s specific view of the evidence regarding Asperger’s, not set out in an omnibus paragraph, is at paragraph [35] where the Tribunal states:
There are also several pre-accident and post-accident records that reflect that the applicant was diagnosed with, or at least suspected to have Asperger’s or Pervasive Development Disorder prior to the accident (now coded as Autism Spectrum Disorder in DSM-5). This is lifetime developmental condition [sic] that develops in childhood. Under the DSM-4 (used prior to 2013) both Autism and Asperger’s fell under the umbrella of Pervasive Development Disorder (PDD).
12In identifying Asperger’s as a “lifetime developmental condition,” the Tribunal had determined that it was not caused by the accident and included post-accident references to it in its analysis. The Tribunal also accepted Dr. Ali’s review of Ms. Howe’s pre-accident medical history. In oral testimony, Dr. Ali stated that the learning difficulties, developmental issues, and other behavioural issues Ms. Howe suffered in childhood are indicia of PDD/ASD. It accepted Dr. Ali’s diagnosis in her September 17, 2017 assessment report that Ms. Howe had “Asperger’s Disorder which is now coded as Autism Spectrum Disorder using DSM-5 with accompanying intellectual impairment.”
13The Tribunal’s treatment of Ms. Howe’s pre-accident medical history and the subsequent synthesis of those reports into a diagnosis by Dr. Ali was open to the Tribunal on the evidence. Ms. Howe is asking me to reweigh that evidence, an option not open to her on reconsideration.
Failure to Consider Effect of Accident on Employment
14Ms. Howe submits that the Tribunal made a material error by not mentioning the occupational therapy evidence of Talia Dick, OT. Her submissions state at paragraph 17.:
Adjudicator Paluch makes no mention of the evidence of Ms. Dick, who testified in detail as to the Applicant’s difficulties completing “real-world” tasks that require her to interact with unfamiliar individuals in unfamiliar settings. He further fails to address in any detail the Applicant’s demonstrated difficulties with work settings, and does not consider that prior to the accident the Applicant had no difficulties eating, drinking, or toileting while in a work-like setting (which during the relevant pre-accident period was late elementary/middle school). The Applicant submits that this is a critical error that would affect the determination of her catastrophic impairment status.
15The Tribunal addressed the question of adaptation to work and work-like settings in paragraphs [68] through [79]. The Tribunal had previously highlighted difficulties with Ms. Howe’s and her father’s evidence about her pre-existing condition and abilities [paragraphs [46] and [47]]. That pre-existing condition involved: “concerns about her behaviour and emotional regulation including concerns with social difficulties, conflict and fighting with sisters, cruelty to animals, general unhappiness most every day, problems with personal care and independently following through on activities of daily living,” [see para [28]].
16While the Tribunal did not specifically refer to Ms. Dick’s evidence, her report was extensively referred to and relied on in the expert report of Dr. Keightley. Thus, by weighing Dr. Keightley’s conclusions on the question of adaptability, The Tribunal was also considering Ms. Dick’s evidence. In the end, the Tribunal concluded at paragraph [79]:
I also noted that Dr. Keightley first formed the opinion that the applicant had a “marked” impairment in Adaptation without being provided with the applicant’s pre-accident school records and reports from Dr. Fountain and Dr. Dougan. In my view these records, including Dr. Fountain’s August 2005 report, were critically important as far as the applicant’s Major Depressive Diagnosis and challenges she was facing years ago when the applicant was only in grade 3. After being provided with those records, her opinion did not change, however. Dr. Keightley was also not aware that Dr. Bugdahn had indicated PDD in her medical notes prior to the accident. For all of these reasons I put less weight on Dr. Keightley’s opinion.
17It was open to the Tribunal to place less weight on Dr. Keightley’s evidence, and by extension, Ms. Dick’s evidence and to do so was not a material error. In arriving at the conclusion that Ms. Howe had not sustained a marked impairment in the area of adaptation, the Tribunal was not required to detail all of the evidence.
CONCLUSION
18For the reasons noted above, I deny the Applicant's request for reconsideration.
D. Gregory Flude
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: June 10, 2022
Footnotes
- Note: The original decision refers to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996. While I am satisfied that the decision relies on the SABS before the 2016 amendments, the criterion 8 test for catastrophic impairment in both versions is a marked or extreme impairment in one of the 4 domains as set out in the AMA Guides 4th Edition.