RECONSIDERATION DECISION
Before: Chloe Lester
Licence Appeal Tribunal File Number: 20-009293/AABS
Case Name: Yvonne Adams v. Federated Insurance Company of Canada
Written Submissions by:
For the Applicant: Laura Hillyer and James Page, Counsel
For the Respondent: Amanda Lennox, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant, Ms. Adams, in this matter.
2It arises out of a decision in which I found that Ms. Adams is not catastrophically impaired when assessed in accordance with Glasgow Outcome Scale, Extended (referred to as the GOSE)1 resulting in a rating of Vegetative State, Upper or Lower Severe Disability or Lower Moderate Disability.2
3Based on the results of the GOSE, I found that Ms. Adams does not meet, at a minimum, a Lower Moderate Disability necessary to be rendered catastrophically impaired.
4Ms. Adams submits that I erred when the decision held that:
a. Specific details of individual circumstances must not be considered for the purpose of the GOSE;
b. Persons assisting brain-injured survivors must do so in the survivor’s home for the purposes of assessing “independence in the home” under the GOSE;
c. “Public transportation” includes publicly funded supported transportation only for disabled individuals;
d. An assessment of post-injury “current status” must not consider future risks of harm for the purpose of the GOSE;
e. The GOSE is written in such a way that if survivors are capable of completing certain activities referenced in later questions, then the assumption is that they are probably capable of completing certain other activities referenced in earlier questions;
f. “capable” mean being capable “more often than not” for the purpose of the GOSE.
g. It failed to answer the hypothetical questions, what would Ms. Adams be like within and outside of her home without support?
5Ms. Adams seeks reconsideration under Rule 18.2 (b) of the Rules3. She argues that the Tribunal made 7 errors of law or fact such that the Tribunal would have reached a different result had the error not been made.
6Ms. Adams is seeking an order that my decision is varied to determine that she is catastrophically impaired.
RESULT
7Ms. Adam’s request for reconsideration is dismissed.
THE LAW
8Most of Ms. Adam’s submissions on the alleged errors committed in my decision surround interpretation. Did I interpret the legislation in a fair, large and liberal interpretation since it is consumer protection legislation and remedial in nature? Did I interpret the legislation in a way that coverage should be construed broadly, and exclusions should be construed narrowly? Did I read the GOSE and Schedule harmoniously with the Insurance Act which has the goal of reducing the economic hardship of motor vehicle accident victims? She relies on numerous decisions in support of her position.4 In her submissions, had the errors not been made then the Tribunal would have found that she was catastrophically impaired, and was not independent inside or outside her home. Ms. Adams’ main argument is that since being catastrophically impaired is a legal test, the GOSE Guidelines should be liberally interpreted to encompass more than what the Guidelines and Questionnaire allow for.
9Federated Insurance argues that the Schedule should be interpreted using modern approaches to statutory interpretation. It argues that the GOSE Guidelines, the language and the directions in the Questionnaire should not be ignored. Federated Insurance submits that since the GOSE was incorporated into the Schedule that it now forms part of it and must be interpreted using a modern approach to statutory interpretation. It argues that the GOSE establishes what a person is capable of doing. In its submissions, Federated Insurance relies on the Court of Appeal decision in Bapoo to support its position that my interpretation of the Schedule should comply with the legislative test, promote the purpose, and produce a reasonable and just meaning.5
10In its reply, Ms. Adams argues that in accordance with Bapoo such an interpretation fails to provide a just and fair outcome because the GOSE Guidelines fails to assess an individual’s true functioning and dependency.
11The parties and I agree that the Schedule must be interpreted in such a way that encourages liberal interpretation of the consumer protection legislation. The parties and I also agree that being designated catastrophically impaired is a legal test and not a medical test.
12However, the Schedule also requires interpretation with the understanding that with each major revision of the Schedule the amount of benefits has been reduced. In successive versions, the definition of what is considered an accident was narrowed, the dollar amount of benefits available has been reduced, and most recently some catastrophic impairments definitions became more difficult to meet.
13So, an adjudicator’s ability to broadly interpret the Schedule has limits. Interpretation is required when sections in the Schedule are unclear, vague or broad. Whereas, if the Schedule dictates a strict requirement, for example, an insured person must submit a Disability Certificate before receiving an income replacement benefit, an adjudicator may have little to no room to interpret that requirement.
14I agree with Federated Insurance that since the GOSE Guidelines have been incorporated into the Schedule, the former now forms part of the latter. All parts of the Schedule and the GOSE need to be read in whole, harmoniously and with a liberal interpretation with the understanding that the Schedule is a consumer protection legislation. Ms. Adams is asking to discount parts of the description, boundaries or guidelines outlined in the GOSE to compensate for what she believes are the failings of the GOSE. She argues that the GOSE Guidelines do not account for true function. Since the GOSE Guidelines have been incorporated into the Schedule, the ability of an adjudicator to interpret them is limited to the information contained in them. If the GOSE Guidelines contain a definition, boundaries, or ways of determining functional capabilities, those should be respected. An adjudicator can interpret how the evidence applies to the GOSE and its Guidelines. It is no different than establishing a catastrophic impairment on the basis of reaching a 55% WPI rating using the AMA Guides. The AMA Guides have been incorporated into the Schedule and need to be respected. The evidence, in either case, needs to be applied to the boundaries, the tables or the parameters outlined in the medical documents.
ANALYSIS
Specific details of individual circumstances must not be considered for the purpose of the GOSE
15Ms. Adams takes issue with my decision in paragraph 16 where I held and quoted the purpose of the scale was not intended to provide details about the specific difficulties faced by individuals, but overall capabilities.
16Ms. Adams describes in her submissions various examples of where the GOSE does consider the specifics of an individual. For example, each question always considers the pre-injury status in comparison to the present status and the effects of the brain injury.
17Ms. Adams specifically argues that when considering the GOSE I should take into consideration that her dietary intake can impact her diabetes and put her at risk for further decline. Therefore, when answering the questions in the GOSE questionnaire, Ms. Adams argues that the assessment must be thorough, detailed, and focused on the person’s true level of function. She argues that failing to consider her diabetes management in contemplation of question 2a was an error and should be excluded from considering Ms. Adams’ independence in the home.
18Federated Insurance argues that the rules of statutory interpretation simply do not support deviating from the directions in the GOSE questionnaire. Federated Insurance argues one must focus on what someone can do. Federated Insurance submits that the GOSE is intended to allocate insureds into broad categories based on their level of function at the time the questionnaire is performed.
19An error is simply not enough to pursue reconsideration, it must be linked to an error in law or fact and then how the decision would vary. Generalizing will not be sufficient to overturn a decision. This one paragraph does not represent the totality of my decision, which of course considered Ms. Adams’ specific pre-accident to post-accident capabilities.
20Even if I were to consider the one example Ms. Adams’ relies on, the fact I did not consider that she eats/prepares meals that are not congruent with her diabetes management, she still does not meet the requirements to be classified as Lower or Upper Severe Disability. She requires a greater level of dependence than what Ms. Adams exhibits. She must be unable to be left alone for up to 8 hours, and another person is required for her to complete “some”, more than 1, activities of daily living. Her inability to manage her diabetes through poor meal choices is simply not enough to meet Lower or Upper Severe Disability.
21Question 2a also indicates that the person should be to carry out activities without needing prompting or reminding, and should be able to be left alone overnight. The evidence demonstrates that Ms. Adams is left alone overnight, and she does not require prompting or reminding to complete her activities of daily living. The evidence demonstrates that she has phone reminders for her medication and does have prompts or reminders for her medical appointments. This is not the level of dependency contemplated in Question 2. Ms. Adams can complete her activities of daily living without someone prompting or reminding her to eat, bathe, get dressed, answer doors, answer phone calls and handling minor and major crisis, like cleaning broken glass and putting out a fire.
Persons assisting brain-injured survivors must do so in the survivor’s home for the purposes of assessing “independence in the home” under the GOSE
22Ms. Adams argues that question 2 addresses independence in the home and in question 2a asks whether the assistance of another person at home essential every day for some activities of daily living. She argues that according to GOSE dependency to carry out activities of daily living may include prompting, reminders, or supervision.
23Ms. Adams argues that paragraph 30 of my decision requires someone being at home with them to assist with some activities of daily living and in her opinion sets the bar way too high for accident victims to meet the dependency test. Ms. Adams argues that reminders on a phone set up by a family member should count as prompts or reminders for the purpose of answering question 2a. Ms. Adams argues that the person does not physically have to be in the home but can simply be assisted through modern technology. Ms. Adams argues that in Shawnoo v. Certas6 Justice Garson found that attendant care benefits were payable when services were provided through modern technology.
24Federated Insurance argues that the Guidelines and appendix need to be read together to set the parameters in which Question 2 can be answered. It reads that many people receive assistance but do not absolutely depend on it, it asks does someone need to be at home every day, and how the person assisting the disabled individual would not be capable of working. Federated Insurance argues that this level of dependence requires constant and personal assistance.
25The alleged errors argued by Ms. Adams are no different than the submissions put forward at the hearing. There is nothing in her submissions that points to an error of law or fact that alters my decision. For Ms. Adams to have a severe disability, whether it is Upper or Lower, she must have an extremely high level of dependency. This category of disability is just under vegetative state, someone who cannot obey simple commands or speak words. I sympathize that Ms. Adams is having difficulties resulting from her impairments from the car accident, but the level of dependency required to achieve a Lower or Upper Severe Disability is simply not there. Modern technology does assist in prompting or reminding injured individuals, but Question 2 was clearly written requiring a physical presence when assisting with the activities of daily living. In Ms. Adams’ case, some texts, phone calls or video calls periodically throughout the day are not sufficient to meet the level of assistance where a caregiver could not work, must be present throughout the night, or be “at home” with them.
26When considering the use of technology, even if I were to accept Ms. Adams’ arguments that texts, video calls and setting up reminders should all be counted as ways of providing assistance in completing activities of daily living. Ms. Adams would need to demonstrate that she is still not capable of taking care of herself for up to 8 hours or more, possibly incapable of being left alone overnight and that the person providing care would not be able to work. Even with using technology, Ms. Adams has not demonstrated that she requires that level of assistance.
“Public transportation” includes publicly funded supported transportation only for disabled individuals
27Ms. Adams argues that I erred in my decision by stating Wheel-Trans is a public form of transportation. She argues public transportation should be similar to the use of a taxi whereby the person would not receive assistance or support. She argues that Wheel-Trans is a public form of supported door-to-door transportation for disabled individuals and therefore should be treated differently than public forms of transportation which do not.
28Federated Insurance argues that the ability to travel locally without assistance involves the ability to plan, take care of money and behave appropriately in public. It also includes that if a taxi is being used that the person phone for it and instruct the driver. Whether the person is driving, using public transportation, or using a taxi it is on the basis that the person is capable of doing it rather than whether they actually do it or not.
29The alleged errors in this area are not different than the arguments at the hearing. I will not comment on them as my decision already addressed why I preferred Federated Insurance’s arguments and how Ms. Adams can travel locally without assistance whether it is with Wheel-Trans or another form of transportation. In the end, Ms. Adams does not need to perform this activity, but whether she has the capacity and capabilities to complete the task, which she does.
An assessment of post-injury “current status” must not consider future risks of harm for the purpose of the GOSE
30Ms. Adams argues that I erred in stating that “current status” should not consider future potential risk. She argues that the GOSE was created 18 years earlier for the purpose of research. “Current status” was defined in the last week or so and was not to consider hope for future progress. Ms. Adams argues that the “current status” parameters set in the GOSE may have been necessary for research purposes but now that it has been incorporated into the Schedule, the GOSE must be liberally interpreted to ensure those with the most needs are given access to enhanced benefits.
31She argues that just considering the past week or so, would not factor in the ebbs and flows in functioning based on certain impairments. Like various symptoms from medications or good days versus bad days. Ms. Adams argues that the GOSE Guidelines warn that an assessor should not take an overly optimistic or overly negative view.
32Federated Insurance argues that I was right in deciding that “current status” should not include future potential risk as argued by Ms. Adams. Federated Insurance states that the GOSE Guidelines were sensitive to the risk of varying research and therefore recommended that the person conducting the assessment should not have been involved in the acute phase of the injuries. It argues that the main purpose of “current status” should consider current capabilities. It relies on 18-004112 v. Belairdirect7, which considered that when rendering a whole person impairment rating it must be based on an absolute or present rating versus a “will have”, “would have” or “could have”.
33In reviewing paragraph 37 of my decision, the paragraph quotes what is stated in the guidelines and the judgement that the assessor needs to be mindful of. By stating the assessor should look at “current” capabilities in the context of the last week or so, does not limit the assessor to 7 days. Even the s. 44 catastrophic psychiatrist, Dr. Tuff stated that “current status” can mean over the last few months. For the purposes of the Schedule, it is clear my decision did not just take into consideration what Ms. Adams exhibited as capabilities over a one-week period. When weighing the evidence, my decision considers the medical evidence in the catastrophic assessment reports, treating practitioner records and witness testimony, which can span over several years. When assessing the evidence the adjudicator must consider whether the assessment was conducted with the view of “current status”, did the assessor account for impairments in the acute phase or hope for the future or did the assessment account for real and present overall capabilities.
34Ms. Adams has not presented any actual errors where I narrowly focused the evidence on a one-week period that was not indicative of her overall capabilities. Most of Ms. Adams’ reply submissions are the exact same as what was argued in the hearing. Reconsideration is not an opportunity to re-iterate the exact same arguments as before but correct an error that changes the final outcome of a decision. I find no error was committed.
The GOSE is written in such a way that if survivors are capable of completing certain activities referenced in later questions, then the assumption is that they are probably capable of completing certain other activities referenced in earlier questions
35Ms. Adams takes issue with paragraph 17 of my decision, where I describe an example given in the GOSE Guidelines that requires an assessor to re-examine or to further analyze previous questions in the questionnaire if the individual is found capable of completing tasks in later questions. I state “In other words, the GOSE questionnaire is written in such a way that if someone is capable of functioning in later questions, then the assumption is they are probably capable of completing the activities in earlier questions.” Ms. Adams argues that my finding was prejudicial to her because since I found her independent outside the home, I must have assumed she was independent inside the home. She argues that she had to overcome an assumption that she should not have been required to do so.
36Federated Insurance argues that the decision properly quoted the Guidelines and was proceeded by a recommendation that the assessor ought to complete the questionnaire in its entirety because “sometimes responses to later items can indicate the need to go back and question more thoroughly on earlier points or re-evaluate the significance of earlier answers.” Federated Insurance argues that the decision reasoned each question on its own before considering the interplay with each question. It argues no assumptions were made.
37Ms. Adams has not pointed to a specific area where I assumed her capabilities or assumed because I found her capable of performing activities in later questions that I must have assumed she was capable of completing tasks/activities in earlier questions. My decision on each question was based on the evidence presented in the hearing. I found no error in this area.
“Capable” means being capable “more often than not” for the purpose of the GOSE
38Ms. Adams states that I erred in paragraph 17 when I defined “capable” in the context of averaging the demonstrated abilities or inabilities, looking at how many bad days versus how many good days and averaging them to determine capabilities. She argues that being capable should be defined as completing the task reliably and consistently in a safe manner which is more in line with the purpose and objectives of the Schedule. Ms. Adams argues that if the definition of capable is interpreted in the context she argues then she would be found catastrophically impaired. Ms. Adams argues that the evidence demonstrates that she is not independent in the home and cannot perform her activities of daily living consistently in a safe manner. She argues she forgets to take her medication, she sorted the medication wrong, she forgets to set the brake on her rollator and stumbled backwards while trying to get into the taxi cab, she had a Lifeline for support in case of an emergency, she has depression with fluctuating mood swings, left the stove on, handled a knife in an unsafe manner and other examples. Ms. Adams argues that if each example were looked at collectively and cumulatively, the combined effect would demonstrate that she cannot complete her activities of daily living or travel locally in a safe and reliable manner.
39Federated Insurance argues that my definition of being capable is both consistent with Merriam-Webster’s definition and, more importantly with the GOSE’s. It also refers to section 3 of the Guidelines that define capable in the context of a hypothetical question: what exactly is the patient capable of even though they do not actually do it?”.
40In almost every case before an adjudicator, there is conflicting evidence. To decide, an adjudicator must weigh the evidence considering this is a consumer protection legislation, the legislation must be liberally interpreted, and exclusions narrowly interpreted. With that in mind, where an applicant claims that she is catastrophically impaired, she must prove so on a balance of probabilities. The same is true for Ms. Adams in proving that she is catastrophically impaired according to the criteria prescribed by the Schedule and guidelines incorporated into it. Ms. Adams failed to argue why her alleged inabilities outweigh her demonstrated capabilities and how that led to an error that should change my decision. Capable in the context of the GOSE Guidelines is not what a person does, but do they have the capacity or the understanding to complete the activity even if they do not actually do it. These questions were designed to assess the impact of the brain injury on a person’s ability to carry out activities.
The Tribunal erred by failing to ask and answer “what would Ms. Adams be like without her support?”
41Ms. Adams states that I erred in failing to ask and answer a hypothetical question of what Ms. Adams’ life be like without external support to determine whether she is truly independent.
42Federated Insurance argues that the GOSE Guidelines only allow for one hypothetical question to determine capabilities: what is the person capable of even though they do not actually do it? It argues that Ms. Adams’ suggestion to consider the use of hypotheticals in answering the GOSE Guidelines is contrary to the purpose of the one that is recommended.
43Hypothetical questions are not useful to an adjudicator who must decide on a legal question with the evidence in front of them. The hypothetical question asked in the GOSE Guidelines, in this case, is supported with evidence using assessments. The neuropsychological assessments along with occupational therapy assessments provide evidence supporting the answer to the one hypothetical question. The hypothetical question posed by Ms. Adams is not supported by any evidence. She is asking me to provide a hypothetical answer with no evidence of what Ms. Adams’ life is like without her supports. The decision reviews the evidence showing what she is capable of. I see no error.
CONCLUSION
44For the reasons noted above, I deny Ms. Adams request for reconsideration.
Chloe Lester Vice-Chair Tribunals Ontario – Licence Appeal Tribunal
Released: August 18, 2022
Footnotes
- Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998
- S. 3.1(1)4 ii of the Schedule
- 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”)
- Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64.; Smith v. Cooperators General Insurance Co., 2002 SCC 30; Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882; Arts v. State Farm Insurance Company, 2008 CanLII 25055 (ONSC); Pastore v. Aviva Canada Inc. (FSCO A04-002496), Feb. 11, 2009; and Applicant v. RSA, 2020 CanLII 14485 (ON LAT)
- Bapoo v. Co-operators General Insurance Co., 1997 CanLii 6320 (ON CA)
- Shawnoo v. Certas Direct Insurance Company, 2014 ONSC 7014
- 18-004112 v. BelairDirect, 2019 CanLII 22219 (ON LAT)