RECONSIDERATION DECISION
Before: Clive Forbes
Licence Appeal Tribunal File Number: 21-012435/AABS
Case Name: Crystal Garvey v. Economical Mutual Insurance Company
Written Submissions by:
For the Applicant: Mikolaj T Grodzki, Counsel
For the Respondent: Martin Forget, Counsel
BACKGROUND
1This request for reconsideration was filed by the applicant. It arises out of a decision dated April 28, 2023 (“decision”), in which I found the applicant is not catastrophically impaired (“CAT”) pursuant to s. 3.1(8) of the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
2The applicant has requested a reconsideration pursuant to Rule 18.2(b). She seeks to vary the decision to find she is CAT. In the alternative, she seeks a rehearing before a different adjudicator on all the issues outlined in my decision. The respondent asks that the request for reconsideration be dismissed.
RESULT
3The applicant's request for reconsideration is dismissed.
PROCEDURAL ISSUES
Exclusion of Respondent’s Reconsideration Submission
4The applicant has requested that the respondent’s reconsideration submission be excluded because it was filed and served on June 14, 2023, at 9:00 PM by email. The applicant argues that pursuant to the Tribunal’s submissions letter, dated May 18, 2023, the respondent was to file its responding submissions by June 14, 2023. She relies on Rules 6.2(e) and 6.5 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) to argue that emails sent or received, and documents received after 5:00 PM, will be deemed to have been received on the next day that is not a holiday. As such, she submits that the respondent’s submission was late filed as it is deemed to have been received on June 15, 2023. The applicant argues it should be excluded by the Tribunal.
5While I agree the respondent’s submission was late-filed, I decline to exclude it. I find that it was served and filed by the respondent four hours after the submission deadline. The Tribunal’s request for submissions letter provided the applicant with an opportunity to make reply submissions by June 21, 2023. I find the applicant was not significantly prejudiced because she received the respondent’s submissions on June 14, 2023, at 9:00 PM, and the applicant has not made submissions arguing any prejudice she faced on reply. I find the applicant still had an opportunity to submit a reply by June 21, 2023, or if more time was needed to make her reply, to file a motion requesting additional time. Instead, the applicant chose not to file a reply.
6The applicant’s request to have the respondent’s submissions excluded is denied.
ANALYSIS
7The grounds for a request for reconsideration are contained in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) as amended (“Rules”). The applicant’s request relies on criteria 18.2(b), arguing that I made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
8Reconsideration involves a high threshold. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
9The Applicant submits that I erred:
i. In law and/or fact by failing to apply the proper application of the Schedule and the American Medical Association’s Guides to the Evaluation of Permanent Impairment 4th Edition, 1993 (“Guides”) for the definition and application of a marked impairment and the legal analysis of the CAT test;
ii. In law and/or fact in rejecting various expert reports;
iii. In law and/or fact by failing to apply the proper application of the causation test;
iv. In law by ignoring the evidence of the applicant and by failing to address the applicant’s deterioration beyond 2021.
No error of law or fact in the application of the Schedule and Guides
10I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to my analysis of whether the applicant is CAT due to a mental or behavioural disorder (“Criterion 8”) for the following reasons. The applicant argues that I failed to properly interpret and apply the Schedule and or the Guides in a manner that favoured the insured person. She also alleges that I failed to correctly identify and apply the legal test for marked impairments, and that I “cherry picked” evidence to fit a narrative. The applicant further submits that a liberal interpretation of the Schedule and the Guides must be applied instead of a restrictive or narrow interpretation. The applicant has not identified where in my decision I applied a restrictive or narrow interpretation of the Schedule.
11I disagree with the applicant that I made any such error. In my decision at paragraph 20, I clearly and correctly identified the test to establish CAT pursuant to s. 3.1 of the Schedule, as well as the four areas of functions that need to be assessed under Criterion 8 in accordance with the Guides. Also, at paragraphs 24, 40, 44 and 49 of my decision I outlined and adopted the factors listed at page 294 of the Guides that need to be considered with respect to each area of function. In addition, from paragraphs 24 to 53 of my decision, I provided a thorough analysis for each of the four areas of function. Throughout my decision I identified that a marked impairment properly refers to an impairment level that significantly impedes useful functioning.
12It is clear from my decision that I considered the evidence and submissions of both parties. Assigning less or more weight or preferring certain evidence is not an error of law; it is the role of the adjudicator. Throughout my decision I highlighted the evidence that I considered more relevant to the issue in dispute and assigned weight accordingly. On this basis, I found that the applicant was not CAT.
13The reconsideration process involves a high threshold. It 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. I find the applicant’s submissions are largely an attempt to use the reconsideration process as an opportunity to reargue the merits of her case.
14I see no error of law or fact that would have affected the outcome of my decision.
No error of law or fact in treatment of expert opinions
15I find that the applicant has also not established grounds for reconsideration under Rule 18.2(b) with respect to my treatment of expert opinions for the following reasons. The applicant submits that I made an error of law when I rejected the expert opinion of s. 25 assessor Dr. Bobbie Ross, psychiatrist, and s. 44 assessor Dr. Kehinde Aladetoyinbo, psychiatrist, while substituting my own opinion. She also alleges that I am not more qualified to opine on CAT under Criterion 8 than Dr. Ross and Dr. Aladetoyinbo. The applicant alleges that I failed to understand the medical nuances or appreciate that Dr. Ross reviewed over 5000 pages of medical documentation.
16I disagree with the applicant. In my decision at paragraph 20, I correctly stated that the test to determine whether the applicant is CAT is a legal test and not a medical test. Furthermore, from paragraphs 24 to 53 of my decision, under the four areas of function I thoroughly addressed and referred to the medical and documentary evidence as well as the applicant’s self-reporting and testimony. In addition, throughout my decision I provided reasons and analysis for why I did not accept the findings in the assessments of Dr. Ross and Dr. Aladetoyinbo. The fact that the applicant would have preferred that I reached a different conclusion based on my review of the evidence does not render the reasons insufficient or demonstrate that I committed an error of law.
17Moreover, in my decision, I highlighted the evidence that I considered more relevant to the issue in dispute, assigned weight accordingly, and came to my conclusion that the totality of the evidence does not support Dr. Ross’s opinion that the applicant presented with a class 4 marked impairment in 3 of the 4 areas of function. As noted above, assigning less or more weight or preferring certain evidence is not an error of law.
18As a result, I do not find an error of law or fact such that I would likely have reached a different result had the error not been made.
No error of law or fact in applying the causation test.
19I also find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to applying the proper application of the causation test for the following reasons. The applicant submits that I failed to apply the material contribution test and relied on Monks v. ING Insurance Company of Canada, 2008 ONCA 269, and Thiruchelvam v. RBC General Insurance Company, 2022 ONSC 554 to support her position. She argues that given her significant and complicated pre-accident condition, the Tribunal must apply the material contribution test because her accident-related injuries caused a material change in her ability to function. She further submits that this material change tipped her into enough marked impairment categories to meet a CAT designation.
20I do not agree with the applicant that I erred. Since the applicant did not meet the test for CAT under Criterion 8 based on the medical evidence she submitted, the cause of any of her impairments was not relevant to the outcome. Furthermore, and despite my ultimate finding on CAT, at paragraphs 21, 23, 25 to 33, 37, 38, 42, 47, 48, 50 and 51 of my decision, consideration was given to the applicant’s pre- and post-accident functional abilities and factual findings were made in respect of the impact of the accident on her life and activities. Throughout my decision I appreciated the applicant’s pre- and post-accident impairments and their severity. The fact that my decision does not contain a specific “material contribution” heading does not negate the analysis I conducted of the cause and impact of the motor vehicle accident on the applicant’s condition, which is present throughout my decision. When my decision is read in its entirety, it demonstrates a robust analysis of the evidence, including elements of causation. It also includes a clear comparison of the applicant’s pre- and post-accident impairments and function in each of the four relevant spheres of function as outlined in the Guides, at Chapter 14, under Criterion 8.
21Throughout my decision I reviewed and considered the evidence of the applicant, the expert witnesses, and the documentary record. On this basis, I found that the applicant did not sustain a marked impairment in at least three of the four spheres as required under Criterion 8 for CAT.
22Notwithstanding the fact that I conducted the review and consideration of the evidence described above, having found that the applicant was not CAT, even if I misapplied the causation test, which I respectfully reject, the test on reconsideration is whether such an error would have changed the outcome of my decision. Given my ultimate finding on CAT, I find there would have been no change to the outcome of my decision.
No error of law in treatment of the applicant’s evidence and addressing the applicant’s deterioration beyond 2021
23I find that the applicant has not established grounds for reconsideration under Rule 18.2(b) with respect to my treatment of her evidence and addressing her deterioration beyond 2021 for the following reasons. The applicant submits that I did not consider her pre- and post-accident employment ability and relies on Russell v Dumfries Mutual Insurance Company, 2023 CanLII 1439, and M.L. v Primmum Insurance Company, 2020 CanLII 80283 to support her position. She also argues that I did not address her deteriorating condition beyond 2021 when both experts concluded she sustained significant and marked functional impairments.
24I do not agree with the applicant. The issue before me was CAT and not an income replacement benefit (“IRB”). Furthermore, I was not required to comment on the applicant’s employment because the Tribunal in its decision dated August 11, 2022, had previously determined that she failed to meet the test for post-104-week IRB. Moreover, I do not agree with the applicant that I did not address her deterioration beyond 2021. In my decision at paragraph 37, I explained that despite the applicant’s self-reporting of deterioration, I was not directed to any medical evidence to support this claim. I also stated that despite repeated requests from the respondent and prior production orders from the Tribunal, the applicant failed to produce significant updated records from her family physician beyond 2020. As such, I made the adverse inference that the records would be unfavourable to the applicant. Moreover, the applicant did not present evidence on reconsideration that was not available at first instance to refute this.
25Furthermore, it is well-established that the reasons of the Tribunal are not to be measured against a standard of perfection. As the Supreme Court of Canada stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paragraph 91, the fact that a tribunal’s reasons do not include all the arguments, statutory provisions, jurisprudence or other details that a reviewing judge would have preferred does not on its own create a basis to set aside the decision.
26I see no error of law that would have affected the outcome of my decision. As a result of the above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
CONCLUSION
27For the reasons noted above, I dismiss the applicant's request for reconsideration.
Clive Forbes
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 11, 2023