RECONSIDERATION DECISION
Before: Rebecca Hines
Licence Appeal Tribunal File Number: 22-001049/AABS
Case Name: Robert Chaffey v. Wawanesa Mutual Insurance Company
Written Submissions by:
For the Applicant: Robert Ben, Counsel
For the Respondent: Ken Yip, Counsel
OVERVIEW
1The respondent requested reconsideration of my decision dated May 18, 2023, in which I determined that the applicant sustained a catastrophic (“CAT”) impairment pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent argues that I erred in law because I determined that the applicant met the CAT threshold under Criterion 4 despite my finding that the applicant’s neuropsychological assessor did not properly administer the Extended Glasgow Outcome Scale (“GOS-E”). Further, it submits that I made a factual error by concluding that its assessor did not administer the GOS-E. It submits that had these errors not been made it would have resulted in a different decision.
3The applicant submits that my decision is correct, and that the respondent’s reconsideration request is an attempt to relitigate its position which was already considered by me at the hearing. Finally, the applicant asserts the respondent has not met its onus in demonstrating that any error of law and/or fact would result in an different outcome had it not been made.
RESULT
4The respondent’s reconsideration request is dismissed.
RECONSIDERATION CRITERIA
5The 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, (Effective February 7, 2019 (“Rules”).
6Rule 18.2 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.
7The respondent relies on Rule 18.2(b).
8The following remedies are available to the Tribunal on a request for reconsideration:
(i) dismiss the request;
(ii) confirm, vary or cancel the decision or order; or
(iii) order a rehearing on all or part of the matter.
9The respondent asks that I vary my decision and make a finding that the applicant did not sustain a CAT impairment.
ANALYSIS
I did not error in law or fact in my determination that the applicant sustained a CAT impairment, such that I would have reached a different result had the error not been made.
10The respondent submits that I erred in law and/or fact in my determination that the applicant met the CAT threshold under Criterion 4 because I should have given Dr. McKinnon’s CAT assessment no weight because the doctor did not properly conduct the GOS-E structured interview pursuant to s.3.1(1)4 of the Schedule. Further, it asserts that section 45(2) of the Schedule supports that an assessment shall be conducted by a neuropsychologist who may be assisted by such other regulated health professionals as he or she may reasonably require. The respondent contends that Dr. McKinnon relied solely on the opinion of the occupational therapist who administered the GOS-E, which is not permitted by the Schedule. It maintains that I erred in law in my consideration of this evidence.
11Further, the respondent argues I erred in my factual conclusion in paragraph [20] of my decision where I stated that neither parties’ neuropsychologist administered the GOS-E. It purports that this factual error would result in a different decision because the evidence supports that its assessor, Dr. West, did administer the GOS-E. It submits that had I properly considered this evidence and not made these errors I would not have accepted Dr. McKinnon’s rating that the applicant had a lower moderate disability in work. In turn, it argues that I would not have determined that the applicant met the CAT threshold.
12The applicant argues that the respondent is relitigating its position based on the same submissions and evidence that were already considered by me at the hearing. He asserts that it is well established that this is not the purpose of reconsideration. He maintains that neither neuropsychologist attached the GOS-E structured interview to their reports and that this is not a requirement under the Schedule. Moreover, the applicant submits that in my decision I provided detailed reasons to support my consideration of each of the GOS-E categories before concluding that the applicant met the threshold in the category of work. He submits that even if I made a factual error in my conclusion that Dr. West did not administer the GOS-E it would not result in a different decision.
13The applicant also asserts that while the determination of whether he sustained a CAT impairment involves the consideration of medical expert opinions, the test for CAT impairment is a legal test and not a medical test. It is not for medical experts to usurp the role of the trier of fact in determining an applicant’s GOS-E rating. Moreover, the adjudicator’s role is not limited to simply choosing which expert’s opinion has more weight and accepting that opinion without consideration of all the evidence. Rather, the applicant submits that an adjudicator must look at each part of the GOS-E and determine whether the applicant could participate in the activity absent a non-brain injury or psychological injury. He argues that this is what I did in my decision. I agree with the applicant for the following reasons.
14I do not find that I erred in law by considering Dr. McKinnon’s CAT report and opinion in determining that the applicant met the CAT threshold under Criterion 4. At the hearing, Dr. McKinnon testified that she used her knowledge of the GOS-E (as opposed to administering the GOS-E structured interview completed by Jennifer Moore, occupational therapist) in assigning the ratings, which she found consistent with Ms. Moore’s assessment. Therefore, even though she did not administer the GOS-E questionnaire, I find that Dr. McKinnon’s assessment met the requirements of s.45(2) of the Schedule because she is a neuropsychologist, and she completed the assessment. Although I acknowledge that I agreed with the respondent in paragraph [21] of my decision that the GOS-E should be conducted by a neuropsychologist because clinical judgement is required, the Schedule is silent on this condition. Moreover, s. 45(2) provides that the neuropsychologist may be assisted by such other regulated health professionals as he or she may reasonably require. Finally, I determined that Dr. McKinnon’s opinion regarding the applicant’s disability rating under the category of work was supported by the evidence which I will discuss further below. As a result, I do not find that I erred in law in by considering the doctor’s opinion and reports in rendering my decision.
15I acknowledge that I made a factual error in paragraph [20] of my decision in stating that neither party’s neuropsychologist conducted the GOS-E. The respondent is correct that the transcript of Dr. West’s in-chief and cross-examination supports that he testified that he administered the GOS-E but that it was not attached to his report. However, even though I made this factual error, I do not find I would have reached a different result had the error not been made because I determined that the rating assigned by Dr. McKinnon regarding work was more consistent with the medical evidence before me at the time of the assessment. The medical evidence supported that the applicant had a lower moderate disability in work one-year from the accident in accordance with the GOS-E.
16I find that in paragraphs [27] to [31] of my decision I provided detailed reasons in support of my decision. which was based on the totality of the evidence before me. First, I preferred the rating of Dr. McKinnon for work because it was consistent with the opinion of Dr. Seyone, the applicant’s treating neuropsychiatrist, and the opinions of the applicant’s family doctor and treating speech pathologist. In contrast, I determined that Dr. West’s report and opinion regarding work was inconsistent with the medical record. I also determined that the applicant was a credible witness which did not align with Dr. West’s conclusions that he was exaggerating his symptoms. Second, in my decision I also highlighted that the CAT reports of both occupational therapists supported that the applicant had significant limitations consistent with the disability rating for work assigned by Dr. McKinnon. The respondent has failed to demonstrate that I erred in law and or fact in my consideration of this evidence.
CONCLUSION
17The respondent's request for reconsideration is dismissed.
Rebecca Hines Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: September 19, 2023