RECONSIDERATION DECISION
Before: E. Louise Logan, Vice-Chair
Licence Appeal Tribunal File Number: 21-007293/AABS
Case Name: Katrina Vogan v. Aviva Insurance Canada
Written Submissions by:
For the Applicant: Rupa L Karyampudi, Counsel
For the Respondent: Michael W Chadwick, Counsel
BACKGROUND
1The respondent is seeking a reconsideration of the Tribunal’s decision released on May 16, 2023 (“decision”). In the decision, the Tribunal determined the applicant is entitled to an Income Replacement Benefit (“IRB”) in the amount of $393.46 per week from July 1, 2019 until September 1, 2022, less any post-accident income, plus interest. It also determined she is not entitled to a treatment plan for physiotherapy, or an award.
2The respondent is seeking a reconsideration of the Tribunal’s decision with respect to the IRB.
3The grounds for a request for reconsideration are found in Rule 18.2 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 grant a request for reconsideration, the Tribunal must be satisfied that 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.
4The respondent is seeking a reconsideration pursuant to Rule 18.2(b). It argues the Tribunal erred in law or fact in the decision, and that the outcome would most likely have been different if the Tribunal had not erred.
RESULT
5The respondent’s request for reconsideration is dismissed.
ANALYSIS
6The test to be met on a request for reconsideration under Rule 18.2(b) is that the error must be significant enough that the Tribunal likely would have reached a different decision had the error not been made. The test involves a high threshold. 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 where it failed to meet its burden at first instance. The requestor must show how or why the decision falls into one of the categories in Rule 18.
7The respondent submits that the Tribunal erred by:
a. Applying the wrong legal test at paragraph 8 of the decision by stating that the applicant must prove her accident-related injuries “prevented her from returning to a full-time position for any job that would fit within her previous education, training or experience”;
b. Misconstruing or misunderstanding that the post-104 week “complete inability” test does not require an applicant to prove that they are unable to engage in “full time” work;
c. Misconstruing or misunderstanding that the education, training or experience component of the post-104 week test is not limited to pre-accident education, training or experience but also encompasses any post-accident education, training or experience including any retraining; and
d. Effectively applying the pre-104 week “substantial inability” test instead of the more stringent post-104 week “complete inability” test as shown in the reasons at paragraphs 13-19 of the decision.
8The applicant submits that the Tribunal applied the correct legal test for post-104 IRB entitlement and that the request for reconsideration should be dismissed. In the alternative, the applicant argues that if the legal test for IRB was incorrectly applied, the applicant is still entitled to IRB under the correct legal test. Finally, the applicant argues that the request for reconsideration should be dismissed because the Tribunal allowed late submissions by the respondent during the initial hearing.
9I find the respondent has not established grounds for reconsideration for the following reasons.
10At paragraph 6 of the decision, the Tribunal sets out the test for entitlement to post-104 week IRBs under section 6 of the Schedule as follows:
[T]he insured must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonable suited by education, training or experience.
11The parties do not dispute that this is a correct statement of the legal test for entitlement to post-104 week IRBs. Rather, the respondent’s argument is that the Tribunal erred in the course of applying this test in its decision. As set out above, the respondent points specifically to paragraphs 8 and 13-19 of the decision in support of its request for reconsideration.
12I do not agree with the respondent and see no error in the decision. I find that having set out the correct legal test in paragraph 6, the Tribunal then applied the correct test to the evidence before it. In paragraph 7, the Tribunal set out the relevant facts in evidence. It reviewed the applicant’s pre-accident education, her employment at the time of the accident, and her previous employment history. At paragraph 8, the Tribunal stated that:
Ms. Vogan must prove her accident-related injuries prevented her from returning to a full-time position for any job that would fit within her previous education, training or experience.
13At paragraph 9 the Tribunal reviewed the applicant’s accident-related impairments. At paragraph 10, it noted that the respondent had paid the applicant IRB and medical benefits. After a series of assessments, the respondent terminated benefits based on medical opinions that the applicant could return to full-time work, noting that the neurologist had indicated that appropriate accommodations may be required.
14In its reconsideration submissions, the respondent argues the reference in paragraph 8 to full-time employment is inconsistent with the legal test for post-104 IRBs. However, I find this reference to full-time work does not equate to an error of law, nor does it mean the Tribunal applied the wrong legal test.
15The question of full-time work was relevant because it was the basis for the respondent’s termination of benefits. Furthermore, the Tribunal did not conclude that entitlement to post-104 week IRBs was based on the fact the applicant could not work full-time. This is clear from paragraph 13 where the Tribunal found the applicant “had a complete inability to engage in any employment”. The Tribunal found that for the period she claimed IRBs she was severely limited in the amount of time she could concentrate on one activity without taking an extended break. At paragraph 14, the Tribunal found the recommended pacing strategies were such that an employer would not be able to accommodate them. The Tribunal noted that when the respondent terminated IRBs in 2019, the applicant was on a pacing strategy that gradually increased her capacity to work such that from August 2021 until September 2022 she could complete 2-3 hours of work with a 1-hour break. The Tribunal concluded that:
I find that Ms. Vogan would not be able to be a productive employee with such schedules and therefore would not be able to engage in any employment.
16At paragraph 15, the Tribunal’s reasons addressed an argument the respondent raises again on reconsideration, namely that the education, training or experience component of the post-104 week test is not limited to pre-accident education, training or experience but also encompasses any post-accident education, training or experience including any retraining. The Tribunal noted the respondent’s argument that because the applicant completed her Bachelor’s degree, Master’s degree and was accepted into a Ph.D. program she was employable. However, the Tribunal disagreed with this submission, citing Dr. Bentley’s August 29, 2019 letter that stated the applicant was not employable because she struggled with her course-work following the accident even though her academic schedule was flexible, and allowed for rest time. The Tribunal noted that such a flexible schedule would not be available in the workplace.
17At paragraph 16, the Tribunal reviewed the applicant’s academic accommodation and found that she had many limitations and restrictions that affected her employability and productivity.
18At paragraph 17, the Tribunal addressed the respondent’s argument that the applicant’s ability to work as a teaching assistant demonstrates her ability to work. While I agree with the respondent that paragraph 17 references full time work, I do not find this to be an error of law. As set out above, the respondent terminated benefits on the basis that the applicant could work full-time, which makes it relevant to the Tribunal’s analysis. In its decision the Tribunal stated several times that it found the applicant would not be able to engage in any employment. Furthermore, I find that even if the Tribunal erred in referencing full-time employment in paragraph 17, it is clear from the analysis as whole that this would not have changed the outcome because the Tribunal found that the applicant could not engage in any employment.
19At paragraph 18, the Tribunal set out the reasons why it preferred the opinions of the applicant’s treating practitioners over the respondent’s assessors. At paragraph 19, it noted that the test for an IRB is a legal test, not a medical one, and that a medical opinion that opined on the IRB test was not required for the applicant to meet her evidentiary burden. I see no error of fact or law in these paragraphs.
20I find the Tribunal provided reasons for reaching its conclusion with respect to entitlement to post-104 week IRBs with reference to the correct legal test, the submissions of the parties, and the evidence before it. I find this was a proper exercise of the Tribunal’s discretion.
21While it is clear the respondent does not agree with the manner in which the Tribunal exercised its discretion, this is not grounds for reconsideration under Rule 18.2(b).
CONCLUSION
22For the reasons noted above, I deny the respondent's request for reconsideration. The request for reconsideration is dismissed.
E. Louise Logan
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: September 27, 2023