RECONSIDERATION DECISION
Before:
Harry Adamidis
Licence Appeal Tribunal File Number:
21-007873/AABS
Case Name:
Jerome Whittaker Walton v. Economical Insurance Company
Written Submissions by:
For the Applicant:
Aron Zaltz, Counsel
For the Respondent:
Martin Forget, Counsel
BACKGROUND
1This request for reconsideration was filed by the Applicant in this matter.
2It arises out of a decision dated May 3, 2023 in which I found, among other things, that the applicant is not catastrophically impaired.
3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
4The Applicant's request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. 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.
6Reconsideration 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.
7The applicant argues that I made an error of law in the catastrophic impairment assessment, such that I would likely have reached a different result had the error not been made.
8The applicant further argues that the incorrect methodology of the catastrophic impairment assessment violated the rules of procedural fairness.
9The applicant submits that 14.7 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), 4th edition requires catastrophic impairment assessments to “incorporate…relevant observations, including those pertaining to carrying out activities of daily living, social functioning, concentration, persistence and pace, and adaptation.” My assessment did not consider whether the applicant is markedly impaired in the functional area of concentration, persistence and pace (CPP). This is inconsistent with methodology of the Guides which requires me to incorporate observations pertaining to CPP. Not applying the Guides constitutes an error of law under section 3.1(1)(8) of the Schedule which requires catastrophic impairment decisions to be in accordance with the methodology of the Guides.
10The respondent submits that I determined that the applicant does not have a marked impairment in two areas of function. Under these circumstances it is not possible for the applicant to be found catastrophically impaired. Further analysis is not required and, therefore, there is no error of law in the decision.
11I find that my decision complies with the methodology in the Guides and that there is no error of law in my decision.
12Section 14.7 of the Guidesreads as follows:
These categories tend to be complex social impairments that may be directly related to work or to other pursuits, such as recreation or caring for a family. Yet there is no specific medical test for any one of the categories. The physician’s observations made during the medical examination should be incorporated into the evaluation together with other relevant observations, including those pertaining to carrying out activities of daily living, social functioning, concentration, persistence and pace, and adaptation.
13This section instructs evaluators to incorporate the observations of physicians with other relevant observations. This approach is evident in my analysis of the applicant’s functional abilities in the areas of the activities of daily living and social functioning. My decision explicitly mentions the observations of a physician, an occupational therapist, the applicant’s observations and those of his girlfriend regarding his functional abilities. This methodology is consistent with 14.7 of the Guides.
14The applicant submits that section 14.7 of the Guides requires a catastrophic impairment analysis to incorporate observations regarding CPP. In my view, CPP is one of four spheres of activity to be considered in a criterion 8 CAT analysis. The Schedule requires at least three of the four spheres to be marked impairments in order to be catastrophically impaired. As two spheres have been determined to not be marked impairments, a marked impairment finding in the area of CPP cannot result in a finding that the applicant is CAT.
15Moreover, a CAT determination is a legal test that leaves it open to evaluators to decide what sphere and evidence is relevant and what should be incorporated in the decision. Section 14.7 of the Guides instructs evaluators to not limit their assessment to the observations of physicians. There are no additional requirements as suggested by the applicant.
16The applicant further submits that other errors were made in regard to the methodology of the decision. In regard to the assessment of the activities of daily living, he submits that the decision does not consider the quality of the activities of which the applicant was found to be capable as required in section 14.3 of the Guides.
17He cites four examples in the decision. In the first example, he references the fact that the applicant does not change his clothes every day. I found that this “is not indicative of a significant impediment of useful function” and did not consider the appropriateness of wearing the same clothes for a couple of days. I disagree. The fact that he does not change his clothes everyday is a functional limitation that is acknowledged in the decision.
18The second example relates to his ability to engage in yoga, tai chi, and physical workouts. The applicant submits that these are not independent activities, but rather part of a rehabilitation program funded by accident benefits.
19As noted in the decision, the applicant consistently engages in multiple types of exercise. This consistency is the quality of the task completion that indicates good functioning. The applicant may disagree with this finding because these exercises are not self directed. However, the quality of the task completion is addressed and, as such, complies with the methodology of the Guides.
20The third example relates to a negative inference arising from the absence of prescription summaries. The applicant testified that he routinely relies on marijuana, alcohol, and anti-depressants to fall asleep. He submits that a negative inference should not be made because the decision only deals with anti-depressants and not the use of marijuana and alcohol. Again, I disagree. As noted in the decision, his prescription summary shows a modest use of anti-depressants in the first year after the accident and none thereafter. This is inconsistent with his testimony and lead me to conclude that he does not have to be “medicated or sedated in order to sleep.” The use of marijuana and alcohol is captured by “medicated or sedated.”
21The fourth example is the applicant’s ability to drive for his mother and grandmother. The applicant submits that the independence and sustainability criteria in the Guides was ignored in the decision. He seems to put forward the position that this activity is only possible because of the pressure put on him by his mother and grandmother.
22As indicated in the decision, “feeling pressure" does not sufficiently explain the functional ability to accommodate routine requests for driving. The applicant disagrees. He may feel that the evidence shows he is not acting independently or that this routine task completion is not sustainable. I see the evidence differently. In my view, a disagreement on the evidence does not establish an inconsistency with the methodology of the Guides.
23The applicant also submits that there are errors of law in the assessment of social functioning. Specifically, I did not consider that the applicant’s functional abilities could change over time, and that I did not consider the core heuristics of his social functioning. This too is inconsistent with the methodology of the Guides.
24The applicant suggests that the decision is weighted towards one early example of good social functioning that occurred when he met his girlfriend. This is incorrect. The decision references multiple examples that illustrate the applicant’s capacity to interact appropriately and communicate effectively with others. Moreover, these examples are not weighted to any particular time period. The most recent example comes from the hearing itself where the applicant maintained his composure over three days of testimony, even during a spirited cross-examination. Consequently, the applicant’s position, that I did not consider the applicant’s functional abilities over the course of time, is not reflected in the decision itself.
25The applicant submits that I did not consider the core heuristics of his social functioning. In particular, I did not consider his fear of strangers, avoidance of interpersonal relationships, social isolation, and other similar characteristics. Again, this is incorrect. Paragraph 18 of the decision states:
The applicant’s functional ability to communicate also appears unimpeded by his accident-related psychological disorders. He effectively communicated when he testified before the Tribunal over a three-day period. This is not consistent with how the applicant characterizes himself. He feels “frozen in fear.” Anxiety prevents him from being around people. He spends much of his time alone in his room hiding from the world. However, that fear and anxiety was not evident in his demeanour or in the way he communicated when put in the highly stressful situation of testifying in front of strangers for a lengthy period of time.
26As such, the applicant’s evidence regarding a fear of strangers and social isolation was considered, and given little weight.
27The above paragraph comes from the assessment of the activities of daily living. The decision would have been more complete if this finding was restated in the assessment of social functioning. However, this does not constitute a significant legal mistake preventing a just outcome. This part of his evidence was considered in the decision and this is clearly stated in the decision.
28In regard to a violation of the rules of procedural fairness, the applicant cites Canada v Vavilov 2019 SCC 65. In particular, the applicant submits that he is owed a high level of procedural fairness given the nature of the decision and the statutory scheme, and the importance of the decision to the applicant. He also submits that he has a legitimate expectation that the decision comply with the methodology of the Guides. In his view, my decision is inconsistent with the methodology in the Guides and, as such, does not meet the procedural fairness requirements in Vavilov. Once again, I disagree. Having already found that my decision is consistent with the methodology in the Guides, I further find that there has not been a violation of the rules of procedural fairness.
CONCLUSION
29For the reasons noted above, I deny the Applicant's request for reconsideration.
Harry Adamidis
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: September 27, 2023