De Sousa Araujo v. Intact Insurance, 2023 CanLII 98405

Licence Appeal Tribunal

Citation: De Sousa Araujo v. Intact Insurance, 2023 CanLII 98405

RECONSIDERATION DECISION

Before: Taivi Lobu, Adjudicator

Licence Appeal Tribunal File Number: 21-009325/AABS

Case Name: Andrew De Sousa Araujo v. Intact Insurance

Written Submissions by:

For the Applicant: Frank J Burns, Counsel

For the Respondent: Dwain Burns, Counsel

BACKGROUND

1This request for reconsideration was filed by the applicant.

2In a decision dated April 24, 2023, the Tribunal found that the applicant had not demonstrated that he met the requirements for catastrophic impairment under section 3.1(1)8 (Criterion 8) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016.

3The grounds for allowing a request for reconsideration are found in Rule 18.2 of the Tribunal’s Common Rules of Practice and Procedure. 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 it 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 was evidence not before the Tribunal that could not have been obtained previously and would likely have affected the result.

4The applicant relies on Rule 18.2(b), submitting that the Tribunal made errors of law and fact such that the Tribunal would likely have reached a different result had the errors not been made. The respondent submits that the applicant has not identified errors but is rearguing his case and asking that evidence be reweighed which is not appropriate for the reconsideration process.

5In his reply submission, the applicant submitted that the Tribunal violated the rules of procedural unfairness in failing to give reasons which weighed and assessed the evidence of lay witnesses. As this ground for reconsideration under Rule 18.2(a) was raised for the first time in reply submissions, it is improper and it will not be addressed.

6The applicant is seeking:

a. An order varying the Tribunal’s decision; or in the alternative,

b. An order for a rehearing on all or part of the matter

RESULT

7The applicant's request for reconsideration is dismissed.

ANALYSIS

8The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to relitigate its position where it disagrees with the Tribunal’s decision or with the weight assigned to the evidence. Under Rule 18.2(b), for a decision to be reconsidered, the test is two-fold. First, there must be an error of fact or law and second, that error must be such that the Tribunal would likely have reached a different result had the error not been made.

9In his request for reconsideration under Rule 18.2(b) the applicant submits that the Tribunal:

1. Failed to adjudicate on the relevant evidence before it, relied exclusively on expert reports and failed to fairly consider and review evidence of lay witnesses.

2. Failed to conduct an adjudicative analysis of the applicant’s level of function under criterion 8, specifically the domain of “concentration, persistence and pace”.

3. Failed to assess and consider the combination of impairments suffered by the applicant on a biopsychosocial basis and failed to consider impairment level caused by chronic pain combined with major depression, poor sleep, loss of motivation and anxiety as required by the AMA Guides.

4. Erred in drawing an adverse inference against Dr. Waisman (catastrophic impairment assessor on behalf of the applicant) because he did not testify at the hearing and erred in concluding that Dr. Waisman did not factor in updated information when arriving at his conclusion.

5. Erred in finding that Dr. Waisman failed to review and consider the occupational therapy assessment reports of Mr. Wong.

6. Failed to address issues between Mr. Wong’s assessments and evidence of the applicant’s spouse.

7. Erred in the weight it assigned to the applicant’s driving and ownership of automobiles.

Did the Tribunal make an error of fact or law?

10Having considered the application for reconsideration under Rule 18.2(b) I find no error of fact or law with respect to the Tribunal’s adjudication and consideration of evidence.

Grounds 1, 6 and 7 – Failing to adjudicate relevant evidence and erring in ascribing weight

11In grounds 1, 6 and 7 of the applicant’s reconsideration submissions, the applicant submits that the Tribunal abdicated its role of trier of fact, relied exclusively on the expert reports, failed to fairly consider and review the evidence of lay witnesses, and placed too much weight on the applicant’s driving and ownership of automobiles.

12I find that the applicant is seeking to reargue the issues which were before the Tribunal and is asking that evidence be reweighed which goes beyond the scope of reconsideration. With regard to the matters raised by the applicant, I find that the Tribunal properly adjudicated on the evidence before it.

13For example, the applicant submits that the Tribunal relied too heavily on the opinion of Dr. Waisman and erroneously focused on whether to accept Dr. Waisman’s findings rather than to complete its own fact finding. Dr. Waisman, a psychiatrist, is the applicant’s expert who conducted the applicant’s assessment for catastrophic impairment. I find that the Tribunal suitably focused on his assessment in adjudicating the applicant’s catastrophic impairment status under Criterion 8. The Tribunal also weighed and assessed the other hearing evidence. The Tribunal’s Decision specifically identified evidence from the applicant; his partner; applicant’s occupational therapists Ms. Ananthan and Ms. Melamed; Mr. Wong, who conducted in-home and situational insurer assessments for the respondent; Dr. Zakzanis, who was an assessing psychologist for the applicant; treating psychologist Dr. Pillai; treating psychiatrist Dr. O’Riordan; and consecutive days of surveillance. The Tribunal is not required to refer to all of the evidence before it and a reconsideration is not an opportunity to relitigate a case.

14With regard to the applicant’s submission that the Tribunal did not consider evidence of the lay witnesses, the Tribunal heard testimonial evidence from the applicant, the applicant’s partner/spouse, and a friend/fellow tattoo artist as well as having summary statements from the latter two witness and the applicant’s father. The Tribunal considered the full hearing evidence when determining the applicant’s impairment levels. The Decision specifically relies on evidence from the applicant and his partner in paragraphs 33, 37, 40. That the Tribunal did not expressly reference witness evidence does not mean it was not weighed and considered. The Tribunal’s decision was based on the evidence presented at the hearing.

15The applicant alleges that the Tribunal failed to adjudicate “the controversy” between Mr. Wong’s and the applicant’s partner’s evidence in relation to Mr. Wong’s in-home and situational assessments. The applicant did not present this as an issue in his hearing submissions. A reconsideration is not an opportunity to reargue the case, and again, the applicant is asking that the Tribunal reweigh evidence, which is beyond the scope of reconsideration.

16As a point of factual clarity, I note that the applicant’s reconsideration submissions assert that “Mr. Wong’s assessment confirms Janine’s testimony that Andrew was in his pyjamas at 12:00 pm at the start of the assessment.” This is in error. Mr. Wong’s testimonial and documentary evidence shows that he arrived at the applicant’s home at 10:00 a.m. and the applicant was casually dressed in sweatpants and t-shirt, having just woken up. His partner testified that the time was “maybe late morning” and that they were surprised at Mr. Wong’s arrival as the date had been rescheduled.

Ground 2 – Failing to conduct an adjudicative analysis

17The applicant submits that the Tribunal erred in its adjudicative analysis of the applicant’s level of function under Criterion 8, specifically referencing the Tribunal’s determination of a moderate impairment level in the domain of “concentration, persistence and pace.”

18In addressing “concentration persistence and pace,” the Decision sets out the factors to be addressed in this domain; acknowledged that Dr. Waisman had found the applicant to have a moderate impairment in the domain; and determined that it had no reason to interfere with Dr. Waisman’s conclusion.

19The applicant submits that the Tribunal failed to look at all of the evidence available to it and make its own adjudicative determination with regard to this domain of function. The respondent takes the position that the Tribunal did not err; that Dr. Waisman was the expert relied upon by the applicant; and that it is not appropriate for the applicant at the reconsideration stage to ask the Tribunal to disregard or place less weight on the evidence of its own expert.

20I agree with the respondent. As articulated in paragraph 22 of the Decision, the onus was on the applicant to demonstrate a marked level of impairment level in at least three of the four functional domains. The applicant’s expert, in both his 2020 and 2022 assessments, found the applicant to have a moderate level of impairment in “concentration, persistence and pace.”

21At the outset of the applicant’s written submissions for the hearing, the applicant set out Dr. Waisman’s determination of impairment levels for all four domains of function. Then, partway through his written hearing submission, the applicant set out the entirety of Dr. Waisman’s 2022 analysis and conclusion for each of the four domains, inclusive of his moderate impairment rating in the domain of “concentration, persistence and pace.” On neither of these occasions when the applicant presented Dr. Waisman’s analysis in his submissions, did the applicant ask the Tribunal to depart from Dr. Waisman’s conclusions nor did the applicant provide a principled rationale for doing so.

22In these circumstances, I find that the Tribunal properly discharged its adjudicative function. The Tribunal turned its mind to the factors relevant to the domain of “concentration, persistence and pace” and then determined that it accepted the impairment level arrived at by the applicant’s assessor. That the Tribunal did not detail the specific evidence relevant to this determination, apart from Dr. Waisman’s conclusion does not mean that such hearing evidence was not considered.

Ground 3 – Failing to consider combination of impairments inclusive of pain, in accordance with the AMA Guides

23The applicant submits that the Tribunal failed to assess and consider the combination of impairments suffered by the applicant on a biopsychosocial basis – that it failed to consider the applicant’s impairment level caused by chronic pain combined with major depression, poor sleep, loss of motivation and anxiety.

24The respondent submits that it is not proper for the applicant to reframe arguments on reconsideration and that the Tribunal relied on the correct legal test and framework for the evaluation of catastrophic impairment under Criterion 8 of the Schedule.

25I agree with the respondent. I find that the applicant is asking the Tribunal to reweigh evidence. The Tribunal applied the correct legal test under Criterion 8 as set out in Pastore v. Aviva, 2012 ONCA 642, and considered the impairment level based on the evidence related to the applicant’s mental and behavioural disorders, inclusive of pain-based restriction. The evidence showed that the applicant also had some physical limitation, however, excluding physical restrictions when assessing impairment levels under Criterion 8 is not an error of law and the applicant provided no authority to demonstrate that it is.

Ground 4 – Drawing an adverse inference

26The applicant submits that the Tribunal erred in drawing an adverse inference because Dr. Waisman did not testify at the hearing.

27The respondent submits that because Dr. Waisman’s reports were the only sources of his evidence, weaknesses and gaps in his documentary foundation could not be addressed elsewhere as he did not testify. The respondent also submitted that adjudicating on the strength of an expert’s report and deciding on the weight to assign it are the rightful roles of the Tribunal.

28I agree with the respondent. The Tribunal’s comments about Dr. Waisman not testifying was in the context of observing that his written analysis of impairment levels did not demonstrate how he factored in some relevant information. This limited the extent to which the Tribunal could be assisted by his report on such points. This was not an adverse inference.

Grounds 4 and 5 – Erred in finding Dr. Waisman did not have all relevant information

29The applicant’s reconsideration submissions under grounds 4 and 5 are in reference to the Tribunal’s findings that Dr. Waisman did not have all the relevant information before him when assessing his impairment levels.

30The Tribunal’s decision referenced the applicant’s 2021 psychiatric consult with Dr. O’Riordan. While the content of Dr. O’Riordan’s psychiatric consult note was a relevant update to Dr. Waisman’s 2020 report, it was not referenced by Dr. Waisman in his 2022 assessment. The applicant does not speak to this in his reconsideration submissions. I do not find that the Tribunal erred in this regard.

31The applicant also submits that the Tribunal erred in finding that Dr. Waisman failed to review and consider the 2021 situational assessment and in-home assessment reports of Mr. Wong. In its reconsideration submissions, the respondent appears to have accepted the applicant’s position but submits that whether Dr. Waisman considered Mr. Wong’s reports was one of several matters factoring into the Tribunal’s analysis and that an error in this respect does not warrant a reconsideration of the Tribunal’s determination of catastrophic impairment.

32Both of the parties appear to have misread Dr. Waisman’s report. In the documents entered as hearing exhibits, Mr. Wong’s reports were not identified by Dr. Waisman as being included in his document review, nor did he refer directly to Mr. Wong’s report.

33The confusion arises as Dr. Waisman’s 2022 report sets out excerpts from the applicant’s occupational therapist, Ms. Melamed. The applicant has quoted one such excerpt in his submissions, which begins with the statement “I refer to the comments that Curtis Wong makes….,” which then includes Ms. Melamed’s short interpretive summary of selected parts of Mr. Wong’s assessments, and which is then followed by her opinion about the applicant’s catastrophic impairment status. In their reconsideration submissions, both parties appear to have mistaken the words and opinion of Ms. Melamed as being the words of Dr. Waisman.

34While Dr. Waisman recited extensively from Ms. Melamed, including a passage in which she referred to Mr. Wong’s report, there is no suggestion in the hearing evidence that Dr. Waisman had actually reviewed Mr. Wong’s situational and in-home assessments in arriving at his opinion.

35I do not find that the Tribunal erred in its finding that Dr. Waisman did not have all relevant evidence before him.

CONCLUSION

36The applicant has not shown there to be an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

37The applicant's request for reconsideration is dismissed.

Taivi Lobu

Adjudicator

Tribunals Ontario – Licence Appeal Tribunal