RECONSIDERATION DECISION
Before: Michael Beauchesne
Licence Appeal Tribunal File Number: 20-013238/AABS
Case Name: Isaiah Hall v. Unifund Assurance Company
Written submissions by:
For the Applicant: Vicki Edgar, Counsel
For the Respondent: Robert Bowman, Counsel
OVERVIEW
1On July 19, 2023, the applicant requested reconsideration of my decision, dated June 28, 2023 (the “decision”), in which I determined the applicant was not catastrophically impaired per Criterion 8 of the Statutory Accident Benefits Schedule (the “Schedule”).
2For reconsiderations of decisions issued before August 21, 2023, the grounds for reconsideration request 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 (the “Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following four 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.
3The applicant is seeking a reconsideration pursuant to Rule 18.2(a) and (b).
4The applicant is seeking a determination that he is catastrophically impaired. In the alternative, the applicant requests a new hearing.
5The respondent asks that the request for reconsideration be dismissed. It submits the applicant is seeking to reargue his case.
RESULT
6The applicant's reconsideration request is dismissed.
ANALYSIS
7The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
Rule 18.2(a): Violation of procedural fairness
8I find the applicant has not established grounds for reconsideration under Rule 18.2(a) for the following reasons.
9The applicant argues I violated the rules of natural justice and procedural fairness by failing to consider the evidence in a consistent and comprehensive manner. He also submits I failed to address significant issues with the respondent’s expert evidence that were raised during the hearing by the applicant.
10The applicant points specifically to paragraph 30 of the decision, and claims I appeared to discount the applicant’s evidence without equal explanation and inserted my own analysis of the applicant's impairment levels. He argues I misstated the language for the marked level of impairment many times, particularly in my assessment of activities of daily living (the “ADL”) and concentration, persistence, and pace (the “CPP”), which he argues gives rise to the question of whether I properly analyzed and weighed the evidence.
No error in considering and weighing the evidence
11With respect to the consideration and weighing of evidence, I find the applicant has not established grounds for reconsideration. The applicant references numerous inconsistencies throughout my analysis, and, to support this claim, argues that I misstate the language for the marked level of impairment numerous times, and particularly in my assessment of both ADL and CPP.
12Specifically, I set out the definition of marked impairment in paragraph 8 of the decision, which notes—per the 4th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (the “Guides”)—that a marked impairment is one that significantly impedes useful functioning. I then addressed the applicant’s ADL in paragraphs 11 to 21, and contrary to the applicant’s submissions, I do not see any evidence of misstating the language of what constitutes a marked impairment.
13The applicant’s reconsideration submissions point specifically to paragraph 19 of the decision, which sets out the finding that not all useful ADL functioning is impeded in a significant way. The applicant argues this is an error of law because this is not the language used in the Guides. The applicant says all useful ADL functioning being significantly impeded would actually preclude useful functioning, which is a Class 5 extreme level of impairment.
14I disagree. I correctly referenced and applied the definition of marked impairment. The impairment classifications in the Guides are separate and distinct from one another with no overlap.
No error in treatment of expert evidence issues
15I find the applicant has not established grounds for reconsideration on the basis that I failed to address significant issues with the respondent’s expert evidence that were raised during the hearing by the applicant, or that I substituted my own analysis for that of the experts.
16The applicant argues I provided reasons for why I placed little weight on the respondent’s expert evidence, but “appeared to discount” the applicant’s expert evidence without providing a commensurate explanation.
17When I look at the ADL analysis in paragraphs 11 to 21 of the decision, I find I clearly articulated what evidence I found to be relevant and why. Paragraph 12 explains why I afforded more weight to the situational assessments. The independence, appropriateness, sustainability, and effectiveness of the applicant’s task performance was addressed in paragraphs 13 through 18. In these six paragraphs, I consider what tasks the applicant could initiate and his ability to complete them properly, as well as analyze the time it took to complete tasks in the community versus at home. Pertaining specifically to independence of function, in paragraph 15 I find the applicant was able to sustain activities and independently complete his selected tasks appropriately after receiving initial direction. In paragraph 16, I find the applicant required no cueing to start and complete his assigned task. Paragraph 19 speaks to collateral evidence, the applicant’s self-reports, and witness testimony that was considered in the decision. This is not discounting the applicant’s evidence without explanation as argued by the applicant. Rather, it shows I carefully considered and weighed the evidence, and found it corroborated specific aspects of the situational reports that together supported a finding of moderate impairment.
18The applicant points to paragraph 35 of the decision, where he argues I disregarded expert evidence without explanation and inserted my own analysis. My review of paragraph 35, which is part of the CPP analysis, shows I provided a reason for why I disagreed with the expert’s opinion, and identified collateral evidence that corroborated this rationale.
19The applicant also points to paragraphs 36 and 37 of the decision as an example of inserting my own analysis. Specifically, the applicant submits I erred by discounting a calendaring task (i.e., Toglia test) on the basis of what level of difficulty was administered.
20At paragraph 36, I provide evidence and a basis for placing less weight on the calendar test. I questioned whether the test level administered by the assessor was appropriate and provided reasons for this based on evidence that was put before me. In doing so, I find I did not insert my own clinical analysis as proposed by the applicant. Rather, I assigned less weight to the assessment because the applicant failed to convince me that all relevant aspects of the applicant’s background and assessment performance were considered when selecting the test level. As such, I did not find the assessor used the incorrect version of the test as argued by the applicant. Rather, I put less weight on an assessment that was not shown to have been qualified on the basis of the applicant’s assessment performance as well as his background as a highly intelligent, high functioning academic. In paragraph 37, I demonstrate that while the assessment was not given full weight, it was not entirely discounted and, in fact, was afforded some weight in the decision.
21The applicant also questions whether I considered his arguments on the respondent’s expert evidence in a proper manner. Specifically, the applicant points to the cross-examination of Dr. Aladetoyinbo, where the applicant claims he established, on multiple occasions, that Dr. Aladetoyinbo confused the test for impairment under Criterion 8 of the Schedule.
22I addressed Dr. Aladetoyinbo’s evidence at paragraphs 29 and 30 of the decision. I agree I did not address the applicant’s claim that Dr. Aladetoyinbo had confused the marked impairment test here, or elsewhere in the decision, because—as indicated in paragraphs 29 and 30—I placed weight on other issues with Dr. Aladetoyinbo’s evidence that led me to discount its importance in my analysis. I disagree that not specifically addressing the applicant’s position on Dr. Aladetoyinbo’s evidence is a violation of procedural fairness or an error of law. The decision shows Dr. Aladetoyinbo’s evidence did not carry weight in my decision, albeit for reasons different than those put forward by the applicant. I considered the evidence of Dr. Aladetoyinbo and provided clear reasons for my finding to place little weight on that evidence.
23It is well established that the Tribunal is not required to respond to every argument or possible line of analysis. I find the decision shows I was alert and sensitive to the evidence before me, set out my findings of fact and the principal evidence upon which I based my findings, addressed the major points at issue, and was internally coherent, rational. and logical. I therefore find no violation of procedural fairness with respect to the applicant’s argument that I inappropriately considered the respondent’s expert evidence.
24For the reasons set out above, I find the applicant has not established grounds for reconsideration under Rule 18.2(a).
Rule 18.2(b): Error of fact or law
25I find the applicant has not established grounds for reconsideration under Rule 18.2(b) for the following reasons.
26The applicant makes several arguments under Rule 18.2(b). He argues that I failed to assess evidence in a thorough manner. He also argues that I inaccurately analyzed CPP evidence and misunderstood clinical guidelines; made an inaccurate finding on the applicant’s ability to initiate his ADL; and failed to address deficiencies in the respondent’s evidence.
No error of law on ADL findings or treatment of deficiencies in the evidence
27I have already addressed the applicant’s arguments under Rule 18.2(a) and find that I did not err in my treatment of the expert evidence as it related to the applicant’s ability to initiate his ADL (independent of supervision or direction). Similarly, I find no error under Rule 18.2(b).
28The applicant also argues that I failed to address deficiencies in the evidence. Specifically, the applicant says the respondent’s decision to not perform its own cognitive testing and situational assessments are deficiencies that were not addressed by me in the decision. I did not find the lack of respondent testing to be relevant, and the fact I did not refer to it in the decision is not an error of law. Again, I do not have to respond to every argument made by the parties.
No misapprehension of legal tests or evidence assessment mistakes that constitute an error of law
29I next turn to the applicant’s submissions on his remaining arguments. These are that I misapprehended the legal test for both ADL and CPP, as well as failed to thoroughly assess the ADL evidence and inaccurately assessed the CPP evidence.
30For ADL, the applicant argues that the “overall degree of restriction or combination of restrictions” must be considered per the Guides, and that the relevant performance measures are independence, appropriateness, effectiveness, and sustainability. On independence specifically, the applicant asserts his ability to perform ADL must be “measured as a whole, independent of supervision or direction.” The applicant contends I erred here by focusing on the tasks completed during the in-home and situational assessments, and also that I failed to assess the situational tasks independent of supervision or direction.
31I disagree. I was alive to what must be considered per the Guides for ADL at paragraph 11. There was no misapprehension. The reasons for why I preferred the situational assessment evidence are detailed in paragraph 12.
32Paragraphs 13 through 18 address the applicant’s evidence on his ADL performance during the situational assessments. I find this was done in a thorough manner with an analysis of the applicant’s need for supervision and direction. Reasons for these findings were then provided in paragraphs 19 through 21. I find these reasons are well-aligned with the analysis of the evidence, and, as noted under Rule 18.2(a), I do not accept the applicant’s argument that I failed to assess the situational tasks independent of supervision or direction.
33For CPP, paragraph 32 shows I was alive to what must be considered per the Guides. Again, there was no misapprehension. The evidence was assessed in a thorough manner at paragraphs 33 through 38. I found some evidence was more consistent with marked impairment, and that other evidence was more consistent with moderate impairment. I provided an analysis of this evidence to show why the evidence was weighed in favour of moderate impairment at paragraph 38.
34Therefore, I see no error of law and find the applicant has not established grounds for reconsideration under Rule 18.2(b).
CONCLUSION
35For the reasons noted above, I dismiss the applicant's request for reconsideration.
Michael Beauchesne Adjudicator Tribunals Ontario – Licence Appeal Tribunal
Released: October 25, 2023