Licence Appeal Tribunal File Number: 23-005671/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Mary Deanna MacDonald
Applicant
and
The Personal Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Gavin Cosgrove, Counsel
For the Respondent:
Michael W. Chadwick, Counsel
HEARD: by Videoconference:
July 8 to 12, 2024
OVERVIEW
1Mary Deanna MacDonald, the applicant, was involved in an automobile accident on January 19, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Personal Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2On July 4, 2024, the applicant filed an Accommodation Request with the Tribunal. She asked to record the hearing with a transcription program “Otter.ai.” The applicant submitted that she has functional impairments. Allowing the use of Otter.ai would enable her to review and understand the proceedings and thereby ensure full and equal participation without discrimination. Vice-Chair Ciriello denied this Accommodation Request the following day because, among other things, the applicant did not provide any specific medical evidence supporting her request.
3At the hearing, the applicant made an oral Accommodation Request to allow her to use Otter.ai during the hearing. The applicant argued that she has an impairment in concentration, persistence, and pace. This impairment does not allow her to sit through the entire day of a hearing. Having an Otter.ai transcript would provide an opportunity to review the proceedings and instruct counsel. In regard to medical evidence supporting the accommodation request, the applicant pointed me to a diagnosis of mild neurocognitive disorder due to mild traumatic brain injury by Dr. Duncan Day, neuropsychologist.
4The respondent submitted that there is no evidence supporting this accommodation request. The respondent further submitted that Otter.ai produces an inaccurate transcript. It would be unfair for the applicant to rely on a flawed transcript when a court reporter was at the hearing and creating an accurate transcript. The respondent also raised the concern that the applicant could provide the transcript to her spouse in order to coach him before he testifies.
5In reply, the applicant advised that she had contacted the company employing the court reported and was advised that it would take 10 to 15 days to receive a transcript. Under these circumstances, the applicant had no access to a professionally prepared transcript during the hearing.
6I allowed the accommodation request. The medical evidence cited by the applicant confirms that she has been diagnosed with a neurocognitive disorder. In my view, it is reasonable to infer that this disorder could impact her ability to follow along with the proceeding and that she would be meaningfully assisted by Otter.ai. In regard to the applicant relying on an inaccurate transcript, I noted that the applicant alone would be using Otter.ai. and her counsel would be able to correct any misunderstandings that arise during their privileged conversations. I addressed the respondent’s concerns regarding the use of the Otter.ai transcript by anyone other than the applicant by ordering the applicant to not disclose the transcript to anyone and that each day’s transcript be deleted within two hours of the conclusion of each hearing day.
ISSUES
7The issue in dispute is:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
RESULT
8The applicant did not sustain a catastrophic impairment as defined in the Schedule as a result of the accident.
ANALYSIS
9The