RECONSIDERATION DECISION
Before: E. Louise Logan
Licence Appeal Tribunal File Number: 22-008162/AABS
Case Name: S.J. v. Industrial Alliances Auto & Home Insurance
Written Submissions by:
For the Applicant: Peter Kazdan, Counsel
For the Respondent: James Brown, Counsel
OVERVIEW
1Both the applicant and the respondent have filed requests for reconsideration with respect to the Tribunal’s decision dated December 21, 2023 (“decision”). The respondent’s request was filed on January 8, 2024. The Tribunal granted the applicant an extension of time to file a request for reconsideration and her request was filed on February 7, 2024.
2In the decision, the Tribunal found that the applicant is entitled to:
a. a non-earner benefit (“NEB”) in the amount of $185 per week for the period August 1, 2014 to date and ongoing;
b. attendant care benefits (“ACB”) in the amount of $1,081.40 for the period January 14, 2014 to date and ongoing;
c. a treatment plan dated June 14, 2022 in the amount of $1,985.25 for an attendant care assessment;
d. a treatment plan dated June 14, 2022 in the amount of $2.000.00 for a psychiatric assessment; and
e. interest in accordance with section 51 of the Schedule.
3The Tribunal also found the applicant is entitled to an award of $4,578.75 plus interest in accordance with section 10 of Regulation 664. It found the applicant is not entitled to the remaining benefits in dispute or interest associated with those benefits.
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“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 committed a material breach 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; or
c) 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.
5The applicant is requesting reconsideration pursuant to Rule 18.2(a) and (b) with respect to attendant care benefits. She is seeking to vary the decision to award the applicant entitlement to attendant care benefits in the amount of $1,081.40 per month for the period April 27, 2014 to November 12, 2020 as deemed incurred, and attendant care benefits in the amount of $6000.00 per month for the period November 13, 2020 to date and ongoing, if incurred. The respondent argues the applicant’s request for reconsideration should be dismissed.
6The respondent is requesting reconsideration pursuant to Rule 18.2(b) with respect to the decision on attendant care benefits, non-earner benefits, and the section 10 award. It is seeking to vary the Tribunal’s decision so that the claims for attendant care benefits, non-earner benefits and the section 10 award are denied. The applicant argues the respondent’s request for reconsideration should be dismissed.
PROCEDURAL ISSUES
New Evidence in Responding Submissions
7In its responding submissions to the applicant’s request for reconsideration, the respondent argues that the applicant has improperly attempted to introduce new evidence with her request for reconsideration that was not before the Tribunal at the hearing. The respondent points to Tab 25 of the applicant’s supporting materials which includes two documents. The first is an excerpt from the Chapter 14 of the 4th edition of the AMA Guides to the Evaluation of Permanent Impairment. The second is a portion of The ACC User Handbook to the AMA “Guides to the Evaluation of permanent Impairment”. The applicant cites the documents at Tab 25 in relation to her argument that the Tribunal erred when it found there was no evidence supporting attendant care benefits at the maximum rate.
8On reply, the applicant submits that the AMA Guides are part of the Schedule and are not new evidence and that the respondent’s request should be denied.
9I agree with the respondent that Tab 25 contains new evidence that was not before the Tribunal at the hearing. While sections 3.1(1)6, 7 and 8 of the Schedule require the determination of catastrophic impairment to be completed in accordance with the AMA Guides, the issue of catastrophic impairment was not before the Tribunal at the hearing, and it is not before me on reconsideration. The applicant has not made arguments under Rule 18.2(c) to introduce the evidence found in Tab 25 on reconsideration. Therefore, I have not considered Tab 25 in the course of hearing the applicant’s request for reconsideration.
New Evidence on Reply
10On March 12, 2024, the respondent filed a Notice of Motion seeking permission to file a sur-reply. The respondent attached the sur-reply to its Notice. It submits that the applicant inappropriately introduced new evidence with her reply submissions. The respondent argues it should be permitted to address this new evidence by way of a sur-reply.
11I am allowing the respondent’s sur-reply. I agree the applicant submitted new evidence with her reply submissions, namely an excerpt of the Diagnostic and Statistical Manual of Mental Disorders IV-TR. This was not evidence submitted for the initial hearing, and the applicant has not made arguments in support of its introduction under Rule 18.2(c). Therefore, I have not considered this document in the course of hearing the applicant’s reconsideration request.
RESULT
12The applicant’s request for reconsideration is dismissed.
13The respondent’s request for reconsideration is granted, in part.
ANALYSIS
14I will first address both parties’ requests for reconsideration with respect to the attendant care benefits. I will then address the respondent’s request related to non-earner benefits and the section 10 award.
15The 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.
16Of note, it is clear from the parties’ submissions that they are continuing to argue the applicant’s entitlement to benefits, interest and an award in their reconsideration submissions. This is a reconsideration decision, not a merits decision. Therefore, while I have reviewed all the submissions, in this decision I only refer to those that relate to the grounds for reconsideration identified by the parties in their respective requests for reconsideration that were filed in compliance with Rule 18.1 and the Tribunal’s Orders.
Attendant Care Benefits - Applicant’s Grounds for Reconsideration – Rule 18.2(a)
Jurisdiction
17The applicant argues the Tribunal acted outside its jurisdiction when it determined the quantum of attendant care benefits for the period January 14, 2014 to date and ongoing. She submits that the quantum of benefits for the period from November 13, 2020 ongoing was not in dispute. She submits that at no time did the respondent dispute the quantum of entitlement to $6,000.00 per month from November 13, 2020 to date and ongoing.
18I find that the Tribunal did not act outside its jurisdiction. The issue of whether the applicant is entitled to attendant care benefits of $6,000.00 per month to date and ongoing was listed as an issue in dispute in the Case Conference Report and Order (CCRO) dated March 28, 2023. This is the issue that the Tribunal determined in its decision.
19Further, the respondent indicates in its responding submissions that it has always disputed the amount of attendant care being claimed. It points to the case conference summary that the applicant included with her reconsideration submissions as evidence that it disputed both the quantum and whether any expenses were incurred. The respondent also argues that the respondent maintained its position at the hearing. The applicant has not provided the Tribunal with a transcript or other evidence that establishes that the issue as set out in the CCRO was amended at the hearing.
20If the applicant did not agree that the quantum of benefits was in dispute for the period beginning on November 13, 2020, the time to raise this was before or at the hearing, not after the decision has been issued. I find the applicant has not established grounds for reconsideration with respect to the Tribunal’s jurisdiction over the quantum of attendant care benefits from November 13, 2020 to date and ongoing.
Material Breach of Fairness
21The applicant also argues that the Tribunal committed a material breach of procedural fairness when it limited attendant care rates from 2014. She argues that the rate increases should apply. The applicant’s supporting submissions set out the following argument on this issue:
It is a material breach of procedural fairness to limit [the applicant] to the ACB rates from 2014. The rate increase should apply. Tab 11 – ACB increased since April 2014.
22While the applicant provided additional argument on reply, Rule 18.1 is clear that the reconsideration request must include all submissions in support of the request. I find the applicant did not substantiate this reconsideration argument in her request for reconsideration. Accordingly, I find the applicant has not established grounds for reconsideration with respect to attendant care benefit rates.
23The applicant also argues that the Tribunal committed a material breach of procedural fairness by relying on the April 27, 2014 Form 1 assessment, when there were more recent Form 1 assessments in evidence. The applicant argues the April 2014 Form 1 did not consider the applicant’s significant mental and behavioural impairments, or impairments the applicant developed after April 2014. She argues that the Tribunal did not identify credibility issues relating to either the applicant or the assessor with respect to the subsequent assessments, there was reliable evidence supporting the quantum identified in the subsequent assessments, and the respondent had no responding Form 1s.
24I find there was no material breach of procedural fairness with respect to the April 2014 Form 1. The Tribunal outlined and considered the recommendations in all three attendant care assessments submitted by the applicant. The Tribunal concluded, at paragraph 35, that it agreed with the April 27, 2014 report and May 9, 2014 Form 1 as it found the subsequent Form 1 rates excessive, not payable within the limit in the Schedule, and not consistent with evidence before it.
25In sum, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(a) with respect to attendant care benefits.
Attendant Care Benefits - Applicant’s Grounds for Reconsideration – Rule 18.2(b)
Errors of Fact
26The applicant argues the Tribunal erred in fact at paragraph 35 when it concluded that the applicant’s pain complaints and limitations had not changed from April 27, 2014 to date. The applicant submits that there is medical evidence in support of a change in the applicant’s pain complaints and limitations, and that this evidence supports entitlement to an attendant care benefit of $6,000.00 per month. The applicant also argues that the Tribunal erred at paragraph 35 when it found there was no evidence to support that she requires a level of care at the maximum rate for attendant care benefits. She submits the medical evidence and testimony supports entitlement to attendant care benefits at $6,000.00 per month. In her reconsideration submissions, the applicant sets out, in some detail, the evidence she argues supports her position that she is entitled to attendant care benefits in the amount of $6,000.00 per month.
27The applicant isolates individual sentences in the decision as the basis for establishing grounds for reconsideration under Rule 18.2(b). However, in my view, the statements in paragraph 35 must be read in context, which includes the preceding analysis. At paragraph 29, the Tribunal found that Ms. Majidinamyne, the occupational therapist who completed the 2020 Form 1, did not review key medical records. It found that it was problematic that Ms. Majidinamyne did not consider additional medical evidence that may help to provide a fulsome picture of the applicant’s needs. At paragraph 34, the Tribunal found the applicant’s consistent and ongoing reporting of the level of care she required to engage in self-care demonstrated that, nine years post-accident, there is still a significant level of care required. At paragraph 35, the Tribunal stated as follows:
However, I disagree with Ms. Majidinamyne’s recommendation in her Form 1s, as the amount is excessive, and there is no evidence that S.J. requires a level of care at or near the allowable maximum for individuals deemed catastrophically impaired under the Schedule. S.J. reported to Ms. Golmohammadi about her ongoing pain issues, and the impact it has on her ability to engage in her selfcare and activities of daily living. While this report was completed not long after the accident, the pain complaints and limitations have not changed to date upon review of the medical evidence. S.J. reported ongoing functional limitations as it pertains to her neck, back, arm and head, which has been noted in both her own assessor’s reports as well as the s. 44 reports. Accordingly, I agree with Ms. Golmohammadi’s April 27, 2014 report and May 9, 2014 Form 1. The subsequent Form 1 rates are excessive and not payable above the $6,000.00 limit set out in the Schedule. There is no evidence that supports S.J. requires a level of care at the maximum rate. Accordingly, I find that the recommended monthly rate for ACBs in the amount of $1,081.40 for the period claimed is reasonable and necessary. [emphasis added]
28I find that the Tribunal determined, based on its review of the evidence before it, that the applicant’s pain and limitations had not changed since the Form 1 was completed in 2014. After consideration of the evidence before it, the Tribunal was entitled to make this finding.
29I also find that while the Tribunal may have erred when it stated that there was no evidence that supported that the applicant required a level of care at the maximum rate, this error would not likely change the outcome of the decision. As set out above, the Tribunal provided reasons for preferring Ms. Golmadhammadi’s April 27, 2014 report and May 9, 2014 Form 1, which included consideration of the applicant’s evidence. While the applicant disagrees with the Tribunal’s decision, the error she has identified would not have likely changed the outcome.
30The applicant also argues that the Tribunal erred at paragraph 28 when it concluded the applicant reported no suicidal ideation and that there was no other evidence to support that she required almost 24-hour care. I find, however, that paragraph 28 sets out a summary of the respondent’s submissions, not findings of the Tribunal. Accordingly, the applicant’s arguments do not establish an error of fact or law.
31For the reasons set out above, I find the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b) with respect to attendant care benefits.
Attendant Care Benefits - Respondent’s Grounds for Reconsideration – Rule 18.2(b)
32The respondent submits that the Tribunal made an error of fact when it confused the invoices for past attendant care services provided by family members with the invoices for services provided by personal support workers, which were not in dispute. I agree the Tribunal confused the invoices in evidence.
33The respondent submits that the Tribunal found, at paragraph 31, that services performed by the applicant’s family members were not incurred within the meaning of section 3(7)(e). The Tribunal then went on to find that the applicant had incurred services from personal support workers during the period of May 17, 2014 to May 17, 2023 which totaled $362,880.00. Based on this, at paragraph 24, the Tribunal awarded entitlement to attendant care benefits from January 2, 2014 to January 1, 2023 subject to a reduction to the rate of $1,081.40/month.
34The respondent argues that the invoices for attendant care in the amount of $362,880.00 were from family members, specifically the applicant’s sister and niece, not the personal support workers. It submits that the Tribunal had already concluded the family members’ expenses were not recoverable because they were not deemed incurred. The respondent submits that the expenses incurred for services provided by personal support workers totaled $3,390.00 were not in dispute as they had been paid for by the respondent.
35In responding submissions, the applicant does not dispute that the Tribunal mistook the invoices of family members for invoices of personal support workers. Instead, she argues the applicant should be entitled to $6,000.00 per month on other grounds, including that the Tribunal found the invoices for personal support workers to be persuasive because they provided detailed information, and that the past services of family members should have been deemed incurred.
36I have reviewed the invoices and I agree that the Tribunal erred when it mistook the invoices of family members for those of personal support workers. I also find that this error would likely change the outcome of the decision. Therefore, I am granting the respondent’s request for reconsideration with respect to incurred attendant care benefits for the period May 17, 2014 to May 17, 2023. The invoices of the family members in the amount of $362,880.00 are excluded from the calculation of the amount of attendant care benefits payable.
Non-Earner Benefits – Respondent’s Grounds for Reconsideration – Rule 18.2(b)
37With respect to non-earner benefits, the respondent argues that the Tribunal made an error of law in its application of section 12(1) of the Schedule and failed to address whether the applicant had a complete inability to carry on a normal life within 104 weeks of the accident.
38The respondent also argues that the Tribunal made three related errors of fact when it mistakenly concluded that Dr. Pardisnia’s assessment did not specifically consider NEBs; that Dr. Pardisnia had not provided a formal diagnosis of the applicant’s injuries; and that none of the other section 44 reports addressed whether the applicant suffered a complete inability to carry on a normal life. The respondent submits the Tribunal placed less weight on the respondent’s evidence because of these errors.
39The respondent further submits that the Tribunal failed to consider whether the applicant’s complete inability to carry on a normal life occurred within the 104-week period when it relied on Dr. Lam’s assessment. It submits that Dr. Lam’s assessment was completed approximately 169 weeks after the accident and that it did not comment on the applicant’s status within the 104-week period. The respondent argues that the Tribunal’s weighing of the evidence of Dr. Lam against the respondent’s evidence was impaired by the errors of fact with respect to the respondent’s reports and the Tribunal’s failure to consider the fact that Dr. Lam’s assessment was outside the 104-week period. The respondent submits that had these errors not been made, the Tribunal would likely have reached a different conclusion with respect to the applicant’s entitlement to non-earner benefits.
40In her responding submissions, the applicant argues that the errors of fact alleged by the respondent are not such that the Tribunal would likely have reached a different result if the error had not been made. The applicant also submits that the respondent’s arguments are inaccurate. She submits that paragraph 20 refers to Dr. Pardisnia commenting that the applicant “does not suffer a complete inability to carry on normal life” and that there was no formal diagnosis in the July 14, 2014 report of the functional capacity evaluation. The applicant also sets out the evidence from the initial hearing that she argues demonstrates she is entitled to non-earner benefits.
41Further, the applicant submits that she is entitled to non-earner benefits because the respondent did not deny entitlement to non-earner benefits in compliance with section 54 of the Schedule. However, this was not the basis on which the Tribunal awarded entitlement to non-earner benefits, and it is not basis for the respondent’s argument on reconsideration. Therefore, it is not before me on reconsideration.
42With respect to the alleged errors of fact in relation to Dr. Pardisnia’s reports, the Tribunal addressed Dr. Pardisnia’s reports at paragraph 20 as follows:
Dr. Pardisnia in both his functional capacity and chiropractic reports, specifically commented that S.J. does not suffer a complete inability to carry on a normal life. Notably, Dr. Pardisnia does not provide a formal diagnosis in his chiropractic report and stated that the purpose of the assessment was “determining the necessity of a course of proposed physical rehabilitation.” Neither of these factors specifically address S.J.’s NEB claim. Further, none of the other s. 44 reports address whether S.J. suffers a complete inability to carry on a normal life.
43Although I agree that paragraph 20 is not entirely clear, I do not agree that the Tribunal found that Dr. Pardisnia did not specifically consider non-earner benefits. In fact, the first sentence of paragraph 20 states that Dr. Pardisnia specifically commented that the applicant does not suffer a complete inability to carry on a normal life, the test for non-earner benefits. I also find that the Tribunal correctly stated that the purpose of Dr. Pardisnia’s chiropractic assessment report was “determining the necessity of a course of proposed physical rehabilitation”. This is set out on the first page of the chiropractic report. The purpose of the functional capacity evaluation is set out on page 2 of the evaluation report: “The purpose of this assessment is to determine [the applicant’s] functional abilities as they pertain to her ability to perform her pre-loss occupation. [The applicant] was referred with the diagnosis of whiplash and cervical sprain and strain”.
44In paragraph 20, the Tribunal also referred to Dr. Pardisnia not providing “a formal diagnosis” in his chiropractic report. The respondent argues the Tribunal erred because Dr. Pardisnia made a formal diagnosis. I have reviewed the chiropractic report and find there is one reference to the applicant’s diagnosis. In response to the referring question “What is the exact nature of the injuries that were sustained by the claimant at the time of this loss? Dr. Pardisnia responded: “It is the opinion or this assessor that the claimant sustained soft-tissue injuries to the cervical spine at the time of the accident”. In my view, the question of whether this statement was a “formal diagnosis” is a finding of fact the Tribunal was entitled to make. In other words, it is not an error for the Tribunal to find that a one sentence response to a referring question is not a “formal diagnosis”. Further, even if the Tribunal did err, I find that the second part of the test in Rule 18.2(b) has not been met. The fact the Tribunal found that Dr. Pardisnia’s response to the referral question was not a “formal diagnosis” would not have likely changed the outcome of the decision as required by Rule 18.2(b).
45I agree that the Tribunal erred when it stated that none of the other section 44 reports addressed whether the applicant suffers a complete inability to carry on a normal life. Dr. McCutcheon’s section 44 report explicitly states that the “psychological examination was undertaken to determine if [the applicant] suffers a complete inability to carry on a normal life as a result of her involvement in the motor vehicle accident which took place on January 2, 2014”. Dr. McCutcheon determined that “from a psychological perspective [the applicant] did not suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident”.
46While the applicant argues that Dr. McCutcheon’s report was considered because it was listed at paragraph 19 of the decision as one of the reports relied upon by the respondent, I do not find this to be the case. While I agree it is listed at paragraph 19, I find that the Tribunal explicitly stated at paragraph 20 that the none of the other section 44 reports, which included Dr. McCutcheon’s report, specifically addressed the applicant’s non-earner benefit claim. I find that the Tribunal erred when it made this finding, and I also find that the error is one that would likely have changed the outcome of the decision. I agree with the respondent that the Tribunal placed less weight on Dr. McCutcheon’s report because it concluded, in error, that it did not address non-earner benefits.
47I find that the respondent has established grounds for reconsideration with respect to non-earner benefits. Given this finding, I do not need to consider the respondent’s remaining reconsideration arguments with respect to non-earner benefits.
48Although the respondent seeks an order denying the applicant’s entitlement to non-earner benefits, I find that I am not able to determine the applicant’s entitlement based on the evidence before me, which does not include a transcript of the hearing. Therefore, pursuant to Rule 18.4, I am ordering a rehearing of the issue of non-earner benefits. The rehearing will be conducted by a new adjudicator reviewing the existing record i.e., the recording and/or transcript of the hearing, if available, and the exhibits that are relevant to the non-earner benefit issue.
Section 10 Award
49The respondent submits that the Tribunal made errors of fact when addressing the section 10 award. In the decision, the Tribunal found that the respondent failed to advise the applicant she was being assessed under section 44 to determine her entitlement to non-earner benefits. The respondent submits that a letter dated May 28, 2014 clearly states that the section 44 assessments would determine the applicant’s entitlement for a non-earner benefit.
50The applicant submits that the respondent’s failure to pay non-earner benefits since July 2, 20214 is an unreasonable withholding of the benefit that justifies the award.
51As the respondent has established grounds for reconsideration with respect to the non-earner benefits, and the grounds for the section 10 award are rooted in the respondent’s actions related to the non-earner benefits, I order that the section 10 award be reheard by the adjudicator assigned to the rehearing of the issue of non-earner benefits.
CONCLUSION & ORDER
52The applicant’s request for reconsideration is dismissed.
53The respondent’s request for reconsideration with respect to the calculation of incurred attendant care benefits for the period May 17, 2014 to May 17, 2023 is granted. The decision is varied to find that the invoices of the family members in the amount of $362,880.00 are excluded from the calculation of the amount of accident care benefits payable.
54The respondent’s request for reconsideration with respect to non-earner benefits is granted. I order a rehearing of the issue of non-earner benefits. The adjudicator who conducts the rehearing will also rehear the issue of the section 10 award.
55The rehearing will be conducted by a new adjudicator reviewing the existing record. That is, the recording and/or transcript of the hearing, if available; the applicant’s written submissions dated October 20, 2023 with respect to the section 10 award; and the exhibits from the initial hearing that are relevant to non-earner benefits and the section 10 award.
56By 45 days of the release of this decision:
a. the parties will submit a joint document brief of the exhibits that are relevant to the non-earner benefits issue and the section 10 award; and
b. the respondent will provide the Tribunal and the applicant with a copy of the recording and/or transcript of the hearing, at no cost to the Tribunal.
57The rehearing of the non-earner benefits issue and the section 10 award will take place in writing on a date to be set by the Tribunal.
E. Louise Logan
Vice-Chair
Released: June 21, 2024