RECONSIDERATION DECISION
Before: Brian Norris
Licence Appeal Tribunal File Number: 22-008237/AABS
Case Name: Gary Dyer v. Economical Mutual Insurance Company
Written Submissions by:
For the Applicant: Derek E. Wilson, Counsel
For the Respondent: Stephen Whibbs, Counsel
OVERVIEW
1This request for reconsideration was filed by Economical Mutual Insurance Company (the “Respondent”). It arises out of a decision dated April 18, 2024 in which I found that the Applicant sustained a catastrophic impairment as a result of the accident, pursuant to section 3 of the Schedule. I also found that the Applicant was entitled to past and ongoing income replacement benefits (“IRBs”).
2The Respondent seeks an Order to cancel the initial decision and commence a rehearing of the issues in dispute.
RESULT
3The Respondent’s request for reconsideration is dismissed.
ANALYSIS
4The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “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;
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.
5Reconsideration 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.
6The Respondent submits I made an error of law or fact such that the Tribunal would likely have reached a different result has the error not been made. It submits that I made a number of factual findings that were not supported by the evidence, such as:
a. That the April 28, 2022 report by Dr. Parlar and Dr. Levitt was a “first assessment” with respect to catastrophic impairment. The Respondent submits that the report did not address the issue of catastrophic impairment and was authored for tort purposes;
b. That the Applicant “rarely leaves his home”, is “generally inactive with respect to his daily functioning”, that he no longer volunteers at his Kids’ school and limits his public activities with them, that his frequent activities result in a “detrimental impact” on him afterwards and that he is “laid out” after engaging in them’, that his continued involvement as a father of young children after the accident only amounted to being a “loving and caring” father and not an active one, and that the surveillance evidence depicts a “low level of activity”
7The Respondent submits that the findings listed above are errors of fact and suggests that I should not have accepted the viva voce evidence of the Applicant and his spouse, according to the Respondent, in the presence of clearly contradictory documentary evidence.
8The Respondent also submits that I misapplied the law and failed to consider relevant law. It submits that the decision does not correctly reference what is required by the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition (the “AMA Guides”), for a finding of catastrophic impairment and that I “essentially ignored what the case law has established concerning what someone with a Criterion 8 impairment looks like.”
9The Respondent further submits that the decision is not in compliance with the Tribunal’s well-established position that catastrophic impairment is a legal finding and not a medical finding. It characterizes this as an error of law such that a different result would have been reached if the error had not been made.
10With respect to my decision on the Applicant’s entitlement to IRBs, the Respondent submits that I failed to consider relevant jurisprudential findings and that I failed to consider decisions predicating entitlement on attending necessary treatment and failed to properly assign value to the surveillance evidence when evaluation entitlement to IRBs.
11In summary, the Respondent submits that my decision lacked the requisite analysis and that I simply selected which set of assessments I preferred and failed to grapple with key issues and evidence in the matter.
12In response, the Applicant submits that the initial decision was reasonable and correct. He submits that the decision clearly cites the reasons why the Levitt/Parlar report is preferred over the Gavett-Liu report, noting that the former was more compliant with the AMA Guides and was consistent with the Applicant’s medical records. He further submits that the surveillance evidence was dealt with throughout the decision. Furthermore, he submits that the decision meaningfully grapples with the key issues and central arguments and the analysis was much more detailed than simply assessing which set of assessments are preferred. In conclusion, he submits that although the Respondent may disagree with the decision, it does not make it unreasonable or incorrect.
13The 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.
My findings were supported by the evidence
14Contrary to the Respondent’s submissions, the findings outlined above were supported by the evidence.
15At paragraph [29] of the decision, I noted that Dr. Parlar and Dr. Levitt assessed the Applicant previously and issued a report, dated April 28, 2022. At no point did I mischaracterize the report. Rather, I noted that it was evidence demonstrating that Dr. Parlar and Dr. Levitt gathered data on the Applicant over a period of years, as recommended by the AMA Guides.
16The Respondent has not provided or directed me to evidence to demonstrate that the facts I found regarding the Applicant’s activity level are “clearly contradictory” as it submits. I found the Applicant and his common-law partner to be credible witnesses and accepted their testimony as it was consistent with the medical record and with the level of activity depicted in the Levitt/Parlar report. The Respondent has not directed me to any contradiction in the documentary evidence which would cause me to reconsider my finding that the Applicant and his spouse are credible witnesses.
17I considered the surveillance evidence throughout my decision and found that it did not upset the findings in the Levitt/Parlar report. I noted in paragraph [46] of the decision that the surveillance evidence does not upset Dr. Levitt’s findings and noted that the surveillance failed to show the aftermath of the Applicant’s activity to upset the testimony from witnesses that the Applicant is “laid out” after engaging in physical activity. At paragraph [53] I noted that the surveillance evidence does not upset my conclusion that the Applicant suffers from a marked impairment in social functioning and noted that while the Applicant was depicted running a game for children for a brief period of time at a trailer park, it was in contrast to his pre-accident activity levels and that the surveillance never captured the aftermath of the event. Similarly, I noted that the Applicant was observed mowing a small patch of grass on one day, and surveillance the following day showed no activity at all.
18Accordingly, I find no error of law or fact in my assessment of the evidence which would reach a different result had the error been made.
The decision references what is required by the AMA Guides
19Contrary to the Respondent’s submissions, I find that the decision makes adequate reference to the AMA Guides and what is required for a finding that the Applicant suffered a catastrophic impairment.
20At paragraph [21] I noted that the Applicant holds the onus to demonstrate he sustained a catastrophic impairment in accordance with the AMA Guides. At paragraph [22] I noted that consideration under criterion 8 excludes any physical impairments and is based solely on mental and behavioural disorders, and in paragraph [24] I noted that a marked impairment in two or more spheres would likely preclude performing complex tasks without special support or assistance. I find that the above establishes that I never ignored the case law concerning what a criterion 8 impairment entails and find no error of law or fact occurred on this issue.
I am not required to cite case law and failing to do so it not an error
21The Respondent further submits that the decision is not in compliance with the Tribunal’s well-established position that catastrophic impairment is a legal finding and not a medical finding. The basis for this, it submits, is that I made no reference to any case law during my analysis. The Respondent characterizes my failure to cite case law as an error of law such that a different result would have been reached if the error had not been made.
22I find that this is not an error of law or fact that would reach a different result had the error not occurred.
23The Respondent has failed to direct me to any authority which requires me to cite case law in decisions at the Tribunal and I am unaware of any such requirement to do so. I am required to apply the law to the facts and provide reasons for my decisions. The Respondent has not identified an area of the decision where I applied the incorrect legal test, and I have not identified any myself. Accordingly, I find no error of law occurred that would result in a different result had the error not occurred.
The Respondent made only passing reference to section 57 of the Schedule and led no evidence to support its position
24The Respondent is correct in that I never addressed section 57 of the Schedule and the Applicant’s obligation to treat his injuries. However, I find that it is not an error of law or fact that would result in a different decision had the error not occurred.
25Section 57(2) provides that an insured person who is entitled to IRBs shall obtain such treatment and participate in such rehabilitation as is reasonable, available, and necessary to permit the insured person to engage in employment or self-employment, or to shorten the period during which the benefit is payable. Section 57(4) of the Schedule notes that an insurer must provide notice that it intends to stop paying IRBs on account of a failure to obtain treatment.
26I find that this is an attempt to relitigate the case or, at the least, move the goal posts on the issue, and this is not grounds for reconsideration. The Respondent denied payment of IRBs on the basis that it believed that the Applicant no longer met the test for entitlement, not that he failed to engage in the requisite treatment in order to shorten the period that IRBs would be payable.
27Further, the Respondent made only passing reference to section 57 of the Schedule, and only during closing statements at the hearing. It led no evidence to demonstrate that it notified the Applicant of this position, nor any evidence to support the claims that the Applicant is failing to treat his injuries. In closing submissions, the Respondent simply stated that the Applicant is not compliant with section 57 of the Schedule and questions whether his post-accident activities indicate that he is able to return to work. This is insufficient to stop payment of IRBs because the Respondent has failed to establish that it complied with section 57(4) of the Schedule, and it never provided evidence that it did. Section 57(4) requires the Respondent to notify the insured person that it intends to stop payment of IRBs due to non-compliance with section 57(2) of the Schedule.
28In this case, the Applicant is not required to demonstrate compliance with section 57 of the Schedule in order to be eligible for IRBs. Initial and ongoing entitlement to IRBs is addressed in sections 5 and 6 of the Schedule and those sections do not require the Applicant to demonstrate compliance with section 57. Rather, an insurer can rely on section 57 of the Schedule as a basis to stop paying IRBs, provided that it complies with the other provisions in the section, such as a providing proper notice as required by section 57(4) of the Schedule.
29If my omission of any analysis regarding section 57 of the Schedule is indeed an error, I find that the result would be the same had the error not occurred. This is because the Respondent never directed me to any evidence to suggest the Applicant is able and qualified to perform the essential tasks of his employment or would be able and qualified to do so if he obtained treatment and participated in rehabilitation that is reasonable available and necessary to permit him to engage in those activities. Accordingly, I find no error of law in failing to address the Respondent’s brief reference of section 57 of the Schedule.
30I reject the Respondent’s request for reconsideration on the grounds that I failed to address section 57 of the Schedule in my decision because it is not an error of fact or law such that the Tribunal would have reached a difference conclusion had the error not been made.
CONCLUSION & ORDER
31For the reasons above, I find no error of law or fact occurred such that the Tribunal would likely have reached a different result had the error not been made.
32The Applicant’s request for reconsideration is dismissed.
Brian Norris
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: August 14, 2024