RECONSIDERATION DECISION
Before: John Mazzilli, Adjudicator
Licence Appeal Tribunal File Number: 23-007218/AABS
Case Name: Pamela Fazio-Bastien v. Intact Insurance Company
Written Submissions by:
For the Applicant: D. Joel Dick, Counsel
For the Respondent: Darrell March, Counsel
OVERVIEW
1On November 13, 2024, the applicant requested reconsideration of the Tribunal’s decision dated November 12, 2024 (“decision”).
2In the decision, I found that the applicant is not catastrophically impaired under Criterion 4 and that the applicant is not entitled to a post -104 income replacement benefit (“IRB”).
3I also found that the applicant was entitled to two treatment plans for occupational therapy and one treatment plan for physiotherapy.
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 makes her request for reconsideration based upon Rules 18.2(a) and (b). Specifically, the applicant requests that I reconsider my finding that the applicant is not entitled to a post-104 IRB and asks me to consider the medical and other evidence led during the hearing on the issue of entitlement to IRBs, even if the quantum of the IRB is zero.
6The respondent opposed the request for reconsideration and argues that the decision does not contain an error. It argues that the applicant’s request for reconsideration is an attempt to re-litigate her case which ultimately failed at the hearing. Further, it argues that the applicant has failed in her onus to prove that I made an error of fact or law that would result in a different decision and that I did not commit a material breach of procedural fairness.
7The respondent requests costs from the applicant for the resources allocated in responding to the applicant’s request for reconsideration, in the amount of $750.00.
RESULT
8The applicant’s request for a reconsideration is dismissed.
9The respondent’s request for costs is denied.
ANALYSIS
10The 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(b): Error of Law and/or Fact
11I find that the applicant has not established grounds for reconsideration pursuant to Rule 18.2(b).
12The applicant submits that I made an error of law and or fact because I failed to determine substantive entitlement to the post-104-week IRB. The applicant’s sole submission in this regard is a reference to paragraph 43 from a March 7, 2008, decision by the Financial Services Commission of Ontario (FSCO) in Garcia v. State Farm, 2008 Carswell Ont. 2015.
13The respondent argues that I did not make an error of law or fact and that I considered the applicant’s entitlement to IRBs. Additionally, the respondent argues that the applicant’s request for reconsideration is improper and an attempt to re-litigate this matter.
14At paragraph 43 of Garcia v State Farm, the Adjudicator wrote: “It is entirely possible for a person to meet the substantive eligibility criteria for IRBs (for example, being employed at the time of the accident and suffering a substantial inability to perform the essential tasks of the pre-accident employment) without being entitled to a "positive quantum" of IRBs (due, for example, to the deduction of post-accident income or collateral benefits).”
15Although I agree with the Adjudicator’s general statement, it is important to note that a 17-year-old decision from FSCO is not binding on me and the applicant has not provided any binding authority to support her assertion that this was an error of law or fact that would have changed the outcome of my decision had it not been made, as required by Rule 18. In any event, Garcia v State Farm was not raised by the applicant at first instance but rather was only raised in her request for reconsideration.
16It is well-settled that reconsideration is not an avenue for the applicant to introduce new evidence or argument that was not raised during the hearing. Further, a reconsideration is not grounds to reargue one’s case, therefore the applicant’s request for a reconsideration of my decision is dismissed on this ground because I did not make an error or fact or law that would have changed the outcome of my decision based on the Garcia case.
Entitlement to the IRB – breach of procedural fairness
17The applicant submits that I failed to decide the issue of entitlement which was before the Tribunal and relies on para. 2 of my decision, which lists the issues in dispute for the hearing. The applicant submits that this was an error of law and a breach of procedural fairness. For context, Issue 2(ii) of the decision reads as follows: Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 15, 2021, to date and ongoing?
18The respondent argues that I thoroughly addressed the applicant’s entitlement to the IRBs throughout my decision and that the applicant is attempting to re-litigate its case which failed in their first attempt.
19During the hearing and as outlined in my decision at paras. 27-41, the applicant’s position on the IRB changed several times. As the hearing evolved, Issue 2(ii), as noted above, was no longer accurate, as the applicant amended the IRB quantum and period in dispute to $41.68 per month payable from December 12, 2021, to date and ongoing. This is outlined in para. 38 of my decision.
20At a later point in the hearing, the applicant again changed the quantum and period of entitlement to $18.40 per week for the period September 12, 2022, to December 31, 2022, for a total IRB owing of only $294.40, as outlined in my decision at para. 39.
21At para. 41 of my decision, I ultimately concluded that the applicant failed in her onus to prove entitlement to a post-104 IRB because of the myriad issues that arose during the hearing: the lack of documentation produced in relation to her long term disability file that would provide an accurate snapshot of her entitlement to the benefit and quantum; the lack of up to date accounting information provided that would have clarified quantum; the absence of an OCF-13 (or declaration of post-accident income) that also would have clarified quantum; and the ongoing clarifications to the quantum and period of the IRB she was seeking at the hearing, all of which made it difficult as the trier of fact to ascertain her entitlement to the benefit.
22Further, in her request for reconsideration, the applicant has conceded that the quantum of her post-104 IRB is zero, stating: “while the quantum of the IRB to which the applicant is currently entitled is nil, that does not mean it will always be so”.
23I find that this statement is true. Despite the changes to the quantum and period of the IRB during the hearing, I agree with the applicant that it was an error to not address the substantive threshold determination regarding the applicant’s entitlement to IRB for the period in dispute, as that was the issue agreed to by the parties and it is part of the Tribunal’s jurisdiction under s. 280(1) of the Insurance Act.
24However, pursuant to Rule 18.2(a) and (b), I find that this is not a material breach of procedural fairness or an error that would have resulted in a different outcome had it not been made because as the adjudicator at first instance, I find that the applicant’s evidence did not support entitlement to the IRB for the following reasons.
25Substantively, it is the applicant’s burden to demonstrate entitlement. While I accept that the applicant may not be able to return to her pre-accident employment as a graphic designer, this does not make the IRB payable. I was not pointed to compelling evidence from the applicant that would support a complete inability for her to engage in any employment for which she is reasonably suited by education, training, or experience, which is the burden she was required to meet.
26The applicant testified that at the time of the accident she was employed as a production lead in desktop publishing for an arm’s length agency that reports to the Ministry of Education in Ontario. She testified that she attended art and design college and graduated from George Brown with a diploma in graphic design. She testified that she oversaw three fulltime graphic designers and up to seven freelance graphic designers and that she was responsible for keeping timelines to meet client demands.
27She further testified that after the accident she is forgetful and suffers from headaches which vary in intensity throughout the day, making it difficult to focus on physical or cognitive tasks. She testified that experiences “floaters” some months and wears Thera spec glasses that help with screens and artificial light. She further testified that she cannot lift her left shoulder without pain and that she is stiff and experiences shooting pain in her shoulder. She testified that occupational therapy provided helpful tools for managing challenges with screen brightness on monitors, however, changes in barometric pressure, such as rain, snow and fog intensify her headaches.
28The applicant relied on an OCF-3 (disability certificate) completed by Dr. Vaidyanath, physiatrist, dated January 19, 2022. The OCF-3 reads “Palmina cannot tolerate computer use due to post-concussive symptoms. She also has chronic headaches, chronic fatigue and chronic upper back and Left shoulder pain which would make it difficult to work.” The OCF-3 lists the most recent examination of the applicant being December 14, 2021.
29In her testimony, which mainly revolved around catastrophic impairment under criterion 4, Dr. Vaidyanath testified that the applicant’s symptomology of floaters in her eyes, chronic daily headaches and the associated cognitive symptoms such as nausea, light sensitivity, change in mood and fatigue associated with headache, plus the applicant’s musculoskeletal pain in her shoulder and neck, are barriers to returning to work, as the symptoms are interrelated. She opined that as computer use is an extensive part of the applicant’s job, an accommodation in this regard would be difficult. She further testified that the applicant’s chronic pain suggests a psychological implication.
30It is important to note that despite Dr. Vaidyanath’s opinion on the applicant’s return to work, Dr. Vaidyanath relied on the applicant’s self-report in relation to the applicant’s screen intolerances. Dr. Vaidyanath testified that she did not conduct any computer screen testing with the applicant and that she is not a vocational assessor, nor did she reach out to a vocational professional or review the respondent’s vocational report that is based on multidisciplinary medical assessments and reports, as she felt that the applicant was no longer suitable for gainful employment.
31Further, the applicant relied on her employer’s Long Term Income Protection Benefits (“LTD”) approval as a basis to support entitlement to a post-104 IRB. However, the LTD file had not been disclosed prior to the hearing, as noted in paragraph 41 of my decision. Her employer deemed her eligible for the benefit as of April 18, 2022, because she wholly and continuously is disabled by illness or accidental bodily injury that prevents her from performing the essential duties of any occupation for which she is reasonably fitted by education, training, or experience. The LTD lists the applicant’s amount of coverage under the waiver of premium to be a supplementary amount of $89,435.13. It is important to note that I was provided one page from the LTD file as evidence, which did not include the medical file or reports that informed the LTD decision.
32Notwithstanding the applicant’s entitlement to the LTD through her employer, I preferred the evidence related to the denial of the applicant’s Canada Pension Plan (“CPP”) application on November 27, 2023, and the respondent’s multidisciplinary approach to the assessment of entitlement.
33The denial of the applicant’s CPP application acknowledges that the CPP opines that she may not be able to return to her usual job, however, based on their medical evidence, CPP concluded that the applicant’s limitations would not prevent her from doing work more suitable to her limitations because she does not meet the threshold of a mental and/or physical condition(s) that prevent her from regularly working at any job.
34In their letter, CPP also stipulates that entitlement is based on two categories: Severe and Prolonged. CPP defines “Severe” as an individual that has a mental and/or physical disability that regularly stops you from doing any type of substantially gainful work, and “Prolonged” is defined as a disability that is long-term and of indefinite duration or is likely to result in death. CPP denied the application on two grounds. The first is the applicant has not made the minimum amount of valid CPP contributions and the second is because CPP did not feel that the applicant’s medical condition fulfilled their requirement of Severe or prolonged, as defined above.
35While I acknowledge that the CPP test for entitlement is different than the post-104 IRB test under the Schedule, I find the CPP determination is assistive to the IRB determination before me in the absence of a multidisciplinary report from the applicant because it determined that she is not prevented from regularly working at any job.
36I prefer the evidence that was tendered by the respondent because it took a multidisciplinary approach in its assessment and denial of the applicant’s post-104 IRB and because the medical assessors specifically addressed the applicant’s complete inability to engage in any employment for which she is reasonably suited by education, training or experience, which is the burden she was required to meet, and I found its reports to be more persuasive as a result.
37For example, the respondent relied on the neurological report of Dr. Mustafa, neurologist, dated March 12, 2022, the report of Dr. Salerno, psychologist, dated February 24, 2024, and the assessment report dated February 7, 2022 from Dr. Harrington, Orthopedic Surgeon, Each assessor opined that from their medical area of expertise, the applicant does not suffer from a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
38Additionally, the respondent retained E.B. Gibson, a certified rehabilitation vocational evaluator, who completed a vocational and transferable skills report and a labour market survey report, both dated March 25, 2022, which I found undermined the applicant’s substantive claim because it directly addressed the post-104 IRB test.
39For example, the report identified four occupations that do not require specialized vocational training, licensing, or other preparation for the applicant to readily compete for: digital marketing coordination, customer service clerk in retail establishments, project administration officer and by-law officer. In the absence of a vocational assessment from the applicant or compelling medical evidence to the contrary that she has a complete inability to perform these jobs, I agree with the respondent’s vocational assessment and find that the above noted jobs are suitable for the applicant, meaning she does not have a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training, or experience.
40Finally, as outlined in my decision at para. 42, the applicant does not meet the statutory requirements under s.7 of the Schedule for an IRB.
41For the reasons above, I find that I did not commit a material breach of procedural fairness and I did not make an error in fact or law that would have resulted in a different outcome had it not been made. As a result, pursuant to Rule 18.4(b)(i), I vary the decision to include the above reasons on the substantive IRB determination, but otherwise dismiss the request because my error did not change the outcome of the decision: the applicant is not entitled to the IRB for the period in dispute because they have not demonstrated substantive entitlement and because the quantum of the benefit is zero.
Respondent Seeks Costs from the Applicant
42I find that the respondent is not entitled to costs in the amount of $750.00 from the applicant.
43In their reply to submissions the respondent seeks costs in the amount of $750.00 to be paid by the applicant because of the time and resources allocated to respond to the applicant’s reconsideration requests.
44LAT Rule 19.1 states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs. Rule 19.2 also states that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released.
45Although I do agree with the respondent, that extra resources had to be allocated in responding to the applicants request for reconsideration which are ultimately denied, I do not find that extra resources allocated by the respondent are grounds for costs under Rule 19.1.
46The applicant’s conduct was not in breach of a direction or order issued by the tribunal, she did not interfere with the Tribunal’s ability to carry out a fair, efficient, effective process and there is no prejudice to the respondent.
47Therefore, in accordance with Rule 19.1 the respondent’s requests for costs from the applicant is denied.
48I find that the applicant is not liable to pay costs to the respondent in the amount of $750.00.
CONCLUSION & ORDER
49The applicant’s request for a reconsideration is dismissed.
50The respondent’s request for costs is denied.
John Mazzilli
Adjudicator
Tribunals Ontario – Licence Appeal Tribunal
Released: March 19, 2025