Court File and Parties

CITATION: Gore v. Rusk, 2022 ONSC 2893

DIVISIONAL COURT FILE NO.: 201/21

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Stewart and Mew JJ.

BETWEEN:

Gore Mutual Insurance Company

Appellant

– and –

Zachary Rusk

Respondent

Arthur Camporese, for the Appellant

Robert Besunder and M. Aftab Alam, for the Respondent

– and –

Licence Appeal Tribunal

Intervenor

Valerie Crystal and Brian Blumenthal, for the Intervenor

HEARD at Toronto via videoconference: January 25, 2022

REASONS FOR DECISION

Stewart J.

[1] This appeal has been brought by Gore Mutual Insurance Company (“Gore”) from the Reconsideration Decision dated February 4, 2021 of Adjudicator Rebecca Hines (the “Adjudicator”) of the Licence Appeal Tribunal (the “Tribunal”) dismissing the substantial portion of its request for reconsideration of a previous decision dated April 6, 2020 of Adjudicators Hines and Nidhi Punyarthi (the “Adjudicators”). The Adjudicators had found following a hearing that the Respondent Zachary Rusk (“Rusk”) was catastrophically impaired pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”) and was therefore entitled to receive non-earner benefits (“NEBs”) under the Schedule.

[2] Gore argues that the Reconsideration Decision should be set aside on the basis that the Adjudicator made errors of law in concluding that the previous decision of the Adjudicators, with some minor corrections, should stand. Gore also challenges the jurisdiction of Adjudicator Hines to preside upon this reconsideration.

[3] Further, Gore seeks an Order from this Court declaring that Rusk does not meet the definition of catastrophic impairment and is therefore not entitled to receive NEBs.

[4] Rusk submits that there is no basis upon which any interference with the Adjudicator’s Reconsideration Decision would be justified and asks that Gore’s appeal be dismissed.

Background

[5] On June 13, 2015 Rusk was involved in a car accident which left him with serious injuries to his head, neck, and right knee. These injuries also had a negative impact upon Rusk’s mental health.

[6] Following the accident, Rusk submitted an application for accident benefits. In July 2015 he began to receive NEBs from Gore, his insurer.

[7] As noted in Rusk’s medical records and assessments, his accident-related injuries and sequelae were observed as follows:

(a) Rusk was ejected from his vehicle when it flipped over on end;

(b) Rusk was unconscious when taken to hospital following the accident;

(c) Rusk sustained a displaced fracture of the left C5 lamina, disc protrusion at the C5-C6 level with widening of the interspinous space, suggesting a ligamentous injury;

(d) an orthopaedic examination of Rusk completed by Dr. Bruce Paitich on January 24, 2017 at Gore’s request had diagnosed a flexion distraction injury C5-6 necessitating C4-C6 instrumented fusion, myofascial strain injury of the lumbar spine, contusion of the right elbow and a right-sided medial meniscal tear;

(e) Rusk had not returned to work after the accident due to physical inabilities, and had not been able to perform any other type of work;

(f) Rusk’s test scores on assessment were suggestive of Post-Concussive Disorder;

(g) a psychiatric examination of Rusk completed by Dr. Killian Walsh on August 4, 2016 at Gore’s request had diagnosed an Adjustment Disorder with depressed and anxious mood.

[8] In order to assess Rusk’s claim for continued payment of NEBs, Gore organized various examinations of Rusk which were performed by an orthopaedic surgeon, an occupational therapist, a psychiatrist and a neurologist. These examinations resulted in a determination by Gore that Rusk’s injuries did not qualify him for continued receipt of NEBs. As a consequence, in July 2017 Gore stopped its payment of NEBs to Rusk.

[9] In March 2017 Rusk had applied for a catastrophic impairment determination (“CAT”) as defined in the Schedule. Under Criterion 7 of the Schedule, an applicant for a CAT determination must show that his or her physical or psychological impairments result in a whole person impairment (“WPI”) of 55% or higher, as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”). Under Criterion 8 of the Schedule, an applicant must prove on a balance of probabilities that the impairments have caused a marked impairment in at least one of four categories: (i) daily activities, (ii) social functioning, (iii) concentration, persistence and pace; or (iv) adaptation.

[10] Gore arranged for further assessments by Dr. Bruce Paitich, Dr. Mark Watson (a neurologist), and Dr. Ariel Zielinsky (a psychiatrist). Their opinions were either inconclusive or did not contribute to support a CAT determination. An executive summary of these assessments authored by Dr. Darrin Milne concluded that Rusk did not satisfy the criteria for a CAT designation. As a result, payment of any related benefits continued to be denied by Gore.

[11] In January 2018 Rusk formally challenged Gore’s refusal to accept a CAT determination of him and its continued denial of any obligation to pay NEBs. Rusk obtained expert assessments from Dr. Getahun (an orthopedic surgeon), Dr. Basile (a neurologist), Dr. Waisman (a psychiatrist) and Ms. Arora (an occupational therapist). On the basis of these assessments the Pearson Medical Assessment Centre concluded that Rusk did satisfy both Criterion 7 and Criterion 8 of the Schedule, had a WPI greater than 55%, and had suffered a marked impairment in the adaptation category. As such Rusk took the position that he qualified for a CAT determination.

The Hearing

[12] Rusk’s challenge proceeded to an in-person hearing before Adjudicators Hines and Punyarthi, which took place on several days over the fall and winter of 2018 and 2019. At the hearing, Rusk gave evidence as did his personal support worker and the various medical and other experts who had examined him. Gore also called several expert witnesses including Dr. Paitich, Dr. Zielinsky and Ms. Matrosov to give evidence at the hearing.

[13] On April 6, 2020 Adjudicators Hines and Punyarthi issued a decision concluding that the evidence satisfied them that Rusk qualified for a CAT designation under Criterion 7, and was therefore entitled to payment of NEBs and such other benefits as that designation might allow.

[14] Accordingly, the Adjudicators found that Rusk had sustained injuries from the accident resulting in a WPI of a magnitude that entitled him to a determination that he was catastrophically impaired. In so doing, they rejected some of the lower WPI percentage scores that had been assigned by the experts upon whom Gore relied at the hearing.

[15] In particular, the Adjudicators found that Rusk had a greater than 55% WPI under Criterion 7, based on the following assignments of WPI scores:

(a) 29% WPI for mental and behaviour impairment: Rusk’s impairments in the four categories were moderate, compatible with some, but not all useful functioning. This was based on evidence from Rusk found to be credible and supported by evidence from Drs. Zielinsky, Waisman, and others. As for the adaptation category specifically, the Adjudicators found that, while chronic pain and depression undermined Rusk’s ability to cope with stressors, his level of impairment was not marked—he remained able to engage in some lighter and different activities with the help of family and friends. The Adjudicators found that this behavioural impairment across the four categories was substantial and all-encompassing and therefore accepted a WPI score of 29%;

(b) 26% WPI for cervical spine injury and the right knee meniscal tear: The parties’ experts agreed that Rusk’s cervical spine injury resulted in a 25% WPI. The Adjudicators accepted a further 1% WPI for his right-knee meniscal tear;

(c) 10% WPI for occipital neuralgia: Rusk’s occipital neuralgia resulted in a WPI 5% for each of the greater occipital nerves on the right and left side, for a combined 10% WPI. The Adjudicators found that Rusk’s testimony about ongoing headaches was corroborated by evidence from his family doctor, occupational therapist, and personal support worker. The Adjudicators also accepted Dr. Basile’s evidence, which was unopposed, that Rusk experienced pain in both greater occipital nerves. The Adjudicators found that this evidence and Rusk’s symptoms were consistent with the injuries he sustained in the accident;

(d) 3% WPI for intake of medications: The Adjudicators assigned 3% WPI for the medications Rusk took to combat his chronic pain, depression, and sleep disorder. The Adjudicators found that these numerous strong medications potentially masked the impact of Rusk’s various impairments; and

(e) 2% WPI for sleep disorder: The Adjudicators agreed with Dr. Basile’s assignment, finding it to be consistent with the evidence and their finding that Rusk’s sleep disorder had a significant negative impact on his daytime functioning but not to the point of requiring that he be supervised.

[16] The Adjudicators also found, based on their assessment of the evidence, that Rusk was prevented from engaging or engaging meaningfully in substantially all of the activities he had engaged in prior to the accident. Specifically, they found that:

(a) he was no longer able to work in construction or physically-demanding jobs, whereas prior to the accident he had worked in heavy construction in the oil sands;

(b) he was no longer able to participate in thrill-seeking recreational activities like he had before the accident;

(c) he was no longer able to drive for more than a half hour, which the Tribunal found to substantially restrict his opportunities and experiences;

(d) his social life had been significantly limited as a result of the accident;

(e) his impairments had led to the demise of his previous romantic relationship of 4.5 years and prevented him from maintaining any intimate relationships since;

(f) he had become less resilient in the face of change and stressors.

[17] The Adjudicators found that the evidence demonstrated that Rusk’s injuries from the accident had caused him to be completely unable to live a normal life. Accordingly, the Adjudicators concluded that Rusk was qualified for and was entitled to receive NEBs from Gore.

The Reconsideration

[18] Under Rule 18.2 of the Rules of the Tribunal, a party may request reconsideration of a decision of the Adjudicators on the following limited grounds:

(a) the Adjudicators acted outside their jurisdiction or violated the rules of procedural fairness;

(b) the Adjudicators made an error of law or fact such that they would likely have reached a different result had the error not been made;

(c) the Adjudicators 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 Adjudicators when rendering their decision that could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

[19] Gore sought a reconsideration of the decision of Adjudicators Hines and Punyarthi as it was entitled to do pursuant to Rule 18.2. Gore argued that they had made significant errors of fact and/or law, had misapprehended the evidence, and had failed to provide sufficient reasons for their findings.

[20] Gore’s request for reconsideration was dealt with by Adjudicator Hines as a panel of one. At the time of reconsideration, Adjudicator Punyarthi was no longer with the Licence Appeal Tribunal.

[21] Following this reconsideration, by her Reconsideration Decision dated February 4, 2021 Adjudicator Hines dismissed most of Gore’s arguments and did not alter the main conclusions of the Adjudicators made at the original hearing.

[22] On her reconsideration of the evidence and submissions with respect to the CAT finding, Adjudicator Hines either confirmed or slightly adjusted the main determinations of WPI made by the Adjudicators, as follows:

(a) 29% WPI for mental and behavioural disorder: no error in law had been made by the Adjudicators in preferring the evidence of Dr. Waisman on diagnosis and impact of Rusk’s injuries. Although the Adjudicators had somewhat incorrectly described Rusk’s pre-accident work history, correction of this error would not have resulted in a different decision or different assignment of WPI under this heading and therefore was not altered on reconsideration;

(b) 26% WPI for cervical spine injury and right knee meniscal tear: this approach to determination had been agreed to by the parties’ experts and was not altered on reconsideration;

(c) 10% for occipital neuralgia: although the Adjudicators had not accurately described Dr. Basile’s evidence, his 10% WPI assignment had a solid evidentiary foundation and the Adjudicators had not ignored the evidence of Dr. Paitich in preferring and accepting Dr. Basile’s opinion in this regard. This score was not altered on reconsideration;

(d) WPI for medications use: on reconsideration it was decided that the Adjudicators had erred in their assignment of 3% under this heading and it should be deducted from the overall score;

(e) 2% WPI for sleep disorder: the Adjudicators had not applied the incorrect legal test or erred in their assignment of the percentage score and this was not altered on reconsideration.

[23] As a result, following her reconsideration the Adjudicator found that Rusk’s WPI, when rounded up as required, qualified him for a CAT designation under Criterion 7 of the Schedule.

[24] As for the determination that Rusk was entitled to NEBs, Adjudicator Hines concluded that the Adjudicators had not erred in finding that the accident had resulted in Rusk being unable to live a normal life. In particular Adjudicator Hines did not accept Gore’s submission that the Adjudicators had applied the wrong legal test or a test that was inconsistent with the CAT findings.

[25] Further, Adjudicator Hines held that the reasons for the decision of the Adjudicators were adequate. Their CAT analysis was based on the evidence tendered at the hearing and offered a detailed overview of the parties’ medical experts and their evidence. Their reasons were sufficient for the parties to understand why they found Rusk to be catastrophically impaired and why it was held that Rusk was entitled to NEBs.

[26] Gore now appeals from this Reconsideration Decision and from the Adjudicators’ original decision.

Jurisdiction

[27] The Divisional Court has jurisdiction to hear this appeal pursuant to s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “Act”).

[28] Pursuant to s. 11(6) of the Act, any such appeal may be made on a question of law only.

Standard of Review

[29] As this is a statutory appeal, appellate standards of review apply. Since s. 11(6) restricts the right to appeal to questions of law, a correctness standard is to be applied (see: Housen v. Nikolaisen, 2002 SCC 33).

Did the Adjudicator err in law in failing to reverse the finding that the Rusk was catastrophically impaired under the Schedule, and thus entitled to non-earner benefits?

[30] In its decision in Yatar v. TD Insurance Meloche Mennox, 2021 ONSC 2507 (Div. Ct.) this Court described an error of law in this context, as follows:

On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).

[31] In our view, no question of law has ben demonstrated by Gore on this appeal arising from its criticism of the reasons and conclusions of the Adjudicator upon reconsideration of this dispute or the reasons and conclusions of the Adjudicators who heard and assessed the evidence at first instance. We agree with counsel for Rusk that Gore has advanced arguments that primarily consist of a recitation of findings of fact made by the Adjudicators at the original hearing, affirmed in large part by Adjudicator Hines in her Reconsideration Decision, together with a bald statement that significant legal errors were made. However, no legal error has been identified nor has any clearly extricable legal principle has been shown to have been violated.

[32] Gore characterizes the findings of the Adjudicator as being legal conclusions, and not factual ones based on medical evidence, in an attempt to raise an appealable issue of law under the governing statute.

[33] Although the test for catastrophic impairment under the Schedule is a legal test involving a consideration of medical opinions, the question of whether that statutory test is met on the facts of this case remains a question of mixed fact and law, albeit one that is subject to any extricable question of law that may be identified. Similarly, the specific WPI rating to be assigned to each aspect of Rusk’s impairment is either one of fact, or of mixed fact and law.

[34] For instance, Gore suggests that the inclusion of a 2% WPI for sleep disorder was an error in law because the Adjudicators failed to make a finding that there was a neurological cause for the sleep disorder as required under the Guides. In doing so, Gore misstates the conclusions of the Adjudicators in this regard. In their decision, the Adjudicators found that, on the evidence before it which they were entitled to accept, a separate WPI for sleep disorder is warranted in Rusk’s case, and referred specifically to the neurologist, Dr. Basile’s opinion on the issue.

[35] The Adjudicators had ample evidence on which to base their rating for sleep disorder, including the evidence of Dr. Basile and of Rusk. Gore had failed to put forward any expert evidence from a neurologist at the hearing to contradict Dr. Basile’s opinion.

[36] The Adjudicators therefore had evidence to support the neurological basis for their findings, including an express reference to the fact that a separate WPI for sleep disorder was warranted.

[37] Gore’s argument that the finding that a 10% WPI for occipital neuralgia was a legal error likewise runs counter to the evidence of Dr. Basile, accepted by the Adjudicators. Further, the assignment of 29% for mental and behavioural disorder was well supported by the psychiatric experts who gave evidence at the hearing and displays no legal error.

[38] Similarly, Gore’s submissions that Rusk’s WPI score was inflated due to alleged “double-counting” by the Adjudicators is also a matter that engages questions of mixed fact and law from which no appeal may lie. The Adjudicators considered the evidence put before them at the hearing and made findings of fact. Whether combining the ratings would entail double-counting or overlap would be a question of fact (see: Security National Insurance Co. v. Allen, 2017 ONSC 6779; 16-000013 v. Peel Mutual Insurance Company, 2017 33649). The Adjudicator on reconsideration was aware of the need to avoid double-counting, but found as a fact that no double-counting had occurred.

[39] Whether Rusk qualifies for NEBs is similarly a question of mixed fact and law, subject to any extricable error in law. No such extricable error has been demonstrated. The Adjudicators found on an ample evidentiary record that Rusk as a result of the injuries he sustained in the accident, could no longer lead a normal life. The Adjudicator, following reconsideration, saw no basis upon which interference with that conclusion should occur.

[40] We see no error in the Adjudicator’s finding that the reasons of the Adjudicators were adequate. If this finding can be considered to be a question of law, we consider it to be correct. The reasons for decision at both levels are sufficiently cogent and thorough and provide the parties with detailed rationales and evidentiary bases for all conclusions drawn.

[41] We therefore would not give effect to the grounds of appeal challenging the substance of the Reconsideration Decision or the Adjudicators’ original decision as have been advanced by Gore.

Composition of the Reconsideration Tribunal

[42] Gore’s Notice of Appeal takes issue with the participation of Adjudicator Hines on the reconsideration, asserting that she ought not to have heard the reconsideration request as she was one member of the two member panel that made the original joint decision, that she acted outside the jurisdiction granted pursuant to section 18.2 of the Rules of the Tribunal, and that she erred in substituting her own interpretation of the evidence for that of the two member panel that made the original decision.

[43] No issue or objection at any time was raised by Gore to the composition of the panel for the purposes of reconsideration prior to this appeal.

[44] We note as well that most of these arguments were not pressed in either Gore’s Factum or in its arguments on the hearing of this appeal.

[45] As a practical consideration, Adjudicator Punyarthi was no longer a sitting member of the Tribunal when reconsideration was requested by Gore. Adjudicator Hines noted that the original decision was issued shortly after the Order-in-Council appointing Adjudicator Punyarthi a member of the Tribunal had expired.

[46] The statutory framework that applied at the relevant time is set out by the Intervenor Tribunal in its Factum. That framework provides the basis for our determination that Adjudicator Hines was entitled to hear the Reconsideration Request as a single Adjudicator. Rule 18.1 of the Rules provides that “the Tribunal may, on its own initiative or upon a request of a party…reconsider any decision of the Tribunal that finally disposes of an appeal.” The Rules further provide the legislative and procedural basis for our determination of the request for reconsideration shall be heard by written submissions and may be heard by the same Member whose decision is the subject of the request.

[47] The language of Rule 18.1 of the Rules is permissive and allows that the reconsideration may be heard by the same member.

[48] The Tribunal’s decision to assign one member of the original panel of Adjudicators to the reconsideration after the other member’s Order-In-Council appointment had expired was within its power to control its own process. As explained in the reconsideration decision:

This reconsideration request follows a Tribunal decision dated April 6, 2020 in which Adjudicator Punyarthi and I determined that the applicant sustained a catastrophic (“CAT”) impairment pursuant to the Schedule. We also found that the applicant was entitled to a Non-Earner Benefit (“NEB”). We issued that decision shortly after the Order-in-Council appointing Adjudicator Punyarthi a Tribunal Member expired, something permitted by s. 4.3 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (the ‘SPPA”).

[49] While s. 4.3 of the SPPA allowed Adjudicator Punyarthi to participate in the original decision after her appointment had expired, there is no requirement that a reconsideration be decided by the same panel who made the original decision. Notwithstanding that a member who made the initial decision may decide the request for reconsideration, it is equally permissible for a different member to make the reconsideration decision. Section 21.2 of the SPPA permits a “tribunal” to review its own decision if it has rules to that effect. The Tribunal retains the discretion to assign a request for reconsideration to a different member or to one member of a two-member panel.

[50] The member whose decision is being reconsidered is often best placed to efficiently evaluate the errors alleged, given their familiarity with the evidence and submissions in the proceeding. As a reconsideration is not an opportunity for a party to reargue their case, the original decision maker can focus on the narrow issues raised in the request. The original decision maker may be in the best position to know whether a reconsideration request actually raises any new issues or submissions (see: Taucar v Human Rights Tribunal of Ontario, 2017 ONSC 2604).

[51] Further, the governing Rules allow any Adjudicator to hear a reconsideration request, including an Adjudicator other than the one or ones who heard the original matter. That necessarily must include allowing a single Adjudicator of a two-member panel to hear a reconsideration request.

[52] Accordingly, it was within the jurisdiction of Adjudicator Hines to hear the reconsideration request and to consider submissions as to any alleged errors or other grounds under Rule 18.2 relating to the decision of the Adjudicators who heard the matter.

[53] We therefore see no lack of jurisdiction or error of law arising from the involvement of Adjudicator Hines in the Reconsideration Decision in the case before us.

Conclusion

[54] For these reasons, the appeal is dismissed.

Costs

[55] The parties have agreed on the amount of costs to be paid to the successful party. In accordance with their agreement, costs in the all-inclusive amount of $5000.00 shall be paid by Gore to Rusk. The Intervenor does not seek costs, nor does any party seek costs against it.

Stewart J.

I agree _______________________________

Sachs J.

I agree _______________________________

Mew J.

Released: May 17, 2022

CITATION: Gore v. Rusk, 2022 ONSC 2893

DIVISIONAL COURT FILE NO.: 201/21

DATE: 20220517

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Stewart and Mew JJ.

BETWEEN:

Gore Mutual Insurance Company

Appellant

– and –

Zachary Rusk

Respondent

– and –

Licence Appeal Tribunal

Intervenor

REASONS FOR DECISION

Released: May 17, 2022