CITATION: Papadakis v. Wawanesa Mutual Ins. Co., 2022 ONSC 6928
COURT FILE NO.: DC File 663/21
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Trimble and Nishikawa JJ.
B E T W E E N:
PROKOPIOS PAPADAKIS
J.C. Rioux, D. Sherman, and N. Maltz for the Appellant
Appellant
- and -
WAWANESA MUTAL INSURANCE CO.
D. March and P. Omeziri for the Respondent
Respondent
HEARD: Videoconference at Toronto, 30 June 2022
REASONS FOR JUDGMENT
Trimble J.
NATURE OF PROCEEDING
[1] The Appellant, Prokopios Papadakis, appeals from the Reconsideration Decision of Vice-Chair D. Gregory Flude (the “Vice-Chair”) of the Licence Appeal Tribunal (the “LAT”) dated July 12, 2021, denying reconsideration of the Vice-Chair’s decision at first instance dated November 3, 2020 (the “Decision”), in which the Vice-Chair dismissed the Appellant’s request for a catastrophic impairment designation under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“SABS”), income replacement benefits (“IRBs”), and physiotherapy. The Appellant argued that a new hearing should be ordered on the basis that the Vice-Chair made various errors of law.
[2] While the Notice of Appeal impugns only the Reconsideration Decision, the substance of the appeal focuses on the Decision at first instance and the conduct of the original hearing.
BACKGROUND:
[3] The Appellant was injured in an automobile accident on December 3, 2014. He had a complex medical history.
[4] In 2010, he suffered a major workplace accident that required surgery to repair a badly torn supraspinatus tendon in his right rotator cuff which left him with the inability to do anything but light carpentry. This injury overlaid degenerative and arthritic changes. He resumed working as a self-employed contractor in 2012.
[5] The Appellant continued to complain of right shoulder pain as recently as 5 months before the automobile accident. In August of 2014, he said that he re-injured his right shoulder playing soccer.
[6] The Appellant did not minimize the injury he sustained in 2010 but claimed that the 2014 automobile accident aggravated that injury and caused a left shoulder injury, with the combined effect that he could not work and required treatment.
[7] In September 2014, the Appellant suffered a heart attack. He stopped work after the heart attack and there is a dispute over whether he was cleared to return to work before the 2014 automobile accident.
[8] Following the December 2014 automobile accident, the Appellant suffered a general deterioration in his health, including the onset of depression and increasing issues with his left shoulder, although medical reports indicated that the right shoulder was the major problem.
[9] The medical brief before the LAT was extensive and the Vice-Chair commented that there was conflict between various physicians as to whether any or all of the Appellant’s injuries were accident related, whether he suffered a substantial inability to work, whether he was catastrophically injured as defined by the SABS regulation, and whether he required further treatment.
[10] The Appellant applied to the Tribunal for a determination that he was catastrophically impaired by accident-related injuries and was entitled to IRB’s, housekeeping, and home maintenance benefits.
DECISION APPEALED FROM:
1) The Decision at First Instance:
[11] In a decision dated December 3, 2020, the Vice-Chair dismissed the application holding:
a) The Appellant had failed to establish that he sustained a catastrophic impairment as a result of the accident.
b) The source of the Appellant’s current physical condition was a result of natural degeneration and earlier trauma, not the accident.
c) The Appellant was not entitled to a housekeeping and home maintenance benefit.
d) The Appellant was not entitled to an IRB because he was not self-employed at the time of the accident.
e) The evidence did not establish that the treatment plans were reasonable and necessary.
a) Catastrophic impairment
[12] Section 3(2)(e) of the SABs – Effective September 1, 2010, defines a person as catastrophically impaired if the claimant suffered defined conditions (which do not apply here) and the cumulative effect of their individual impairments resulted in a whole person impairment (“WPI”) rating of 55% or higher.
[13] The Appellant’s assessors had rated his current WPI at 45% but concluded that his WPI would be 55% when considering the possibility that the Appellant would undergo shoulder surgery in the future. The Vice-Chair held that no allowance should be made for future surgery as the wording of the SABs or the Guides do not contemplate a contingency for future deterioration. Since it was not disputed that the Appellant’s current condition did not meet the 55% WPI threshold without allowing for future surgery, he had failed to establish a catastrophic impairment.
[14] The Vice-Chair also disallowed a 3% WPI rating for medication use, as the medication was not being used for a condition related to the accident. Dr. Sangha, one of the Appellant’s assessors, had stated that the medication was being used to treat heart problems, including the myocardial infarction the Appellant had suffered several months before the accident.
b) Income replacement benefits
[15] The Vice-Chair held the Appellant was not entitled to an IRB because he was not self-employed at the time of the accident. Section 5(1)2.i. of the SABS provided that the insurer should pay an insured person an IRB if the insured person “was a self-employed person at the time of the accident”. The Vice-Chair did not accept the Appellant’s assertion that his cardiologist had cleared him to return to work after his heart attack just a day or two before the accident, finding instead that the Appellant was not cleared to return to work until January 12, 2015.
c) Treatment plans
[16] The Vice-Chair concluded that the $11,346 claimed by the Appellant for physiotherapy services was not reasonable and necessary. The evidence suggested that the physiotherapy treatment provided only transient relief.
2) Reconsideration Decision
[17] On July 12, 2021, the Vice-Chair dismissed the Appellant’s request for reconsideration in which the Appellant argued that the Vice-Chair failed to consider relevant case law and failed to apply the tests in the SABS correctly and/or at all.
a) Catastrophic impairment
[18] The Vice-Chair rejected the Appellant’s argument that he erred by disallowing the 3% WPI for medication use, but he noted that this was not significant as the WPI still did not reach 55%. Further, Dr. Sangha himself had stated the drugs the Appellant was taking were related to the previous myocardial infarction.
[19] The Vice-Chair rejected the Appellant’s argument that he erred by disallowing an 18% WPI for future surgery. The Vice Chair, following Bains and RBC General Insurance Company (2009), (FSCO A07-001066), held that adjudicators must assess the applicant they have before them and not some future version of that applicant following surgery. The Vice-Chair noted that there was a substantial body of case law from the LAT adopting the same conclusion, and that future surgery or deterioration is not to be considered.
[20] The Vice-Chair said that he saw no reason to disturb his findings of fact that indicated that the Appellant had not discharged his onus to prove his injuries at the LAT.
b) IRBs
[21] The Vice-Chair rejected the argument that he made a factual error in finding the Appellant was not self-employed at the time of the accident, and therefore not entitled to an IRB. He also rejected the Appellant’s argument that he erred in law in misinterpreting s. 5 of the SABS. The Appellant argued that under s. 5, he must be “either employed or self-employed for at least 26 out of 52 weeks prior to the collision” and that, accordingly, he was eligible for IRB. The Vice-Chair held that s. 5(1) does not extend the 26 out of 52 weeks qualification to self-employed persons. Instead, the Appellant had to have been self-employed at the time of the accident, and the Vice-Chair found that he was not.
c) Treatment plans
[22] The Vice-Chair held that the Appellant had not identified any error with respect to his conclusion that the treatment plans were not reasonable and necessary.
ISSUES:
[23] This appeal raises the following issues:
Does this appeal raise any questions of law?
Did the Vice-Chair apply the wrong legal test for causation?
Did the Vice-Chair err in law by ignoring evidence?
Did the Vice-Chair err in law by refusing to allow the Appellant’s expert witnesses to refer to their notes and reports during the hearing?
Should the Appellant be permitted to raise new issues on appeal?
THE COURT’S JURISDICTION:
[24] The Divisional Court has jurisdiction to hear appeals under the Insurance Act only on questions of law (see: s.11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sch. G).
STANDARD OF REVIEW:
[25] The correctness standard applies (see: Canada (Minister of Citizenship & Immigration) v. Vavilov, 2019 SCC 65, at para. 37; Housen v Nikolaisen, 2002 SCC 33, [2002] SCR 235, at para. 8; and DeGroot v. Licence Appeal Tribunal, 2022 ONSC 6160 (Div. Ct), at para 18).
RESULT:
[26] The appeal is dismissed.
[27] As explained below, there is one legal issue, which I decide in the Respondent’s favour. All other errors raised in the Appeal are either issues of fact or mixed fact and law, which cannot be the subject of an appeal.
[28] Costs are payable by the Appellant to the Respondent, in the agreed sum of $10,000.00, all inclusive.
POSITIONS OF THE PARTIES:
Issue #1: Does this appeal raise any questions of law?
Issue #2: Did the Vice-Chair apply the wrong legal test for causation?
[29] These two issues are related and can be addressed together. The main issue on this appeal is whether the Vice-Chair ought to have included in the WPI rating a contingency for the effects of future surgery. An argument advanced, although not strongly, was that the Vice-Chair excluded from his WPI rating the effects of any pre-existing impairment.
Vice-Chair’s Decision
[30] The Vice-Chair held that the Appellant had established a WPI rating of 45% based on a combined WPI for physical and mental health impairments. Therefore, the Appellant did not establish that he had a WPI rating of 55% or more, nor had he proved that he met the requirements for a CAT designation. The Vice-Chair held that had the future surgery contingency been added, it would have increased the WPI to 55%.[^1]
[31] In reaching this conclusion (see para. 46 and onward), the Vice-Chair held that the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition (which s. 2(2.1) of the SABs Schedule requires to be used in assessing the WPI of a claimant) were not designed to consider the impact of future treatment or rehabilitation. Further, the wording of the SABs Schedule itself also does not contemplate a contingency in the WPI rating for future deterioration or improvement. Both speak only in the terms of the condition of the applicant at the time of the assessment. Therefore, the Appellant had not established causation, namely, that his WPI rating as a result of the automobile accident was sufficient for the catastrophic designation.
[32] The Appellant sought a reconsideration from the Vice-Chair. One of the bases for the Appellant’s request for reconsideration was that the Vice-Chair failed to consider “binding” decisions from the Financial Services Commission (“FSCO”) including the Bains decision at the LAT.
[33] In his Reconsideration decision, the Vice-Chair acknowledged that prior LAT decisions and FSCO decisions are only persuasive, not binding, and that each case before the Tribunal is unique.
[34] The Vice-Chair addressed Bains v. RBC General Insurance Company, 2010 ONFSCDRS No. 65 (FSCO A07-001066) and the FSCO appellate decision of Bains v. RBC General Insurance Company, ONFSCDRS 74(FSCO P09-00005) beginning at paragraph 21 of the Reconsideration decision.
[35] The Appellant submitted that Bains and related cases stand for the proposition that future surgery and rehabilitation, and their effects should be considered when assigning a WPI rating.
[36] The Vice-Chair held that the Appellant had misconstrued Bains, which dealt with an applicant who met the test for catastrophic impairment. The insurer argued that future surgery was likely to ameliorate Ms. Bain’s condition, such that after the surgery, she would no longer have a sufficient WPI rating for the catastrophic designation. The Tribunal rejected the insurer’s position in Bains.
[37] The Vice-Chair in this case adopted the same approach as in Bains, which he said stands for the proposition that the adjudicator must assess the applicant as the applicant is at the time of the assessment and not some future version of that applicant following surgery.
[38] Finally, the Vice- Chair noted that other case law that the Appellant referred to in the review process, or cases from FSCO, do not bind the LAT.
Appellant’s Position
[39] The Appellant argued that the Vice-Chair applied the wrong legal test in concluding that the accident did not cause the Appellant to become catastrophically impaired. The test for causation is the “but for” test. The Appellant had a 45% WPI before the accident and because of the accident had a 55% WPI, with the increase caused by the accident, including a contingency for the outcome of future surgery. In finding causation was not established, the Vice-Chair applied the wrong legal test.
Respondent’s Position
[40] The Respondent argued that this appeal does not raise any questions of law and, hence, this court has no jurisdiction.
[41] The Vice-Chair’s ruling on the WPI is not a question of law but one of causation, a question of mixed law and fact. The Respondent argued that these findings were fact-driven and are therefore not subject to appeal. Questions concerning the weight to be given to evidence are also not subject to appeal.
[42] Based on the facts, the Respondent argued, the Vice-Chair found that the Appellant failed to establish causation between any of his accident-related injuries and a WPI over 55%. The Vice-Chair concluded that the Appellant’s condition at the time of the hearing was the result of his pre-existing injuries and their deterioration over time.
Analysis
[43] Whether the Vice-Chair, in determining the Appellant’s WPI rating, failed to include a contingency for the effects of future events on the claimant, is a question of statutory or regulatory interpretation, and is reviewable by this court on the correctness standard.
[44] I agree with the Vice-Chair’s analysis of the law. This aspect of the appeal must be dismissed.
[45] Further, the weight of authority of the LAT’s decisions supports the proposition that the claimant is assessed for a WPI rating based on his presentation at the hearing, without any contingency for future changes in his or her condition (see: Taylor v. Pembridge (FSCO A12-004886) at pg. 29-30; N.C. v TD Insurance Meloche Monnex, 2020 27411 (ON LAT) at para 18 – 19; A.M. v Wawanesa Mutual, 2020 45490 (ON LAT) at para. 49; Haddad and Economical (FSCO A10-003390) at pg. 25).
[46] Further, Bains has not been followed in other LAT decisions (see, for example: 18-004112 v Belairdirect, 2019 22219 (ON LAT) at para. 17-18).
[47] I turn now to the argument that the Vice-Chair did not include in his WPI assessment the Appellant’s pre-existing conditions.
[48] The Appellant argues that it is clear from paras. 35, 37, 45, 50, and 51, that the Vice-Chair did not calculate the WPI based upon the impairments arising from pre-existing conditions in addition to those arising from the automobile accident.
[49] This aspect of the appeal must be dismissed.
[50] The Vice-Chair was clearly aware of the Appellant’s pre-existing conditions and the impairments they caused. He also properly addressed the effect of pre-existing impairments, for example at para. 44 et. seq. of his decision where he indicated that the Guides require deducting from the WPI rating the estimated impairment ratings for pre-existing injuries or conditions in order to obtain the net WPI arising from the accident-related impairments.
[51] The Appellant relies on Desbiens v. Mordini, 2004 CarswellOnt 4804 (S.C.J.) as support for his proposition that the WPI must be the cumulative total of impairment ratings for pre-existing and accident-related injuries.
[52] The Appellant misinterprets Desbiens.
[53] In Desbiens, the plaintiff was a paraplegic from a workplace accident. After many years as a paraplegic, he was involved in an automobile accident. Under s. 267.5(3) of the Insurance Act, as it then was, the tortfeasor was insulated from liability for medical expenses the plaintiff sustained for bodily injury arising directly or indirectly from the use or operation of an automobile unless, the injured person sustained a “catastrophic impairment” because of injuries arising, directly or indirectly, from the use or operation of an automobile.
[54] The material provisions of the Statutory Accident Benefits Schedule defined a catastrophic impairment as a number of specific impairments, or, “… any impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55% or more impairment of the whole person;…”
[55] In Desbiens, the court did not hold that the WPI of the person is the combination of any pre-existing impairments plus any automobile accident-related impairments. The court found that the impairments arising out of the injuries sustained in the accident resulted in the 40% WPI in accordance with the Guides. The Guides, however, provided that a WPI rating may be adjusted when the automobile related impairments are considered in the context of pre-existing impairments, such as paraplegia. In those cases, the Guides anticipated that an assessor can exercise discretion where the WPI does not accurately reflect the real functional impairment sustained by the person as a result of the accident.
[56] The issue in Desbiens was how to assess the applicant’s automobile related impairments in a way that fairly and adequately reflected the impact on his functioning in the context of his paraplegia.
[57] Mr. Desbiens sustained an accident-related impairment to his arm which meant, for an able-bodied person, the inability of using the arm for lifting, pushing, or carrying objects. For Mr. Desbiens, that impairment limited his mobility because it interfered with his ability to operate a wheelchair, and to transfer in and out of the wheelchair. Therefore, the court held that the Guides’ WPI rating did not adequately reflect the functional impact of the impairment on a paraplegic such as Mr. Desbiens.
[58] Desbiens is a unique case. There are no similarities between it and the Appellant’s case
Issue #3: Did the Vice-Chair err in law by ignoring evidence?
Appellant’s Position
[59] The Appellant argued that the Vice-Chair erred by ignoring entirely the evidence of the Appellant’s witness, Dr. Hal Scher, who gave two days of evidence about the Appellant’s accident-related psychological issues. This evidence was an important part of the Appellant’s case, but the Vice-Chair said nothing about it. It is an error of law to ignore items of evidence that the law requires the adjudicator to consider.
Respondent’s Position
[60] The Respondent argued that the Vice-Chair was not required to recite all the evidence. Dr. Scher did not opine on catastrophic impairment or IRB’s – his opinion related instead to the Appellant’s tort claim. The catastrophic impairment issue was decided based on the catastrophic reports, and the IRB claim was denied on the basis that the Appellant was not self-employed at the time of the accident. There was no reason for the Vice-Chair to set out Dr. Scher’s evidence.
Analysis
[61] This aspect of the appeal must be dismissed for several reasons
a. It was not raised in oral argument as one of the grounds of appeal still being advanced.
b. Dr. Scher is a psychologist. Since the Vice-Chair included a psychological impairment rating in his calculation of the WPI, it was unnecessary to review Dr. Scher’s opinion in his reasons.
c. Further, Dr. Scher did not provide an opinion as to catastrophic impairment, the WPI of the Appellant, or on IRB entitlement or eligibility. The Appellant’s IRB claim was denied on the basis that he was not self-employed at the time of the accident, a finding which the Appellant does not challenge on this appeal. Given this fact, Dr. Scher’s opinion was not important to the Vice-Chair’s analysis.
d. The Vice-Chair was not obliged to refer to every piece of evidence or every witness that appeared before him. The Vice-Chair need only show that his findings were supported by evidence (see: State Farm Mutual Automobile Insurance Co. v. Movahedi, [2001] O.J. No. 5099, at para. 3).
e. There is no indication that the Vice-Chair “ignored” the evidence of Dr. Scher.
Issue #4: Did the Vice-Chair err in law by refusing to allow the Appellant’s expert witnesses to refer to their notes and reports during the hearing?
Appellant’s Position
[62] The Appellant alleged that the Vice-Chair did not allow Dr. Scher, Dr. Richards, Dr. Becker, and Dr. Sangha, to refer to or refresh their memory with their reports or notes during the original hearing. The Appellant submitted that this is an error of law.
Respondent’s Position
[63] The Respondent argued that the Vice-Chair, in fact, allowed witnesses to review reports and their own notes when appropriate. What was disallowed was allowing witnesses to read from their notes or reports while testifying when there was no need to refresh a witness’ memory.
Analysis
[64] This ground of appeal must be dismissed.
[65] It was not argued before the court, nor advanced as one of the three legal issues that the Appellant was pursuing.
[66] Further, in the factum the Appellant merely said, “In the present case, the errors with respect to the treatment of evidence occur with Dr. Scher, Dr. Robin Richards, orthopedic surgeon, Dr. Harold Becker, and Dr. Harpreet Sangha, physician.”
[67] At no point did the Appellant state what error was specifically committed with respect to each expert. Instead, in his factum, the Appellant referred the court to specific transcript pages which were included in the 1100 page PDF version of the appeal book and compendium, which was not bookmarked or hyperlinked.
[68] From my review of the transcript, it appears that what the Vice-Chair prevented the expert witnesses from doing was the giving of evidence directly out of their reports and notes. The reports, themselves, were not introduced pursuant to the Evidence Act as the expert’s evidence in chief. Therefore, the reports could only be used to refresh the witness’ memory, and not to prompt his testimony, and when they are used for the former purpose, the proper foundation must be laid (see: R. Wilkes, 2005 MBCA 99 at para. 43-44; Stone v. Ellerman, 2009 BCCA 294 at para. 54,56, and 58).
Issue #5: Should the Appellant be permitted to raise new issues on appeal?
Respondent’s Position
[69] The Respondent argued that the arguments the Appellant advanced a) that the Vice-Chair applied the wrong causation test, b) failed to review certain evidence in the Decision, and c) refused to allow witnesses to refresh their memory, were being raised for the first time on this appeal. The Appellant should not be permitted to raise these issues in this appeal, having not done so on the Reconsideration. By raising these issues on Reconsideration, the Appellant is effectively subverting the Tribunal’s Reconsideration process.
[70] In its supplementary factum, the Respondent further submitted that any issue not raised in the Appellant’s Factum or Notice of Appeal is not properly before this court.
Analysis
[71] The Notice of Appeal in this matter is poorly drafted. The Appellant merely asks that the decision and Reconsideration decision be set aside and a new hearing ordered. The grounds for appeal are mixed with statements of fact, argument, and other irrelevancies. It cannot be said, however, that the issues argued before this court, were not raised in the notice of appeal, albeit in a general way. Accordingly, I have addressed them all, as above.
COSTS:
[72] The appeal is dismissed. The Appellant shall pay costs to the Respondent fixed by agreement at $10,000.
Trimble, J.
I agree _______________________________
Swinton, J.
I agree _______________________________
Nishikawa, J.
Released: December 8, 2022
CITATION: Papadakis v. Wawanesa Mutual Ins. Co., 2022 ONSC 6928
COURT FILE NO.: DC File 663/21
DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Trimble and Nishikawa JJ.
BETWEEN:
PROKOPIOS PAPADAKIS
Appellant
- and -
WAWANESA MUTAL INSURANCE CO.
Respondent
REASONS FOR JUDGMENT
Trimble J.
Released: December 8, 2022
[^1]: The Vice-Chair, at para. 35, noted that the impairments under the Guides do not add linearly. For example, the Appellant had a physical WPI of 26% and a mental health WPI of 26%, which give a WPI of 45%, instead of 52%. The 18% impairment for the contingency for surgery would have brought the WPI to 55%.