Court File and Parties
CITATION: Abdi v. TD General Insurance Company, 2023 ONSC 3536
DIVISIONAL COURT FILE NO.: DC-164/22
DATE: 20230725
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R.S.J., Pomerance and Matheson JJ.
BETWEEN:
HILDED ABDI Appellant
– and –
TD GENERAL INSURANCE COMPANY Respondent
COUNSEL: Fabio Longo, Kristy Kerwin and Corey Sax, for the Appellant Derek Greenside, for the Respondent
HEARD at Toronto: May 29, 2023 via Zoom.
REASONS ON APPEAL
POMERANCE J.
OVERVIEW
[1] The Appellant, Hilded Abdi, was in a car accident on June 29, 2017. He suffered various injuries including non-displaced pelvic fractures, a right ear laceration and a mild traumatic brain injury (“TBI”). He applied to the Respondent, TD General Insurance Company, for enhanced benefits, arguing that he had suffered catastrophic impairment. The Respondent denied the claim and the Appellant brought an application before the Licence Appeal Tribunal (“LAT”).
[2] The Adjudicator held that the Appellant had not suffered a catastrophic impairment as defined under the Statutory Accident Benefits Schedule – Effective September 1, 2010: O. Reg. 34/10 (“Schedule”). That finding is the subject of this appeal.
[3] At issue is s. 3.1(1)4 of the Schedule (“Criterion 4”) which imposes a two-part test. The parties agree that the Appellant met the first part of the test. There was diagnostic evidence of brain trauma, given the positive intracranial findings on an MRI. What is contentious is the second part of the test. The Adjudicator found that the Appellant did not meet the criteria in the Extended Glasgow Outcome Scale (“GOS-E”) referenced in Criterion 4. The Adjudicator upheld this decision on February 16, 2022 (“the Reconsideration Decision”).
[4] The Adjudicator was presented with the Appellant’s assessment, conducted 16 months after the accident, and the Respondent’s assessments, conducted close to 24 months after the accident. The Adjudicator found that the Appellant’s assessments – which found catastrophic impairment – were lacking in credibility and entitled to little weight. She preferred the Respondent’s assessments which concluded that the Appellant did not meet the test under Criterion 4.
[5] The Appellant raises various grounds of appeal before this court. Some fail because they do not raise questions of law. Others fail because they disclose no error. I will address each of the grounds in the reasons that follow.
JURISDICTION AND STANDARD OF REVIEW
[6] The parties agree that this court has jurisdiction to hear this appeal, on a question of law only, pursuant to ss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12. It is also agreed that the applicable standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. A breach of procedural fairness constitutes an error of law: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 22.
THE ISSUES
[7] The appellant raises four grounds of appeal, which I will characterize as follows:
- Did the Adjudicator err in her approach to the evidence presented on the hearing?
- Did the Adjudicator’s questioning of Dr. West violate principles of procedural fairness?
- Did the Adjudicator err in her application of the temporal requirements set out in s.3.1(1)4(ii) of the Schedule?
- Did the Adjudicator apply an unduly restrictive causation test that erroneously excluded certain physical and psychological impairments from consideration?
PRELIMINARY MATTER: ADMISSABILITY OF THE MANUAL
[8] Before this court, the Respondent filed an academic article entitled "A Manual for the Glasgow Outcome Scale-Extended Interview" (“the Manual”) published in the Journal of Neurotrauma on September 21, 2021. The article purports to offer guidance on how to administer the GOS-E. The Respondent argues that the manual is admissible because it is a companion piece to the Wilson Article, an article that is expressly incorporated into the Schedule.
[9] The Wilson Article is indeed incorporated into Criterion 4 of the Schedule, which provides as follows:
Catastrophic impairment
3.1 (1) For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016, and the impairment results in any of the following:
- If the insured person was 18 years of age or older at the time of the accident, a traumatic brain injury that meets the following criteria:
i. When assessed in accordance with Wilson, J., Pettigrew, L. and Teasdale, G., Structured Interviews for the Glasgow Outcome Scale and the Extended Glasgow Outcome Scale: Guidelines for Their Use, Journal of Neurotrauma, Volume 15, Number 8, 1998, the injury results in a rating of,
A. Vegetative State (VS or VS*), one month or more after the accident,
B. Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident, or
C. Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident. [Emphasis added.]
[10] While the Schedule incorporates the Wilson Article, it makes no mention of the Manual. The Manual is properly characterized as an academic article tendered for the first time on appeal. The Respondent did not bring the Manual to the attention of the LAT Adjudicator. It was not published at the time of the initial hearing, but it was in existence at the time of the Reconsideration. Nor did the Respondent bring a formal application to admit the Manual as fresh evidence before this court. The Respondent filed the Manual as part of its responding materials and made liberal reference to the document in its factum.
[11] The Respondent argues that the Manual is admissible because it is an interpretive guide, similar in purpose to the Wilson Article. That may be so. However, unlike the Wilson article, the Manual is not incorporated by reference into the Schedule. Similarly, while the article and Manual have overlapping authorship, this does not offer a ticket of admission.
[12] This court has declined to consider the Manual in disposing of the appeal. If the Manual duplicates the Wilson Article, it is superfluous, and admission is not necessary. If the Manual contains additional or new information, it is fresh evidence and ought to have been the subject of a formal application before this court.
[13] The Appellant raises various complaints about the adjudicator’s findings of fact. The Appellant argues that it was an error to prefer the evidence of the Respondent’s experts over that of the Appellant’s experts. The Adjudicator gave careful reasons explaining why she did not accept the assessments filed by the Appellant. In any event, the appeal to this court is statutorily limited to questions of law. This court does not have jurisdiction to revisit findings of fact or credibility. It follows that this ground of appeal must fail.
PROCEDURAL FAIRNESS
[14] The Appellant alleges that the Adjudicator’s questioning of the Respondent’s expert, Dr. West resulted in a denial of procedural fairness. The Appellant states that the questioning elicited opinions that exceeded the scope of the witness’ expertise and resulted in unfairness.
[15] This complaint has been raised for the first time on appeal. The Appellant voiced no objection to the questioning during the hearing. Nor did the Appellant seek to ask follow-up questions or address the issue in closing submissions. The Appellant argues that he could not realistically object because the Adjudicator was the one asking the questions. I do not agree. If the questions were objectionable, it was incumbent upon the Appellant to raise concern in a timely way, rather than remaining silent until the appeal. Failure to object is not determinative, but it does signal that there was no perception of unfairness at the time of the hearing. Finally, the Appellant has failed to demonstrate that the evidence elicited by the Adjudicator had any meaningful impact on the outcome.
[16] I decline to intervene on this basis.
THE TEMPORAL REQUIREMENT
[17] As noted above, Criterion 4 provides that catastrophic impairment is made out if certain conditions are met at certain times, as set out below:
A. Vegetative State (VS or VS*), one month or more after the accident,
B. Upper Severe Disability (Upper SD or Upper SD*) or Lower Severe Disability (Lower SD or Lower SD*), six months or more after the accident, or
C. Lower Moderate Disability (Lower MD or Lower MD*), one year or more after the accident.
[18] I agree with the Appellant that, if any one of the above conditions is satisfied, the Applicant is entitled to a finding of catastrophic impairment, even if there has been subsequent recovery.
[19] The Appellant argues that the Adjudicator erred in failing to consider the Appellant’s level of functioning “6 months or more” following the accident. However, there was no evidence of functioning 6 months or more following the accident. The assessments were carried out much later. The Appellant’s assessments were carried out 16 months post-accident, and the Respondent’s assessment was carried out close to 24 months post-accident. The relevant time frame was not 6 months or more after the accident, but one year or more after the accident.
[20] Assessments are to measure level of functioning at the time of the assessment. According to the Wilson Article at p. 575: “only pre-injury status and current status should be considered” by the assessor. Current status “includes problems and capabilities evident over the past week or so”. The article confirms that “the person’s initial state after injury and hopes for the future are not relevant in determining outcome”.
[21] Consistent with this directive, the assessments filed in this case were focused on the Appellant’s “current” level of functioning. The Appellant’s assessments made some reference to hospital records and functioning a few months after the accident. Yet, there was no concrete measurement of the appellant’s status 6 months after the accident, or even one year after the accident. The testing measured the Appellant’s functioning at the time of the assessments.
[22] It follows that the relevant time period was not “6 months or more” after the accident. Both assessments measured functioning “1 year or more” after the accident.
[23] The Adjudicator adverted to the temporal requirements in the Schedule. She was aware of the risk that insurers might delay assessments in order to capitalize on recovery over time. However, she found that that was not the case here. She adopted a flexible approach, correctly concluding that, in the particular circumstances of this case, the Respondent’s assessments were available for consideration. She was correct in finding that she was not obliged to accept the Appellant’s assessments just because they were first in time.
[24] As she put it in her decision:
[25] The section on timing in the GOS-E Guidelines states that the GOS-E is intended for use after discharge from hospital, and that reports should always include the timing of assessment. The section is silent on how soon after discharge the GOS- E should be administered. The context in which the GOS-E Guidelines state that only the person's current status should be considered refers to the person's status at the time of the assessment and not to the hopes or anticipation that the persons status will improve at some future point. Nor should the severity of the person's earlier status compared to their current status be considered. There is no prohibition on conducting an assessment two years after release from hospital.
[26] The Schedule is not silent on timing. The purpose of the GOS-E is to determine outcome after a head injury. The GOS-E has been incorporated in the Schedule as a legal test. The Schedule states that the GOS-E assessment is to be conducted in accordance with the GOS-E Guidelines to determine the rating. However, the timing of that assessment is set out in ss. 3.1(1) 4 (ii) A to C of the Schedule. On a plain meaning, an insured person will have sustained a catastrophic impairment if an insured person meets the test associated with the specific period, regardless of how much longer the assessments were conducted after the 6month period in s.3.1(1)4(ii)B or the one year period in s.3.1(1)4(ii)C of the Schedule. I find there is any no conflict between the GOS-E Guidelines and the Schedule. Even if I there were a conflict, I find that the Schedule takes precedence as it is the governing legislation.
[29] Although Security National Insurance Company v. Allen dealt with a different test for catastrophic impairment, the reasoning is applicable to the GOS-E. Accordingly, I find that a flexible approach together with the Schedule requires that I do not look at the applicant strictly at the one-year mark, but also his condition more than one year after the accident. A flexible approach also means that an IE assessment that is done a few years down the road may be of limited value or receive little weight. However, since the timing of IEs are not legislated under the present Schedule, that is the risk an insurer takes if it does not conduct timely assessments. That does not mean that the Tribunal cannot or should not consider an IE assessment that is not conducted within a month to six months of the catastrophic impairment application.
[25] She reiterated these conclusions in her Reconsideration Decision:
I also rejected the applicant's submission that the timing of my determination of whether the applicant meets the GOS-E was constrained to the time of his initial GOS-E assessment. I adopted a more flexible approach and determined that an adjudicator is not restricted to looking at only the time of the first assessment. An adjudicator may look at an insured's condition beyond the date of the first assessment. However, the timing of the evidence of an insured's condition could affect the weight to be given to that evidence.
[26] As noted above, the Adjudicator articulated several reasons why she did not accept the conclusions reached by the Appellant’s experts. Having rejected that evidence, it was open to her to consider the assessments tendered by the Respondent, which found no catastrophic impairment. We see no error relating to the temporal requirements of the Schedule.
CAUSATION
[27] I will now turn to the issue of causation. The Appellant argues that the Adjudicator erred by applying an unduly restrictive test. In para. 69 of the Decision, the Adjudicator stated that: “…the GOS-E must be based on TBI injuries alone”. The Appellant argues that the word “alone” is not found in the GOS-E Guidelines or the legislation. The Appellant submits that he need only prove the TBI was a necessary (“but for”) cause of the impairment. He states that the Adjudicator erred in discounting psychological and physical disabilities that were not solely caused by the TBI.
[28] While the Adjudicator did refer to “TBI injuries alone”, this statement must be understood as it appears in the context of the decision as a whole. In paras. 32 and 37, the Adjudicator explained what she meant when she said that the GOS-E must reflect “only the effects of the brain injury”:
[32] According to the GOS-E Guides, the disability must be a result of the TBI and not other psychological or physical injuries. The GOS-E Guides state that the injury is an event that has occurred at a particular time, but not all changes that have taken place following the event will be due to the injury. Thus, if a patient is capable of performing the activity but does not do it for some reason, they are not considered disabled…
[37] I find that to determine catastrophic impairment under the GOS-E, the Schedule requires the assessor to assign a GOS-E that reflects only the effects of the brain injury. Otherwise, the Schedule would not incorporate the GOS-E Guidelines. Nor would the Schedule refer to "brain injury," but would have retained the wording "brain impairment" that was in place prior to the June 1, 2016 amendments. Further, in keeping with the Schedule's purpose of consumer protection, psychological injury is already considered together with other injuries under s.3.1(1)8 and on its own under s.3.1(1)7 of the Schedule. There are TBIs that, because of what part of the brain was injured and due to the severity of the injury, cause psychological impairments or physical impairments. In those cases, the disability resulting from those impairments will be considered in the GOS-E. If the effect of other types of physical or psychological injury cannot be parsed out from the effects of the TBI, then in accordance with the GOS-E Guidelines, 19 they are to be considered in administering the GOS-E. Otherwise, for the reasons given above, I agree with the respondent that psychological and physical impairments that are not related to or caused by the TBI are not considered in the GOS-E. [Emphasis added.]
[29] It is apparent from these passages that the Adjudicator did not restrict her consideration to impairments exclusively or solely attributable to the TBI. She contemplated that physical and psychological impairments caused by or related to the TBI were to be considered in administering the GOS-E. While she did not refer to the “but for” test by name (see Pucci v. Wawanesa Mutual Insurance Company, 2019 ONSC 1706, aff’d 2020 ONCA 265), her approach effectively incorporated the essential elements of that test. If an injury (impairment) was related to the TBI and could not be parsed out from the effects of the TBI, it was to be considered.
[30] In applying the test, the Adjudicator found that many of the impairments relied upon by the Appellant reflected an unwillingness to perform acts, rather than an inability to perform them. These were properly excluded from consideration.
[31] Having regard to the decision as a whole, and the evidence before the tribunal, the Appellant has failed to demonstrate a legal error on the issue of causation.
CONCLUSION
[32] For all of these reasons, the appeal is dismissed. In accordance with the parties’ agreement, costs are to be paid by the Appellant to the Respondent in the amount of $7000, all inclusive.
Pomerance J.
I agree.
Firestone R.S.J.
I agree.
Matheson J.
Released: July 25, 2023
CITATION: Abdi v. TD General Insurance Company, 2023 ONSC 3536
DIVISIONAL COURT FILE NO.: DC-164/22
DATE: 20230725
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R.S.J., Pomerance and Matheson JJ.
BETWEEN:
HILDED ABDI
Appellant
– and –
TD GENERAL INSURANCE COMPANY
Respondent
REASONS ON APPEAL
Pomerance J.
Released: July 25, 2023