Appeal Fails as Tribunal Error is Inconsequential to Decision - DW v. The Co-operators, LAT 17-000388 2018 CanLII 8092

April 17, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

DW v. The Co-operators, LAT 17-000388 2018 CanLII 8092

Date of Decision: January 22, 2018
Heard Before: Adjudicator Linda P. Lamoureux, Executive Chair

IRB CLAIM: appeal fails on the basis that although Tribunal erred, the error was inconsequential to the decision


This request for reconsideration involves a dispute over an IRB in a LAT decision which held that DW, failed to prove his entitlement to the benefit and, on that basis, dismissed his claim.  DW now asks for a reconsideration of the Tribunal’s decision.  He argues that the Tribunal made several significant errors, primarily concerning the manner in which it treated his evidence.

Adjudicator Lamoureux agree that the Tribunal erred. However, as explained below, that error is inconsequential. Accordingly, the request is dismissed.

DW was injured in a motor vehicle accident on September 17, 2013. The following month, he submitted an Application for Accident Benefits (OCF-1) to his insurer, The Co-operators. Shortly after, on December 17, his lawyer faxed a Disability Certificate (OCF-3) dated October 10, 2013 (the “First OCF-3”) to The Co-operators. This First OCF-3 confirmed that DW did not satisfy the Schedule’s test for entitlement to an IRB. It also confirmed that he could return to work and had pre-existing injuries.

The Co-operators did not receive the First OCF-3 until over a year later, on January 21, 2015. On January 29, The Co-operators sent DW a letter and Explanation of Benefits acknowledging its receipt of the First OCF-3 and explaining that, based on that document, he was not entitled to an IRB.  Almost two years later, on January 25, 2017, DW applied the Tribunal to dispute his entitlement to an IRB from the date of the accident and ongoing.

DW then obtained another Disability Certificate. This second certificate, dated February 13, 2017, indicated that DW did satisfy the Schedule’s test for entitlement to an IRB (the “Second OCF-3”). After receiving the Second OCF-3, The Co-operators maintained that DW was still ineligible to receive an IRB since he did not apply or qualify for the benefit within 104 weeks of the accident.

The Tribunal dismissed DW’s application. It was satisfied that he submitted a completed application for an IRB within the required time, notwithstanding that the First OCF-3 confirmed that he did not qualify for the benefit. Nevertheless, the Tribunal held that DW failed to satisfy the Schedule’s test for entitlement. That test, of course, is outlined in s. 5(1)1 of the Schedule. According to that section, an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if the insured person “was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.”

In this case, the Tribunal was troubled by that fact that, at various turns, DW’s evidence was inconsistent or, alternatively, actually disproved his claim: see paras. 44-53. It was also concerned that there were “no medical reports produced within 104 weeks of the accident to positively answer the specific question of whether DW was substantially unable to perform the essential tasks of employment:” see para. 52. For those reasons, it held that DW failed to prove his claim. DW disagrees with the Tribunal’s analysis in several respects. I address his arguments immediately below.

Decision and Reasons

The Tribunal’s refusal to accept post-104 week evidence

First, DW argues that the Tribunal erred in determining that he was required to adduce medical reports generated only within the first 104 weeks of the accident. Likewise, he argues that the Tribunal erred in refusing to accept any reports produced thereafter. Although he did not frame it as such, his argument clearly takes issue with the Tribunal’s interpretation of the Court of Appeal’s decision in Wadhwani v. State Farm 2013 ONCA 662 (CanLII). The Tribunal explained its understanding of Wadhwani, at paras. 41-2, as follows:

The establishment of eligibility to [sic] IRB within the first 104 weeks is critical to this case as the Ontario Court of Appeal in [Wadhwani] has held that to qualify for income replacement benefits under s. 5 of the Schedule beyond a period of 104 weeks (as the applicant has requested), an insured must establish edibility for the benefits within the first 104 weeks after the accident under s. 4(1) of the Schedule.

What is clear from the Court of Appeal’s decision is that if the applicant did not obtain a determination of entitlement at any time during the first 104 weeks after the accident, he or she will be precluded from seeking IRBs after 104 weeks despite a deteriorating condition.  Based on this interpretation, the Tribunal held that DW could not rely on any evidence produced after the 104-week mark to establish his entitlement to an IRB within the period before: see, e.g., paras. 48, 49, 54.

The Tribunal’s interpretation of Wadhwani and its approach to DW’s evidence were mistaken.

The appeal in Wadhwani focused on the trial judge’s interpretation of the interplay between the IRB-related sections of the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 462/96. The Court of Appeal summarized that interpretation, at paras. 12-3, as follows:

The trial judge decided that to qualify for income replacement benefits under s. 5 of the SABS beyond a period of 104 weeks, an insured must establish eligibility for the benefits within the first 104 weeks after the accident under s. 4(1) of the SABS. The trial judge framed the first question for the jury accordingly.

In our view, the trial judge was correct in her interpretation of the relationship between the two provisions.

Unfortunately, the trial judgment is unreported. As a result, the precise interpretation that the Court of Appeal endorsed in Wadhwani is left only to the description above. Given that, the Adjudicator understood why the Tribunal erred. The Court of Appeal’s description appears to suggest, as the Tribunal held, that a claim for an IRB under what is now s. 5(1)1 [then s. 4(1)] must be proven “within the first 104 weeks” post-accident – that is, that one’s evidence of his or her entitlement to an IRB must arise within that period. However, that is not what the trial judge held or the Court of Appeal affirmed.

As Adjudicator Lamoureux read the Court of Appeal’s decision, the trial judge’s determination was simply that one’s entitlement to an IRB in the post-104 period is predicated on his or her eligibility for an IRB in the period before. Put another way, if one does not qualify for an IRB during the first 104 weeks, then he or she does not qualify for one later. This reading makes sense given the key facts that were at issue: the appellant returned to work after the accident only to later claim an IRB in the post-104 period: see para. 14. That is to say, the appellant’s eligibility for an IRB “within the first 104 weeks” was not even at issue – the case was solely about her entitlement to an IRB in the post-104 period. It makes most sense, therefore, to read the Court’s decision as affirming a condition to establishing entitlement beyond, not within, the 104-week mark. Moreover, at no point does the Court discuss the admissibility of evidence, let alone whether or not evidence generated after the 104-week mark is admissible to prove entitlement earlier.

Thus, the Tribunal erred in refusing to accept any evidence generated in the post-104 week period.  The central inquiry in this matter is whether he satisfied the test in s. 5(1)1 of the Schedule – that is, whether he was employed at the time of the accident and, “as a result of and within 104 weeks after the accident, suffer[ed] a substantial inability to perform the essential tasks of that employment.” In the ordinary course, one’s evidence proving this sort of claim will be generated within the initial 104-week period. But there may also be evidence generated later. It is all relevant. The only temporal restriction on the Tribunal’s analysis is that it must look determine whether, “within 104 weeks after the accident,” the applicant suffered a substantial inability to perform the essential tasks of that employment. Conceivably, evidence generated after the 104-week mark may inform that inquiry.

That said, the Tribunal’s error was inconsequential.

Although it did not allow DW to rely on evidence generated after the 104-week mark, the Tribunal nonetheless commented on some of this evidence. In doing so, it made clear that it found this evidence unpersuasive. For example, the Tribunal opined that the report prepared by Psychology Health Solutions did not directly link DW’s impairments to the accident: para. 48. It also observed that, although the October 2016 MRI of DW’s shoulder revealed tears, it was still unclear when those injuries occurred or how they were related to the accident: para. 51. Additionally, the Tribunal noted that, while the Physiatry Medical Legal Assessment appeared to assist DW’s case in some respect, the doctor who prepared it observed that it was “difficult to say with certainty that the accident contributed to the left shoulder symptoms:” para. 49.

Adjudicator Lamoureux saw the same problems with DW’s other evidence created in the post-104 period. Some of this evidence, like the clinical notes and records of St. Joseph’s Healthcare, simply offer no help to his case. Other evidence, like Dr. Dessouki’s consult report, make no mention of the accident or, similarly, leave unclear the connection between the accident and DW’s injuries. And still other evidence, like Dr. Ayeni’s consult report, undermine DW’s case altogether, suggesting that his pain “started years ago when he was a roofer and had a diagnosis of rotator cuff injury.” In short, there is nothing in the post-104 evidence that could have reasonably led the Tribunal to view the matter differently. For those reasons, DW’s argument is dismissed.

The Tribunal’s comment about The First OCF-3

Next, DW alleges that the Tribunal made a significant error of law in observing that “[o]ne of the most key pieces of medical evidence as far as entitlement to IRB is the OCF-3.” DW does not explain the point further.

As the trier of fact, the Tribunal is entitled to weigh the evidence as it sees fit. Adjudicator Lamoureux found nothing unreasonable in the manner in which it viewed the First OCF-3. Moreover, there is nothing in the Tribunal’s reasons to suggest that it viewed The First OCF-3 as dispositive. Indeed, the Tribunal’s reasons make clear that it based its decision on all of the evidence generated within the initial 104-week period and that, “based on the totality of the evidence,” DW failed to prove his claim: see para. 55. Thus, this argument must also fail.

Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Income Replacement Benefits, LAT Case, LAT Decisions, Personal Injury

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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.

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