Insurer's appeal reflects complete misunderstanding of the role of appeal

October 26, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Guarantee and Cumberbatch

Decision Date: September 21, 2017
Heard Before:  Adjudicator David Evans

CAT APPEAL:  Guarantee’s submissions reflect a complete misunderstanding of the role of an appeal; Guarantee’s submits that the Arbitrator should review all the exhibits, including the medical reports and videotapes, as well as the untranscribed oral evidence, and make new findings of fact, is therefore mistaken, and its submissions are largely misbegotten on that account; the decision stands

APPEAL ORDER        

1. The Arbitrator’s Order of January 28, 2016 is confirmed and this appeal is dismissed.

REASONS FOR DECISION

Guarantee Company of North America appeals the order of Arbitrator Mutch that Mrs. Cumberbatch is catastrophically impaired.  Guarantee submits that when the proper legal test is applied and the evidence is considered in that context, Mrs. Cumberbatch’s various abilities lead to the conclusion that she is not catastrophically impaired.

Arbitrator Evans found that the Arbitrator did apply the proper legal test and that it is not my role to make my own findings on the evidence in substitution of his findings.

Mrs. Segrid Cumberbatch was injured as the result of a motor vehicle accident on May 22, 2008.  Prior to the accident Mrs. Cumberbatch was a busy, high functioning individual – a newly-married pregnant churchgoer, volunteer, homemaker, and data entry clerk. Since the accident, she suffered pain and depression, lacked motivation, avoided social situations, and had trouble concentrating and remembering things. She was not able to return to work, discontinued most of her volunteer activities, and only returned to church sporadically from 2012 on. After her son was born about five months after the accident, she had mostly stayed home to take care of him. She testified that she struggled to initiate and complete household tasks and inconsistently cared for herself, like bathing, washing her hair and brushing her teeth.

The sole issue at the hearing was whether Mrs. Cumberbatch sustained a catastrophic impairment due to a mental or behavioural disorder, and specifically whether her impairment in the adaptability domain was moderate or marked.

The Arbitrator noted the definition of catastrophic impairment (CAT), and set out the relevant impairment levels chart from the Guides, emphasizing the difference between moderate impairment – impairment levels compatible with some, but not all, useful functioning – and marked impairment – impairment levels significantly impede useful functioning.  The Arbitrator then quoted directly from the Guides on the Adaptability domain noting the sections which apply directly to Mrs. Cumberbatch.

The Arbitrator noted that the medical diagnoses were similar regarding depression, anxiety and a pain disorder. The only question was of degree. The Arbitrator then went through the medical evidence in more detail.

He addressed Mrs. Cumberbatch’s credibility and accepted that she had at points minimized her injury to avoid the intervention of Family and Children’s Services. He also noted that her distress during the hearing and need for breaks showed the need for accommodation and was consistent with other evidence of assessments terminated for similar reasons. He found Mrs. Cumberbatch credible.

The Arbitrator then turned to his analysis reviewing Mrs. Cumberbatch’s evidence and testimony. He then noted the “clumsiness of the nomenclature” in defining catastrophic impairment because of the overlap among the domains. He agreed with the observation of Arbitrator Sapin, as set out in Ms. M.G. and The Economical Mutual Insurance Company, that the descriptions of “moderate,” “marked” and “extreme” impairment are part of a continuum.  The Arbitrator then noted that, as stated in Desbiens v. Mordini, the focus of the analysis in the area of adaptation is on the psychological stress tolerance of the individual. He then cited from the Guides, emphasizing independence, sustainability, and the idea of the overall degree of restriction or combination of restrictions

The Arbitrator proceeded to examine Mrs. Cumberbatch’s functioning using terms taken directly from the description in the adaptability domain. The pre-accident background provides a necessary point of comparison and must be assessed when considering post-accident function. The Arbitrator considered aspects of Mrs. Cumberbatch’s life including personal care and homemaking, marriage, participation in Church and volunteering, social life, parenting, and work and night school.

Next, the Arbitrator discussed employment and night school. He found it significant that Mrs. Cumberbatch, who had a very solid employment history at a job she enjoyed, had been unable to return to that job or to continue as an office manager for her husband’s construction business. He also noted that Mrs. Cumberbatch had not been able to return to the night school business programs, despite having done well in three courses. Accordingly, with regard to paid employment and assisting her husband in his business, he found she was a motivated individual who was diligent in her work and who was making an effort to upgrade her skills. He found Mrs. Cumberbatch was significantly impeded in those activities.

The Arbitrator noted that while surveillance at some points showed Mrs. Cumberbatch was quite active, this was taken during an optimal period when the mother was visiting, while at other points she behaved in a way consistent with her demeanour at the hearing. The Arbitrator found the surveillance did not suggest she was higher-functioning than she had portrayed.

In conclusion, the Arbitrator noted Guarantee’s reference to the abilities Mrs. Cumberbatch had shown, like driving, visiting the Caribbean, caring for her son, and taking the initiative to seek medical attention, schedule rehabilitative activities and marital counselling, and arrange the renewal of marital vows with her husband. However, the Arbitrator found that this did not override the evidence showing that, even with support, Mrs. Cumberbatch was impeded in her day to day activities and in what ought to be regular, routine activities.

Some things the Mrs. Cumberbatch did prior to the accident, such as being employed, she cannot do at all. It is not insignificant that she has managed to provide her son with adequate care. At the same time, she has difficulty consistently performing routine tasks, such as remembering to meet him at the bus, which could have serious consequences.  Other activities, such as church and volunteer work, she has cut back dramatically. Some routine activities, such as self-care and housework, are done on an erratic and inconsistent basis. This is a dramatic change from her pre-accident self. She is unable to adapt to stressful circumstances. While the Applicant is clearly capable of some useful functioning, I believe she is significantly impeded in performing most of the tasks she did prior to the accident. I find that, as a result of the accident, she has suffered a marked impairment and is, therefore, catastrophically impaired within the meaning of the Schedule.

Guarantee’s submissions reflect a complete misunderstanding of the role of an appeal. Its submissions are full of detailed analyses of various medical reports, as well as allusions to oral evidence – in the absence of a transcript. It submits that I should review the exhibits myself to see whether a fact found could not have been so found in all the circumstances, and even consider what it says was the testimony of Mrs. Cumberbatch. However, to support this approach, Guarantee relies on old cases involving accidents from the early 1990s. The current s. 283(4) makes no reference to a rehearing, and provides only that the Director or his delegate may determine the appeal on the record or in such other manner as the Director may decide, with or without a hearing.

Further, while Guarantee submits that the phrase “or in such other manner as the Director may decide” in s. 283(4) allows the Arbitrator to adduce additional evidence beyond the record, there is no case law supporting Guarantee’s position, as it has never been read that way. This subsection speaks to the process of an appeal, not the substance, providing that delegates have considerable leeway in conducting an appeal.

Accordingly, as has been said many times since the 1996 amendments, it is not an appeal delegate’s job to weigh the evidence. The proposition behind all of Guarantee’s submissions, namely that I should review all the exhibits, including the medical reports and videotapes, as well as the untranscribed oral evidence, and make my own findings of fact, is therefore mistaken, and its submissions are largely misbegotten on that account.

With respect to the Arbitrator’s alleged errors of law, Guarantee first submits that the Arbitrator improperly imputed quantitative concepts and formulas into the definition of marked impairment contained in the Guides. Second, it submits that, based on this misconstrued interpretation of marked impairment, the Arbitrator misapprehended, failed to fully consider and/or erred in processing all of the evidence relevant to the issue of the Respondent’s level of impairment. As should be obvious from the concluding paragraphs of the Arbitrator’s decision he was well aware of the evidence that Guarantee relies on to submit that Mrs. Cumberbatch’s impairment was only moderate. However, he weighed that evidence and reached the conclusion that the impairment was marked. Assuming he did not misdirect himself throughout, there was ample evidence to support his conclusion.

That really leaves only the issue of the Arbitrator misdirecting himself, as noted earlier. Arbitrator Evans did not find the Arbitrator misdirected himself by applying a quantitative conception of the test for marked impairment.

Accordingly, the appeal is denied, and the Arbitrator’s order is affirmed.

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