Volume. 3 Issue. 21 – June 26, 2019
In Trending – Are there no precedents within the LAT at any Level…?
In two recently released cases, the Tribunal opts not to be bound by its prior decisions, including those at the level of the Executive Chair or Vice-Chair. Is the presumed goal of consistency and predictability of decision making somehow frustrated?
Whither Precedents? – In 17-004847 v Aviva, the Respondent relied on a prior LAT decision which found that chronic pain syndrome falls within the MIG. However, Vice-Chair Mather found the case “not binding precedent” and further noted that the same decision was overturned by the Executive Chair in a reconsideration which was also noted to be non-binding. This was found to be the case for another decision by a Vice-Chair who relied upon the reconsideration decision of the Executive Chair.
On the other hand, in an already relied upon precedent, the following cases share a common approach following the AMA Guides in establishing a generally accepted and empirical benchmark for chronic pain cases.
AMA Rules – In the following three reported cases, 18-003998 v Aviva, 18-001286 v Aviva, 18-004282 v Certas , the Respondents successfully introduced the AMA Guides with respect to determining whether chronic pain was present. We have earlier reported on this approach, with the Guides stipulating the need for at least three of the following markers:
- Excessive dependence on others
- Withdrawal from social settings
- Failure to restore pre-injury function
- Secondary, physical deconditioning due to disuse
- Use of prescription drugs beyond the recommended duration
- Development of psychosocial sequelae
It was noted in 18-001286 that “as a general comment, when seen as a whole, the question underpinning all of these factors is how pain is affecting one’s day-to-day activities.” In 18-004282, the Tribunal found that the six criteria “are an excellent way to analyse whether the applicant is disabled by chronic pain.” In all three cases, the Applicants’ inability to satisfy the requirements above was fatal to their claim for chronic pain.
In a departure from what seemed to be a reasonably accepted norm, Vice-Chair Mather, who earlier noted that she was not bound by earlier decisions by another Vice-Chair, or indeed the Executive Chair, took a contrary approach to the AMA Guides.
A Dissenting View – In 17-009212 v Aviva , the Respondent similarly requested the Tribunal to apply the Guides to find that the Applicant fails to meet at least three of the six criteria to establish a diagnosis of chronic pain syndrome.
Vice-Chair Mather however noted, “While the AMA Guides are referred to in Schedule in the definition of catastrophic impairment they are not referenced elsewhere in the Schedule. For that reason I am not satisfied that the applicant is required to strictly meet the AMA Guidelines to be removed from the [MIG] for chronic pain.”
This departure from what seemed to be a reasonably accepted norm proves somewhat problematic for a party seeking consistency and predictability in application.
Degrees of LATitude
Remaining on Payroll Does not Equate to Employment Income
Gee, Thanks Mom! – In 17-006525 v Aviva, the parties agreed that the Applicant was entitled to IRBs and the only issue was with respect to whether the Respondent is entitled to deduct 70% of any gross employment income received by the Applicant as a result of being employed at a restaurant owned by her mother after the accident.
The Applicant alleged that she was not employed during the period in dispute, however, “she continued to receive her regular pay and … the ongoing pay was a gift and not as a result of employment.” The Respondent submitted that “the applicant continued to receive her regular bi- weekly pay as she did prior to the accident…Deductions were made for income taxes, Canada Pension Plan contributions and Employment Insurance contributions in the same manner after the accident…applicant’s tax records also show that she claimed these payments as income on her tax returns and paid taxes on those amounts just as she did prior to the accident…”.
The Respondent’s accountant had confirmed that they “did not find the applicant to be receiving employment income as the applicant was not working and assumed the payments related to a sick pay or a short-term disability benefit.” Ultimately, the Tribunal found that “the payments received by the applicant were a gift and therefore there should be no deduction in terms of her IRB’s.”
It’s the Family Business
Gee, Thanks Dad! – In 18-002240 v Certas, the Applicant, an out of province claimant, claimed dependency upon his father, contending that his involvement in the family business did not generate much in the way of income for him personally. The Tribunal however noted, “The applicant’s activities for the family business, which include networking and marketing, bring in value and encourage sales. I am not therefore persuaded that the money deposited in this bank account belonged to the applicant’s father alone, and that the applicant had no role to play in the earning of that money.” Further, “it is reasonable to infer that the applicant’s networking and marketing activities contribute to the income of the family business as a whole…For these reasons, there is no clear separation in my view between the applicant’s father’s income and the applicant’s income.”
The Respondent argued as well that “the activities engaged in by the applicant are evidence of ‘marketable skills’ which the applicant can put to use in an alternative income-generating employment.” Considering this proposition, the Tribunal agreed, noting “if the applicant were to engage in these activities in a remunerated position, he would be able to support himself. The applicant’s marketing and networking abilities demonstrate that he has the ability to support himself.”
Despite perhaps not actually earning a salary that would make an Applicant self-sufficient, the Tribunal asserts that simply having the ability to do so satisfies the criteria for determining a lack of dependency.
“Interlocutory Conundrum” Continued – “Catch 22”
Last week, we discussed the implications of the “Interlocutory Conundrum”. In Galloway v Gore (18-002000), not yet available on CanLII but provided to us by Mohamed Elbassiouni at Goodman Elbassiouni LLP, the Respondent appears to have attempted to remedy the situation, ultimately to no avail. The Tribunal made a Motion Order, ordering the Respondent to produce the complete adjuster’s log notes. In response, the Respondent filed a motion, in part seeking an order staying the Order for production of the notes, pending a Judicial Review of the decision by the Divisional Court. The application for a stay was denied, as this remedy is only available under the Statutory Powers Procedure Act on an appeal, with an application for judicial review not qualifying.
This decision, that effectively frustrates any attempts at seeking remedy for interlocutory matters, clearly puts parties in a “Catch 22” situation.
Share your experience…how are you able to influence the Case Conference Order to avoid the above?