Volume. 6 Issue. 15 – April 20, 2022
This week we feature two cases wherein a husband and wife were each found entitled to NEB, the husband through to 104 weeks post accident. In both, the application of Heath v Economical focused on the ‘quality’ and ‘importance’ of the pre and post MVA tasks that were impacted by the accident.
The final case involves a reconsideration on a procedural matter wherein the Tribunal overturned a unilateral declaration of a “mistrial” after two days of a scheduled three day hearing.
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Husband and Wife Both Entitled to NEB
104 Week NEB Entitlement – In Boyce v Aviva (19-007704 v Aviva), the Applicant Boyce, sought and was found entitled to NEB as a result of a February 2018 accident through to the entire 104 weeks post- accident period. Boyce, age 68 was the driver when t-boned and sustained a concussion, soft tissue injuries to his neck and back and a fracture of his right wrist as a result of the accident.
The Tribunal found Boyce to be a very credible witness, and his self-reports were found consistent with reports to the assessors of both parties. Further finding there to be “no reason to believe that he was exaggerating or feigning his symptoms or over reporting his functional limitations.” It was noted that at the time of the hearing, four years post accident, Boyce had indicated that “wrist and dexterity in his hands prevents him from doing most activities in the same way that he could pre-accident.”
Confirming that the CNR’s corroborated an ongoing impairment that met the disability test, the Tribunal also preferred the evidence of Boyce’s surgeon over that of the corresponding IE assessor. Boyce’s surgeon saw him more than eight times in the first year post accident, and the contrary opinion of the IE “lacked analysis”, and “a lot of the applicant’s pre-accident activities were overlooked by Dr. Auguste and no attention was given to the quality in which he performs any of these activities or what activities were most meaningful to him.” Further, the IE was of limited value as it was completed 23 months post accident, at the end of the eligibility period.
Aviva further relied upon the fact that Boyce’s expert Dr. Yardley did not provide an opinion that the applicant meets the legal test for entitlement to a NEB. However, the Tribunal reaffirmed it to be “well-settled law that it is not up to a medical practitioner or expert to determine whether an individual meets a legal test. Instead, this is the job of the Tribunal and the courts.”
The report in question was found to have provided a detailed overview of the applicant’s pre- and post-accident activities with the doctor having opined that Boyce had been unable to carry out the majority of his pre-accident activities as a result of his impairment. Further, there was a physical examination, and more than one year post accident there remained significant issues with the right hand, as it was still swollen and resulted in significant loss of range of motion.
Similarly, in Boyce v Aviva (19-007703 v Aviva), Boyce’s wife was also found to be entitled to NEB. She was found “to be a credible witness and I believe her that her accident-related impairments resulted in a complete inability to carry on a normal life.” In addition, the CNR’s of the GP supported entitlement, and therefore “the applicant has persuaded me that she suffered a complete inability to carry on a normal life up until the end of December 2018.” However, there was found to be a lack of medical evidence from January 2019 to February 15, 2020, that supports ongoing entitlement, indeed “the records from 2019 onwards support that she made improvements.” Therefore, there was no further entitlement beyond the end of 2018.
Unilateral “Mistrial” Declaration Rescinded
“Mistrial” Overturned – In Nagalingam v Economical (20-006884 v Economical), Economical sought reconsideration arising out of an (unpublished) October 2021 decision of the Tribunal in which the Tribunal ordered a re-hearing on the second day of a scheduled three-day hearing after unilaterally declaring a mistrial during the proceedings.
It was noted that during a November 2021 case conference both parties “seemingly agreed that the adjudicator erred in ordering a new hearing and that the hearing should continue.” Economical submitted that the appropriate remedy, given that the first instance adjudicator was no longer with the Tribunal, would be for the hearing to “resume on the first two days of transcript and evidence, subject to the applicant’s motion to the new adjudicator for a fresh examination in chief of the applicant or to deal with other evidentiary issues.”
The Tribunal confirmed there to be “no doubt that the Tribunal committed errors of law and fact when it unilaterally declared a “mistrial” and ordered a new hearing in the middle of a three-day hearing.” The adjudicator’s concerns arose “after Economical pursued a line of questioning that the adjudicator seems to have interpreted as raising the issue of material misrepresentation, an issue that the decision indicates was not before the Tribunal and that, in the adjudicator’s view, if raised, would prejudice the applicant.” It was found that the issue “was of sufficient scope to prevent the applicant from presenting his case fully, or from securing a fair adjudication on the merits. In my view, an issue such as material misrepresentation should have been dealt by way of a preliminary motion. I did not see any other option or remedy to save this hearing in a way that is just and fair in the circumstances. I have determined that I must order a new hearing.”
The Tribunal confirmed that “at no time did either party ask the Tribunal to deal with the issue of s. 31 or material misrepresentation. Compounding this error is the fact that neither party requested a new hearing, brought a motion for a new hearing, was given an opportunity to make submissions regarding the adjudicator’s unilateral declaration and both stated on the record that they wished to proceed with the hearing.” Further, “the adjudicator erred in his declaration because the Common Rules do not contemplate a “mistrial” or the ordering of a new hearing by a first instance adjudicator without submissions from a party.” The Tribunal found this to be “an exceptional issue of procedural unfairness that requires rectification by the Tribunal through a broad approach.”
To that end, the “efficient, fair and proportional remedy” was “permitting the parties to proceed on the first two days’ of the transcript and evidence—while affording the applicant the opportunity to bring motions for a fresh examination in chief and to raise any evidentiary concerns before the new adjudicator.”
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