Volume. 8 Issue. 33 – September 4, 2024
This week, the Tribunal considers an insurer initiated reconsideration where they alleged numerous errors of fact or law on a CAT determination that satisfied criterion 8 finding of 4 marked impairments. Amongst the key issues was the insurer’s reliance on 23 days worth of surveillance.
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CAT Finding Upheld on Reconsideration
No Failure to Grapple with Key Issues and Evidence – Earlier this year, we featured a case wherein the Tribunal found that the Applicant Dyer was rendered CAT, having sustained four marked impairments, satisfying the Criterion 8 definition for a CAT impairment. In the original decision, Economical relied upon 23 days of surveillance that they felt countered the testimony of Dyer, as well as the opinions of the experts he relied upon. In 22-008237 v Economical, the Tribunal dismissed Economical’s request for reconsideration that included allegations of numerous erroneous factual findings, a misapplication of the law and a failure to consider relevant case law.
Economical cited numerous factual findings that were not supported by the evidence, including suggestions that Dyer “rarely leaves his home… is generally inactive with respect to his daily functioning… the surveillance evidence depicts a “low level of activity”. Economical further submitted that the Tribunal “should not have accepted the viva voce evidence of the Applicant and his spouse, according to the Respondent, in the presence of clearly contradictory documentary evidence.” In addition, Economical alleged that the Tribunal failed to correctly reference what is required by the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, for a finding of catastrophic impairment and that the Tribunal “essentially ignored what the case law has established concerning what someone with a Criterion 8 impairment looks like.”
Economical also submitted that the decision was ‘not in compliance with the Tribunal’s well-established position that catastrophic impairment is a legal finding and not a medical finding. With respect to IRB, it was suggested that the Tribunal “failed to consider relevant jurisprudential findings and that I failed to consider decisions predicating entitlement on attending necessary treatment and failed to properly assign value to the surveillance evidence…In summary, the Respondent submits that my decision lacked the requisite analysis and that I simply selected which set of assessments I preferred and failed to grapple with key issues and evidence in the matter.”
The Tribunal however, found that its numerous findings were supported by the evidence. Economical “has not provided or directed me to evidence to demonstrate that the facts I found regarding the Applicant’s activity level are “clearly contradictory”. Nor had Economical “directed me to any contradiction in the documentary evidence which would cause me to reconsider my finding that the Applicant and his spouse are credible witnesses.” In addition, the Tribunal confirmed that it had “ considered the surveillance evidence throughout my decision and found that it did not upset the findings in (Dyer’s experts’) report…the surveillance evidence does not upset (the expert’s) findings and noted that the surveillance failed to show the aftermath of the Applicant’s activity to upset the testimony from witnesses that the Applicant is “laid out” after engaging in physical activity… the Applicant was observed mowing a small patch of grass on one day, and surveillance the following day showed no activity at all.”
The Tribunal confirmed as well that the decision specifically referenced what is required by the AMA Guides, that it “makes adequate reference to the AMA Guides and what is required for a finding that the Applicant suffered a catastrophic impairment.” The Tribunal had specifically noted that “a marked impairment in two or more spheres would likely preclude performing complex tasks without special support or assistance. I find that the above establishes that I never ignored the case law concerning what a criterion 8 impairment entails and find no error of law or fact occurred on this issue.”
The Tribunal then went on to assert that “I am not required to cite case law and failing to do so is not an error”, countering the suggestion on the part of Economical that the “failure to cite case law as an error of law such that a different result would have been reached if the error had not been made.” It was noted that Economical “failed to direct me to any authority which requires me to cite case law… I am required to apply the law to the facts and provide reasons for my decisions. The Respondent has not identified an area of the decision where I applied the incorrect legal test, , and I have not identified any myself.”
The Tribunal next confirmed that Economical was “correct in that I never addressed section 57 of the Schedule and the Applicant’s obligation to treat his injuries.” However, the Tribunal made the point that Economical “made only passing reference to section 57 of the Schedule and led no evidence to support its position.” The Tribunal found this “an attempt to relitigate the case or, at the least, move the goal posts on the issue, and this is not grounds for reconsideration. The Respondent denied payment of IRBs on the basis that it believed that the Applicant no longer met the test for entitlement, not that he failed to engage in the requisite treatment in order to shorten the period that IRBs would be payable.”
Based upon the foregoing, the Tribunal found there to be “no error of law or fact occurred such that the Tribunal would likely have reached a different result had the error not been made”, accordingly Economical’s request for reconsideration is dismissed.
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