Brown v. Manitoba Public Insurance Date:, 2014 MBCA 11

Citation: Brown v. Manitoba Public Insurance Date: 20140123 Corporation et al., 2014 MBCA 11 Docket: AI 13-30-08039 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ERLINDA BROWN ) E. Brown and ) L. Brown (Appellant) Applicant ) on behalf of E. Brown ) - and - ) A. J. Robertson ) for the Respondent Manitoba MANITOBA PUBLIC INSURANCE ) Public Insurance Corporation CORPORATION ) ) D. G.

Guenette (Respondent) Respondent ) for the Respondent The Automobile ) Injury Compensation Appeal - and - ) Commission ) THE AUTOMOBILE INJURY ) Chambers motion heard: COMPENSATION APPEAL ) October 17, 2013 COMMISSION ) ) Decision pronounced: Respondent ) January 23, 2014 MARC M. MONNIN J.A. [ 1 ] Mrs.

Brown (the applicant) seeks leave to appeal the decision of The Automobile Injury Compensation Appeal Commission (the Commission) dismissing her appeal for income replacement indemnity benefits (IRI), an increase in her permanent impairment award and confirming the decisions of the internal review officers of the Manitoba Public Insurance Corporation (MPIC). [ 2 ] Shortly after the hearing of Mrs. Brown’s application for leave to appeal, she advised the Registrar that she was unaware until the hearing that the Commission had filed a brief. She wished to have an opportunity to respond to it.

After confirming that this was in fact the case, I gave Mrs. Brown the opportunity of filing a reply, which she did. I have considered her reply in reaching my decision. [ 3 ] Pursuant to s. 187(2) of The Manitoba Public Insurance Corporation Act , C.C.S.M., c. P215 (the Act ), the decision of the Commission may only be appealed to the Court of Appeal upon leave granted by a judge of this court. Such leave must be on a question of law or jurisdiction. [ 4 ] The principles which govern such leave applications have been set out in decisions of our court, including that of Pelchat v.

Manitoba Public Insurance Corp. , 2006 MBCA 90 , 40 C.C.L.I. (4th) 46, where Freedman J.A. summarized them as follows (at para. 2): …. 1 . The question must be truly one only of jurisdiction or of law, and not one which “involve[s] the court in an assessment or analysis of conflicting factual issues” ( Shersty v. Manitoba Public Insurance Corp. (2002), 43 C.C.L.I. (3d) 35 , 2002 MBCA 108 (Man. C.A. [In Chambers]) , at para. 2, Fillion v. Manitoba Public Insurance Corp. (2004), 10 C.C.L.I. (4th) 182 , 2004 MBCA 61 (Man. C.A.) , and cases cited therein).

2. The case must be one that warrants the attention of the court. “The issue must be one of importance; not just for the immediate case,but in determining other similar disputes which are apt to arise in [the] future” (Wuziuk v. Director of Social Services (No. 2) (1979), (MB CA), 3 Man.R. (2d) 81 (Man. C.A.), at para. 7. 3. There must be an arguable case of substance; i.e., one with a reasonable prospect of success (see Lejins v. Manitoba Public InsuranceCorp. (2003), 50 C.C.L.I. (3d) 1, 2003 MBCA 95 (Man.

C.A. [In Chambers])). [5] The situation behind the applicant’s proceedings before the Commission arise from facts which are slightly unusualand, therefore, I will spend more time reciting them then would normally be the case. [6] The applicant was involved in a motor vehicle accident on August 8, 1994, in the Province of Alberta, where shesustained significant injuries. The applicant is originally from the Philippines. She suffered from polio at an early age which resulted ina right-leg muscular atrophy and a deformity involving the right foot which led her to walk with an unsteady gate.

Notwithstanding thatcondition, prior to the motor vehicle accident, she had been employed between 1978 and 1993 as a house cleaner in private homes, bothin the Philippines and in the City of Winnipeg. She also provided homecare services. As a result of the injuries from the motor vehicleaccident she was unable to return to work. [7] Following the motor vehicle accident, the appellant was hospitalized in Alberta, but eventually returned to Winnipegwhere she was under the care of local physicians. She began working again, although part-time, between 1995 and 2002.

However, in1997, she relocated to Calgary where she was employed in the service industry and as a private homecare worker. [8] The evidence presented to the Commission was that from June 8, 2002 to December 4, 2005, she was employed as ahousekeeper, but resigned from that position for the stated reason of taking care of her husband who had recently suffered a stroke. [9] In 2006 she returned to Manitoba. From 2006 to 2008 she was employed casually for short periods of time.

Theinternal review officer’s decision of August 17, 2011, with respect to income replacement benefits, suggests that she was dismissed fromthose positions or resigned. [10] In 2009, she approached MPIC asking that her file be reopened. At a hearing occurring January 6, 2011, she presentedevidence to the effect that, at the majority of the jobs she had obtained following the accident, she had been terminated for taking off toomuch time which she testified was due to her medical condition. [11] The applicant was referred to an ophthalmologist and to Dr. MacKay of MPIC’s Health Care Services forassessments.

Both referrals were to determine whether there was a functional deficit related to the motor vehicle accident of August1994, which precluded her from work reentry. [12] Dr. MacKay concluded that, in his opinion, her medical file did not provide objective evidence of physical impairmentof function that would prevent her from holding gainful employment for the past few years. He also concluded that the information onher file, primarily information from applications for Employment Insurance and Canadian Pension Plan benefits, indicated that she haddiscontinued her work duties for non-medical reasons.

In his view, there was no objective evidence of an impairment or dysfunctionwhich would have entitled her to a permanent impairment benefit. [13] The Commission conducted a hearing on October 24, 2012, at which time it heard evidence from the parties, includingthe applicant. At that hearing, the applicant was represented by a claimant advisor from the Claimant Advisor Office of MPIC.

Whilethe applicant testified, apparently at length, her husband, who was present with her at the hearing of this application, was not called totestify by the claimant advisor, although having indicated that he wished to do so. [14] The Commission rendered its written decision on December 13, 2012, the decision which the applicant seeks toappeal. In its reasons for decision, the Commission reviewed the various internal decisions of MPIC officials as well as the medicalevidence presented by both the applicant and MPIC.

They reviewed the submissions made by the claimant advisor for the applicantwhich were set out over three pages of their decision. The Commission concluded that: (

a) with respect to the IRI benefits - that the applicant had failed to establish on a balance of probabilities that she was absentfrom work due to injuries she sustained in the motor vehicle accident. The Commission gave greater weight to the reports contained inher file relating to her discussions with Employment Insurance and Canada Pension Plan employees as to the reasons why she was absentfrom work than to her explanation at the hearing.

They noted that the applicant, in her testimony, could not recall discussions whichtook place many years ago and was unable to contradict the records when those agencies referred to the reasons she gave them for herabsence from work. The Commission also noted that the applicant’s husband was present during the appeal, but was not called upon totestify in support of her position as to why she was absent from work.

The Commission accepted the reports of the medical witnessesthat there was no objective evidence which indicated that the applicant’s physical impairment would negatively affect her ability toperform gainful employment. The Commission, therefore, dismissed her appeal for IRI benefits and confirmed the internal reviewdecision in that respect; and (

b) on the permanent impairment award - the Commission accepted the internal review officer’s finding that the medicalevidence suggested that the applicant’s right foot injury was congenital in nature and not related to the accident. The Commission,therefore, confirmed that the MPIC correctly determined the permanent impairment award.

Applicant’s Position [ 15 ] While the applicant did not file a brief, a review of her notice of motion, affidavit and rebuttal document indicates to me that she seeks to appeal the decision in essentially two areas: (

a) she challenges the procedure followed by the Commission at the hearing of her appeal, alleging that she was not provided with the opportunity to present her case because the Commission did not allow her claimant advisor to complete her submissions, her husband was not called as a witness and when she and her husband attempted to respond to medical evidence presented by the Commission, they were not allowed to do so.

She relies upon s. 182(3) of Act which states of follows: Commission to determine its practice and procedure 182(3) The commission shall determine its own practice and procedure and shall give full opportunity to the appellant and the corporation to present evidence and make submissions. (

b) as to the reasons for decision of the Commission, she says that it failed to deal correctly with her employment history, her reasons for stopping work and the medical evidence with respect to her ability to work and reasons therefore.

Position of MPIC and the Commission [ 16 ] Both MPIC and the Commission raise the fact that the applicant has not filed her leave application within 30 days of the receipt of the Commission’s decision as required under s. 187(3) of the Act . [ 17 ] As to the applicant’s arguments dealing with alleged procedural unfairness, they point to the fact that the Commission’s reasons for decision summarize the submissions of the claimant advisor (at pp. 17-19), which would suggest that she was able to make a full submission on the relevant issues at the hearing.

As to arguments that the applicant claims she would have made had she been given the opportunity, the affidavit evidence does not set that out. As to the failure to call her husband, that was a decision by the claimant advisor which cannot now be the source of a complaint unless there is some evidence indicating that it was as a result of procedural unfairness by the Commission.

The Commission points out that there is no affidavit from the claimant advisor to substantiate the claims by the applicant. [ 18 ] As to the second area of concern raised by the applicant, both MPIC and the Commission argue that they amount to a dissatisfaction with the Commission’s decision, but are not errors of law which raise an arguable ground of appeal. As such, the applicant has not met the test to allow for an appeal to this court. Decision

a) Delay in Seeking Leave to Appeal [ 19 ] Section 187(3) is clear that an application for leave to appeal a decision of the Commission should be commenced within 30 days of receiving that decision. However, it does provide for further time being allowed by a judge. [ 20 ] The applicant has provided an explanation as to why she did not file her notice of motion within the 30 days provided.

From her affidavit, she was under the mistaken view that pending mediation with the Commission related to the matters at issue under appeal. [ 21 ] While the applicant should have included a request for an extension of time in her notice of motion, the explanation for the delay is sufficient for me to find that I would not deny her the ability to pursue an appeal to this court on this ground alone.

b) Procedural Fairness [ 22 ] As noted by the applicant, the Commission does not record its proceedings and, therefore, there was no first-hand evidence before me, other than the applicant’s affidavit, concerning the manner in which the applicant’s submissions were entertained by the Commission. There is no statutory obligation for the Commission to record its proceedings and various factors come into play to determine whether that is a feasible option given the costs involved.

It is up to each tribunal to determine its own rules and procedures. [ 23 ] While it would have been helpful in this case to have received some form of documentation from the Commission relating to its proceedings, such as a record of when each party commenced and completed its submissions, as some courts and tribunals do, it is not determinative of the case.

The Commission’s reasons for decision clearly set out that it considered that the points raised by the applicant’s claimant advisor on the fundamental issues and took them into consideration in reaching its decision. [ 24 ] The evidence of the applicant that the claimant advisor was limited to a two to three-minute presentation and then abruptly cut off, is inconsistent with the Commission’s reasons for decision. [ 25 ] In my view, the claimant advisor’s submission indicates that she did have a full opportunity to present the applicant’s case.

This was, of course, supplemented by the applicant’s own evidence which she provided to the Commission when she testified. [ 26 ] There is no evidence before me that the claimant advisor was prevented from calling the husband as a witness. An affidavit from the claimant advisor to that effect would have been helpful to the applicant’s position. Furthermore, it was only one of the

factors which the Commission considered in preferring the evidence found in the documents rather than the applicant’s. It comes down to an issue of credibility which is well within the Commission’s purview. [ 27 ] I am not satisfied that the applicant has raised an arguable ground of appeal with respect to the procedural fairness aspect of her application which warrants this court hearing the matter.

c) Decision of the Commission [ 28 ] As to the applicant’s other concerns as raised in her affidavit, they go to the crux of the Commission’s decision that she had failed to make her case on a balance of probabilities, both as to IRI benefits and permanent impairment. I agree with MPIC and the Commission’s submissions, that they are a dispute as to the factual findings made by the Commission based upon the evidence before it. There is no discernible error of law which is advanced by the applicant with respect to those issues.

The Commission was entitled to prefer the evidence of medical experts over that proposed by the applicant and the claimant advisor. It is not an error of law which warrants a review by this court. [ 29 ] For these reasons, I would dismiss the applicant’s application for leave to appeal without costs. J.A.