The claimant sought entitlement to IRBs post 104 weeks and a special award. Adjudicator Neilson held that the claimant was not entitled to IRBs after 104 weeks. The adjudicator held that the employment identified by the insurer’s vocational specialist was reasonably suited by the claimant’s education, training and experience; the claimant had not made a sincere effort to obtain suitable employment; the claimant’s evidence regarding his level of pain was not reliable; and the claimant did not establish that he had a disability or impairment that prevented him from obtaining employment at any of the jobs identified by the insurer as suitable. Procedurally, the insurer objected to the affidavit of the claimant’s family physician being made an exhibit on procedural fairness grounds as it would not be able to cross-examine the physician. The adjudicator allowed the affidavit to be filed as an exhibit and held that the Tribunal’s duty of fairness to parties is to ensure they understand the case they have to meet and allow them to respond. The adjudicator held that the insurer did not demonstrate that it would suffer any real prejudice as it was aware that the claimant intended to rely on the physician’s records and affidavit and it made no efforts to cross-examine the physician during the month before the hearing. The insurer also sought to have a portion of the family physician’s opinion struck on the basis that he was not an expert, but rather a treating physician, and that he failed to comply with Rule 53.03 of the Rules of Civil Procedure and Westerhof. The adjudicator held that the Rules of Civil Procedure did not apply to the LAT, and the family physician was qualified to provide professional and scientific, or technical information and opinion based on the special knowledge of a physician through his education, training and experience in accordance with LAT Rule 10.1. The adjudicator further noted that the family physician would be a “participant expert” according to Westerhof and would be allowed to provide evidence about his own observations without having to sign an acknowledge of his duty to the court/Tribunal. The adjudicator declined to exclude the claimant from the hearing during the insurer’s expert’s testimony and held that the claimant had a right to hear the evidence and there was no evidence to suggest that there would be a concern that the claimant would tailor his evidence. The adjudicator refused to produce one of the insurer’s expert’s raw data during the hearing as it was not sought at the case conference and could be misconstrued by a person without proper training. The adjudicator allowed both parties to review the raw test data and ask questions on it.
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