A request for reconsideration of a preliminary issue decision was filed by the claimant. The preliminary issue decision found the claimant was statute barred for failure to appeal the denial of attendant care benefits in the two year limitation period. In this case, the claimant was involved in two accidents: one on March 3, 2014 and the other on May 25, 2015. He sought ACBs. In regard to the 2014 accident, the insurer denied ACBs by letters dated January 12 and April 17 , 2015. The claimant filed his application on January 17, 2020. In regard to the 2015 accident, the insurer denied ACBs by letter dated April 1, 2016 and the claimant filed his application on June 28, 2019. A case conference was held on November 25, 2020 for both accident claims. The claimant was represented by counsel. An order set down a preliminary issue hearing for March 8, 2021 to determine whether the claimant was statute barred from disputing his ACBs for both accidents. A Notice of Written Hearing was sent to the parties January 25, 2021. Written submissions for the preliminary issue hearing were due February 19, 2021. The insurer filed its submissions and evidence on February 4, 2021. One day prior to the deadline for written submissions, the claimant’s counsel notified the insurer and LAT that she was no longer representing the claimant. The claimant did not file his submissions on the due date. The LAT was unsuccessful in contacting the claimant and a decision was released April 29, 2021. The claimant reportedly did not know about his former counsel’s lack of submissions until several months later. The claimant retained new counsel who immediately filed a motion for an extension to file reconsideration submissions on August 13, 2021. The motion was heard and a decision was released December 6, 2021. The claimant’s request for an extension was granted and the claimant filed this reconsideration request on January 6, 2022. The claimant submitted that he was deprived of his right to participate in a hearing that was significant to his well-being and the evidence regarding the circumstances of his ACBs claim denial was not before the Tribunal and would likely have affected the result. He submitted that the doctrine of discoverability applied to his claims and it was an error to statute bar his claims. The claimant relied on the Tomec decision amongst others. He submitted alternatively that the Tribunal exercise its discretion under s.7 of the LAT Act to allow his claim to proceed to a substantive hearing. The insurer argued that the claimant’s assertion that he was denied procedural fairness was baseless and was rectified by allowing him to make submissions on reconsideration. The insurer also submitted that the claimant did not show how the previously unavailable evidence would have changed the result of the decision. In addition, no rationale was provided to overturn the decision using section 7 of the LAT Act. Vice Chair Boyce reasoned that procedural fairness included participatory rights with an opportunity for those affected by the decision to put forward their views and evidence to be considered. He indicated that the claimant should not suffer for the mistake of his counsel when the Tribunal could rectify the mistake. Vice Chair Boyce found that the claimant was unable to participate in the first instance through no mistake of his own. The claimant did not become aware of the Tribunal’s decision until three months after its release. Vice Chair Boyce granted the claimant’s request for reconsideration under Rule 18.2(a). Vice Chair Boyce accepted that he had made his initial decision solely on the evidence of the insurer and reliance on one party’s evidence affected the result. The claimant was seeking a catastrophic impairment designation at the substantive hearing. Vice Chair Boyce indicated that the doctrine of discoverability in Tomec applied in this case, and that if the Tribunal were to uphold the original decision, the claimant would be unable to claim post-104 ACBs. The preliminary decision of April 29, 2021 was set aside and the claimant was allowed to proceed with his ACBs claim at the substantive hearing.
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