The claimant sought reconsideration of the Tribunal’s decision that she was not entitled to IRBs beyond the 104 week mark. Adjudicator Lake dismissed the reconsideration. The claimant’s arguments were primarily an attempt to have the Tribunal re-weigh the evidence and expert opinions in a more favourable light. This did not constitute an error in law.
The claimant sought entitlement to IRBs, various medical benefits, and two assessments. The insurer brought motions for section 33 non-compliance for failure to provide records in the Case Conference Order, and a section 55 defence for IE non-attendance. Both motions were dismissed. Section 33 was not found to apply because the claimant’s breach was of the LAT Rules as opposed to a section 33 request. The section 55 defence was dismissed because of the insurer’s failure to provide notice of the issue. Adjudicator Paluch concluded that the claimant was not entitled to IRBs because he failed to provide evidence necessary to establish either a substantial or complete inability to perform the essential tasks of his employment, and there was evidence that he returned to work following the accident. The medical benefits and assessments were also dismissed due to the claimant’s lack of evidence and poor credibility.
The claimant sought entitlement to IRBs, various medical benefits, educational expenses, and an accounting report. Adjudicator Boyce found that the claimant was not entitled to payment of IRBs as claimed as she did not demonstrate a substantial inability to perform the essential tasks of her pre-accident employment for the period in dispute. Adjudicator Boyce had noted inconsistencies in the claimant’s IRB claim about her ability to complete her essential pre-accident employment tasks and that the claimant was able to return to work. The surveillance evidence was found to show the claimant doing many routine work tasks that contradicted her claim she was unable to work. She also claimed the cost of the accounting report she completed to calculate her IRB quantum, which was determined to be not payable because it was not an identified issue in dispute. The claimant was found to be entitled to payment for physiotherapy treatment and dental expenses including interest as they were considered to be reasonable and necessary. Further, the claimant was not entitled to the education expenses claimed as there was no evidence to support that she was unable to complete her course as a result of the accident. No special award was granted as there was no indication that Aviva unreasonably withheld or delayed payment of benefits where there was also a genuine dispute over entitlement.
The insurer applied to the LAT for repayment of IRBs, and also for a determination on the claimant’s entitlement to further IRBs, the application of a section 33 suspension, and whether the claimant sustained a catastrophic impairment. Adjudicator Boyce held that the insurer could not bring an application related to IRB entitlement, section 33 suspension, or a catastrophic impairment, but could proceed with the request for repayment. He reasoned that the Tribunal only had jurisdiction once there was a dispute between the parties. The insurer’s determination regarding IRBs, section 33, and a catastrophic impairment was not equivalent to a “dispute” or “disagreement.” The claimant could, potentially, agree with the determinations and abide by the decisions. The insurer was permitted to proceed with the request for repayment, but the remainder of the issues were dismissed.
The claimant sought entitlement to IRBs. The insurer argued that the claimant failed to provide relevant records requested under section 33, including pre-accident income documentation, employment file, and post-accident income records. The insurer also argued that the claimant’s revocation of the right to conduct a paper IE was non-compliance with IE attendance. Adjudicator Chakravarti concluded that most of the insurer’s documentation requests were reasonable and that the claimant’s entitlement to IRBs was suspended in accordance with section 33. She also held that the claimant failed to participate in an IE by revoking consent for assessors to conduct a paper IE.
The claimant sought reconsideration of the Tribunal’s denial of post-104 week IRBs. Adjudicator Go dismissed the reconsideration request. The claimant used the wrong test in arguing for entitlement to IRBs. Further, Adjudicator Go noted that the claimant’s own family physician did not support that she suffered a complete inability to engage in any suitable employment.
The claimant sought entitlement to income replacement benefits and to medical benefits proposed in eight treatment plans, and the cost of $26,400 for catastrophic impairment assessments. The claimant argued that he suffered from pre-existing lower back pain which was exacerbated as a result of the accident and would prevent him from reaching maximum recovery under the MIG. Adjudicator Lester found that the claimant’s pre-existing strains did not remove him from the MIG and the claimant did not have a chronic pain disorder, therefore, the MIG limits applied. Adjudicator Lester concluded that the claimant exhausted all funding under the MIG and he was not entitled to any of the treatment plans in dispute. Adjudicator Lester found that the claimant suffered a substantial inability to perform the essential tasks of his employment and was entitled to IRB for a period of four months. Adjudicator Lester noted that the claimant was also entitled to interest for the IRB.
The claimant sought entitlement to IRBs, removal from the MIG, and entitlement to medical benefits proposed in eight treatment plans. Adjudicator Lester found that the claimant’s injuries fell with the MIG and that none of the treatment plans in dispute were payable as the MIG limits had been exhausted. However, the claimant was deemed entitled to IRBs up to when he returned to work, with interest. The claimant argued that he was suffered from a chronic pain disorder. However, the adjudicator noted that the claimant did not prove that he was experiencing a “significant and reliable impairment of functional status or that he showed a severe debilitating condition of ongoing pain”. With that said, Adjudicator Lester noted that on the balance of probabilities, it was reasonable to conclude that someone who was diagnosed with strains and sprains would need some time off from a very heavy physically demanding job in order to heal the injuries.
The claimant sought entitlement to income replacement benefits, to the costs of four assessments for examinations, to four treatment plans for physiotherapy services, and to payment for a disability certificate invoice. Adjudicator Watt found that the claimant was not entitled to the medical benefits, attendant care assessment, psychological assessment, functional abilities evaluation, and chronic pain assessment. In determining entitlement to IRB, Adjudicator Watt relied on the opinions of the IE assessors who indicated that the claimant could perform her pre-accident duties. Adjudicator Watt concluded that there was no evidence before the Tribunal to show that the claimant’s pain was severe enough to cause functional impairment or disability, so the IRB claim was dismissed. Finally, Adjudicator Watt found that the disability certificate invoice was not reasonable and necessary.
The claimant sought a determination that her impairments were outside of the MIG, entitlement to medical benefits proposed in two physiotherapy treatment plans that had been partially approved, entitlement to IRBs which had been suspended for non-attendance of IEs, and a special award. Adjudicator Lester rejected the claims. She agreed with the insurer that the claimant’s injuries from a previous car accident had resolved prior to the subject accident and that the claimant had not exacerbated a previous condition to warrant removal from the MIG. Adjudicator Lester also found that the insurer’s notices of the IEs were compliant with the Schedule, and the claimant’s non-attendance of IEs disentitled her to IRBs.
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Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP