The claimant sought reconsideration of the Tribunal’s denial of ACBs and order barring the claim for medical benefits based on IE Non-Attendance; the Tribunal had awarded IRBs. Adjudicator Mazerolle held that the Tribunal denials did not meet the criteria in Rule 18 for reconsideration. However, Adjudicator Mazerolle found that the award of IRBs beyond the 104-week mark was an error and that the claimant had not led evidence to support IRBs on the “complete inability” test.
The claimant sought entitlement to IRBs and medical benefits. She also sought entitlement to an accounting report. Adjudicator Watt denied the claim for IRBs, as the claimant had been paid IRBs up to the date she returned to work on a modified basis. He found the treatment plans not reasonable and necessary. Finally, he held that the cost of the accounting report was not payable because it was the claimant’s behaviour which resulted in difficulties calculating the IRB. She withheld information regarding disability benefits and her return to work. Furthermore, she was not a self-employed person.
The claimant judicial review of the dismissal of her claim on two grounds: that she her family physician should be entitled to give opinion evidence, and that the adjudicator did not properly address causation. The Divisional Court agreed with the claimant and remitted the matter for a new hearing. It held that the Tribunal erred in not permitting the family physician to give opinion evidence at the hearing. The Divisional Court also wrote that the Tribunal had not set out the causation test it had applied, and that it was no appropriate for the test to be “implied.”
The claimant sought entitlement to ongoing IRBs and over $20,000 in assessments related to the IRB claim. Adjudicator Parish held that the claimant was entitled to IRBs up to the 104-week mark, but that the claimant’s functionality did not meet the “complete inability” test. She also awarded the cost of an occupational therapy situational assessment, orthopaedic assessment, and vocational assessment because they were relevant to the claimant’s injuries and claim for IRBs. The proposed psychological assessment, neurological assessment, executive summary, and transportation were not awarded because the claimant had not sought or been referred for psychological or neurological treatment; the executive summary was duplicative of the awarded assessments; and there was no evidence that transportation to the assessments was required.
The insurer sought reconsideration of the Tribunal’s decision to award IRBs. Adjudicators Parish and Maleki-Yazdi rejected the reconsideration. They held that the award of IRBs “to date and ongoing” was not outside of the jurisdiction of the LAT, and that the claimant was entitled to IRBs as long as she met the appropriate disability test. Second, they rejected the argument that classifying the claimant’s job duties as “light” was an error of mixed fact and law. The Tribunal had provided sufficient reasons for its classification of the claimant’s pre-accident job, and that reconsideration was not an opportunity to re-litigate the matter.
The claimant sought entitlement to IRBs. Adjudicator Boyce held that the claimant failed to prove his claim because he had not made any written submissions or evidence regarding the claim. Adjudicator Boyce also noted that the claimant was not employed at the time of the accident, had not worked for 26 of the previous 52 weeks, and was not receiving benefits from EI. He was therefore not entitled to IRBs under section 5 of the SABS.
The claimant disputed his entitlement to IRBs, but had not submitted a Disability Certificate. The insurer argued that the failure to submit an OCF-3 barred the claim from proceeding. Adjudicator Ferguson agreed with the insurer and barred the dispute from proceeding. He held that section 36 created a strict requirement to provide an OCF-3. Section 129 of the Insurance Act did not permit the Tribunal to grant the claimant relief from forfeiture.
The claimant sought entitlement to IRBs, the MIG, and various medical benefits. The insurer argued that the claimant’s entitlement to IRBs had already been decided and was res judicata. The Tribunal had already adjudicated an application for IRBs (among other things), which was upheld on reconsideration and at the Divisional Court. There was no new evidence to support that the claimant had additional injuries or conditions. The new medicolegal reports the claimant obtained could have been obtained prior to the first hearing.
This preliminary issue hearing was brought to determine whether the claimant was precluded from applying for post-104 week income replacement benefits, as the issue had already been dealt with as a result of a prior application to the Tribunal. An extensive hearing had previously been conducted and a final decision dealing with both pre and post-104 week IRBs was issued by the Tribunal. Adjudicator Boyce thus found that res judicata applied, and the claimant was precluded from proceeding with her claim for a post-104 week IRB.
The claimant applied to the Tribunal seeking entitlement to IRBs and medical benefits. The insurer raised a preliminary issue requesting that the Tribunal bar the claimant’s dispute over IRBs due to his failure to attend a s. 44 FAE with a kinesiologist. Adjudicator Létourneau concluded that the claimant was entitled to IRBs for the pre-104 week period but not entitled to IRBs for the post-104 week period. With respect to the preliminary issue, Adjudicator Létourneau concluded that the proposed s. 44 FAE was not reasonably necessary. Adjudicator Létourneau found that the s. 44 neurological and physiatry assessments afforded the insurer ample opportunity to assess the claimant’s physical impairments and that a kinesiologist would not be able to comment more specifically on medical impairments than what was already obtained. Adjudicator Létourneau also noted that the claimant worked as a taxi driver pre-accident and that the FAE would not likely have provided more detail with respect to the claimant’s pre-accident job duties. With respect to the IRB dispute, Adjudicator Létourneau concluded that the claimant had provided sufficient evidence that but for the accident, he would have continued to drive a taxi. Adjudicator Létourneau pointed to the claimant’s back pain with prolonged sitting and mental impairments as causing his inability to complete the tasks of his pre-accident employment. As for the post-104 week period, Adjudicator Létourneau noted that the claimant had returned to driving, evidenced by the claimant’s own reporting and surveillance. Adjudicator Létourneau concluded that the claimant could return to work as a driver in other capacities, such as a chauffeur or delivery driver, and that he therefore did not meet the post-104 week disability test. Finally, Adjudicator Létourneau awarded all of the medical benefits plus interest.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP