The insurer sought reconsideration of the Tribunal’s refusal to decide an IE non-attendance defence upon the claimant’s Notice of Withdrawal. Vice Chair Maedel dismissed the reconsideration. Once the claimant withdrew her LAT application, there were no matters in dispute between the parties. The IE non-attendance defence was moot and could not be decided by the Tribunal.
The claimant sought to add a claim for punitive damages to his LAT application. Adjudicator Mazerolle held that the Tribunal did not have jurisdiction to award punitive damages in accident benefits disputes. The Tribunal’s jurisdiction was limited to matters provided for in the Insurance Act and Regulations. The Legislature provided clear authority to the Tribunal to grant a special award. No statutory authority existed for an award of punitive damages.
The claimant sought reconsideration of the Tribunal’s decision that it did not have jurisdiction to award ongoing IRBs, and the dismissal of a claim for a special award and interest. IRBs had been reinstated prior to the initial hearing, so there was no dispute as to entitlement or quantum. Vice Chair Maedel dismissed the reconsideration request and held that the Tribunal’s decision was correct. The FSCO jurisprudence the claimant relied upon did not consider the current legislation. Vice Chair Maedel held the Tribunal could not issue declaratory relief for ongoing IRBs when the insurer was paying IRBs at the time of the hearing. He also found no error in the Tribunal’s denial of a special award.
The claimant applied for reconsideration of the Tribunal’s decision that section 31 barred his claim for IRBs because of a material misrepresentation relating to her address, which resulted in lower insurance premiums. Vice Chair Johal dismissed the reconsideration request. The Vice Chair held that the Tribunal did not err in allowing evidence of the phone call where the claimant purchased insurance to be admitted, and rejected the argument that the claimant was not permitted to make submissions regarding the issue. The Vice Chair also held that the SABS did not give the Tribunal power to apply equitable remedies such as waiver or estoppel.
The claimant applied to the LAT seeking a determination that his accident-related impairments were outside of the MIG and entitlement to two treatment plans for medical benefits. A hearing was held in August 2019. Several months later, the LAT was informed that the claimant had passed away. At a subsequent teleconference hearing, the insurer argued that the claimant’s passing rendered the LAT proceeding moot. The deceased claimant’s estate argued that it required a decision on the interest in dispute, and that a decision from the LAT would assist the claimant’s estate in pursuing a tort claim. Adjudicator Mazerolle found that the question of MIG determination was not moot as it was possible that the LAT could find that benefits in dispute were deemed incurred pursuant to s. 3(8) of the SABS. Adjudicator Mazerolle then found that the claimant was within the MIG, and the benefits in dispute were not deemed incurred. The interest in dispute was found not payable, as there was no OCF-21 detailing incurred services and no other evidence that a payable amount was overdue.
The insurer brought a preliminary issue motion for an order staying the claimant’s IRB claim, as she had failed to file a mandatory form prior to applying to the Tribunal – the OCF-3. Vice Chair Flude found that the claimant had not filed her OCF-3 prior to commencing a proceeding before the Tribunal, and as such, she could not apply to the Tribunal for the relief sought until she satisfied the requirements of the SABS and had received a denial from the insurer. In doing so, he noted that the right to appeal to the Tribunal requires there to be a dispute over entitlement to benefits, and there can be no dispute over entitlement where there is no application for the benefit.
The claimant was involved in an accident in 2007. In 2017, FSCO issued a decision granting the applicant ACBs and certain medical benefits. FSCO determined the claimant was not catastrophically impaired and denied a claim for NEBs. The claimant appealed the FSCO decision. The appeal was denied. In April 2020, the self-represented claimant applied to the LAT claiming $6 million for chiropractic services arising from the accident. Adjudicator McGee found that the LAT did not have jurisdiction to hear the application because the claimant had not filed a treatment plan as required under s. 38, and the insurer did not have the opportunity to approve or deny the benefit claimed in the LAT application. Adjudicator McGee found that without a denial of a benefit, the LAT did not have power under the Insurance Act to hear or decide on an application for benefits. The LAT application was dismissed. As the LAT did not have jurisdiction, Adjudicator McGee did not address the other grounds for dismissal raised by the insurer.
The claimant applied to the LAT seeking a determination that her accident-related impairments were outside of the MIG and entitlement to psychological and chronic pain assessments. The insurer argued the claimant was barred from proceeding with the application for MIG determination as the issue had already been adjudicated and decided by the LAT in a previous application. Adjudicator Lake found that the doctrine of res judicata applied, and the claimant was barred from seeking a determination on whether her impairments were outside of the MIG. The application was dismissed.
This was the claimant’s second LAT dispute. The claimant sought entitlement to NEBs, removal from the MIG, and various medical benefits. The insurer argued that the claimant could not re-litigate the applicability of the MIG. Adjudicator Farlam agreed with the insurer that the applicability of the MIG was res judicata and that the claimant could not seek the same relief that had been denied in the first hearing. Most of the claimant’s arguments were an attempt to re-litigate the same claim on the same facts. The claimant did not seek reconsideration or judicial review of the earlier decision, so it was a final judgment. This second LAT dispute was not to be used as a reconsideration or judicial review. All of the submissions that the claimant made in this dispute had already been considered in the earlier dispute. Because the MIG could not be re-litigated, the disputed treatment plans were also dismissed. Adjudicator Farlam denied the claim for NEBs. She held that the evidence showed the claimant remained able to complete housekeeping chores, was independent in personal care, and cared for her young child on her own. The claimant failed to put forward reliable medical evidence that she was prevented from carrying on a normal life.
The claimant applied to the LAT disputing his entitlement to three medical benefits and interest. The insurer argued that the doctrine of res judicata prevented the claimant from re-litigating his entitlement to two of the disputed benefits, which the LAT had dismissed in a previous decision. Adjudicator Grant agreed with the insurer that res judicata applied as entitlement to the two disputed treatment plans had been adjudicated on the merits and the claimant was attempting to re-litigate a final decision of the LAT. With respect to the third medical benefit, Adjudicator Grant dismissed the claim noting that he preferred the evidence of the IE orthopaedic surgeon to that of the claimant’s family physician with respect to whether further treatment was reasonable and necessary. Adjudicator Grant held that the family physician’s diagnosis was based solely on the claimant’s subjective reports whereas the IE orthopaedic surgeon completed a thorough physical examination and his objective findings were that the claimant did not suffer an impairment warranting further treatment.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP