Category: LAT Rules

Sheriffe v. Aviva Insurance Company of Canada (19-009684)

This was a preliminary motion decision on the claimant’s request for production of adjuster’s log notes beyond the date of the LAT application, and the insurer’s request for production of a 2010 AB file for a previous accident. Adjudicator Maedel ordered that the insurer produce the log notes beyond the date of the LAT application, redacted for privilege and the privacy of reserve information. Adjudicator Maedel held that he was satisfied that the log notes were relevant as there was a nexus between the productions sought and the issues in dispute. He found that the log notes reflected the ongoing adjustment of the claim for benefits and the decisions the adjuster made throughout the process. With respect to 2010 AB file, the claimant refused to submit this document arguing records more than three years pre-accident were not relevant. The insurer argued that the AB file was relevant given that causation was an issue due to the claimant’s pre-accident medical history and that it was especially relevant for the test for NEBs given the claimant’s condition after the 2010 loss. Adjudicator Maedel held that there was no definitive deadline for pre-accident productions and that productions were determined by relevance to the issues in dispute. Adjudicator Maedel found that the probative value of the 2010 AB file outweigh any prejudice to the claimant and would assist the LAT in determination of the claimant’s entitlement to benefits.

Cox v. Wawanesa Mutual Insurance Company (19-012281)

The claimant was involved in a serious motor vehicle accident in 2014. She received IRBs for four years, until they were terminated based on multidisciplinary s. 44 opinions. The claimant applied to the LAT seeking entitlement to post-104 week income replacement benefits and a special award. As a preliminary issue, the claimant requested that the insurer’s surveillance evidence be excluded as it was served 1.5 months after the deadline for document exchange. Adjudicator Paluch declined to exclude the surveillance evidence, finding that it was relevant and that the claimant was not significantly prejudiced by its inclusion as the surveillance materials were served a month prior to the hearing. The claimant declined an offer to adjourn the hearing to allow time for her experts to review the surveillance. Adjudicator Paluch found that the insurer’s multidisciplinary assessments were greatly undermined by the fact that they did not investigate the severity of the claimant’s psychological problems and chronic pain syndrome, or fully assess the claimant’s ability to work a full workday or workweek. Adjudicator Paluch found that the claimant was entitled to further post-104 IRBs to date and ongoing. The request for a special award was denied.

Zhao v. Allstate Canada (20-000134)

The claimant filed a LAT application seeking entitlement to an attendant care assessment, various other treatment plans, and an award under Regulation 664. The claimant’s hearing submissions noted that the dispute over medical benefits other than the attendant care assessment were resolved prior to the hearing. While the case conference order referenced a claim for an award, the claimant did not address the claim for an award in the hearing submissions. The insurer requested that the claim for an award be dismissed as (1) the claimant had not provided particulars of the claim by the document disclosure deadline noted in the case conference order, (2) the claimant’s submissions were devoid of any claim for an award, (3) the claimant was barred from making further arguments relating to the award claim pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, and (4) it would be breach of procedural fairness for the LAT to accept subsequent particulars from the claimant relating to the award. The claimant did not file Reply submissions. Adjudicator Parish dismissed the claim for an award because the particulars were not disclosed by the document production deadline and the claimant violated Rule 9.4. Adjudicator Parish found that it would be a breach of procedural fairness to the insurer to allow the applicant to proceed with the award without particulars being produced in advance of the hearing. Adjudicator Parish further found that the claimant was not entitled to the attendant care assessment. The insurer had previously approved attendant care based on an earlier assessment, and the claimant had not incurred any attendant care expenses. The OT in-home attendant care assessment report by Raymond Wong was not persuasive as it relied to a large extent on the claimant’s self reporting and limited objective testing. The assessment was found not to be reasonable and necessary.

Delagrammatikas v. Aviva General Insurance (19-013365)

The claimant sought entitlement to a treatment plan for dietician services, a treatment plan for physiotherapy, a rehabilitation benefit for rehabilitation support worker services, and interest. The claimant submitted that he gained weight after the accident which has been a barrier to his recovery. The parties disagreed as to the amount of weight the claimant gained after the accident, but it was sufficient to note that the claimant experienced additional weight gain because of accident-related inactivity and stress. Vice-Chair McGee rejected one of the IE assessors’ opinion on the basis that the report raised doubt as to the thoroughness of the assessment and found that the claimant had discharged his onus of establishing that dietician services were reasonable and necessary. The claimant further submitted that the treatment plan for rehabilitation support worker services was reasonable and necessary based on the opinion of one of the expert witnesses. However, Vice-Chair McGee determined that the claimant failed to establish how the services described in the plan aligned with the expert’s recommendations and how interpersonal relationship facilitation was linked to the exercise follow-through and help with home projects that were the proposed focus of rehabilitation support in the treatment plan. For these reasons, the proposed rehabilitation support services was deemed not reasonable or necessary. Lastly, the treatment plan for physiotherapy services was found to be reasonable and necessary as the insurer had not presented reliable evidence that the claimant’s condition would not be changed by ongoing physiotherapy treatment meanwhile the claimant presented evidence that he had experienced symptomatic relief from physiotherapy. The claimant also sought the exclusion of two of the Insurer’s Examination (IE) reports because the authors failed to complete and sign an Acknowledgment of Expert’s Duty form as required under Rule 10.2(b) of the Tribunal’s Common Rules of Practice and Procedure. The insurer submitted that the claimant was non-complaint with Rule 10.2, specifically sub-rule 10.2(a), which required a party to provide the name and contact information of an expert witness, and sub-rule 10.2(e), which required a party to provide a summary of the expert witness’s findings and conclusions. Vice-Chair McGee concluded that the reports of the expert witnesses complied with the requirements of Rule 10.2(a) and (e) and were admissible. On the other hand, the insurer failed to comply with Rule 10.2(b) in respect of the IE reports. However, Vice-Chair McGee was prepared to admit the reports despite the insurer’s non-compliance with the rule. Vice-Chair McGee found that the prejudice to the insurer that the exclusion of its expert evidence would cause exceeds the concern for technical compliance with the Rules. The Rules are to be liberally interpreted and applied and may be varied to facilitate a fair process.

C.E. v. Aviva General Insurance Company (18-002591)

This is a reconsideration decision. The hearing decision found that the claimant sustained minor injuries and was subject to the MIG. The claimant requested reconsideration of the hearing decision based on new evidence that was not before the Tribunal at the time of the written hearing and which, he submitted, would likely have affected the result. The claimant also submitted that the LAT erred in law by failing to request the claimant’s medical records from his treating psychiatrist. The request for reconsideration was dismissed. The claimant did not file the “new” evidence with the request for reconsideration (the records had been requested but not received by the claimant). In addition to noting the new evidence had not been filed and was therefore not available for consideration by the LAT, Adjudicator Neilson found that the claimant did not satisfy his onus to show that the psychiatrist’s records could not have reasonably been obtained before the hearing. Adjudicator Neilson found that applicants to the Tribunal are obligated to make their own case, and the Tribunal did not make an error in law by not requesting the psychiatrist’s records prior to making a hearing decision. Adjudicator Neilson held that a reconsideration is not an opportunity to re-argue a case.

Hodge v. Aviva Insurance Canada (19-005751)

The claimant sought entitlement to IRBs from June 25, 2018 to March 2, 2019. Vice Chair Mather first heard a preliminary issue with respect to the Tribunal’s font and spacing specifications. Vice Chair Mather stated that it is open to a party to request an increase in page limits if they do not feel that they can properly make their case within the specified page limit. Second, Vice Mathers heard a preliminary issue with respect to the claimant submitting new evidence in their reply submissions. Vice Chair Mathers allowed the evidence to be heard because there was no prejudice to the insurer in doing so and the claimant met the deadline for exchanging documents. With respect to the claimant’s entitlement to IRBs, Vice Chair Mathers was not satisfied on the balance of probabilities that the claimant suffered a substantial inability to perform the essential tasks of his self-employment as a contractor. Vice Chair Mathers was not persuaded that the claimant met the test for IRBs because of the inconsistencies in his evidence, which affected his credibility. There were multiple contradictory reports with respect to whether or not the claimant had returned to work. Further, the claimant misled the reporting doctors by failing to mention his previous injuries.

N.C. v. Aviva General Insurance Company (19-004666)

The claimant sought reconsideration of the Tribunal’s decision dismissing entitlement to medical benefits. Adjudicator McGee noted that the claimant filed her reconsideration submissions nearly a month after the deadline for submissions. Vice Chair McGee did not make any findings on procedural issues for the late findings, as she dismissed the reconsideration application on its merits. With regard to the claimed medical benefits, Vice Chair McGee held that the Tribunal applied the proper “”reasonable and necessary”” test in concluding that the claimant had reached maximum medical recovery and that no further facility based treatment was warranted. Vice Chair McGee also rejected the claimant’s arguments regarding the claimed MRI being available through OHIP. She reiterated that pursuant to section 47(2), the insurer was not required to pay for the MRI because it was reasonable available through OHIP.

H.O. v. Aviva General Insurance (19-002362)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. In particular, he challenged the Tribunal’s conclusion regarding a 40 percent WPI for cauda equina-like syndrome, and argued that it should have applied. He argued that the Tribunal did not allow procedural fairness when it limited his expert’s answers on re-examination, and that the Tribunal erred in law regarding its conclusions. Vice Chair Flude rejected the reconsideration. In terms of the re-examination, he held that the claimant was improperly attempting to split its case by asking questions about matters that were not covered in direct examination. The claimant was obligated to adduce all evidence he intended to rely upon in the examination in chief. Additionally, the claimant’s expert was not entitled to expound upon answers in cross-examination where such answers were not responsive to the cross-examination. Regarding the alleged legal error, Vice Chair Flude concluded that his findings of fact and resulting legal conclusions were sound and based on the medical evidence before the Tribunal. He noted that neither the claimant’s expert nor the insurer’s expert found significant loss of bilateral function in the lower extremities. The request for reconsideration was dismissed.

T.H. v. Allstate Insurance Company of Canada (19-004567)

The insurer sought reconsideration of the Tribunal’s decision to award two treatment plans. The main argument for reconsideration was that the Tribunal considered an affidavit from the claimant that the insurer did not have an opportunity to cross-examine the claimant on. Adjudicator Paluch granted the reconsideration, holding that the Tribunal violated the rules of procedural fairness. The Tribunal had erred in considering the affidavit when it had been agreed by the claimant and the insurer prior to the written hearing, that the affidavit would not be part of the evidence before the Tribunal. The adjudicator had mistakenly believed that the insurer was consenting to the inclusion of the affidavit and that the insurer had waived its right to cross-examine the claimant on it

Gomes v. Aviva General Insurance (19-005653)

The claimant applied to the LAT disputing 10 medical benefits. The claimant and her legal representative failed to attend two case conferences, and the legal representative subsequently removed himself from the record. The LAT issued a Notice of Dismissal to the claimant, and the parties were advised to make written submissions on the Tribunal’s intention to dismiss the claimant’s appeal without a hearing. The claimant failed to make submissions on the issue, and the insurer filed a formal Notice of Motion to have the matter dismissed. The Vice Chair issued an order dismissing the appeal as abandoned. Six months later, the claimant submitted a second LAT application with a new legal representative disputing 5 medical benefits, 4 of which were previously disputed in the first LAT application. At the case conference, the insurer raised a preliminary issue requesting to have the duplicate claims in the second LAT application barred as having already been dismissed. Adjudicator Msosa agreed, and found that the claimant was precluded from reopening an application on issues that were previously dismissed as abandoned by the LAT, as to do so would constitute an abuse of process.

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com

© 2020 Thomas Gold Pettingill LLP Disclaimer | Privacy Policy | Statement of Principles

Powered by Crow & Pitcher

Contact Us

150 York Street, Suite 1800
Toronto, Ontario M5H 3S5

416.507.1800

416.507.1850

eodonnell@tgplawyers.com