Category: LAT Rules

H.M.L. v. Northbridge Personal Insurance Company (19-000375)

The claimant requested reconsideration of the Tribunal’s decision that she did not meet the post-104 week IRB test. The claimant argued that she received catastrophic impairment assessments that were not available at the time of the decision and which would change the Tribunal’s decision. Vice Chair Mather dismissed the reconsideration request. The claimant had received her section 25 catastrophic impairment assessments after the due date for written submissions, but before the Tribunal rendered a decision. Because the assessments were in the claimant’s possession before the Tribunal’s decision, she ought to have brought a motion to have the Tribunal consider the assessments. Vice Mather also held that the assessments were unlikely to have changed the Tribunal’s decision. The information and opinions in the assessments were contradicted by the surveillance of the claimant. The assessments also did not provide an opinion on the claimant’s ability to work in a suitable employment or self-employment, as they were only directed towards the catastrophic impairment test.

Salvi v. CUMIS General Insurance Company (19-005573)

The claimant sought entitlement to ACBs and various medical benefits for occupational therapy services, assistive devices, and chiropractic services. Adjudicator Paluch rejected the claim for ACBs and most of the medical benefits, but allowed the claims for assistive devices and one of the occupational therapy services. Regarding the ACBs claim, the claimant failed to prove that any services were incurred. The claimant’s affidavit submitted in support of the claim was vague and unhelpful as it did not provide specific details of services, times, duration, level of care, and no exhibits were provided from care providers detailing this information either. Adjudicator Paluch also questioned how the claimant could require 10 hours of supervisory care when the medical evidence was clear that the claimant could respond to an emergency independently. The adjudicator declined to deem the expenses incurred under section 3(8) as the claimant failed to advance any arguments, analysis, or evidence how the insurer unreasonably withheld or delayed payment, other than stating in a general way that the benefits were wrongfully denied. Adjudicator Paluch awarded the claim for a new mattress because there was evidence that the claimant had poor sleep as a result of her injuries and the new mattress did provide improved sleep. A portion of claimed occupational therapy sessions were also awarded because the insurer’s denial did not comply with section 38(8) (no medical reason was provided as to why the proposed treatment was “quite excessive”). Adjudicator Paluch was critical of the claimant’s failure to provide documentation as ordered in the Case Conference Order. Claimant’s counsel insisted on payment for records before production of same, despite the Order not requiring the insurer to pay for the records. Once the records were in the claimant’s possession, she should have provided them. Her failure to do so prevented the Tribunal from having the ability to review the complete clinical notes and records.

M.G. v. Echelon General Insurance Company (18-002005)

The claimant sought entitlement to a neuropsychological assessment, physiotherapy, occupational therapy, attendant care assessment, and assistive devices, a special award. As a preliminary matter, the claimant sought to exclude surveillance evidence and bar the insurer from cross-examining her on an affidavit from an earlier proceeding. Adjudicator Neilson allowed the insurer to cross-examine the claimant on the affidavit, as it was evidence and was relevant to the issues in dispute. The surveillance was permitted to be entered into evidence despite the insurer not producing the full unedited video because the insurer had attempted to obtain same and did not have the video in its possession. Adjudicator Neilson awarded the attendant care assessment, occupational therapy, and physiotherapy. However, mileage fees, transportation costs, and documentation support activities from the attendant care assessment were not payable. The neuropsychological assessment was denied as it was duplicative of an approved neuropsychological assessment, which the claimant had split into two portions to avoid the $2,000 cap on assessments. Adjudicator Neilson also granted a special award of 35 percent on the attendant care assessment. It had been denied when the claimant was in the MIG, and the insurer did not reconsider the denial after the claimant was removed from the MIG.

The Personal Insurance Co. v. Jia (2020 ONSC 6361)

The insurer appealed the LAT’s decision that counsel acting in a priority matter could not also act in the LAT dispute, and the decision excluding the transcript from the priority EUO from the LAT hearing. The Court dismissed the appeal and concluded that the LAT’s decision was reasonable. It held that a conflict could arise if the same counsel acted in the priority dispute and at the LAT. It also reasoned that the protections of section 33 would not be followed if the priority EUO transcript was admitted without leave of the Tribunal.

E.C. v. Northbridge Commercial Insurance Company (18-006384)

The claimant sought reconsideration of the Tribunal’s rejection of catastrophic impairment costs. Adjudicator Grant rejected the reconsideration request. He acknowledged two typos / misnomers, but neither affected the Tribunal’s decision. He maintained that the Tribunal applied the correct legal test, which required the claimant to prove that the disputed assessments were reasonable and necessary. The Tribunal considered the claimant’s physical and psychological conditions and determined that the claimant did not meet his onus. Adjudicator Grant rejected the argument that the Tribunal could not rely upon the content of medical records as it was hearsay. The Tribunal was permitted to accept hearsay and assess its weight. Second, the medical records were to be accepted as accurate unless the claimant called evidence to contradict the content. If the claimant wished to dispute the accuracy, he needed to summons the creator of the record to examine them at the hearing. Finally, Adjudicator Grant rejected the argument that he could not hear the reconsideration because he was the adjudicator hearing the original application. Jurisprudence was clear that a reconsideration is not a statutory right and that administrative tribunals are permitted to provide rules governing reconsideration the process, including who will hear the reconsideration.

B.M. v. Unica Insurance Inc. (19-009381)

The claimant sought entitlement to two medical benefits for physiotherapy and occupational therapy services. The claimant had a significant pre-accident medical history that included a workplace accident, two separate motor vehicle accidents in 2013, chronic lumbar radiculopathy, and chronic lower back pain. He was also involved in a subsequent motor vehicle accident in 2016 after the subject accident. The insurer argued that the disputed treatment plans fail the test for causation. The claimant submitted the disputed treatment plans shortly after the 2016 accident. The insurer argued that the claimant ought to have commenced an accident benefits claim in relation to that loss. The claimant argued that the accident need not be the sole cause of the injuries in order to meet the “but for” test as established in Sabadash v. State Farm. Vice Chair McGee found that the subject accident met this threshold and deemed the two treatment plans to be reasonable and necessary. An issue was also raised as to whether the insurer satisfied the IE notice requirements in section 44(5) of the Schedule. The insurer sent IE notices to the claimant, but omitted crucial information as to the reasons for the sought examination. The notices simply stated “Rescheduled assessment” and “RESCHEDULED” as the reasons. Vice Chair McGee found that the insurer’s notice was patently deficient. Neither of the IE notices provided comprehensible “medical or other reasons” for the requested examinations. She reasoned that an insured person should not be expected to piece together “medical or other reasons” for an examination from disparate notices and correspondence or to advise an insurer of deficiencies in those notices so they may be corrected. Vice Chair McGee concluded that the appropriate remedy was the exclusion of the IE reports.

A.J. v. Aviva General Insurance (19-010794)

The claimant disputed entitled to two treatment plans for physiotherapy and chiropractic services. The insurer disputed the claimant’s entitlement based upon IE reports, and argued that new evidence was submitted in the claimant’s reply submissions were prejudicial. The insurer, by way of motion, requested that the new evidence was improperly submitted and requested it be struck from the hearing record. Adjudicator Grant partially agreed with the insurer regarding the striking of evidence. Adjudicator Grant noted that the right of reply was limited, and reply arguments were not the place to make new arguments or submit new evidence. The paragraphs containing new evidence or arguments were struck, and the paragraphs containing new medical claims (i.e., chronic pain) were struck as well as they were not supported by any previous evidence or arguments. The claimant argued that he was unable to include the new arguments in his original submissions due to COVID 19. Adjudicator Grant did not accept this argument, noting that the claimant could have communicated his inability to meet the submission deadline to the parties to ensure action was taken, and noted that the insurer was prejudiced by the late filing and new evidence as it was unable to mount a defence to the same or reply in kind. Adjudicator Grant determined that the disputed treatment plan for physiotherapy services was reasonable and necessary as both the claimant’s expert report and the IE assessor had reached similar conclusions regarding his physical status. The treatment plan for chiropractic services was not reasonable or necessary as it recommended an exercise bike and home exercises, which did not require the direct supervision of a chiropractor.

I.A. v. TD General Insurance Company (19-006142)

The claimant disputed entitled to 7 treatment plans for chiropractic treatment. The insurer argued that the claimant had filed his submissions two and half months late and requested that the submissions be excluded in their entirety, and sought costs. Adjudicator Grant noted that excluding the claimant’s submissions in their entirety would be severely prejudicial to the claimant and would lead to an unfair result. Adjudicator Grant further noted that although the submissions were submitted well beyond the deadline, the insurer was able to submit a response which appeared to address all of the issue in dispute, and that any prejudice suffered by the insurer would be minimal. Adjudicator Grant ruled that the disputed treatment plans for further chiropractic treatments were not reasonable or necessary. He noted that nowhere in the claimant’s submissions did his treating doctors recommend further chiropractic treatments. Adjudicator Grant awarded the insurer $300 in costs for the claimant’s late filing of submissions, reasoning that the award would deter and prevent such behaviour in the future.

K.G. v. Aviva Insurance Company of Canada (19-006535)

The claimant withdrew her LAT Application on June 7, 2019, three days before the scheduled written hearing. On June 18, 2019, the claimant filed another Application disputing the same medical/rehabilitation benefits (but without the original claim for income replacement benefits or attendant care). At the case conference, the insurer raised a preliminary issue that the Tribunal application filed by the claimant was an abuse of process given that the four benefits in dispute were raised in a previous proceeding and were also withdrawn by the claimant. Adjudicator Johal concluded that the second LAT Application was not an abuse of process, particularly as the issues in dispute had never been adjudicated on their merits. He found that to dismiss the claimant’s Application without a hearing would be an extremely harsh result and would impede the claimant’s access to justice. A claimant is entitled to withdraw an application at any time, and does not need the consent of the insurer to do so.

A.G.S. v. Echelon General Insurance Company (18-001994)

The claimant was a fetus in utero at the time of the accident and born prematurely four days after the accident. She was diagnosed with cerebral palsy as a result of her premature birth. The insurer initially paid accident benefits based on a medical opinion, but subsequently questioned causation based on an opinion of an obstetrician. While the claimant filed applications regarding entitlement to attendant care benefits and other accident benefits, the insurer filed the subject LAT for a determination on the causation issue. The claimant argued that the limitation period applied to the insurer changing its position on causation. All of the applications were consolidated into a single dispute and a preliminary motion was heard to decide whether the insurer could change its opinion on causation two years after the accident in reliance on the report of its obstetrician. Adjudicator Grant concluded that the insurer was not precluded from arguing causation at the subsequent hearing. There was no evidence of waiver because the insurer would have had to be shown to have full knowledge of the facts and choose not to assert its right to deny a benefit. Instead, the insurer acted appropriately by approving benefits while it sought to obtain an expert opinion on causation. The insurer’s approval of attendant care benefits did not waive its right to revisit causation and conduct future IEs. Further, the limitation period did not apply to an insurer’s defences. Section 56 only applied to denials of benefits. The claimant also argued that the obstetrician’s report should be excluded because it was obtained by the insurer’s legal counsel. Adjudicator Grant rejected the argument, reasoning that the insurer had provided the claimant with an IE notice and its counsel was simply acting as an agent.