The claimant sought reconsideration of the Case Conference order that an in-person hearing be held rather than a written hearing. Vice Chair Jovanovich dismissed the reconsideration as the order was not a final order disposing of an appeal.
The claimant sought reconsideration of the Tribunal’s Case Conference order that a preliminary issue hearing take place to address the IE non-attendance issue, and of the Case Conference adjudicator’s refusal to “strike” the issue, arguing that the adjudicator was biased. Vice Chair Jovanovich dismissed the reconsideration request because it was not a final order. Rather, it was a procedural order made under the Tribunal’s Rules.
The claimant sought reconsideration of the Tribunal’s Case Conference order that a preliminary issue hearing take place to address the IE non-attendance issue, and of the Case Conference adjudicator’s refusal to “strike” the issue, arguing that the adjudicator was biased. Vice Chair Jovanovich dismissed the reconsideration request because it was not a final order. Rather, it was a procedural order made under the Tribunal’s Rules.
The claimant filed a request for reconsideration arising from a decision in which the Tribunal found that his injuries fell within the MIG. Adjudicator Kaur first addressed the insurer’s motion to exclude certain documents and submissions that were included in the claimant’s request for reconsideration. Adjudicator Kaur granted the insurer’s motion. She found that the claimant was using a psychiatric report to supplement the evidence which was already before the Tribunal in an attempt to re-argue issues that had already been decided, and that the other documents and submissions did not add anything to the case substantively, were not relevant to the issues raised, or were misleading. Adjudicator Kaur dismissed the request for reconsideration on the grounds that the claimant failed to establish she acted outside of the Tribunal’s jurisdiction or violated the rules of natural justice or procedural fairness, or that the Tribunal made a significant error of law of fact such that it would have likely reached a different decision.
The claimant filed a motion to withdraw some of the issues listed for an upcoming LAT hearing on a without-prejudice basis. The insurer submitted that the issues not identified for withdrawal (namely attendant care benefits) were still in dispute, while the claimant submitted that the issue of attendant care benefits was previously determined in a preliminary issue decision that was upheld on reconsideration. Adjudicator Punyarthi concluded that the claimant was permitted to withdraw issues without prejudice, noting that there was no basis for imposing a generalized “with prejudice” withdrawal of issues in this case. If an issue is brought back, the claimant would have a right to have that issue considered and decided on the merits. Adjudicator Punyarthi also determined that attendant care benefits were not an issue in dispute because the issue had already been decided and upheld on reconsideration, and the Tribunal could not re-hear the issue at this stage.
The insurer submitted a request for reconsideration following a decision in which the Tribunal found that the claimant was entitled to various medical benefits. In making its decision, the Tribunal addressed a procedural issue that arose as a result of the parties not filing the OCF-18s in dispute with their written submissions and evidence. As a result, the Tribunal issued an Order directing the parties to serve on each other and file with the Tribunal a copy of the missing OCF-18s along with written submissions on whether the claimant should be permitted to file the missing OCF-18s as evidence for the written hearing. Ultimately, the Tribunal allowed the missing OCF-18s into evidence and proceeded to determine that the claimant was entitled to the treatment set out in those OCF-18s. The insurer argued that the Tribunal made significant errors of fact and law such that the Tribunal would likely have reached a different decision by finding that the missing OCF-18s were submitted by the claimant (when they were in fact submitted by the insurer), by accepting the missing OCF-18s into evidence, and by making the claimant’s case for her on arguments that were never made by the claimant. Adjudicator Lake dismissed the insurer’s request for reconsideration, noting that the Tribunal did not err in admitting the missing OCF-18s into evidence, and that while it erred in stating that the treatment plans were submitted by the claimant when they were in fact submitted by the insurer, this error would not have led the Tribunal to a different decision. Adjudicator Lake further noted that the Tribunal correctly placed the onus on the claimant to prove entitlement, and did not act as an advocate for the claimant. Rather, the Tribunal reviewed all of the evidence in the matter, which included the missing OCF-18s.
The claimant sought reconsideration of the Tribunal’s decision that she was not entitled to NEBs. Adjudicator Grant dismissed the reconsideration. He held that new evidence could not be admitted on reconsideration, since there was no explanation why the evidence was not available for the hearing. He also held that the exclusion of the family physician was not a denial of procedural fairness or natural justice because the claimant had never identified the family physician as a witness prior to the hearing.
The claimant brought a motion for the insurer to provide an explanation for each and every redaction in the adjusting log notes that was sufficient enough to potentially allow the claimant to challenge any claim of solicitor-client privilege. Adjudicator Johal found that the claimant was entitled to a reasonable explanation for each redaction, and that the reasonable explanation requirement was not satisfied by simply stating “solicitor-client privilege” or “litigation privilege.”
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 to add a claim for a physiatry assessment to the issues in dispute. The claimant had died one day after the physiatry assessment took place. The insurer argued that the issue should not be added because the claimant failed to attend the IE (after he had died). Vice Chair Marzinotto permitted the addition of the physiatry assessment because it would have been unfair and a waste of resources to require the deceased’s estate to submit a new LAT application.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP