Category: LAT Rules

M.K. v. Aviva General Insurance (18-009319)

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.

T.I. v. TD Insurance Meloche Monnex (18-002932)

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.”

F.E. v. Intact Insurance Company (18-011405)

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.

M.G. v. Certas Direct Insurance Company (18-006807)

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.

Najeebdeen v. Economical Mutual Insurance (19-010850)

The claimant sought the particulars of, and production of, all surveillance the insurer had conducted. The insurer resisted the request, arguing that all surveillance was obtained after litigation privilege arose. Adjudicator Grieves held that the insurer was only required to produce surveillance obtained after litigation privilege arose if the insurer intended on using the surveillance at a hearing.

Economical Mutual Insurance Company v. A.S. (19-001820)

The insurer applied to the LAT for repayment of IRBs, and also for a determination on the claimant’s entitlement to further IRBs, the application of a section 33 suspension, and whether the claimant sustained a catastrophic impairment. Adjudicator Boyce held that the insurer could not bring an application related to IRB entitlement, section 33 suspension, or a catastrophic impairment, but could proceed with the request for repayment. He reasoned that the Tribunal only had jurisdiction once there was a dispute between the parties. The insurer’s determination regarding IRBs, section 33, and a catastrophic impairment was not equivalent to a “dispute” or “disagreement.” The claimant could, potentially, agree with the determinations and abide by the decisions. The insurer was permitted to proceed with the request for repayment, but the remainder of the issues were dismissed.

J.M. v. Wawanesa Mutual Insurance Company (18-006148)

The insurer sought reconsideration of the Tribunal’s award of $6,000 per month in ACBs. The claimant was involved in an accident in 2015 and deemed catastrophically impaired three years later. The claimant’s Form 1 recommended $8,467.65 worth of ACBs per month; the insurer’s Form 1 supported $1,583.45 in ACBs per month. The insurer argued that the Tribunal erred in its decision, and that the evidence showed that the claimant was largely independent at the time the Form 1 was submitted, that the Tribunal did not properly apply the “but for” test, that the Tribunal incorrectly admitted late evidence, and failed to apply the proper law in relation to ACBs. Adjudicator Lester reiterated the exhaustive list of reasons why such a high quantum of ACBs were warranted and rejected the reconsideration request. She further commented that, although the claimant’s Form 1 was not included in the evidence brief prior to the hearing, the insurer had a chance to object to it being admitted into evidence at the hearing and did not, it was also a key piece of evidence that caused no prejudice to the insurer as it was aware of it prior to the hearing. Although the claimant and her treating therapists did not specifically elaborate on a precise breakdown of each line of the Form 1 in dispute, Adjudicator Lester was satisfied that it was reasonable on the grounds of the claimant’s psychological injuries requiring a higher level of assistance, such as cueing.

V.P. v. Aviva Insurance Canada (18-011026)

The insurer brought a motion requesting the production of unredacted treating psychotherapist records and the claimant brought a motion to exclude certain records from the insurer’s brief. Adjudicator Paluch found that the psychotherapist notes were prepared to document the claimant’s treatment and not for the sole purpose of litigation, therefore, litigation privilege did not apply. Adjudicator Paluch found that there was no solicitor-client relationship between the psychotherapist and claimant nor between the psychotherapist and claimant’s counsel. Adjudicator Paluch granted the insurer’s motion. Adjudicator Paluch found that the requested IE reports and CNRs were received via email correspondence on the due date. Further, Adjudicator Paluch noted that Rule 10 only applied to expert witnesses and the person who compiled the Facebook pages and the investigator who conducted the surveillance were not listed witnesses in the Order. Adjudicator Paluch dismissed the claimant’s motion. The claimant later withdrew the application.

J.M. v. Wawanesa Mutual Insurance Company (18-006148)

The insurer sought reconsideration of the Tribunal’s award of $6,000 per month in ACBs. The claimant was involved in an accident in 2015 and deemed catastrophically impaired three years later. The claimant’s Form 1 recommended $8,467.65 worth of ACBs per month; the insurer’s Form 1 supported $1,583.45 in ACBs per month. The insurer argued that the Tribunal erred in its decision, and that the evidence showed that the claimant was largely independent at the time the Form 1 was submitted, that the Tribunal did not properly apply the “but for” test, that the Tribunal incorrectly admitted late evidence, and failed to apply the proper law in relation to ACBs. Adjudicator Lester reiterated the exhaustive list of reasons why such a high quantum of ACBs were warranted and rejected the reconsideration request. She further commented that, although the claimant’s Form 1 was not included in the evidence brief prior to the hearing, the insurer had a chance to object to it being admitted into evidence at the hearing and did not, it was also a key piece of evidence that caused no prejudice to the insurer as it was aware of it prior to the hearing. Although the claimant and her treating therapists did not specifically elaborate on a precise breakdown of each line of the Form 1 in dispute, Adjudicator Lester was satisfied that it was reasonable on the grounds of the claimant’s psychological injuries requiring a higher level of assistance, such as cueing.

B.B. vs. Aviva General Insurance Company 18-006826)

The claimant disputed entitlement to IRBs in the amount of $400.00 per week from October 26, 2016 to January 7, 2019 with interest. As a preliminary issue, the claimant sought to add entitlement to IRBs beyond January 7, 2019. Adjudicator Lake dismissed the claim, and the preliminary issue. She noted that the claimant did not bring the preliminary matter up during the Case Conference, and had sufficient time before the hearing to bring the matter up and submit a motion to include the issue, which would have allowed the insurer to respond. As it was highly prejudicial to significantly change the period of the benefit claimed, and an Order from the Tribunal was required to add issues to a hearing, the preliminary issue was dismissed. Adjudicator Lake dismissed the claimant’s claim for IRBs, noting that although an OCF-3 was completed on October 31, 2016, it was not provided to the insurer until April 9, 2018; therefore, there was no entitlement to IRBs prior to April 9, 2018. Furthermore, the claimant had failed to prove on a balance of probabilities that he was entitled to the benefit. The practitioners who completed his OCF-3s did not have direct knowledge of his job requirements, and instead used generic terms; the description of his employment was vague and generic when described by medical practitioners, and sick notes provided did not directly reference the subject accident.

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