Category: LAT Rules

P.F. v. Jevco Insurance (18-000533)

The claimant failed to attend an examination under oath. The insurer argued that the claimant’s entitlement to accident benefits was suspended. The claimant argued that the examination under oath was not properly scheduled. Adjudicator Norris held that the examination under oath was properly scheduled. He reasoned that an examination under oath can be requested after a LAT application is submitted. He also reasoned that the examination under oath notice complied with the requirements of section 33. Finally, Adjudicator Norris concluded that the LAT application would not be stayed, but that the claimant’s entitlement to benefits was suspended until he participated in an examination under oath.

Applicant v. Aviva General Insurance (17-007777)

The insurer brought a Motion seeking production of the claimant’s employment and educational files from several third parties. Adjudicator Maedel found that the productions requested were relevant to the issues in dispute in the matter. He recognized that there was no explicit power under the Tribunal’s Rules for third party productions and relied on sections 8 and 12 of the SPPA to issue summons to the third parties, who were required to produce the documents sought at the LAT hearing.

Applicant v The Guarantee Company of North America (17-004229)

The claimant sought entitlement to IRBs post 104 weeks and a special award. Adjudicator Neilson held that the claimant was not entitled to IRBs after 104 weeks. The adjudicator held that the employment identified by the insurer’s vocational specialist was reasonably suited by the claimant’s education, training and experience; the claimant had not made a sincere effort to obtain suitable employment; the claimant’s evidence regarding his level of pain was not reliable; and the claimant did not establish that he had a disability or impairment that prevented him from obtaining employment at any of the jobs identified by the insurer as suitable. Procedurally, the insurer objected to the affidavit of the claimant’s family physician being made an exhibit on procedural fairness grounds as it would not be able to cross-examine the physician. The adjudicator allowed the affidavit to be filed as an exhibit and held that the Tribunal’s duty of fairness to parties is to ensure they understand the case they have to meet and allow them to respond. The adjudicator held that the insurer did not demonstrate that it would suffer any real prejudice as it was aware that the claimant intended to rely on the physician’s records and affidavit and it made no efforts to cross-examine the physician during the month before the hearing. The insurer also sought to have a portion of the family physician’s opinion struck on the basis that he was not an expert, but rather a treating physician, and that he failed to comply with Rule 53.03 of the Rules of Civil Procedure and Westerhof. The adjudicator held that the Rules of Civil Procedure did not apply to the LAT, and the family physician was qualified to provide professional and scientific, or technical information and opinion based on the special knowledge of a physician through his education, training and experience in accordance with LAT Rule 10.1. The adjudicator further noted that the family physician would be a “participant expert” according to Westerhof and would be allowed to provide evidence about his own observations without having to sign an acknowledge of his duty to the court/Tribunal. The adjudicator declined to exclude the claimant from the hearing during the insurer’s expert’s testimony and held that the claimant had a right to hear the evidence and there was no evidence to suggest that there would be a concern that the claimant would tailor his evidence. The adjudicator refused to produce one of the insurer’s expert’s raw data during the hearing as it was not sought at the case conference and could be misconstrued by a person without proper training. The adjudicator allowed both parties to review the raw test data and ask questions on it.

M.C. v Certas Home and Auto Insurance (17-005243)

The claimant failed to attend a case conference which was the fourth proceeding he failed to attend. The claimant was put on notice that his application could be dismissed as abandoned and was given an opportunity to provide written submissions on why his application should not be dismissed without a hearing. The claimant failed to provide Vice Chair Trojek with reasons. The Notice of Dismissal was mailed to the claimant and was not returned to the Tribunal as undeliverable. It was deemed to be received by the fifth day after the postmark date. Vice Chair Trojek dismissed the application as abandoned.

Applicant v Unifund Insurance Company (17-009004)

The insurer requested reconsideration of part of a decision made by external counsel for the Tribunal during a case conference. At the case conference, the insurer requested the determination of the preliminary issue of whether the claimant was precluded from proceeding with his application to the LAT because he failed to attend IEs. External counsel directed that this preliminary issue would be heard with the issues in dispute at an in-person hearing. Adjudicator Jovanovic granted the request for reconsideration and held that the insurer was not afforded procedural fairness when its request for a determination of the preliminary issue was denied without reasons. Both parties should have the benefit of a decision on the preliminary issue before incurring the expenses of a full hearing. Adjudicator Jovanovic held that the preliminary issue would be determined first, and the balance of the hearing would be adjourned pending the release of a decision on the preliminary issue.

Applicant v. Unifund Assurance Company (17-004579)

The claimant sought a determination that her impairments were outside of the MIG and entitlement to attendant care and medical benefits proposed in eight treatment plans. Adjudicator Go found that the claimant’s injuries fell within the MIG and she was not entitled to any of the benefits in dispute. As a preliminary issue, the respondent asked that the Tribunal exclude medical records that were served by the claimant less than 10 days before the written hearing date. Adjudicator Go allowed the claimant to rely on the disputed medical records because they were relevant, excluding the records might undermine the claimant’s ability to make her case, and the respondent had had an opportunity to review the records and make submissions on them.

Applicant v. The Co-Operators General Insurance Company (17-006816)

The claimant sought a determination that his impairments were outside of the MIG and entitlement to one treatment plan for psychological services. This was the claimant’s second LAT application relating to MIG determination. The adjudicator in the hearing relating to the first application (Adjudicator Sewrattan) found that the claimant’s injuries were minor. When the second LAT application was filed, the respondent brought a motion to dismiss the application on the basis of res judicata. The motions adjudicator dismissed the motion on the basis that it was premature, finding that there was a possibility of new evidence being submitted for the second application that was not available at the first hearing. The second application then proceeded to a written hearing before Adjudicator Punyarthi, who held that only evidence that had become available since the release of Adjudicator Sewrattan’s decision would be considered. Adjudicator Punyarthi found that the claimant’s injuries were minor and that the proposed treatment was not payable as it was outside of the MIG limits.

Applicant v Aviva Insurance Canada (17-008143)

The claimant sought entitlement to IRBs, medical benefits, and various costs of examinations, in addition to a special award. Adjudicator Fricot held that the claimant was not entitled to any of the benefits claimed. The claimant argued that all documentation submitted by the insurer be ruled inadmissible as it was not sworn, or that it should be given no weight as it was not authenticated. The claimant also argued that no weight should be given to the statements reported to be made to assessors and referenced in their reports. The adjudicator denied this request as the production and use of the relevant documents was contemplated and agreed to by the parties. The claimant also objected to the admissibility of the insurer’s reply submissions and argued that the insurer was not entitled to file reply submissions without leave. The adjudicator held that the reply submissions were admissible and the insurer was entitled to make submissions in response due to the nature of the allegations made in the claimant’s reply submissions and because the claimant alleged that the insurer had breached the Tribunal’s Order. There was no prejudice to the claimant as it was allowed to reply at the oral portion of the hearing. The adjudicator held that the claimant was not entitled to IRBs as he was not employed, self-employed or in receipt of EI benefits at the time of the accident, nor had he worked 26 of the 52 weeks pre-accident. The claimant had worked for less than 26 weeks in the 52 weeks pre-accident, and had been laid off between 2014 and 2016. The adjudicator held that while there was record of being “laid off”, the evidence did not establish an ongoing employment relationship with the claimant’s employer between 2014 to 2016. The adjudicator held that the medical benefits and assessment plans sought were not reasonable and necessary because his accident-related injuries had resolved prior .

R.H. v. Wawanesa Mutual Insurance Company (17-005570)

The insurer alleged that the accident was staged and refused to pay accident benefits. The claimant sought disclosure of the insurer’s unredacted log notes, the property damage file, and the notes for the related BI claims. Adjudicator Maedel ordered that the insurer produce redacted log notes pertaining to the accident investigation and denial of benefits up to the date of the hearing, redacted log notes regarding the property damage file, and the redacted log notes for the BI claim (the BI parties had provided authorizations, so no privacy issues arose). All redactions were to be explained and a summary of the redaction to be provided. No privileged information was ordered to be provided.

S.C. v. Wawanesa Mutual Insurance Company (18-003409)

The claimant filed a Notice of Motion requesting the Tribunal make the following orders: 1) that the insurer could not use any surveillance of the claimant at the hearing or, in the alternative, that the investigator must attend the hearing for cross-examination; 2) that the respondent pay for a s. 25 report or, in the alternative, that the cost of the s. 25 report be added to the issues in dispute; and 3) that the claimant could rely on its expert reports without producing the experts for examination, as the cost of producing the experts was prohibitive. The insurer advised that it had not conducted surveillance of the claimant. Vice Chair Helt denied the surveillance-related order requests. Vice Chair Helt found that no treatment plan had been submitted for the proposed s. 25 report and held that the claimant had failed to establish the necessity of a s. 25 report. Vice Chair Helt further held that the claimant was not required to conduct direct examination of her witness but that it was the claimant’s responsibility to make her expert witnesses available for the purposes of cross-examination by the respondent. Vice Chair Helt held that the Tribunal does not have the authority to order a party to make arrangements for and pay the other party’s expert witness fees.