The insurer sought the production of records from all post-accident physicians identified on the OHIP summary. The claimant did not dispute the relevance, but argued that the production of all records would be disproportionate. The Case Conference adjudicator did not make an order for such records, and the insurer sought reconsideration. Associate Chair Jovanovic ordered that the claimant produce the records from all of the physicians. He noted that the insurer had agreed to pay for the records, so there was very little prejudice to the claimant, and that to not provide the records to the insurer would be prejudicial to it.
Category: LAT Rules
The insurer sought reconsideration of the Tribunal’s award of medical benefits, arguing that the claimant had not provided invoices evidencing that services were incurred. Associate Chair Jovanovic denied the reconsideration. He held that the adjudicator had considered and weighed the evidence and accepted that the medical treatment in dispute was reasonable, and that it was incurred.
The claimant sought a determination that his impairments were outside of the MIG and entitlement to benefits proposed in two treatment plans. Adjudicator Punyarthi found that the claimant’s injuries fell within the MIG and that the treatment plans in dispute were not payable as the MIG limits had been exhausted. Adjudicator Punyarthi decided not to consider the issue of the timing of the insurer’s denial letters as this issue was raised for the first time in the claimant’s reply submissions, and the respondent did not have an opportunity to reply to the submissions.
The claimant sought removal from the MIG and five medical benefits. Adjudicator Parish concluded that the claimant suffered minor injuries and did not suffer psychological injuries or chronic pain as a result of the accident. She did not accept the opinions of the claimant’s experts. Adjudicator Parish did not permit the claimant to rely upon written submissions that were not served in accordance with the Case Conference Order timelines. She also did not allow the claimant to rely upon case law that had not been submitted in accordance with the Case Conference Order timelines.
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.
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.
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.
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.
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.
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.