Category: LAT Rules

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.

Applicant v. RBC General Insurance Company (17-006369)

The claimant sought entitlement to four treatment plans for physical therapy. As a preliminary issue, the claimant sought to exclude the IE reports because the IE assessor did not file the LAT Acknowledgement of Expert Duties and because no section 44 notice was sent to the claimant regarding an addendum report. Adjudicator Helt permitted the initial IE to be submitted despite the Acknowledgement not being submitted; she excluded the addendum report because the section 44 notice had not been delivered to the claimant. In terms of the treatment plans, the adjudicator awarded one of the four treatment plans. She declined to award the last three treatment plans because the claimant did not report any improvement from passive therapy and the minimal improvement in range of motion could not be attributed to the treatment. Further, the claimant had returned to work within one day of the accident and remained independent with personal care.

Applicant v. Unifund Assurance Company (17-008769)

The claimant sought disclosure of any surveillance in the insurer’s possession, whether it intended on relying upon it or not. Adjudicator Grieves held that while any surveillance in the insurer’s possession was relevant, it was not producible if litigation privilege would apply to it (i.e. if it was obtained after the LAT dispute was commenced for the dominant purpose of the LAT proceeding). The SPPA prevented the Tribunal from ordering the production of any information that would be privileged, and barred the Tribunal from admitting any evidence that would be inadmissible in a court by reason of privilege.

Aviva Insurance Canada v G.P. (16-004349)

The claimant sought reconsideration of the Tribunal’s decision ordering him to repay IRBs to the insurer. The insurer had voided the claimant’s insurance policy after he had failed to notify the insurer of a change in a risk material to that policy. The claimant argued that a third party was at fault for the failure to advise the insurer of the material change; he submitted documents at the reconsideration hearing to support this contention, which had not been previously disclosed. Executive Chair Lamoureux upheld the Tribunal’s decision. She refused to consider the new documents as Rule 18.2(c) only allowed for parties to correct evidence already adduced at a hearing. Executive Chair Lamoureux further held that the documents, if they had been admitted, supported a finding that the claimant was aware of his responsibility to keep the insurer apprised of any material changes that affected his policy, and that he intentionally failed to do so.

V.S. v. Economical Mutual Insurance Company (17-000751)

The central issue in this dispute was the quantum of IRBs payable. The insurer sought repayment for IRBs in the amount of $6,535.62 due overpayment based on the claimant’s post-accident income. The dispute proceeded to an oral hearing. At the hearing, a timetable was set for written submissions. The claimant filed reply submissions 40 days past the deadline set at the hearing. The insurer sought to dismiss the claimant’s reply submissions from consideration. Adjudicator Truong allowed the reply submissions in the interest of natural justice and procedural fairness. Adjudicator Truong held that as the insurer was not entitled to respond to the claimant’s reply submissions, the insurer was not prejudiced by the claimant’s late submissions. As for the disputed quantum of IRBs, Adjudicator Truong held that the claimant’s collateral benefits disability plan, which provided payment for loss of income under an income continuation benefit plan, qualified as post-accident income and was deductible from the claimant’s IRB payment. Adjudicator Truong preferred the evidence of the insurer’s accountant and concluded that the insurer was entitled to repayment of $6,535.62.

A.H. v. TD Home and Auto Insurance Company (17-006678)

The claimant sought an order that she be entitled to record two IEs. Adjudicator Sewrattan held that the LAT did not have jurisdiction to make such an order and dismissed the motion.

Applicant v. Wawanesa Mutual Insurance Company (17-005611)

The claimant had an ongoing FSCO arbitration regarding entitlement to attendant care benefits in the first 104 weeks of her claim. She filed an application with the LAT for entitlement to attendant care benefits beyond the 104 week date. The insurer brought a motion to stay the LAT application under the FSCO matter was resolved, and asked for any transcripts from the FSCO matter to be excluded. Adjudicator Makhamra denied the request for the stay, holding that there was no overlap between the LAT and FSCO disputes. She also denied to order the exclusion of transcripts from the FSCO matter, writing that the insurer provided no authority for excluding such evidence.