Category: LAT Rules

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.

R.T. v. Aviva Insurance Canada (17-004564)

The claimant sought a entitlement to income replacement benefits. At the outset of the hearing, the insurer sought an order dismissing the application as abandoned because the claimant had not submitted written submission prior to the oral hearing, as ordered at the case conference. In the alternative, the insurer sought to have any further evidence or written submissions struck from the record. Adjudicator Norris held that the parties could make written submissions after the oral testimony. With regards to the claim for IRBs, Adjudicator Norris found that claimant was not entitled to the benefit for the period in which he was in non-compliance with section 33 requests for an executed WSIB assignment. Adjudicator Norris also found the claimant was not entitled to IRBs as he had not declared his pre-accident income pursuant to the Income Tax Act.

A.S. v. Pafco Insurance (16-003683)

The claimant sought reconsideration of the Tribunal’s decision to deny the claim for ongoing IRBs. The claimant requested reconsideration on the basis that the Tribunal denied him natural justice and procedural fairness. Associate Chair Batty agreed with the claimant that the Tribunal had overlooked or mischaracterized parts of the claimant’s evidence at the LAT hearing. Associate Chair Batty ordered that the application would be reheard in writing and be limited to considering anew evidence and submissions already provided by the parties.

R.P. v Aviva Insurance Canada (17-003500)

The claimant appealed Aviva’s MIG determination and sought medical benefits for chiropractic services, the completion of numerous OCF-3s, a social work assessment, and an orthopaedic assessment. The claimant also sought IRBs. Aviva opposed the claimant’s request to have a treating chiropractor qualified as an expert. Adjudicator Hines held that the claimant’s injuries were within the MIG and none of the OCF-18s or OCF-3s were reasonable and necessary. The adjudicator further held that the claimant was not entitled to IRBs. The adjudicator also held that the treating chiropractor was not qualified as an expert witness, but could give evidence in his capacity as a treating chiropractor. The adjudicator held that the claimant sustained soft-tissue injuries, which fell within the MIG. The adjudicator held that the chiropractor’s diagnosis of post-concussion syndrome/concussion was outside the scope of his expertise, and the adjudicator also found inconsistencies in the claimant’s evidence with respect to “loss of consciousness”. The adjudicator preferred Aviva’s IE report from a psychologist over the claimant’s report from a social worker with respect to psychological injuries. The adjudicator also held that the rates charged on the OCF-18s exceeded the amounts payable under the FSCO Guideline. The OCF-3s were not payable as particulars were not provided with respect to the claimant’s change in condition and updated OCF-3s were not requested by Aviva. Lastly, the adjudicator preferred Aviva’s multi-disciplinary report over the claimant’s evidence (OCF-3s) with respect to IRBs, and held that the claimant did not suffer a substantial inability to perform the essential tasks of a material handler or casino dealer.

Applicant v. Aviva Insurance Company (17-005081)

The claimant sought entitlement to three treatment plans, and interest on overdue payments.  The insurer brought a preliminary issue concerning whether the applicant was precluded from submitting evidence regarding the benefits in dispute; more specifically, the claimant had failed to submit two of the treatment plans to the Tribunal. Adjudicator Go determined that, it was in the interests of fairness to admit the treatment plans despite their late filing. Adjudicator Go further held that the claimant was not entitled to any of the medical benefits sought, or to interest.