The claimant’s son sought an order appointing him as administrator of the estate and requested that the matter continue with him acting as administrator. Adjudicator Hunter ruled that the Tribunal did not have jurisdiction to appoint an administrator. She ruled that the son could represent the estate if he obtained the consent of all beneficiaries to the estate to act as such.
The claimant disputed the insurer’s termination of income replacement benefits eight months after the accident. Adjudicator Paluch held the claimant was entitled to receive IRBs from the date of termination to the date of the decision and ongoing. The claimant’s medical evidence with respect to her chronic pain satisfied the arbitrator on a balance of probabilities that she was substantially unable to perform the essential tasks of her employment as a general labourer. There were a number of procedural issues addressed. Adjudicator Paluch denied the insurer’s motion to admit surveillance evidence and add an investigator as a witness on the basis that the evidence and witness requests were not delivered in accordance with an earlier Tribunal Order. The claimant’s request to exclude three expert reports for lack of opportunity to cross examine them was declined on the basis that an earlier Tribunal Order specifically allowed for all expert evidence to be provided by reports. An insurer’s addendum report was not permitted to be admitted into evidence because it was served after the deadline provided for in an earlier Tribunal Order.
The claimant had been denied benefits above the MIG limits and further IRBs. The Tribunal dismissed her application based on the medical evidence and based on a two day teleconference hearing. The claimant argued that a teleconference hearing was a breach of procedural fairness; that she was not aware the MIG would be addressed in the hearing; that the Tribunal failed to evaluate the medical evidence properly; and that the Tribunal violated the rule in Browne v. Dunn regarding the credibility of one of the claimant’s assessors. The Court declined to overturn the Tribunal’s decision and dismissed all of the grounds referred to by the claimant. The Court held that the claimant failed to request an audio recording of the hearing (which is required within 14 days of the hearing), and that without such evidence, the Court could not determine what transpired at the hearing. The Court held that the claimant should have known the MIG was in dispute by reason of her arguments seeking benefits above the MIG limits. The Court held that the Tribunal was entitled to rely upon the medical evidence it had before it, and to assign weight to different opinions as it saw fit. Finally, the Court noted that the rule in Browne v. Dunn did not apply to the Tribunal, and that even if it did, the parties could have addressed the issues with one doctor’s credibility in their written submissions.
The insurer requested an adjournment of the hearing in order to obtain the claimant’s ODSP file, which had not yet been provided by ODSP. Vice Chair Hunter granted the adjournment.
This is a preliminary hearing decision on whether the insurer could complete s. 44 addendum reports in a hearing regarding CAT impairment determination. The claimant and the insurer had submitted medicolegal assessments on CAT determination. In addition, the claimant submitted addendum reports which affirmed her assessors’ original positions, following a review of the insurer’s reports. The insurer requested that its assessors complete addendum reports responding to the claimant’s addendum reports on the basis that the claimant’s addendum reports contained new opinion and comment. The insurer’s assessors declined to complete addendum reports without the claimant’s consent or an order from the LAT. The claimant did not consent to the addendum reports, which did not require her participation. The insurer brought a motion to the LAT to determine whether it had the right to have its assessors prepare addendum reports without the claimant’s consent. Vice Chair Flude dismissed the insurer’s motion on the basis that the claimant’s addendum reports did not contain any new opinion or comment. Vice Chair Flude rejected the insurer’s submission that new s. 44 notices of examination are not required in order for an insurer to complete s. 44 addendum reports/paper reviews, which do not require new physical examinations. Vice Chair Flude indicated that if the claimant’s addendum reports had raised new issues, procedural fairness would dictate that the insurer be permitted to have its experts prepare rebuttal reports.
The claimant requested an adjournment of the LAT hearing because two witnesses were not available, and in order to obtain an addendum report from his expert. Adjudicator Makhamra granted the adjournment, noting that the Tribunal preferred to adjudicate claims on a complete evidentiary basis.
The Tribunal initially decided that the claimant was precluded from applying to the LAT in light of his non-attendance at multiple insurer examinations. Associate Chair Batty initiated a reconsideration on his own initiative to remedy a breach of procedural fairness in the preliminary issue hearing. In its reasons, the LAT had described how the respondent’s submissions relied upon affidavit evidence which had not been filed. Counsel for the respondent subsequently provided proof that the affidavit in question had been filed. It was not provided to the adjudicator as a result of an administrative error. Associate Chair Batty held that the respondent had been denied procedural fairness and remitted the matter to be reheard on the LAT’s full record.
The Tribunal initially decided that the claimant was precluded from applying to the LAT in light of his non-attendance at multiple insurer examinations. Associate Chair Batty initiated a reconsideration on his own initiative to remedy a breach of procedural fairness in the preliminary issue hearing. In its reasons, the LAT had described how the respondent’s submissions relied upon affidavit evidence which had not been filed. Counsel for the respondent subsequently provided proof that the affidavit in question had been filed. It was not provided to the adjudicator as a result of an administrative error. Associate Chair Batty held that the respondent had been denied procedural fairness and remitted the matter to be reheard on the LAT’s full record.
The insurer brought a motion seeking an order against the claimant’s employer for the full employment file. Adjudicator Makhamra concluded that the LAT had jurisdiction to order a third party to produce records, and ordered the employer to produce the entire employment file. The adjudicator noted that the claimant consented to the order, but that such consent was not necessary for the LAT to issue such an order.
The claimant brought a motion to change the format of a preliminary issue hearing from written hearing to proceed via teleconference. Adjudicator Trojek denied the claimant’s motion. Adjudicator Trojek concluded that the claimant did not provide her with adequate reasons to change the format of the preliminary motion hearing.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP