Category: LAT Rules

D.T. v. Wawanesa Mutual Insurance Company (16-000266)

The claimant sought reconsideration of the Tribunal’s decision to deny medical benefits above MIG limits and IRBs. The Tribunal had denied the claimant’s entitlement to these benefits based on its review of the available medical evidence. The claimant made multiple arguments: first, that the Tribunal did not consider evidence indicating she suffered from a pre-existing condition; second, that the Tribunal considered improper surveillance footage; and, lastly, that the Tribunal erred in refusing her requests for an oral hearing and for the hearing to be recorded. Executive Chair Lamoureux denied the reconsideration request. She held that the Tribunal had properly reviewed the entire medical record when it determined that the claimant fell within the MIG. She noted that claimant’s counsel had provided the Tribunal with little guidance regarding the evidentiary record, and had failed in its duty to best present the claimant’s position. She further held that the Tribunal had properly addressed the claimant’s objections to the surveillance footage, and any new concerns raised in the reconsideration request were not permissible. Moreover, Executive Chair Lamoureux held that the claimant’s rights to procedural fairness were not affected by the Tribunal’s decisions to deny her requests for an oral hearing and for the hearing to be recorded.

K.S. v. The Dominion of Canada General Insurance Company (16-002099)

The claimant sought entitlement to attendant care benefits and multiple treatment plans. A preliminary issue was whether late submitted medical records should be excluded from the hearing. Regarding the late records, Adjudicator Treksler admitted the records reasoning that third parties had control over the records and that the claimant could not control the date of disclosure. She also reasoned that the insurer had not suffered any prejudice. In terms of the attendant care benefits, Adjudicator Treksler awarded four months of attendant care benefits and held that the use of a professional service provider met the incurred requirements in the SABS. No attendant care benefits were awarded beyond the date the claimant was observed to be fully functional on surveillance. Five of the 12 claimed treatment plans were awarded.

C.J. v. The Personal Insurance Company of Canada (16-002815)

The insurer sought an order for costs given the claimant twice failed to meet the filing deadlines prescribed by the case conference adjudicator. The representative of the claimant indicated that the deadlines were missed due to workload and illness. A doctor’s note was produced but did not provide an explanation as to why the claimant’s representative was unable to meet the deadlines. Adjudicator Rebecca Hines reviewed Rule 19 and accepted the medical note as proof the claimant’s representative was suffering from an illness. Making an order for costs would not be in line with procedural fairness and natural justice. Costs were not awarded and the request dismissed.

C.J. v. The Personal Insurance Company of Canada (16-002815)

The insurer sought an order for costs given the claimant twice failed to meet the filing deadlines prescribed by the case conference adjudicator. The representative of the claimant indicated that the deadlines were missed due to workload and illness. A doctor’s note was produced but did not provide an explanation as to why the claimant’s representative was unable to meet the deadlines. Adjudicator Rebecca Hines reviewed Rule 19 and accepted the medical note as proof the claimant’s representative was suffering from an illness. Making an order for costs would not be in line with procedural fairness and natural justice. Costs were not awarded and the request dismissed.

C.J. v. The Personal Insurance Company of Canada (16-002815)

The insurer sought an order for costs given the claimant twice failed to meet the filing deadlines prescribed by the case conference adjudicator. The representative of the claimant indicated that the deadlines were missed due to workload and illness. A doctor’s note was produced but did not provide an explanation as to why the claimant’s representative was unable to meet the deadlines. Adjudicator Rebecca Hines reviewed Rule 19 and accepted the medical note as proof the claimant’s representative was suffering from an illness. Making an order for costs would not be in line with procedural fairness and natural justice. Costs were not awarded and the request dismissed.

A.D. v. Economical Mutual Insurance Company (17-000775)

The claimant brought a motion to combine the insurer’s appeal for repayment of income replacement benefits with the claimant’s case for IRBs, attendant care, and medical benefits. The insurer resisted the motion as a hearing date and preparation for said date had already been established – to allow the combination would result in a delay. Vice Chair Terry Hunter denied the claimant’s motion and concluded there was no advantage in terms of efficiency of proceedings to combine the files.

O.D. v. Economical Mutual Insurance Company (17-000801)

The claimant brought a motion to combine the insurer’s appeal for repayment of income replacement benefits with the claimant’s case for IRBs, attendant care, and medical benefits. The insurer resisted the motion as a hearing date and preparation for said date had already been established – to allow the combination would result in a delay. Vice Chair Terry Hunter denied the claimant’s motion and concluded there was no advantage in terms of efficiency of proceedings to combine the files.

R.S. v. Aviva Insurance Canada (16-003141)

The claimant sought entitlement to NEBs. As a preliminary issue, the claimant argued that the insurer’s late surveillance and IE reports should not be considered by the LAT. Adjudicator Sewrattan allowed the materials to be admitted. In terms of the NEB claim, Adjudicator Sewrattan concluded that the claimant had not proven entitlement because he led no evidence about the time he spent on each of his alleged pre-accident activities (he simply listed a series of activities by way of affidavit). Without knowing which activities the claimant spent more time on, Adjudicator Sewrattan was unable to determine what were “substantially all” of the claimant’s pre-accident activities.

J.H. v. The Personal Insurance Company (17-000208)

The claimant suffered a non-minor injury and sought entitlement to one treatment plan for physiotherapy. The insurer argued that the treatment was not reasonable and necessary. As a preliminary issue, the insurer argued that the claimant submitted her materials to the LAT four days late, and that the materials should be excluded. Adjudicator Hines allowed the materials to be considered, reasoning that no prejudice was suffered by the insurer, and the hearing was being held in writing. In terms of the treatment claim, Adjudicator Hines concluded that the treatment was not reasonable and necessary for multiple reasons: first, the claimant was relying on outdated medical assessment; second, one would expect injuries and symptoms to improve over time; third, a diagnosis of chronic pain does not automatically entitle an insured to unlimited treatment without proving an ongoing impairment; and fourth, the insurer’s IE assessment was more current and demonstrated the claimant’s improvement over the five years since the accident.

M.S. v. Primmum Insurance Company (16-000546)

Following an earlier decision, in which the claimant’s case was dismissed, the insurer sought costs. Adjudicator Sewrattan reviewed the reasoning for the dismissal of the claimant’s case, which largely turned upon the claimant’s counsel failing to submit materials and evidence to the LAT. He concluded that the applicant had not acted unreasonably, but rather, that the applicant’s counsel had. Generally, Adjudicator Sewrattan would have considered the applicant and his counsel as one party, but given the exceptional facts in the case, he reasoned it was appropriate to distinguish the two. He also held that the LAT Rules did not permit an award of costs against the claimant’s counsel. Therefore, no costs were awarded.