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.
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.
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concluded that the treatment was not reasonable and necessary for multiple reasons: first, the claimant was relying on outdated medical assessment; second, one would expect injuries and symptoms to improve over time; third, a diagnosis of chronic pain does not automatically entitle an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.
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.
In this preliminary motion, the insurer sought to have the claimant’s reply submissions excluded due to late filing. Adjudicator Markovits allowed the late submissions to be filed on the basis that the insurer did not suffer any prejudice, no new issues were raised in the reply submissions, and the Case Conference Order pertaining to late documents was phrased using the permissive “may.”
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.
The claimant sought entitlement to medical benefits. At the outset, the insurer sought a dismissal of the claimant’s application for arbitration based on non-compliance with disclosure requirements. Adjudicator Ferguson noted there was no authority under Rule 9 of the LAT Rules to dismiss an application for failing to comply with Tribunal disclosure rules. Moreover, the insurer failed to demonstrate how non-disclosure by the claimant would cause prejudice. On the merits, Adjudicator Ferguson held the treatment plans claimed were reasonable and necessary.
The claimant sought entitlement to four medical treatment plans. At the hearing the claimant also sought to add a claim for a special award and interest. On review, Adjudicator Bickley refused to allow the additional issues. After examining the medical evidence, one treatment plan was found reasonable and necessary. Because the treatment plan was originally partially approved up to MIG limits, the subsequent removal from the MIG precluded the insurer from taking the position the plan was unreasonable. The rest of the claims, however, were dismissed on the merits.
The insurer brought a preliminary issues motion seeking to preclude the claimant from bringing an application for arbitration disputing the denial of medical benefits. The claimant asserted the requested assessments were unreasonable. Adjudicator Maedel identified the following factors to determine if an IE was requested: (i) The timing of the insurer’s request; (ii) The possible prejudice to both sides; (iii) The number and nature of the previous insurer’s examinations; (iv) The nature of the examination(s) being requested; (v) Whether there are any new issues being raised in the applicant’s claim that require evaluation; and, (vi) Whether there is a reasonable nexus between the examination requested and the applicant’s injuries. The requested IEs were deemed reasonable and therefore, per s. 55 of the SABS the claimant was precluding from bringing an application for arbitration due to non-attendance at an IE.
The insurer sought entitlement to costs after the claimant withdrew an application before the LAT. The claimant also sought costs for having to resist the insurer’s costs motion. Adjudicator Belanger-Hardy noted that a withdrawal of an application alone will rarely, if ever, be a sufficient basis on which the Tribunal will make a costs order. Additionally, neither party led evidence of unreasonable, frivolous or vexatious behaviour or conduct in bad faith pursuant to Rule 19. No costs were awarded.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP