Category: LAT Rules

The claimant brought a motion to: (1) compel the insurer to provide particulars clarifying a statement made by a claims representative in an email regarding a job site analysis; and (2) excluding the claims representative from representing the insurer before the Tribunal. Vice Chair Maedel dismissed both motions. Whether the claims representative stated something different in her email as compared to the job site analysis went to the issue in dispute before the Tribunal. The motion to exclude the claims representative was rendered moot because the insurer appointed counsel to deal with the matter. However, Vice Chair Maedel wrote that in future cases a claims representative could be excluded if he or she was not licensed with the Law Society if the Tribunal proceeding involved legal submissions.

The claimant sought reconsideration of a decision that his claims for ACBs were barred due to the limitation period. He made no submissions on the original decision because his counsel at the time unilaterally removed himself as counsel without notice. Four months after the decision was issued, the claimant retained new counsel, who filed a Notice of Motion to extend the time limit to seek reconsideration. Vice Chair Maedel granted the motion and extended the deadline to provide a Request for Reconsideration. The claimant was 74 years old and relied on his former counsel to file the written preliminary submissions. Vice Chair Maedel accepted that the claimant was unaware of the preliminary issue decision and the seriousness of the decision until he retained new counsel in July 2021. He also accepted that the claimant had bona fide intention to appeal the denial of benefits between February to July 2021. Vice Chair Maedel rejected the insurer’s argument that the motion should be dismissed because the claimant failed to show a bona fide intention to reconsider within the 21 day period prescribed by the Rules. He found that the Tribunal was mandated to ensure a fair process to permit effective participation by all parties and to ensure that decisions are based on the merits of the dispute as per Rule 3.1 (a). In this case, the claimant had provided no preliminary submissions through no fault of his own and a preliminary decision was rendered without his participation. Vice Chair Maedel indicated that other than a delay of the application between April and December 2021 as well as the cost of responding to the Request for Reconsideration, there was little prejudice to the insurer. Notwithstanding the extension of time granted to the claimant, Vice Chair Maedel indicated the claimant would be required to address the specific criteria for reconsideration pursuant to Rule 18.2 in seeking to reverse the Tribunal’s initial decision.

This is a LAT motion decision on two issues: (1) The insurer requested an adjournment of the hearing because it underwent a cyber attack and did not have access to internal files, computers, or email; and (2) the claimant requested that the insurer’s surveillance evidence be excluded because it was disclosed outside of the timelines provided in the case conference order, which ordered that evidence be disclosed by May 21, 2021, and at the latest October 15, 2021. The surveillance report and video, which had been completed in 2018, was served on October 28, 2021. The claimant argued that the surveillance evidence had little probative value, late disclosure prevented him from preparing witnesses on it, and inclusion of the surveillance evidence would elongate the hearing. The insurer argued that the surveillance evidence was not disclosed through inadvertence and the disclosure date still complied with Rule 9.2 of the LAT Rules, and that the video was relevant because it showed the claimant functioning at a higher level than he claimed. Adjudicator Lester ordered that the hearing be adjourned for three weeks and that the surveillance video and report be excluded. Adjudicator Lester found that the surveillance report and video had little probative value and were not relevant to the issues in dispute. Adjudicator Lester noted that the video was not used to determine the benefits in dispute and had not been provided to assessors for comment. Adjudicator Lester differentiated three cases relied on by the insurer as the surveillance evidence was considered relevant to the issues in dispute in the other three cases in which late-served surveillance evidence was allowed. Adjudicator Lester found that the prejudice the surveillance evidence would cause to the claimant in preparing his witnesses and elongating the hearing would outweigh its probative value.