Category: LAT Rules

C.P. v Aviva Insurance Canada (18-004460)

The claimant applied to the LAT seeking a determination that his accident-related impairments were outside of the MIG and entitlement to two treatment plans for medical benefits. A hearing was held in August 2019. Several months later, the LAT was informed that the claimant had passed away. At a subsequent teleconference hearing, the insurer argued that the claimant’s passing rendered the LAT proceeding moot. The deceased claimant’s estate argued that it required a decision on the interest in dispute, and that a decision from the LAT would assist the claimant’s estate in pursuing a tort claim. Adjudicator Mazerolle found that the question of MIG determination was not moot as it was possible that the LAT could find that benefits in dispute were deemed incurred pursuant to s. 3(8) of the SABS. Adjudicator Mazerolle then found that the claimant was within the MIG, and the benefits in dispute were not deemed incurred. The interest in dispute was found not payable, as there was no OCF-21 detailing incurred services and no other evidence that a payable amount was overdue.

M.F. v. Belair Insurance Company (18-003847)

The claimant submitted a request for reconsideration arising out of a decision which found that he was not entitled to medical benefits and post-104 week IRBs because the claimant’s psychological impairments were not a result of the accident. The claimant’s reconsideration request was made on the basis that there was fresh evidence (a new IE report from the insurer) that was not before the Tribunal when rendering its decision. The IE report found that the claimant’s psychological impairments flowed from his accident-related chronic pain. Adjudicator Grieves accepted that the new report was not available at the hearing, could not have been obtain previously by the claimant given that the Tribunal’s decision was rendered three months prior to the claimant receiving the report, and that the evidence would likely have affected the result at the hearing. As such, she granted the request for reconsideration in part, finding that the claimant was entitled to post-104 week IRBs and some of the disputed medical benefits.

L.D. v. Gore Mutual Insurance Company (17-002762)

Vice Chair Flude released a decision in which he found the claimant’s motion moot, and requested submissions on costs from the insurer. The LAT Rules consider costs as a deterrent for a party that “has acted unreasonably, frivolously, vexatiously, or in bad faith” in a proceeding. Vice Chair Flude concluded that the claimant acted unreasonably and in bad faith in bringing a motion for relief previously denied by the Tribunal with no new grounds and, during the hearing, making a collateral attack on another Tribunal Order. Vice Chair Flude ordered the claimant to pay costs to the insurer in the amount of $1,000, which he felt would have sufficient deterrent effect.

Thomas v. Coseco Insurance Company (20-001397)

The claimant applied to the LAT seeking a determination that her accident-related impairments were outside of the MIG and entitlement to psychological and chronic pain assessments. The insurer argued the claimant was barred from proceeding with the application for MIG determination as the issue had already been adjudicated and decided by the LAT in a previous application. Adjudicator Lake found that the doctrine of res judicata applied, and the claimant was barred from seeking a determination on whether her impairments were outside of the MIG. The application was dismissed.

S.R. v Traders General Insurance Company (17-004556)

The claimant filed a request for reconsideration of a LAT hearing decision, in which the adjudicator found that the claimant was entitled to pre-104 IRBs but was not entitled to post-104 IRBs. The claimant argued that the adjudicator had made errors in fact and law, including incorrectly applying the test for IRBs. In the hearing decision, the adjudicator took into consideration post-accident volunteer and work training activities when deciding that the claimant did not meet the test for post-104 IRBs. As a preliminary issue, Adjudicator Reilly agreed with the insurer that the claimant’s Reply submissions should not be considered for the Reconsideration decision, as the Reply raised new issues or facts not raised in the hearing, the Request for Reconsideration, or the Response by the insurer. Adjudicator Reilly found that the adjudicator’s decision provided well-reasoned analysis of the submissions and medical evidence of both parties, and correctly applied the test for post-104 IRBs. The request for reconsideration was dismissed.

Mohammad v. The Dominion of Canada General Insurance Company (20-000007)

The claimant sought entitlement to benefits following an accident that occurred on August 28, 2015. At the case conference, the insurer raised the preliminary issue that the claimant was statute-barred from proceeding with his claim under s. 56 of the Schedule because he failed to appeal its valid denial within the two-year limitation period. A written hearing was scheduled, but claimant’s counsel was removed from the record prior to the deadline for the parties’ written submissions, and the Tribunal did not receive the claimant’s responding submissions by the deadline or hear from the claimant again. The written preliminary hearing proceeded. Adjudicator Boyce found that the claimant was statute-barred from appealing the denial of his claim under s. 56, as he failed to commence his appeal within two years of a valid denial. Adjudicator Boyce found that the insurer’s notice met the Smith requirements and that the claimant failed to provide any evidence or details or any exceptional circumstances or reasons as to why the application was not commenced within the two-year limitation period. Further, he did not offer submissions as to why the Tribunal should exercise its discretion to extend the limitation period under s. 7 of the Licence Appeal Tribunal Act. Despite the lack of communication and participation from the claimant, Adjudicator Boyce was satisfied that the Tribunal facilitated a fair, open and accessible process. Any further delay would offend Rule 3.1(b), which is meant to ensure efficient, proportional and timely resolution of the merits of the proceedings.

Sheriffe v. Aviva Insurance Company of Canada (19-009684)

This was a preliminary motion decision on the claimant’s request for production of adjuster’s log notes beyond the date of the LAT application, and the insurer’s request for production of a 2010 AB file for a previous accident. Adjudicator Maedel ordered that the insurer produce the log notes beyond the date of the LAT application, redacted for privilege and the privacy of reserve information. Adjudicator Maedel held that he was satisfied that the log notes were relevant as there was a nexus between the productions sought and the issues in dispute. He found that the log notes reflected the ongoing adjustment of the claim for benefits and the decisions the adjuster made throughout the process. With respect to 2010 AB file, the claimant refused to submit this document arguing records more than three years pre-accident were not relevant. The insurer argued that the AB file was relevant given that causation was an issue due to the claimant’s pre-accident medical history and that it was especially relevant for the test for NEBs given the claimant’s condition after the 2010 loss. Adjudicator Maedel held that there was no definitive deadline for pre-accident productions and that productions were determined by relevance to the issues in dispute. Adjudicator Maedel found that the probative value of the 2010 AB file outweigh any prejudice to the claimant and would assist the LAT in determination of the claimant’s entitlement to benefits.

Cox v. Wawanesa Mutual Insurance Company (19-012281)

The claimant was involved in a serious motor vehicle accident in 2014. She received IRBs for four years, until they were terminated based on multidisciplinary s. 44 opinions. The claimant applied to the LAT seeking entitlement to post-104 week income replacement benefits and a special award. As a preliminary issue, the claimant requested that the insurer’s surveillance evidence be excluded as it was served 1.5 months after the deadline for document exchange. Adjudicator Paluch declined to exclude the surveillance evidence, finding that it was relevant and that the claimant was not significantly prejudiced by its inclusion as the surveillance materials were served a month prior to the hearing. The claimant declined an offer to adjourn the hearing to allow time for her experts to review the surveillance. Adjudicator Paluch found that the insurer’s multidisciplinary assessments were greatly undermined by the fact that they did not investigate the severity of the claimant’s psychological problems and chronic pain syndrome, or fully assess the claimant’s ability to work a full workday or workweek. Adjudicator Paluch found that the claimant was entitled to further post-104 IRBs to date and ongoing. The request for a special award was denied.

Zhao v. Allstate Canada (20-000134)

The claimant filed a LAT application seeking entitlement to an attendant care assessment, various other treatment plans, and an award under Regulation 664. The claimant’s hearing submissions noted that the dispute over medical benefits other than the attendant care assessment were resolved prior to the hearing. While the case conference order referenced a claim for an award, the claimant did not address the claim for an award in the hearing submissions. The insurer requested that the claim for an award be dismissed as (1) the claimant had not provided particulars of the claim by the document disclosure deadline noted in the case conference order, (2) the claimant’s submissions were devoid of any claim for an award, (3) the claimant was barred from making further arguments relating to the award claim pursuant to Rule 9.4 of the Common Rules of Practice and Procedure, and (4) it would be breach of procedural fairness for the LAT to accept subsequent particulars from the claimant relating to the award. The claimant did not file Reply submissions. Adjudicator Parish dismissed the claim for an award because the particulars were not disclosed by the document production deadline and the claimant violated Rule 9.4. Adjudicator Parish found that it would be a breach of procedural fairness to the insurer to allow the applicant to proceed with the award without particulars being produced in advance of the hearing. Adjudicator Parish further found that the claimant was not entitled to the attendant care assessment. The insurer had previously approved attendant care based on an earlier assessment, and the claimant had not incurred any attendant care expenses. The OT in-home attendant care assessment report by Raymond Wong was not persuasive as it relied to a large extent on the claimant’s self reporting and limited objective testing. The assessment was found not to be reasonable and necessary.

Delagrammatikas v. Aviva General Insurance (19-013365)

The claimant sought entitlement to a treatment plan for dietician services, a treatment plan for physiotherapy, a rehabilitation benefit for rehabilitation support worker services, and interest. The claimant submitted that he gained weight after the accident which has been a barrier to his recovery. The parties disagreed as to the amount of weight the claimant gained after the accident, but it was sufficient to note that the claimant experienced additional weight gain because of accident-related inactivity and stress. Vice-Chair McGee rejected one of the IE assessors’ opinion on the basis that the report raised doubt as to the thoroughness of the assessment and found that the claimant had discharged his onus of establishing that dietician services were reasonable and necessary. The claimant further submitted that the treatment plan for rehabilitation support worker services was reasonable and necessary based on the opinion of one of the expert witnesses. However, Vice-Chair McGee determined that the claimant failed to establish how the services described in the plan aligned with the expert’s recommendations and how interpersonal relationship facilitation was linked to the exercise follow-through and help with home projects that were the proposed focus of rehabilitation support in the treatment plan. For these reasons, the proposed rehabilitation support services was deemed not reasonable or necessary. Lastly, the treatment plan for physiotherapy services was found to be reasonable and necessary as the insurer had not presented reliable evidence that the claimant’s condition would not be changed by ongoing physiotherapy treatment meanwhile the claimant presented evidence that he had experienced symptomatic relief from physiotherapy. The claimant also sought the exclusion of two of the Insurer’s Examination (IE) reports because the authors failed to complete and sign an Acknowledgment of Expert’s Duty form as required under Rule 10.2(b) of the Tribunal’s Common Rules of Practice and Procedure. The insurer submitted that the claimant was non-complaint with Rule 10.2, specifically sub-rule 10.2(a), which required a party to provide the name and contact information of an expert witness, and sub-rule 10.2(e), which required a party to provide a summary of the expert witness’s findings and conclusions. Vice-Chair McGee concluded that the reports of the expert witnesses complied with the requirements of Rule 10.2(a) and (e) and were admissible. On the other hand, the insurer failed to comply with Rule 10.2(b) in respect of the IE reports. However, Vice-Chair McGee was prepared to admit the reports despite the insurer’s non-compliance with the rule. Vice-Chair McGee found that the prejudice to the insurer that the exclusion of its expert evidence would cause exceeds the concern for technical compliance with the Rules. The Rules are to be liberally interpreted and applied and may be varied to facilitate a fair process.