This is a reconsideration decision. The claimant had a written hearing submission deadline of October 19, 2022, but did not file submissions until November 10, which was eight days after the respondent filed a Notice of Motion for an order dismissing the application as abandoned. The claimant requested an adjournment. The motion adjudicator denied the request for adjournment and dismissed the application. The request for reconsideration was denied.
The claimant brought a request for reconsideration of a motion order of the LAT dated December 5, 2022 (the “order”), where the LAT denied the claimant’s request for an extension to file a request for reconsideration of a previous LAT decision dated August 11, 2022. The claimant’s request for reconsideration was dismissed for multiple reasons. The LAT found that the claimant’s request for reconsideration was non-compliant with Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017), as amended (“Rules”), since the order did not constitute a final determination of a substantive matter in dispute between the claimant and the insurer. The LAT further found that the adjudicator had not made an error of law or fact in the order. The LAT found that the claimant’s complaint that the LAT had granted the respondent’s request to strike paragraphs in her written reply motion submissions did not involve an error of law or fact on the part of the LAT.
The respondent filed a request for a partial reconsideration of a decision in which the Tribunal found that the clamant was not statute barred from disputing the respondent’s denial of pre-104 attendant care benefits within the two year limitation period. The claimant argued that the Tribunal erred in law in its determination that the limitation period did not apply to the claimant’s entitlement to pre-104 ACBs and, in particular, that the Tribunal erred in its application and interpretation of the principle of discoverability as highlighted in Tomec. Adjudicator Hines granted the respondent’s request in part, finding that the Tribunal erred in law in determining that the claimant was not statute-barred from disputing the respondent’s denial of ACBs within the two-year limitation period. She agreed with the respondent that the Tribunal did not properly consider the fact that the claimant’s entitlement to pre-104 ACBs was not dependent on a CAT designation, as the claimant had not yet applied for CAT determination. As such, the principle of discoverability did not apply during this period and there was no barrier to the claimant disputing the respondent’s denial. However, Adjudicator Hines found that she only erred in applying the rule of discoverability to the respondent’s denial of the first Form 1, as the second Form 1 was denied within two years of the LAT Application. Consequently, the Tribunal’s decision was varied to indicate that the claimant was not entitled to payment of ACBs from September 2015 to June 2016.
The claimant sought reconsideration of the Tribunal’s decision that the late OCF-1 barred the application. The Tribunal found that the insurer had not provided the application package, yet found that section 32 applied. Adjudicator Kaur granted the reconsideration, holding that the 30 day deadline to submit the OCF-1 did not start running because the claimant did not receive the application package from the insurer.
The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment. The claimant argued that the hearing was procedurally unfair and that the Tribunal applied the wrong test for causation. Adjudicator Neilson dismissed the reconsideration. She found that the claimant was aware of the insurer’s position regarding causation, and as such, the hearing was procedurally fair. She also concluded that the “but for” test was the appropriate test to apply on the facts of this case. In the alternative, the adjudicator found that the material contribution test would not have changed the result because she was not satisfied that there was a nexus between the accident injuries and the subsequent fall that caused additional injuries.
The insurer’s request for reconsideration was granted. The issue at the hearing was the correct calculation of the quantum of IRBs. The hearing adjudicator had found the claimant was entitled to IRBs in the amount of $172.00 per week after the claimant reached age 65. The insurer argued that the LAT made errors with respect to entitlement of IRBs and in awarding a post-65 IRB. In the Reconsideration Decision, Vice-Chair Maedel agreed that current entitlement to IRBs was not in dispute and only the quantum of IRBs was at issue. Therefore, reference to ‘entitlement’ or ‘up to age 65’ was removed from the original decision. In addition, Vice-Chair Maedel agreed with the insurer that the LAT violated rules of natural justice or procedural fairness when ordering entitlement to IRBs after age 65 because the claimant was 57 years of age at the time the decision was made. Vice-Chair Maedel found that imposing an IRB 8 years into the future was to speculate about the claimant’s condition, entitlement, and the status of the applicable law in the future. Vice-Chair Maedel stated that while the claimant’s entitlement to IRBs was ‘ongoing’, the term “ongoing” does not equate to “forever”. That being said, Vice-Chair Maedel noted the claimant was protected by terms of s. 281(2) of the Insurance Act, which states that following a Tribunal Decision, the insurer may reduce benefits only if the applicant agrees, the insurer is authorized to do so as a result of successful appeal of the Tribunal Decision, or the insurer is authorized to do so by the Tribunal.
This is an amended Reconsideration Decision. The claimant sought reconsideration after being found not to have a catastrophic impairment . Vice-Chair Lester found that a failure to decide on the claimant’s diagnosis was not an error of fact and law. It was not necessary to rule on the claimant’s diagnosis since the level of psychiatric disorder is not determinative of the degree of impairment in an area of function. Vice-Chair Lester found that not mentioning an expert report in the hearing decision was not an error. The report did not address the claimant’s functionality and was not persuasive for the adjudicator. Vice-Chair Lester found that even if she accepted the claimant’s evidence for a limitation regarding Adaptation, those limitations were considered moderate impairments. Vice-Chair Lester found that a claimant must demonstrate that he has repeatedly failed to adapt to stressful circumstances to meet the high bar of being markedly impaired, simply avoiding a situation is not necessarily a demonstration of a repeated failure to adapt, and an inability to complete a task because of a psychological or pain disorder is not necessarily a demonstration that a person failed to adapt to a stressful situation. The claimant was able to regulate his emotions and cope in a series of occupational therapy tests, contrary to his claim to have difficulties at work. The claimant was only able to provide one-off examples of losing emotional control at work. The claimant was found not to have a CAT impairment. The request for reconsideration was denied.
The claimant filed a request for reconsideration arising from an October 14, 2022 decision, in which Adjudicator Pahuta ruled that the claimant sustained “minor injuries” and was not entitled to further treatment outside of the MIG. The claimant filed for reconsideration under Rule 18.2 (b), alleging that Adjudicator Pahuta made an error of law or fact. The claimant also argued that they suffered from chronic pain, which would remove them from the MIG. Adjudicator Pahuta noted that the claimant’s evidence was considered in full, including the chronic pain report of Dr. Robertus, which was weighed against the overall medical evidence and family doctor records showing only minor pain complaints post-accident, with most entries being for unrelated issues. The claimant made several other allegations, including that pre-accident back pain and osteoporosis would have resulted in a MIG removal, an OCF-3 was not properly considered, and that the disputed OCF-18s were not properly viewed for necessity. Adjudicator Pahuta noted that many of these arguments were not made in the original submissions, and it appeared that the claimant was attempting to re-litigate the original issues by way of making alternative arguments not originally made at the hearing. While all of the issues brought up by the claimant were considered, the same issues were now being re-argued with several new and alternative arguments being introduced. As the claimant’s evidence related to issues already fully considered and addressed in the original decision, the request for reconsideration was denied.
The claimants were involved in an accident. They filed an application, and the LAT found that they were not entitled to non-earner benefits, housekeeping/home maintenance benefits, interest, a special award, or costs. The claimants filed for reconsideration. Their request for reconsideration was denied. Vice-Chair Moore did not find a violation of procedural fairness, as the applicant was afforded the opportunity to examine an adjuster familiar with the file, and different adjudicators are allowed to hear procedural vs. substantive issues. Additionally, Vice-Chair Moore found that there were no errors of fact or law, as there was no evidence the claimants were improperly served materials. Lastly, Vice-Chair Moore found that the Tribunal did not hear false evidence that would have likely affected the result.
The claimant applied to the LAT seeking entitlement to various benefits, including the ongoing payment of IRBs. The insurer denied IRBs on the basis that the claimant had provided insufficient medical evidence to prove that she suffered a substantial inability to perform the essential tasks of her employment as a manicurist. The claimant’s productions lacked clinical notes and records. Instead, the claimant relied on annotations provided in the OCF-18s and an OCF-3. Vice-Chair Todd found for the insurer, concluding that while the notations were helpful to the Tribunal, they did not replace the need for more thorough medical assessments. Further, the OCF-3 contained a list of the claimant’s injuries and sequelae with no explanation as to why these injuries prevented her from performing her job duties. Vice-Chair Todd also noted that the submitted OCF-2 was incomplete and therefore less credible. The claimant was found to not be entitled to IRBs.
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© 2020 Thomas Gold Pettingill LLP