Schuknecht v. Economical Insurance Company (19-013098)

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.

Sahadeo v. Pafco Insurance Company (19-006331)

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.

Prillo v. Coseco Insurance Company (20-014401/AABS-R)

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.

Hordo v CAA Insurance Company (20-012761/AABS0

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.

Chen v. The Co-operators (20-012408/AABS)

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.

Belanger v. Intact Insurance Company (19-013755)

The insurer requested reconsideration of the Tribunal’s earlier decision which held that the claimant was not statute barred pursuant to s. 56 of the Schedule. In the initial decision, the Tribunal found that the delivery of the initial IRB denial letter dated March 26, 2015, despite being an adequate stoppage letter, was not done in accordance with s. 64 of the Schedule as the claimant subsequently retained counsel on June 20, 2015. The initial denial letter was not delivered to counsel until February 15, 2019. The claimant submitted his application on November 27, 2019. As such, the Tribunal initially determined that the application for IRBs fell within the effective limitation period of February 14, 2021. On reconsideration, Adjudicator Logan found that the Tribunal made an error. Adjudicator Logan held that s. 64 of the Schedule does not include a requirement to re-deliver a notice to counsel after they’ve been retained, and that the limitation period applied

Vaillancourt v. Intact Insurance Company (19-009063)

This is a reconsideration decision. In the initial preliminary hearing decision, the LAT found that that the exclusion in s. 31(1)(a)(i) of the SABS did not apply in this matter. Pursuant to 31(1)(a)(i), an insurer is not required to pay IRBs, NEBs, or a benefit under ss. 21, 22, or 23 in respect of a person who was the driver of an automobile at the time of the accident if the driver knew or ought reasonable to have known that they were operating the automobile while it was not insured. The insurer submitted that the hearing adjudicator made an error in law by applying an exclusively subjective test to the language of s. 31(1)(a)(i). The insurer argued that the correct test is the “contextual objective” test articulated in Batoor v. State Farm. Vice-Chair Logan granted the request for reconsideration and found that the claim for accident benefits was subject to the exclusion in s. 31(1)(a)(i) of the SABS and that a “contextual objective” test applied.

Landa v. The Dominion of Canada General Insurance Company (19-011699)

This is a reconsideration decision. In the initial decision the LAT barred the claimant from proceeding with claims for benefits because she applied to the LAT outside of the limitation period. The LAT further determined that it lacked discretion to extend the limitation period under s. 7 of the LAT Act. The reconsideration hearing proceeded because the state of the law changed after the LAT hearing decision, when the Divisional Court determined that the LAT does have jurisdiction to extend the limitation period under s. 7 of the LAT Act. On reconsideration, Vice-Chair McGee found that the claimant had not established grounds for an extension of the limitation period. In finding that the claimant did not establish a bona fide intention to appeal, Vice-Chair McGee rejected the claimant’s argument that she was delayed in filing the LAT application due to ineffective representation by counsel and be causing she was engaging in settlement negotiations with the insurer. Vice-Chair McGee found that delays in filing the LAT application between 6 months and 10 years were significant and prejudicial to the insurer. The reconsideration was dismissed.

Giannoylis v Travelers Insurance (20-000280)

The claimant sought reconsideration of the Tribunal’s decision in which it found that he: (i) was not entitled to IRBS from August 10, 2018 to February 19, 2019; (ii) failed to provide sufficient particulars to calculate the IRBs payable from February 20, 2019 to January 11, 2021; and (iii) was not entitled to IRBs from January 12, 2021 to date and ongoing. With respect to issue (iii), both the claimant and the insurer agreed that the parties never intended for the Tribunal to make a finding regarding the claimant’s entitlement to IRBs in the post-104 week period. As such, Vice Chair Lake varied the decision to strike the paragraphs that addressed and made findings regarding the claimant’s entitlement to post-104 week IRBs. The remainder of the claimant’s request for reconsideration was dismissed. In dismissing the reconsideration, Vice Chair Lake found that there was no error of fact or law in her findings, and this was not a situation where it would have been appropriate to simply order IRBs payable subject to the claimant having yet another opportunity to provide additional information, given the claimant’s failure to comply with the Tribunal’s Order for productions.

Bagla v. TD Ins. Meloche Monnex (20-004159)

A request for reconsideration of a preliminary issue decision was filed by the claimant. The preliminary issue decision found the claimant was statute barred for failure to appeal the denial of attendant care benefits in the two year limitation period. In this case, the claimant was involved in two accidents: one on March 3, 2014 and the other on May 25, 2015. He sought ACBs. In regard to the 2014 accident, the insurer denied ACBs by letters dated January 12 and April 17 , 2015. The claimant filed his application on January 17, 2020. In regard to the 2015 accident, the insurer denied ACBs by letter dated April 1, 2016 and the claimant filed his application on June 28, 2019. A case conference was held on November 25, 2020 for both accident claims. The claimant was represented by counsel. An order set down a preliminary issue hearing for March 8, 2021 to determine whether the claimant was statute barred from disputing his ACBs for both accidents. A Notice of Written Hearing was sent to the parties January 25, 2021. Written submissions for the preliminary issue hearing were due February 19, 2021. The insurer filed its submissions and evidence on February 4, 2021. One day prior to the deadline for written submissions, the claimant’s counsel notified the insurer and LAT that she was no longer representing the claimant. The claimant did not file his submissions on the due date. The LAT was unsuccessful in contacting the claimant and a decision was released April 29, 2021. The claimant reportedly did not know about his former counsel’s lack of submissions until several months later. The claimant retained new counsel who immediately filed a motion for an extension to file reconsideration submissions on August 13, 2021. The motion was heard and a decision was released December 6, 2021. The claimant’s request for an extension was granted and the claimant filed this reconsideration request on January 6, 2022. The claimant submitted that he was deprived of his right to participate in a hearing that was significant to his well-being and the evidence regarding the circumstances of his ACBs claim denial was not before the Tribunal and would likely have affected the result. He submitted that the doctrine of discoverability applied to his claims and it was an error to statute bar his claims. The claimant relied on the Tomec decision amongst others. He submitted alternatively that the Tribunal exercise its discretion under s.7 of the LAT Act to allow his claim to proceed to a substantive hearing. The insurer argued that the claimant’s assertion that he was denied procedural fairness was baseless and was rectified by allowing him to make submissions on reconsideration. The insurer also submitted that the claimant did not show how the previously unavailable evidence would have changed the result of the decision. In addition, no rationale was provided to overturn the decision using section 7 of the LAT Act. Vice Chair Boyce reasoned that procedural fairness included participatory rights with an opportunity for those affected by the decision to put forward their views and evidence to be considered. He indicated that the claimant should not suffer for the mistake of his counsel when the Tribunal could rectify the mistake. Vice Chair Boyce found that the claimant was unable to participate in the first instance through no mistake of his own. The claimant did not become aware of the Tribunal’s decision until three months after its release. Vice Chair Boyce granted the claimant’s request for reconsideration under Rule 18.2(a). Vice Chair Boyce accepted that he had made his initial decision solely on the evidence of the insurer and reliance on one party’s evidence affected the result. The claimant was seeking a catastrophic impairment designation at the substantive hearing. Vice Chair Boyce indicated that the doctrine of discoverability in Tomec applied in this case, and that if the Tribunal were to uphold the original decision, the claimant would be unable to claim post-104 ACBs. The preliminary decision of April 29, 2021 was set aside and the claimant was allowed to proceed with his ACBs claim at the substantive hearing.