Kosiner v. Economical Insurance Company (19-007787)

This is a reconsideration decision. The claimant was self-represented. He attended the case conference and settled his file with Economical, which was confirmed in writing. Over one year later, the claimant filed a Notice of Motion to set aside the settlement and raised issue with the fact that Economical would not renew his insurance policy. In the original decision, the adjudicator held that the settlement was binding, that the Tribunal did not have jurisdiction to decide matters related to the renewal of the insurance policy, and dismissed the claimant’s appeal. The adjudicator also noted that the claimant had not returned the settlement funds. On reconsideration, the adjudicator dismissed the claimant’s reconsideration applicating noting that there was no basis to set aside the original decision.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment and that he was not entitled to IRBs. With regard to the catastrophic impairment, he argued that the Tribunal erred in not counting 3 percent WPI for medication and 18 percent WPI for a potential future operation. Adjudicator Flude rejected both grounds of reconsideration. As to the medications, the Tribunal reiterated that not all medications used by the claimant were related to the accident, and that the addition of 3 percent WPI was not for the possible future impact of extended drug use – it was for the manner in which the drugs may mask the person’s true impairment at the time of the assessment. As to the 18 percent for future surgery, the Adjudicator Flude found that the SABS and the AMA Guides did not allow for the counting of a potential future procedure. The person must be assessed at the time he or she is before the Tribunal. Finally, regarding the denial of IRBs, Adjudicator Flude found no error in the conclusion that the claimant failed to prove that he was self-employed at the time of the accident.

Manoharan v. Allstate Canada (19-010782)

Allstate filed for reconsideration of the Tribunal’s decision which Vice-Chair Boyce ruled in the claimant’s favour and awarded her interest on the incurred amounts of three treatment plans and various other benefits. Allstate argued that Vice-Chair Boyce erred in fact and law in relation to section 38 and section 51, and that no interest was payable on the three treatment plans. Allstate noted that it was compliant with section 38, that no invoice for incurred services on the treatment plans had been submitted, and that it had paid all three treatment plans in full prior to the LAT Application, rendering section 51 moot. Vice-Chair Boyce granted the reconsideration, noting that Allstate did comply with section 38 by addressing the treatment plans within 10 days, and that the delay in approval and payment was a result of the claimant’s delay in participating in IEs.

S.B.S. v. Wawanesa Mutual Insurance Company (17-006935)

The claimant filed a request for reconsideration arising out of Adjudicator Neilson’s decision that he was not entitled to IRBs or the cost of a psychological treatment plan. Adjudicator Neilson dismissed the request. At the initial hearing, the claimant brought a motion to exclude the insurer’s experts’ reports on the basis that the insurer failed to comply with an order to produce the clinical notes and records of its IE experts, in particular the raw test data from the IE psychologist. Adjudicator Neilson had dismissed the motion on the basis that the insurer had provided proof of best efforts to obtain these records. Then, the claimant sought an adjournment so that the IE psychologist could produce the data to the claimant’s treating psychologist. Adjudicator Neilson dismissed that adjournment request, but the hearing was adjourned for other reasons. At the hearing, the claimant’s treating psychologist testified that she did not interpret the raw data as did not pay the fee to obtain this data through a computer program. Ultimately, Adjudicator Neilson agreed with the IE psychologist and on reconsideration, found that the raw data results would not have changed her opinion with respect to the IRB dispute or entitlement to the disputed psychological treatment plan.

Green v. Intact Insurance Company (19-013031)

The claimant sought reconsideration of the Tribunal’s decision that the SABS did not provide for funding of multidisciplinary IRB reports. Vice Chair McGee rejected the reconsideration, finding no error in law. She noted that nothing prevented the claimant from responding to the insurer’s IE reports, but that he had to do so at his own expense. Vice Chair McGee rejected the argument that section 25 did not specifically bar expenses for IRB reports and that such reports should therefore be payable, noting that section 25 is clear and unambiguous as to the types of reports an insurer must fund. Additionally, Vice Chair McGee reiterated that stabilizing costs was one of the goals of the SABS, and that restricting the types of assessment an insurer was required to fund aligned with the Legislature’s policy goal.

Z.R. v. Certas Direct Insurance Company (18-001468)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment under section 3.1(1)(5)(i), which requires positive findings of a traumatic brain injury on a CAT scan, MRI, or other medically recognized brain diagnostic technology. Adjudicator Gosio rejected the reconsideration. The claimant did not make any arguments regarding the French version of the SABS at the original hearing, and was therefore barred from advancing such argument on reconsideration. Adjudicator Gosio also rejected the argument that updated records should be obtained on behalf of the claimant, and that a new hearing should be held regarding the dispute. Adjudicator Gosio agreed with the Tribunal’s decision that the use of the word “with” in section 3.1(1)(5)(i) denotes a temporal association between a person’s hospital admission and a positive finding on medical imaging.

A.H. v. Unica Insurance Inc. (18-012320)

The claimant applied for reconsideration of the Tribunal’s decision that he was not entitled to IRBs because he was not employed at the time of the accident. The claimant was scheduled to start a job two weeks after the accident. Because of the accident, he was unable to start the job. Adjudicator Grieves dismissed the reconsideration, holding that the Tribunal’s decision did not violate the principle of stare decisis, the principles of statutory interpretation, or the purposes of consumer protection legislation. The SABS required the claimant to be “employed at the time of the accident”. To construe the phrase to include a person in the claimant’s position would go beyond what the legislation entitled the claimant to receive.

Omere v. The Commonwell Mutual Insurance Group (20-007753)

The insurer sought reconsideration of the Tribunal’s refusal to decide an IE non-attendance defence upon the claimant’s Notice of Withdrawal. Vice Chair Maedel dismissed the reconsideration. Once the claimant withdrew her LAT application, there were no matters in dispute between the parties. The IE non-attendance defence was moot and could not be decided by the Tribunal.

J.T. v. Primmum Insurance Company (18-009043)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment, and that his injuries fell within the Minor Injury Guideline. He argued that the Tribunal acted outside of its jurisdiction or violated rules of procedural fairness. Vice Chair Maedel found no error on the part of the Tribunal. The adjudicator considered all the evidence before the Tribunal. There were no expert reports in support of the claimant’s position that he sustained a 55 percent Whole Person Impairment. The Tribunal was entitled to accept the position of the insurer’s assessors that the claimant did not suffer a catastrophic impairment, and that the claimant did not suffer from a pre-existing condition that would prevent maximal recovery under the MIG.

E.L. v. Wawanesa Mutual Insurance Company (19-003212)

The claimant sought reconsideration of the Tribunal’s decision that his IE non-attendance barred the LAT dispute. Adjudicator Makhamra dismissed the reconsideration, holding that the Tribunal properly considered whether the claimant was barred by section 55 from disputing the MIG and the disputed treatment plan. However, Adjudicator Makhamra noted that the decision did not bar the claimant from submitting treatment plans in the future and disputing entitlement to same if the insurer refused to approve the treatment plans, and subject to IE requests in relation to any future treatment plans.