C.W. v. Jevco Insurance Company ( 18-000790)

This is a reconsideration decision of Adjudicator Shapiro. The insurer requested reconsideration of Adjudicator Shapiro’s initial decision wherein he found the claimant entitled to retroactive ACBs with interest. The facts of this case were unusual. The claimant was a pedestrian struck by a vehicle. She did not have her own insurance. The driver of the insured vehicle did not advise his insurer of the accident. The insurer first learned of the accident when the claimant initiated a tort claim two years after the accident. The claimant was catastrophically impaired as a result of the accident. The insurer took an off-coverage position in the tort claim. Therefore, for a significant period of time, the claimant did not seek attendant care benefits nor was she aware of her ability to claim accident benefits. Adjudicator Shapiro found that there was a reasonable excuse for the claimant’s delay in applying for benefits given the insurer’s coverage position. Adjudicator Shapiro held that the claimant actively investigated coverage issues and then filed her accident benefits claim as soon as the only possible insurer reversed its coverage position and acknowledged it insured the vehicle that hit her. Therefore, Adjudicator Shapiro dismissed the reconsideration application concluding that the claimant was entitled to retroactive ACBs and interest was payable. Adjudicator Shapiro also reminded the insurer that interest was compensatory and not punitive.

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

The claimant requested reconsideration of a preliminary issues decision in which the LAT adjudicator found that the claimant was barred from proceeding with her application for certain benefits because she failed to commence her application within two years of the insurer’s refusal to pay the benefits claimed. The claimant submitted that the LAT acted outside of its jurisdiction and made errors of law by not properly weighing evidence, failing to explain how it weighed evidence, and by misconstruing the applicant’s arguments. The request for reconsideration was dismissed.

A.M. v. Aviva Insurance Company (19-004182)

The claimant requested reconsideration of the Tribunal’s preliminary issue decision barring the claimant from disputing IRBs. Adjudicator Grant dismissed the reconsideration. The claimant submitted that the Tribunal erred in equating the OCF-10 as a request for IRBs for less than the mandated seven working days lost. The claimant submitted the OCF-10 and she did not elect to receive NEBs although the OCF-3 indicated that she suffered a complete inability to carry on a normal life. The insurer submitted that this was not sufficient grounds to change the decision. There was no evidence that the claimant was not claiming entitlement to IRBs until August 14, 2019 when the claimant sent a letter to the insurer explaining the reasons for the delay in submitting the OCF-2. Adjudicator Grant considered that the claimant was represented in 2016 and there was no reasonable explanation for the delay between the January 16, 2017 notice letter and the claimant’s failure to appeal the denial before the limitation period expired. Adjudicator Grant did not find the claimant’s delay in her letter of explanation to the insurer to be reasonable. Even though the claimant had been hospitalized, the claimant’s representative could have contacted the insurer well before the limitation period to advise of the claimant’s situation. The claimant further argued that the insurer’s January 2017 denial letter of IRB entitlement was not valid when she did not stop working until February 2017. The insurer relied upon the Court of Appeal decision Sietzema v. Economical, which held that clear and unequivocal notice given by the insurer denying benefits was sufficient to trigger the limitation period. The insurer argued that if the claimant found the denial was improper, she had the right to dispute the denial within the two year limitation period. The OCF-10 submitted by the claimant electing IRBs after the completion of the OCF-1 and OCF-3 was an indication that it was applying for IRBs and was, therefore, notifying the insurer of her intent to apply for a specified benefit.

Jones v. Aviva Insurance Canada (19-013768)

The insurer requested reconsideration of a preliminary issue hearing in which the Tribunal found that the claimant’s application for a non-earner benefit was not barred pursuant to section 56 of the SABS. Vice Chair McGee dismissed the insurer’s request for reconsideration, on the basis that Rule 18 of the LAT Rules provides that the Tribunal will only reconsider a decision that finally disposes of an appeal. Vice Chair McGee noted that the preliminary issue decision was interlocutory in nature, and held that the Tribunal cannot grant reconsideration of an interlocutory order.

R.P. v. Aviva General Insurance (18-000131)

The claimant requested reconsideration of the Tribunal’s decision denying IRBs. Specifically, the claimant alleged that the Tribunal made a significant error in fact or law by failing to fully consider medical evidence and the claimant’s testimony. The claimant requested that an Order be made cancelling the decision and that IRBs be awarded with interest. Adjudicator Létourneau dismissed the request. He noted that, upon review of the decision and hearing materials, the evidence and testimony that the claimant alleged was not considered, was in fact considered in some detail and was specifically mentioned in the original decision, and the Tribunal had compared multiple reports to one another when weighing the overall evidence to reach a conclusion. The claimant further attempted to question the credentials and conclusions of the IE physiatrist. Adjudicator Létourneau pointed out that this was an attempt to re-argue the previous case, and the claimant should have made these submissions in the original pleadings.

C.M. v. Intact Insurance Company (18-008995)

This is a reconsideration decision of Adjudicator Manigat. The insurer sought reconsideration of Adjudicator Manigat’s initial decision wherein she found that the claimant was entitled to the balance of a psychological treatment plan in the amount of $887.93 plus interest. The insurer submitted that the Tribunal considered the wrong issue in dispute and did not consider the issues stated in the Case Conference Report and Order. Adjudicator Manigat referred to a transcript of the hearing wherein she restated the issues in dispute and noted that the insurer did not object to these issues, despite the fact they were different than stated in the Case Conference Order. Therefore, Adjudicator Manigat held that the issues in dispute that she considered were correct, as proven by the transcript of the hearing. However, Adjudicator Manigat agreed with the insurer that she failed to consider all of the evidence before her with respect to the treatment plan. Adjudicator Manigat reviewed the evidence and agreed that the claimant failed to provide sufficient evidence that she required the balance of the disputed treatment plan. Adjudicator Manigat therefore granted the insurer’s request for reconsideration and varied the original decision.

A.M. v. Aviva Insurance Company of Canada (18-008059)

The claimant requested reconsideration of the Tribunal’s decision denying NEBs and holding the claimant in the MIG. Adjudicator Norris denied the reconsideration. The claimant argued the insurer gave no evidence to subject the claimant to the MIG and the insurer’s reports did not provide an opinion on the application of the MIG. The insurer submitted there was no evidence of any failure to impartially assess the evidence. Adjudicator Norris indicated there was no onus on the insurer to prove the claimant suffered a minor injury; the claimant had the burden of proving his case. Adjudicator Norris reviewed the evidence including the medical records of the claimant’s treating physicians, which he determined did not show any compelling evidence that the claimant should be removed from the MIG. In regard to the NEBs claim, the claimant argued that Adjudicator Norris had wrongly found that the claimant had failed to submit a disability certificate and there was evidence in the insurer’s materials it had been submitted. The disability certificate in question that was submitted entitled the claimant to NEBs. The claimant further argued that Adjudicator Norris had wrongfully found the insurer did not pay the benefit because it did not know when the disability certificate was submitted. The insurer argued that the NEB claim was considered and the evidence was weighed in its decision. Adjudicator Norris was unable to consider the disability certificate in the initial hearing as the claimant did not submit the disability certificate as evidence. The claimant’s reconsideration submissions confirmed that the disability certificate in question was completed by a different healthcare provider than his family physician contrary to the claimant’s claims in the initial hearing. The claimant failed to provide any information on when the second disability certificate was submitted, which would trigger the insurer’s obligations under s.36(4). In the initial hearing, Adjudicator Norris found the insurer did not have to pay NEBs immediately on receipt of the disability certificate and the insurer could request an IE. It appeared the insurer did request an IE. The claimant attended the IEs and the insurer relied upon those reports when it denied NEBs entitlement. The claimant submitted three documents to support his position that his injuries were outside of the MIG. Adjudicator Norris indicated none of those documents provided any compelling evidence that his injuries were minor. The claimant’s self-reported statements were discounted due to inconsistencies.

P.W. v. Wawanesa Mutual Insurance Company (18-007187)

The claimant sought reconsideration of the Tribunal’s decision which found that her injuries fell within the Minor Injury Guideline. The claimant argued that the Tribunal erred in law by creating and applying an incorrect test to decide the issues in dispute. Specifically, the claimant stated that she was not taken out of the MIG despite the presence of medical evidence supporting her claims. Adjudicator Manigat stated that the simple fact of providing medical evidence was not enough to take the claimant out of the MIG. Further, after reviewing the medical evidence, the claimant’s injuries were found to be predominately minor and her pre-existing injuries would not prevent her from achieving maximal medical recovery if she were confined to the MIG. The claimant also argued that the presence of pre-existing injuries, the fact that all disputed chiropractic treatment plans had been fully incurred, and the fact that the cost of examinations for psychological assessment had been incurred were indicative that her injuries should not be confined within the MIG. Adjudicator Manigat found that these facts did not require the conclusion that the MI did not apply nor prove that the treatment plans were reasonable and necessary. The claimant failed to establish any significant error of law or fact by the Tribunal and her request for reconsideration was dismissed.

Z.J. v. Aviva Insurance Company of Canada (18-012030)

The insurer requested reconsideration of a decision in which the Tribunal found the claimant was entitled to partial payment of the cost of multidisciplinary CAT assessments and fees for the completion of the OCF-18 and OCF-19. Adjudicator Braun denied the request for reconsideration. The insurer argued that a chiropractor was not authorized to provide an opinion to a number of the conditions listed in Part 6 of the treatment plan, and in particular, mental and cognitive impairments, and that doing so invalidated the chiropractor’s certification in Part 4 that the assessments were reasonable and necessary. Adjudicator Braun found that the OCF-18 complied with s.38(3)(c). Adjudicator Braun agreed that it would be beyond a chiropractor’s scope of practice to opine on cognitive functioning. However, it was Adjudicator Braun’s view that recommending that a person with an impairment or a suspected impairment be assessed by a relevant specialist was different than offering an opinion regarding that impairment and or recommending treatment. In this case, the chiropractor only stated that it was reasonable and necessary to have a CAT assessment conducted by a team of qualified physicians and health professionals and did not offer any opinion on the claimant’s functional abilities in any of the areas listed in Part 6. The insurer’s position that some of the conditions listed in Part 6 were outside of the chiropractor’s scope, was an overly technical view , which failed to consider the OCF-18 as a whole. In this case, the OCF-18 represented an effort of a chiropractor and a neurologist from the same assessment facility who jointly made the recommendation for an assessment to determine CAT threshold. Adjudicator Braun further found that it was within the chiropractor’s scope of practice to make the statement in Part 4 although she was not authorized to treat some of the injuries listed in Part 6. In this case, the chiropractor did not offer a medical opinion or any treatment recommendations, but stated that it was reasonable and necessary for the claimant to pursue and assessment related to the injuries listed in Part 6. The insurer also argued that the certification of the chiropractor to provide an executive summary and WPI rating did not expand the scope of her practice beyond what is stated in the Chiropractor Act and the executive summary and WPI report constituted an assessment of CAT for the purposes of s.45 of the SABS that did not allow a chiropractor to perform such an assessment. Adjudicator Braun noted that executive summaries and WPI reports compiled by chiropractors was not new in cases before the Tribunal and in her view, the executive summary and WPI rating was simply a written summarization of opinions already provided and did not provide any fresh opinion. The insurer further argued the OCF-18 was a rebuttal to the insurer’s CAT IEs. The claimant OCF-18 indicated the treatment plan was to rebuttal IE multidisciplinary CAT impairment report. Adjudicator Braun found that the words “to rebut” in the OCF-18 was semantic, and even though the IE reports were conducted first, it did not render the assessments claim in this case true rebuttals. The assessments were clearly the claimant’s first and only set of assessments that applied for a CAT determination under s. 45.

Ai v. Intact Insurance Company (19-005110)

The claimant requested reconsideration of the Tribunal’s previous decision barring his LAT Application for refusal to attend IEs. The claimant alleged that Vice-Chair Farlam did not properly interpret the SABS, that the statutory notice requirements in the IE notice letters was not met, and that the IEs should have proceeded by way of paper review and that by forcing the claimant to attend an in-person, the IE amounted to a “reverse onus”. The claimant further alleged that Vice-Chair Farlam made a significant error of law for ordering him to attend in-person IEs. Vice-Chair Farlam denied the request, noting that the original decision included references to many of the claimant’s submissions, showing that all evidence was taken into account; she further noted that she had in fact not ordered the claimant to attend an IE, but rather barred him from disputing the MIG before the Tribunal due to his past failures to attend.