Category: Reconsideration

K.H. v. Gore Mutual Insurance (18-009689)

The claimant filed a Request for Reconsideration arising out of a decision in which the Tribunal found the claimant entitled to medical benefits proposed in a treatment plan, but not entitled to a special award. The claimant argued that Adjudicator Norris erred in law or fact when considering her entitlement to a special award. Adjudicator Norris first considered the insurer’s inaction following the submission of the disputed treatment plan. Adjudicator Norris found that the insurer’s inaction was reasonable, and it was not unreasonable to rely on the opinions in an IE report that were provided by a regulated healthcare professional. Second, the circumstances surrounding the prognosis in the IE report were considered in the decision. Adjudicator Norris held that there was no error in law in how the issue of the prognosis in the IE report was analyzed. In conclusion, Adjudicator Norris agreed with the insurer and found that the claimant failed to prove that a significant error in law or fact occurred.

L.L. v Aviva Insurance Canada (18-001329)

Requests for reconsideration were filed by the claimant and the insurer in relation to a special award of $550 on a $2,200 assessment. The claimant sought an increase in the quantum awarded; the insurer argued that no special award ought to have been granted. Adjudicator Kepman dismissed both reconsideration requests, writing that the insurer had failed to articulate a legitimate reason for denying the treatment plan and for scheduling an IE with a general practitioner rather than a physiatrist. This was not an error of law upon which a reconsideration would be granted. The claimant’s request for an increase in the quantum of the special award was rejected because it was premised on being awarded on two additional treatment plans that were not in dispute at the hearing.

M.Y. v. Wawanesa Mutual Insurance Company (19-003973)

The claimant sought reconsideration of the Tribunal’s decision that she was barred from litigating her claim due to failure to attend two IEs. The insurer argued that the claimant’s request for reconsideration was filed beyond the 21 as required in the Rules. Vice Chair Farlam noted that the request was only a single business days outside of the 21 day time limit as required by Rule 18.1. Vice Chair Farlam relied upon Rule 3.1(a) in order to facilitate a fair, open and accessible process and allowed the matter to proceed. Vice Chair Farlam examined the facts in evidence and found that the Tribunal had not made an error with the original decision. She noted the consistency of facts in the decision, that the claimant did not provide a reasonable explanation for not attending the examinations, and that the claimant did not provide sufficient evidence to prove the claims made at the hearing. The request for reconsideration was denied.

K.W. v. Aviva General Insurance (18-006969)

The claimant requested a reconsideration of the Tribunal’s decision denying various medical benefits and IRBs, seeking an order quashing the decision and ordering a rehearing on all parts of the matter. Adjudicator Watt dismissed the applicant’s request, noting that his decision set out the evidence, the law, and why he gave more weight to some arguments over others. He emphasized that a reconsideration is not an opportunity to re-argue positions that previously failed before the Tribunal or to have evidence re-weighed.

N.M. v. The Guarantee Company of North America (18-009017)

The claimant filed for reconsideration of the Tribunal’s award of $1,000 in costs to the insurer. Vice Chair Hunter denied the reconsideration. Costs had been awarded after the claimant twice withdrew his dispute on the eve of the scheduled hearing. He rejected the claimant’s arguments that the Tribunal exhibited bias or that it made its decision based on false or misleading evidence.

K.D. v. TD Insurance Meloche Monnex (18-008965)

The claimant sought reconsideration of the Tribunal’s decision that she was barred from pursuing her claim for caregiver benefits and housekeeping expenses. Adjudicator Norris rejected the reconsideration request. He reiterated that the insurer was not required to wait for a new Disability Certificate before requesting an IE, and that the IE report did not need to be sent to the claimant’s health care provider because a new Disability Certificate was not provided by the claimant.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.

T.A. v. Aviva General Insurance Company (18-006820)

The Tribunal awarded NEBs, a psychological assessment, and a 25 percent special award. The Tribunal had ordered the insurer to pay NEBs due to its failure to respond to the claimant’s application, and such order required the insurer to pay NEBs before the conclusion of the 26 week waiting period. The insurer sought reconsideration. Adjudicator Lake partially granted the reconsideration. She amended the date on which NEBs began by one month, as the Tribunal erred in the date on which the OCF1 and OCF3 were submitted to the insurer. The special award on NEBs was rescinded because it was originally made based on the erroneous conclusion that the insurer had not responded to the claimant’s initial application.

B.M. v. Aviva Insurance (18-009182)

The Tribunal had awarded two of three treatment plans for chiropractic services, and denied the third as being duplicative. The claimant sought reconsideration on the denied treatment plan; the insurer sought reconsideration of the two approved treatment plans. Adjudicator Johal dismissed the claimant’s reconsideration request and attempt to introduce new evidence. Adjudicator Johal granted the insurer’s reconsideration request and found all three treatment plans to be not reasonable and necessary. He accepted that the Tribunal had awarded the treatment plans based on providing pain relief, but without any evidence of improved function and without objective evidence of a change in pain.

N.L. v. Aviva Insurance Canada (18-011431)

The claimant sought reconsideration of the Tribunal’s order that her non-attendance at an IE barred her from disputing entitlement to a psychological assessment. She argued that the Tribunal erred by not permitting the dispute to proceed. Adjudicator Maleki-Yazdi dismissed the reconsideration. She held that the Tribunal did not make any reversible errors. The claimant did not have a reasonable explanation for not attending the scheduled IE nor did she provide her availability for a rescheduled IE. For the same reasons, the Tribunal did not err by not exercising its discretion to allow the hearing to proceed.