Category: Reconsideration

D.S. v. Aviva Insurance Company of Canada (18-006592)

The insurer sought reconsideration of the Tribunal’s award of medical benefits based on section 38 deficient denials, on the basis that the Tribunal failed to consider whether the benefits were incurred. Adjudicator Grant dismissed the reconsideration request. While he agreed with the insurer that the benefits were not deemed incurred under section 3(8), he also explained that a benefit was only payable if it meets the requirements of the SABS (i.e. payment is owed once incurred, and interest owed once overdue).

S.M. v. Unica Insurance Inc. (18-010164)

The Tribunal had found the claimant entitled to (among other things) $6,000 per month in ACBs and granted a 25 percent special award. The insurer sought reconsideration. Adjudicator Boyce granted the reconsideration and reduced the payable ACBs and concluded that no special award was payable on ACBs or an awarded home modification. With regard to the ACBs award, the claimant was only entitled to payment for service incurred but in the amount provided for by the hourly rates set out in the Guidelines (as opposed to the amount actually incurred). The Tribunal erred by awarding the claimant “up to $6,000” for whatever was incurred at whatever rate the service provider charged. With regard to the special award, Adjudicator Boyce held that the Tribunal imposed a greater burden on the insurer than was appropriate. It was unreasonable to expect an adjuster to micromanage the assessments of qualified professionals, and the adjuster was entitled to rely upon their expert opinions.

S.M. v. Unica Insurance Inc. (18-010164)

The Tribunal had found the claimant entitled to (among other things) $6,000 per month in ACBs and granted a 25 percent special award. The insurer sought reconsideration. Adjudicator Boyce granted the reconsideration and reduced the payable ACBs and concluded that no special award was payable on ACBs or an awarded home modification. With regard to the ACBs award, the claimant was only entitled to payment for service incurred but in the amount provided for by the hourly rates set out in the Guidelines (as opposed to the amount actually incurred). The Tribunal erred by awarding the claimant “up to $6,000” for whatever was incurred at whatever rate the service provider charged. With regard to the special award, Adjudicator Boyce held that the Tribunal imposed a greater burden on the insurer than was appropriate. It was unreasonable to expect an adjuster to micromanage the assessments of qualified professionals, and the adjuster was entitled to rely upon their expert opinions.

S.V. v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought reconsideration of the Tribunal’s decision regarding certain denied ACBs for feeding, bathroom cleaning, and basic supervisory care. She also sought interest on ACBs from the retroactive date of the Form 1, rather than the date the Form 1 was submitted. Adjudicator Parish granted the reconsideration in relation to the quantum payable for feeding, but denied all other aspects of the reconsideration. The error was based on the Tribunal using 90 minutes as opposed to 150 minutes per day for meal preparation. The denial of other aspects of the Form 1 was unchanged as the Tribunal did not make an error in fact or law. The Tribunal also noted that re-integration into the community was not “basic supervisory care” under the Form 1. Finally, the Tribunal re-iterated that interest was not payable prior to submission of the Form 1 because the insurer would not have been aware of the claimant’s need for attendant care prior to the Form 1.

M.M. v. Aviva Insurance Canada (18-000467)

The claimant sought reconsideration of the Tribunal’s decision that a special award was not payable on a psychological assessment that was initially denied but approved just before the hearing. Adjudicator Punyarthi granted the reconsideration and ordered a special award of 45 percent be paid on the denied assessment. She explained that the Tribunal had made a material error of fact in reviewing and drawing conclusions from the evidence at the hearing. The adjuster had sufficient information available to determine that the proposed assessment was reasonable at the time it was requested. Once the clinical notes and records had been provided, only a paper review should have been requested or the assessment should have been approved based on the adjuster’s review of the records. The 45 percent award was based primarily on the delay of 19 months.

J.R. v. Aviva General Insurance Company (19-007539)

The insurer filed a request for reconsideration of a motion decision extending the time for exchange of documents and the production of log notes. Pursuant to the amended rule 18.1 of the Common Rules of Practice and Procedure, Associate Chair Jovanovic dismissed the request for reconsideration as it was in regard to a decision that did not finally dispose of the appeal.

D.M. v. Aviva Insurance Company (17-006525)

This is a re-hearing decision heard in writing after the insurer made a request for reconsideration on the basis that the LAT made significant errors of fact and law in the initial hearing decision. The issue was whether post-accident money received by the claimant was a gift or income that was deductible from IRB payments. The claimant submitted that she continued to receive her regular pay from her mother’s restaurant after the accident, despite not working in the restaurant, as a way for her mother to help her financially, and that the money was a gift. The insured submitted that the amount was employment income as the claimant declared the income on her income tax returns and deductions were made for income tax, EI, and CPP contributions. In the initial hearing, Adjudicator Johal found that the money received by the claimant was a gift and not deductible. After the re-hearing, Adjudicator Johal found that the claimant did not have to be actively engaged in work, or “doing work in exchange for money”, in order to be considered to be receiving income as a result of employment. The insurer was entitled to deduct 70% of the post-accident income from IRB payments.

J.A. v. Aviva Insurance Company of Canada (18-002124)

The insurer sought reconsideration of the Tribunal’s decision awarding $10,500 for the cost of catastrophic impairment assessments. Adjudicator Boyce denied the reconsideration request. He concluded that the proposed assessments were not “rebuttal reports” because it was the claimant’s first set of catastrophic impairment assessments (the insurer had conducted earlier IEs, but that did not make the claimant’s proposed assessments “rebuttal reports”). Although the OCF-19 was submitted prior to the claimant’s proposed assessments, the proposed assessments were still “for the purpose” of determining a catastrophic impairment.

M.A. v. Travelers Insurance Company of Canada (19-008748)

The claimant sought reconsideration of the Case Conference order that an in-person hearing be held rather than a written hearing. Vice Chair Jovanovich dismissed the reconsideration as the order was not a final order disposing of an appeal.

L.D. v. Gore Mutual Insurance Company (18-011978)

The claimant sought reconsideration of the Tribunal’s Case Conference order that a preliminary issue hearing take place to address the IE non-attendance issue, and of the Case Conference adjudicator’s refusal to “strike” the issue, arguing that the adjudicator was biased. Vice Chair Jovanovich dismissed the reconsideration request because it was not a final order. Rather, it was a procedural order made under the Tribunal’s Rules.