Category: Reconsideration

A.B. v. Aviva Insurance Company of Canada(18-000935)

At the case conference, the Adjudicator ordered the issues in dispute to be heard by way of a written hearing. After the respondent filed their submissions, in which it requested costs, the claimant withdrew their application from the Tribunal. The Tribunal proceeded to close the file without hearing the request for costs. The respondent sought reconsideration of the Tribunal’s decision to close the file as well as a hearing on costs, arguing that the Tribunal violated the rules of natural justice and procedural fairness. Vice-Chair Lester granted the request for reconsideration, but denied the request for costs. She found that the Tribunal’s decision to close the file without adjudicating the costs issue violated the rules of natural justice and procedural fairness. By closing the file, the Tribunal failed to allow the request for costs to be heard. However, the respondent failed to prove that the claimant acted unreasonably, frivolously, vexatiously, or in bad faith.

M.H. v. Aviva Insurance Canada (17-006910)

The insurer sought reconsideration of the Tribunal’s decision to award death benefits, on the basis that the deceased was a dependent for care on the claimant. Associate Chair Jovanovic granted the reconsideration and ordered a new hearing. He wrote that the Tribunal failed to consider whether the deceased was “principally” dependent on the claimant and failed to consider the appropriate time period for the dependency analysis.

G.C. v. Aviva Insurance Canada (17-003450)

The insurer sought reconsideration of the Tribunal’s decision that the claimant was entitled to a chronic pain assessment, arguing that the Tribunal failed to consider if the proposed assessor was properly qualified and failed to apply significant weight to the respondent’s paper review IE report. Adjudicator Grieves dismissed the request for reconsideration. She held that the Tribunal did not make a significant error of law, and that it was not her place on a reconsideration request to question the weight that an adjudicator assigns to the evidence. Adjudicators are entitled to prefer some pieces of evidence over others.

P.D. v. Western Assurance Company (17-005066)

The insurer sought reconsideration of the Tribunal’s decision that the limitation period did not bar the claims for attendant care benefits and medical benefits. Associate Chair Batty granted the reconsideration, reasoning that the denials were “clear and unequivocal.” The denials were based on the claimant having exhausted her non-catastrophic medical benefits limits.

D.M. v. Aviva Insurance (17-003463)

The insurer sought reconsideration of the Tribunal’s decision to award ACBs beyond the 104 week mark despite the claimant not being designated catastrophically impaired, and the decision to deem the attendant care services incurred. Adjudicator Boyce granted the reconsideration. He held that the Tribunal made a significant error of law in awarding ACBs beyond the 104 week date, and that the claimant’s entitlement ended as of the 104 week date. Further, the adjudicator held that the Tribunal’s decision to deem the attendant care services “incurred” was a significant error in law because the Tribunal had not made any findings that the insurer unreasonably withheld or delayed the payment of ACBs.

L.K.C. v. Unifund Assurance Company (18-004346)

The insurer sought reconsideration of the Tribunal’s order to produce adjusting log notes. Adjudicator Marzinotto dismissed the reconsideration request. She held that the Tribunal did not make a significant error of law, and that the log notes were relevant to the issues in dispute. She also noted that there was no legal requirement that a special award be sought in order for log notes to be relevant to the dispute.

T.C. v. Aviva Insurance Canada (17-008107)

The claimant sought reconsideration of the Tribunal’s decision that she was not entitled to IRBs. Adjudicator Boyce dismissed the reconsideration request. He held that the claimant’s arguments amounted to an attempt to re-argue the case and reweigh the evidence and credibility, which was not the purpose of a reconsideration. He also held that a new medicolegal opinion obtained by the claimant, which could have been obtained earlier and would not be considered as part of the reconsideration.

C.D. v. Aviva General Insurance (17-005825)

The Tribunal had awarded the claimant all claimed medical benefits in her application, and a 25 percent special award. The insurer sought reconsideration, arguing that it had paid amounts to the clinics for the medical benefits, so that any payments to the claimant was double recovery. The insurer also argued that the special award was granted on insufficient evidence. Adjudicator Ferguson dismissed the reconsideration request. He held that the Tribunal’s decision did not require the insurer to pay more than the full amount of the treatment plans in dispute. Regarding the special award, the adjudicator rejected the insurer’s argument that there was insufficient evidence to support same, and that the Tribunal had carefully considered the evidence before it.

J.L. v. Wawanesa Mutual Insurance Company (18-000766)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment under the Glasgow Coma Scale. He argued that the Tribunal should have admitted video evidence of the paramedic administering the GCS. Adjudicator Boyce agreed with the Tribunal that the video had limited probative value and was unlikely to change the result of the hearing. The paramedic attended the hearing and was examined on his GCS measurements. The adjudicator also rejected the claimant’s arguments that the insurer’s expert gave evidence outside of his report (such as addressing inconsistencies within his expertise).

A.P. v. Coachman Insurance Company (17-004906)

The Tribunal had awarded the claimant IRBs for a specific quantum and specific time period; the Tribunal also awarded interest on medical benefits. The insurer sought reconsideration, arguing that the decision did not accurately reflect the timeframe for payment of IRBs and when interest became payable. Adjudicator Lester partially granted the reconsideration request. She held that the Tribunal’s decision expressed the IRB timeframe in six different ways, and it was unclear from the decision what the time frame in dispute was. She also held that interest was not payable until medical treatment was incurred. The decision was referred back to the hearing adjudicator to amend the decision in accordance with the reconsideration.