Category: Reconsideration

B.H. v. Aviva Canada Inc. (17-003774)

The claimant sought reconsideration of the Tribunal’s decision that he could not proceed with his application due to failure to attend an IE. Executive Chair Lamoureux held that the insurer’s denial of medication benefits and subsequent request for an IE did not comply with sections 38 and 44 of the SABS. She wrote that the insurer’s denial did not refer to the medical information Aviva relied upon to make its determination or explain why it could not determine whether the treatment recommendations were not reasonable. Executive Chair Lamoureux held that improper denial resulted in the disputed medical benefits being payable.

T.S. v. Aviva General Insurance Canada (17-000835)

The claimant sought reconsideration of the Tribunal’s decision that his injuries fell under the MIG. The Tribunal had concluded that the claimant suffered chronic pain, but that it was “clinically associated sequelae” of the initial “minor injury.” Executive Chair Lamoureux reversed the Tribunal’s decision. She held that the Tribunal’s finding that the claimant suffered from chronic pain was sufficient to deem his impairment more serious than a “minor injury.” She also wrote that chronic pain syndrome could not be “clinically associated sequelae” falling under the MIG. Executive Chair Lamoureux awarded four treatment plans that were initially denied by the Tribunal based on the claimant’s injuries falling within the MIG.

E.E. v. Aviva Insurance Company (16-004281)

The insurer sought reconsideration of the Tribunal’s decision that the claimant had sustained a catastrophic impairment and was entitled to attendant care benefits. Associate Chair Jovanovic denied the request for reconsideration. He held that the adjudicator did not err in preferring the evidence and opinions of the claimant’s experts and treating physicians, and that it was not an error to accept an opinion of the claimant’s treating physician. In terms of attendant care benefits, the Associate Chair held that the claimant’s spouse could provide professional services without providing such services through an independent contracting company; he held that the spouse’s leave from work at the time of the accident did not prevent the spouse from acting as a professional service provider after the accident; and held that the verbal promise to pay the spouse was sufficient to meet the “incurred” definition. The Associate Chair also upheld the payment of attendant care for overnight supervision by the spouse.

E.E. v. Aviva Insurance Company (16-004281)

The insurer sought reconsideration of the Tribunal’s decision that the claimant had sustained a catastrophic impairment and was entitled to attendant care benefits. Associate Chair Jovanovic denied the request for reconsideration. He held that the adjudicator did not err in preferring the evidence and opinions of the claimant’s experts and treating physicians, and that it was not an error to accept an opinion of the claimant’s treating physician. In terms of attendant care benefits, the Associate Chair held that the claimant’s spouse could provide professional services without providing such services through an independent contracting company; he held that the spouse’s leave from work at the time of the accident did not prevent the spouse from acting as a professional service provider after the accident; and held that the verbal promise to pay the spouse was sufficient to meet the “incurred” definition. The Associate Chair also upheld the payment of attendant care for overnight supervision by the spouse.

S.K. v. TTC Insurance (17-002561)

The Tribunal found that the claimant sustained a catastrophic impairment due to two marked impairments. The insurer sought reconsideration based on a number of arguments. Vice Chair Trojek rejected the reconsideration. She held that there was no requirements that the adjudicator convert the marked impairment into a WPI. She also wrote that the adjudicator considered the evidence before the Tribunal and arrived at reasonable conclusion based on the evidence. Finally, Vice Chair Trojek held that the Tribunal did consider the claimant’s credibility, and that the adjudicator’s view on credibility was not to be reweighed on reconsideration.

G.V. v. Northbridge General Insurance (16-001698)

The insurer sought reconsideration of the Tribunal’s decision to issue a special award on medical benefits after the insurer removed the claimant from the MIG. Associate Chair Batty allowed granted the reconsideration and cancelled the special award. He held that the insurer’s approval of benefits in advance of a hearing was insufficient to warrant a special award; the claimant still had to prove entitlement to the special award. The claimant’s late submission of medical evidence supported the insurer’s late approval of benefits. Further, the Tribunal had granted the special award without providing the insurer with an opportunity to respond, contrary to procedural fairness.

C.L. v. State Farm Insurance Company (16-003195)

The insurer sought reconsideration of the Tribunal’s award of ongoing NEBs. The Tribunal had found that despite the claimant’s ability to participate in most of her pre-accident activities, the claimant was so restricted that she could not be seen as engaging in those activities. The insurer argued that the Tribunal had failed to consider relevant evidence in coming to its conclusion and requested an order setting aside the decision. Executive Chair Lamoureux rejected the insurer’s request for reconsideration. She held that the Tribunal’s findings of fact supported the award of NEBs, and that it would be inappropriate for her to reweigh the evidence.

Aviva Insurance Canada v G.P. (16-004349)

The claimant sought reconsideration of the Tribunal’s decision ordering him to repay IRBs to the insurer. The insurer had voided the claimant’s insurance policy after he had failed to notify the insurer of a change in a risk material to that policy. The claimant argued that a third party was at fault for the failure to advise the insurer of the material change; he submitted documents at the reconsideration hearing to support this contention, which had not been previously disclosed. Executive Chair Lamoureux upheld the Tribunal’s decision. She refused to consider the new documents as Rule 18.2(c) only allowed for parties to correct evidence already adduced at a hearing. Executive Chair Lamoureux further held that the documents, if they had been admitted, supported a finding that the claimant was aware of his responsibility to keep the insurer apprised of any material changes that affected his policy, and that he intentionally failed to do so.

N.F. v. Aviva Insurance Canada (17-000456)

The insurer sought reconsideration of the Tribunal’s decision that the claimant’s failure to include a police report was not fatal to his application to the Motor Vehicle Accident Claims Fund. Executive Chair Lamoureux upheld the Tribunal’s decision. Despite an application being incomplete, section 32 triggered the insurer’s responsibility to determine whether a benefit was payable. Executive Chair Lamoureux referred to legislation and jurisprudence regarding priority disputes when concluding that applications could be considered complete if they were functionally adequate for their legislated purpose. Executive Chair Lamoureux further held that the insurer was precluded from taking the position that the MIG applied and that the disputed treatment plans were automatically payable. However, the claimant’s application for NEBs was dismissed for a lack of evidence establishing entitlement.

A.S. v. Pafco Insurance (16-003683)

The claimant sought reconsideration of the Tribunal’s decision to deny the claim for ongoing IRBs. The claimant requested reconsideration on the basis that the Tribunal denied him natural justice and procedural fairness. Associate Chair Batty agreed with the claimant that the Tribunal had overlooked or mischaracterized parts of the claimant’s evidence at the LAT hearing. Associate Chair Batty ordered that the application would be reheard in writing and be limited to considering anew evidence and submissions already provided by the parties.