Category: Reconsideration

I.K. v. Primmum Insurance Company (16-001652)

The claimant sought entitlement to a number of medical benefits as well as attendant care benefits. The insurer argued the claimant was barred from proceeding with a LAT application for failing to attend a number of IEs, pursuant to section 55. The LAT agreed and dismissed the matter. On reconsideration, Executive Chair Linda Lamoureux upheld the decision. It was noted that IEs are an important tool for medical management. In this instance, the insurer’s requests were reasonable. The claimant raised an argument that section 55 should operate to bar a proceeding only for the benefits the IE is reviewing and allow all other claims to proceed. Executive Chair Lamoureux noted this argument was new and should have been raised at the Tribunal level and declined to exercise the discretion to hear fresh arguments at the reconsideration level.

J.R. v. Certas Home and Auto Insurance Company (16-003921)

The claimant sought entitlement to a number of medical benefits. The insurer denied the treatment plans based on IE reports and the LAT agreed with the denials. On reconsideration, however, Executive Chair Linda Lamoureux determined that the Tribunal arrived at the determination in a manner that was procedurally unfair to the claimant. At the Tribunal level, the claimant failed to submit the disputed treatment plans as evidence. Executive Chair Lamoureux determined that the Tribunal deciding in the absence of these documents, without asking the claimant’s counsel for the materials was a breach of procedural fairness and remitted the matter back to the Tribunal for a new determination.

I.K. v. Primmum Insurance Company (16-001652)

The claimant sought entitlement to a number of medical benefits as well as attendant care benefits. The insurer argued the claimant was barred from proceeding with a LAT application for failing to attend a number of IEs, pursuant to section 55. The LAT agreed and dismissed the matter. On reconsideration, Executive Chair Linda Lamoureux upheld the decision. It was noted that IEs are an important tool for medical management. In this instance, the insurer’s requests were reasonable. The claimant raised an argument that section 55 should operate to bar a proceeding only for the benefits the IE is reviewing and allow all other claims to proceed. Executive Chair Lamoureux noted this argument was new and should have been raised at the Tribunal level and declined to exercise the discretion to hear fresh arguments at the reconsideration level.

J.R. v. Certas Home and Auto Insurance Company (16-003921)

The claimant sought entitlement to a number of medical benefits. The insurer denied the treatment plans based on IE reports and the LAT agreed with the denials. On reconsideration, however, Executive Chair Linda Lamoureux determined that the Tribunal arrived at the determination in a manner that was procedurally unfair to the claimant. At the Tribunal level, the claimant failed to submit the disputed treatment plans as evidence. Executive Chair Lamoureux determined that the Tribunal deciding in the absence of these documents, without asking the claimant’s counsel for the materials was a breach of procedural fairness and remitted the matter back to the Tribunal for a new determination.

N.H. v. Aviva Insurance Company (17-001088)

The claimant sought entitlement to medical benefits. The insurer, after receipt of the application to the LAT, arranged for an IE. The claimant objected and the Tribunal at a preliminary issue hearing determined that the IE was reasonable and could go forward. The Tribunal would adjourn the hearing on the merits to allow for the IE to be completed. The claimant sought reconsideration of this decision. However, Executive Chair Linda Lamoureux held that the Tribunal did not err. The Tribunal decision was affirmed and the claimant was afforded a further adjournment to attend the IE and then proceed to a hearing.

S.T. v. Economical Insurance Company (16-0003034)

The claimant sought reconsideration of the Tribunal’s decision to deny attendant care and housekeeping benefits. The Tribunal had determined that the two year time limit for the claimant to dispute her entitlement had passed. The claimant filed her request for reconsideration outside of the 21 day period stipulated in the LAT Rules. Executive Chair Lamoureux rejected the reconsideration. She held that the claimant failed to provide acceptable reasons to justify the delay in requesting the reconsideration. She further held that the claimant failed to provide any evidence to suggest that the Tribunal erred in finding that the limitation period applied.

J.R. v. Coachman Insurance Company (17-001154, 17-001337)

This is a reconsideration decision concerning procedural issues with respect to the submission of supplementary written submissions. Following an oral hearing, the parties were invited to submit supplementary written submissions. Due to a clerical error at the LAT’s office, Adjudicator Shapiro ordered that the insurer file its submissions prior to the deadline that was ordered for the claimant’s submissions. Both parties requested reconsideration of Adjudicator Shapiro’s preliminary order on the length and deadlines for filing supplementary submissions. The claimant requested that only his filed supplementary written submissions be put before the adjudicator. The insurer requested a reconsideration on the timing, content, length and sequencing of the written submissions. The insurer raised arguments with respect to the legislative scheme governing the LAT and complained about claimant’s counsel behaviour. Associate Chair Batty denied the claimant’s application for reconsideration and granted the insurer’s relief, in part. Associate Chair Bhatty held that the fact that the insurer was ordered to submit its supplementary submissions before the claimant’s submissions were due violated the rules of procedural justice. To cure this error, Associate Chair Batty ordered that the parties file new written submissions with the claimant’s submissions due first.

P.I. v. Aviva Insurance Canada (16-001320)

The claimant sought reconsideration of a Tribunal decision which upheld a MIG determination. The claimant asserted the Tribunal violated the rules of natural justice and erred in law when it failed to consider psychological, physical, and pre-existing medical evidence. Executive Chair Linda Lamoureux determined that it is open for a Tribunal adjudicator to prefer one party’s evidence above another’s and that the claimant’s assertion regarding a violation of natural justice was “entirely without foundation.” The claimant’s appeal was dismissed.

I.P. v. Aviva Canada Insurance (17-000465)

The insurer sought reconsideration of the underlying decision based on the adjudicator’s failure to make a determination on the applicability of section 37(7) (the provision allowing the insurer to not pay IRBs until the claimant attended an IE); the adjudicator had only made an order regarding section 55 (that the claimant had to attend the IE before she could pursue her claim at the LAT). Executive Chair Lamoureux held that the adjudicator erred in failing to address section 37(7). She held that the insurer was not required to pay the claimant IRBs until she attended the requested IE. The order was varied accordingly.

D.W. v. The Co-operators (17-000388)

The claimant sought reconsideration of the Tribunal’s denial of IRBs. The crux of the issue was whether the claimant could claim IRBs after the first 104 weeks without first receiving IRBs during the first 104 weeks. The Tribunal initially ruled that the claimant could not seek IRBs. Executive Chair Lamoureux confirmed the result, but on different reasons. She held that according to the language of the SABS and the Court of Appeal’s reasons in Wadhwani v. State Farm, an insured did have to first suffer a “substantial inability” within the first 104 weeks after the accident in order to receive any IRBs beyond the 104 weeks. Where the Executive Chair differed with the original decision was in her view that an insured’s entitlement to IRBs within the first 104 weeks could be determined looking to evidence generated after the first 104 weeks. Essentially, the claimant had to prove that he suffered a “substantial inability” within the first 104 weeks to receive IRBs, but that he did not have to satisfy that evidentiary burden before the 104 week mark passed. The reconsideration was ultimately dismissed because the claimant’s evidence was inconsistent and did not support the “substantial inability” test.