Category: Reconsideration

Amiri and Mireskandari v. The Co-operators (20-003296)

The claimants were out for a walk with their spouses when a member of their group, a close relative, was struck by a motor vehicle in a pedestrian accident. The claimants, who were uninsured, applied for accident benefits under the driver’s policy, claiming emotional shock and psychological distress. Adjudicator Norris had previously ruled that the claimants did not meet the definition of an “insured person” in section 3(1) of the SABS, and therefore had no entitlement to accident benefits under the driver’s policy. The claimants requested Reconsideration of the decision. The claimants alleged that Adjudicator Norris erred in fact or law by failing to recognize the broad, consumer-protecting threshold of section 3(1). Adjudicator Norris disagreed, noting that while protections did exist, the claimants had no relation to the named insured (driver) as required by law to claim benefits, and as unfortunate as the event may have been, they were not entitled to claim accident benefits from the insured driver. The request for reconsideration was denied.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

P.M. v. Aviva General Insurance (19-002717)

The insurer requested reconsideration of a decision that awarded the claimant two treatment plans as a result of the insurer’s non-compliance with sections 38(8) and 38(9). The insurer submitted that the Adjudicator erred in law by vitiating its right to “cure” its deficient notices regarding the treatment plans submitted under section 38(11) even after the Tribunal rendered a decision. The insurer argued that its liability for payment of goods and services under a treatment plan as a result of its failure to comply with sections 38(8) and 38(9) ends upon delivery of a compliant denial notice pursuant to section 38(11), and not as a result of a decision of the Tribunal. Adjudicator Lake disagreed and stated that it was well settled that the Schedule must be read generously with any limitations construed narrowly. In this context, Adjudicator Lake considered it unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator Lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would also strip the Tribunal of its jurisdiction to resolve accident benefit matters. As a result, Adjudicator Lake found no error of law in finding that the insurer’s opportunity to cure its defective denial notices ended upon the issuance of the decision.

Catic v. Aviva General Insurance (19-005572)

The claimant requested reconsideration of a decision in which the Tribunal found that the claimant was not entitled to the cost of a psychological assessment because it was not reasonable and necessary, despite the insurer’s denial not complying with section 38. The claimant argued that the applicable consequences set out in section 38(11) required the insurer to pay for all assessments and examinations described in the treatment plan starting on the 11th business day and ending on the day the insurer gives a notice described in section 38(8). Further, the claimant argued that evidence of services being incurred was not required, as stated in P.M. v. Aviva General Insurance, where the adjudicator held that s. 38(11)2 does not include a requirement for any services to be “incurred.” The section only states “that relate to.” Adjudicator Grant set aside the Tribunal’s decision and held that the claimant was entitled to the disputed psychological assessment even though it had not been incurred prior to the insurer delivering a section 38 compliant denial.

Kosiner v. Economical Insurance Company (19-007787)

This is a reconsideration decision. The claimant was self-represented. He attended the case conference and settled his file with Economical, which was confirmed in writing. Over one year later, the claimant filed a Notice of Motion to set aside the settlement and raised issue with the fact that Economical would not renew his insurance policy. In the original decision, the adjudicator held that the settlement was binding, that the Tribunal did not have jurisdiction to decide matters related to the renewal of the insurance policy, and dismissed the claimant’s appeal. The adjudicator also noted that the claimant had not returned the settlement funds. On reconsideration, the adjudicator dismissed the claimant’s reconsideration applicating noting that there was no basis to set aside the original decision.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment and that he was not entitled to IRBs. With regard to the catastrophic impairment, he argued that the Tribunal erred in not counting 3 percent WPI for medication and 18 percent WPI for a potential future operation. Adjudicator Flude rejected both grounds of reconsideration. As to the medications, the Tribunal reiterated that not all medications used by the claimant were related to the accident, and that the addition of 3 percent WPI was not for the possible future impact of extended drug use – it was for the manner in which the drugs may mask the person’s true impairment at the time of the assessment. As to the 18 percent for future surgery, the Adjudicator Flude found that the SABS and the AMA Guides did not allow for the counting of a potential future procedure. The person must be assessed at the time he or she is before the Tribunal. Finally, regarding the denial of IRBs, Adjudicator Flude found no error in the conclusion that the claimant failed to prove that he was self-employed at the time of the accident.

Manoharan v. Allstate Canada (19-010782)

Allstate filed for reconsideration of the Tribunal’s decision which Vice-Chair Boyce ruled in the claimant’s favour and awarded her interest on the incurred amounts of three treatment plans and various other benefits. Allstate argued that Vice-Chair Boyce erred in fact and law in relation to section 38 and section 51, and that no interest was payable on the three treatment plans. Allstate noted that it was compliant with section 38, that no invoice for incurred services on the treatment plans had been submitted, and that it had paid all three treatment plans in full prior to the LAT Application, rendering section 51 moot. Vice-Chair Boyce granted the reconsideration, noting that Allstate did comply with section 38 by addressing the treatment plans within 10 days, and that the delay in approval and payment was a result of the claimant’s delay in participating in IEs.

S.B.S. v. Wawanesa Mutual Insurance Company (17-006935)

The claimant filed a request for reconsideration arising out of Adjudicator Neilson’s decision that he was not entitled to IRBs or the cost of a psychological treatment plan. Adjudicator Neilson dismissed the request. At the initial hearing, the claimant brought a motion to exclude the insurer’s experts’ reports on the basis that the insurer failed to comply with an order to produce the clinical notes and records of its IE experts, in particular the raw test data from the IE psychologist. Adjudicator Neilson had dismissed the motion on the basis that the insurer had provided proof of best efforts to obtain these records. Then, the claimant sought an adjournment so that the IE psychologist could produce the data to the claimant’s treating psychologist. Adjudicator Neilson dismissed that adjournment request, but the hearing was adjourned for other reasons. At the hearing, the claimant’s treating psychologist testified that she did not interpret the raw data as did not pay the fee to obtain this data through a computer program. Ultimately, Adjudicator Neilson agreed with the IE psychologist and on reconsideration, found that the raw data results would not have changed her opinion with respect to the IRB dispute or entitlement to the disputed psychological treatment plan.

Green v. Intact Insurance Company (19-013031)

The claimant sought reconsideration of the Tribunal’s decision that the SABS did not provide for funding of multidisciplinary IRB reports. Vice Chair McGee rejected the reconsideration, finding no error in law. She noted that nothing prevented the claimant from responding to the insurer’s IE reports, but that he had to do so at his own expense. Vice Chair McGee rejected the argument that section 25 did not specifically bar expenses for IRB reports and that such reports should therefore be payable, noting that section 25 is clear and unambiguous as to the types of reports an insurer must fund. Additionally, Vice Chair McGee reiterated that stabilizing costs was one of the goals of the SABS, and that restricting the types of assessment an insurer was required to fund aligned with the Legislature’s policy goal.