Category: Reconsideration

G.P. v. Aviva Insurance Company of Canada (16-000726)

The insurer appealed the Tribunal decision that a 2006 denial of income replacement benefits was not valid. Executive Chair Lamoureux agreed with the insurer and held that the Tribunal’s decision was a substantial error in law. She wrote that the denial had clearly and unequivocally communicated to the claimant that her entitlement to further income replacement benefits had been denied, and provided the claimant with the dispute process. Further, Executive Chair Lamoureux held that the claimant’s re-application for income replacement benefits in 2015 did not create a second triggering event for the limitation period. The claim for income replacement benefits was therefore barred.

C.N. v. Aviva Canada Insurance (16-002658)

The claimant failed to attend two case conferences. Accordingly, the insurer sought to have the matter dismissed. The claimant argued that the matter was merely withdrawn and therefore it was available to return to the LAT to raise the same issues. The case conference adjudicator agreed with the claimant and found the issues withdrawn. The insurer sought a reconsideration to have the matters dismissed. Executive Chair Linda Lamoureux held that the LAT may only invoke Rule 3.4 (dismissal without a hearing) in a limited number of situations, such as abandonment. However, the matter was not abandoned in this matter – it was withdrawn based on the facts. The reconsideration request was denied.

N.Y. v. TD Insurance Meloche Monnex (17-001054)

The claimant sought entitlement to accident benefits. The LAT case conference adjudicator ordered a hybrid hearing with evidence to be entered via writing. After the claimant filed submissions, the insurer responded with submissions containing addendum IE reports as evidence. The claimant made a motion objecting to the admissibility of the new addendum reports and was partially successful. However, the case conference adjudicator did not grant the claimant access to the adjuster log notes, nor did the addendum reports get excluded. Rather, the authors of the reports were to be made available for cross-examination and a 90 day resumption of case conference was afforded to allow the claimant to commission rebuttal reports if desired. The claimant sought reconsideration of the case conference order seeking the addendum reports to be entirely inadmissible. Executive Chair Linda Lamoureux held the case conference adjudicator did not error – the addendum reports were considered relevant and therefore admissible. The denied request for log notes was also reaffirmed. The reconsideration appeal was dismissed.

N.Y. v. TD Insurance Meloche Monnex (17-001054)

The claimant sought entitlement to accident benefits. The LAT case conference adjudicator ordered a hybrid hearing with evidence to be entered via writing. After the claimant filed submissions, the insurer responded with submissions containing addendum IE reports as evidence. The claimant made a motion objecting to the admissibility of the new addendum reports and was partially successful. However, the case conference adjudicator did not grant the claimant access to the adjuster log notes, nor did the addendum reports get excluded. Rather, the authors of the reports were to be made available for cross-examination and a 90 day resumption of case conference was afforded to allow the claimant to commission rebuttal reports if desired. The claimant sought reconsideration of the case conference order seeking the addendum reports to be entirely inadmissible. Executive Chair Linda Lamoureux held the case conference adjudicator did not error – the addendum reports were considered relevant and therefore admissible. The denied request for log notes was also reaffirmed. The reconsideration appeal was dismissed.

J.C.C. v. Aviva Insurance Company of Canada (16-000663)

The Tribunal had determined in both cases that the MIG did not apply because the insurer failed to comply with section 38(8) of the SABS. The insurer sought reconsideration. Executive Chair Lamoureux held that the Tribunal had not made a significant error in concluded that section 38(8), and that the insurer’s notice was deficient. She agreed that the insurer’s failure to properly follow section 38(8) in regard to one treatment plan prohibited the insurer from relying on the MIG for all future treatment plans. However, Executive Chair Lamoureux did reduce the quantum of the treatment plan payable to one of the claimants to the amount incurred between the insurer’s defective notice and the date the insurer sent the claimant a cured notice.

M.F.Z. v. Aviva Insurance Canada (16-000517)

The Tribunal had determined in both cases that the MIG did not apply because the insurer failed to comply with section 38(8) of the SABS. The insurer sought reconsideration. Executive Chair Lamoureux held that the Tribunal had not made a significant error in concluded that section 38(8), and that the insurer’s notice was deficient. She agreed that the insurer’s failure to properly follow section 38(8) in regard to one treatment plan prohibited the insurer from relying on the MIG for all future treatment plans. However, Executive Chair Lamoureux did reduce the quantum of the treatment plan payable to one of the claimants to the amount incurred between the insurer’s defective notice and the date the insurer sent the claimant a cured notice.

M.F.Z. v. Aviva Insurance Canada (16-000517)

The Tribunal had determined in both cases that the MIG did not apply because the insurer failed to comply with section 38(8) of the SABS. The insurer sought reconsideration. Executive Chair Lamoureux held that the Tribunal had not made a significant error in concluded that section 38(8), and that the insurer’s notice was deficient. She agreed that the insurer’s failure to properly follow section 38(8) in regard to one treatment plan prohibited the insurer from relying on the MIG for all future treatment plans. However, Executive Chair Lamoureux did reduce the quantum of the treatment plan payable to one of the claimants to the amount incurred between the insurer’s defective notice and the date the insurer sent the claimant a cured notice.

D.D.D. v. RBC Insurance Company (16-000097)

The claimant asked for reconsideration of the denial of IRBs. Executive Chair Lamoureux held that the adjudicator’s factual findings were not subject to review, and that the evidence that the claimant had returned to work and was let off due to work shortages supported the conclusion that the claimant was not entitled to IRBs.

D.D.D. v. RBC Insurance Company (16-000097)

The claimant asked for reconsideration of the denial of IRBs. Executive Chair Lamoureux held that the adjudicator’s factual findings were not subject to review, and that the evidence that the claimant had returned to work and was let off due to work shortages supported the conclusion that the claimant was not entitled to IRBs.

D.T. v. Wawanesa Mutual Insurance Company (16-000266)

The claimant sought reconsideration of the Tribunal’s decision to deny medical benefits above MIG limits and IRBs. The Tribunal had denied the claimant’s entitlement to these benefits based on its review of the available medical evidence. The claimant made multiple arguments: first, that the Tribunal did not consider evidence indicating she suffered from a pre-existing condition; second, that the Tribunal considered improper surveillance footage; and, lastly, that the Tribunal erred in refusing her requests for an oral hearing and for the hearing to be recorded. Executive Chair Lamoureux denied the reconsideration request. She held that the Tribunal had properly reviewed the entire medical record when it determined that the claimant fell within the MIG. She noted that claimant’s counsel had provided the Tribunal with little guidance regarding the evidentiary record, and had failed in its duty to best present the claimant’s position. She further held that the Tribunal had properly addressed the claimant’s objections to the surveillance footage, and any new concerns raised in the reconsideration request were not permissible. Moreover, Executive Chair Lamoureux held that the claimant’s rights to procedural fairness were not affected by the Tribunal’s decisions to deny her requests for an oral hearing and for the hearing to be recorded.