Category: Reconsideration

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.

Aviva Insurance Company of Canada v. A.M. (16-001014)

The insurer sought reconsideration of the Tribunal’s denial of repayment of IRBs. The request was based on the claimant receiving disability benefits. The claimant had not informed the insurer of his receipt of disability benefits, and the insurer subsequently made a request for repayment of IRBs totalling $4,414.29. The Tribunal had originally denied repayment reasoning that insufficient evidence of the overpayment was placed before the Tribunal. Executive Chair Lamoureux overturned the decision and awarded the request for repayment. Executive Chair Lamoureux held that the Tribunal had failed to consider evidence before it, and misconstrued other records before it.

Aviva Insurance Company of Canada v. A.M. (16-001014)

The insurer sought reconsideration of the Tribunal’s denial of repayment of IRBs. The request was based on the claimant receiving disability benefits. The claimant had not informed the insurer of his receipt of disability benefits, and the insurer subsequently made a request for repayment of IRBs totalling $4,414.29. The Tribunal had originally denied repayment reasoning that insufficient evidence of the overpayment was placed before the Tribunal. Executive Chair Lamoureux overturned the decision and awarded the request for repayment. Executive Chair Lamoureux held that the Tribunal had failed to consider evidence before it, and misconstrued other records before it.

Applicant v. Cumis General Insurance Company (16-003144)

The claimant sought a catastrophic designation. The insurer requested five IEs. The claimant agreed to attend three, and did not attend two because she felt the remaining assessments were excessive and unreasonable. On the basis of refusing to attend the remaining IEs, the insurer designated the applicant non-CAT. The claimant filed an application for arbitration. The insurer sought to preclude a hearing due to the claimant’s non-attendance at an IE. The Tribunal denied the insurer’s motion and determined the outstanding IEs were not reasonable; the matter was set down for a hearing. On reconsideration, Executive Chair Lamoureux ruled that although the insurer may want the remaining IE, it is not one it is entitled to have by virtue of the assessment being unreasonable. The appeal was dismissed.

Applicant v. Aviva Insurance Canada (16-001031)

This is a reconsideration in which the insurer sought to have the LAT overturn the award of various treatment plans. The insurer also argued that the claimant had submitted documents too late, and should not have been considered by the adjudicator. Executive Chair Lamoureux held that there was sufficient evidence for the adjudicator to conclude that the disputed treatment plans were reasonable and necessary. She also held that the claimant had complied with the timetable set out by the Case Conference adjudicator, and that the documents were therefore not provided contrary to the LAT rules.

Applicant v. The Guarantee Company of Canada (16-001348)

The claimant originally sought attendant care benefits on an ongoing basis. The initial adjudicator’s decision only addressed attendant care benefits up to the date of the hearing and held that the claimant was nominally entitled to $666.23 per month, but that no attendant care services had been incurred. The claimant sought reconsideration of that decision on the basis that he should be entitled to any incurred attendant care benefits beyond the date of the hearing. Executive Chair Lamoureux agreed with the claimant and held that the adjudicator’s failure to explicitly consider entitlement beyond the date of the hearing (a period that was set out in the Case Conference Order) was an error in law. She held that the claimant was entitled to attendant care benefits of up to $666.23 per month, provided the services were incurred. Because the claimant’s accident occurred in 2004, Executive Chair Lamoureux acknowledged that the stricter requirements of the 2010 SABS did not apply, but that the service at issue still needed to have been provided in order to be incurred under the 1996 SABS (relying upon the FSCO decision in McKnight v. Guarantee).

Applicant v. Aviva Insurance Company of Canada (16-001985)

The claimant sought and was successful in obtaining a Tribunal Order for a number of treatment plans. In making the determination, the Tribunal also ordered interest payable at 2 percent per month. On reconsideration, however, Executive Chair Lamoureux noted the Tribunal erred by using the interest provisions of the previous SABS; the correct provision is section 51 at a rate of 1 percent per month, compounded monthly.

Applicant v. Aviva Insurance Company of Canada (16-001985)

The claimant sought and was successful in obtaining a Tribunal Order for a number of treatment plans. In making the determination, the Tribunal also ordered interest payable at 2 percent per month. On reconsideration, however, Executive Chair Lamoureux noted the Tribunal erred by using the interest provisions of the previous SABS; the correct provision is section 51 at a rate of 1 percent per month, compounded monthly.

Applicant v. Aviva General Insurance Company (17-000370)

The claimant sought entitlement to a number of benefits. At the case conference, a number of timelines were set. The claimant missed a number of document exchange deadlines and subsequently sought an adjournment and the insurer did not consent. The Tribunal did not grant the adjournment. On reconsideration Executive Chair Lamoureux noted the reason for the adjournment request was to allow for receipt of IE reports completed by the insurer on unrelated benefits. The claimant at the time of reconsideration now had the reports and therefore a determination was no longer necessary and the hearing was able to continue.

Applicant v. Co-operators General Insurance Company (16-001976)

The claimant applied for FSCO mediation on January 21, 2016 and disputed a denial of IRBs dated February 26, 2014. The FSCO Mediation was scheduled for May 6, 2016 and was not successful. The claimant subsequently applied to the LAT on August 11, 2016 (97 days after the report of mediator). The insurer raised a preliminary issue asserting the claim was time-barred. The Tribunal agreed and dismissed the claim. On reconsideration, Executive Chair Lamoureux affirmed the applicability of the limitations provisions. The notice letters of the insurer were considered compliant and the insurer was not estopped from relying on the denial letter when it requested a subsequent IE.