Category: Reconsideration

E.L. v. Wawanesa Mutual Insurance Company (19-003212)

The claimant sought reconsideration of the Tribunal’s decision that his IE non-attendance barred the LAT dispute. Adjudicator Makhamra dismissed the reconsideration, holding that the Tribunal properly considered whether the claimant was barred by section 55 from disputing the MIG and the disputed treatment plan. However, Adjudicator Makhamra noted that the decision did not bar the claimant from submitting treatment plans in the future and disputing entitlement to same if the insurer refused to approve the treatment plans, and subject to IE requests in relation to any future treatment plans.

Omere v. The Commonwell Mutual Insurance Group (20-007753)

The insurer sought reconsideration of the Tribunal’s refusal to decide an IE non-attendance defence upon the claimant’s Notice of Withdrawal. Vice Chair Maedel dismissed the reconsideration. Once the claimant withdrew her LAT application, there were no matters in dispute between the parties. The IE non-attendance defence was moot and could not be decided by the Tribunal.

M.I. v. Coseco Insurance Company (18-000742)

The claimant sought reconsideration of the Tribunal’s decision that it did not have jurisdiction to award ongoing IRBs, and the dismissal of a claim for a special award and interest. IRBs had been reinstated prior to the initial hearing, so there was no dispute as to entitlement or quantum. Vice Chair Maedel dismissed the reconsideration request and held that the Tribunal’s decision was correct. The FSCO jurisprudence the claimant relied upon did not consider the current legislation. Vice Chair Maedel held the Tribunal could not issue declaratory relief for ongoing IRBs when the insurer was paying IRBs at the time of the hearing. He also found no error in the Tribunal’s denial of a special award.

N.F. v. Aviva Insurance Company (18-007077)

The insurer sought reconsideration of the Tribunal’s award of IRBs of $400.00 per week from March 2 to December 18, 2018. The insurer argued that the Tribunal erred by awarding IRBs during the period November 1 to December 18, 2018 when the claimant returned to work on a modified basis. Adjudicator Mazerolle agreed with the insurer and held that the Tribunal erred in awarding IRBs during the seven week period as the Tribunal ought to have required the claimant to prove that he continued to meet the substantial inability test during that period rather than looking to the insurer to disprove the claimant’s entitlement. Adjudicator Mazerolle rejected the insurer’s arguments relating to use of the claimant’s updated Notices of Assessment to calculate IRBs, holding that the claimant was permitted to refile his income tax, and the CRA accepted the refiling.

B.A. v. Economical Mutual Insurance Company (18-005968)

The claimant applied for reconsideration of the Tribunal’s decision that section 31 barred his claim for IRBs because of a material misrepresentation relating to her address, which resulted in lower insurance premiums. Vice Chair Johal dismissed the reconsideration request. The Vice Chair held that the Tribunal did not err in allowing evidence of the phone call where the claimant purchased insurance to be admitted, and rejected the argument that the claimant was not permitted to make submissions regarding the issue. The Vice Chair also held that the SABS did not give the Tribunal power to apply equitable remedies such as waiver or estoppel.

G.T. v. The Guarantee Company of North America (18-003334)

The insurer sought reconsideration of a decision in which the Tribunal found that the claimant had sustained a catastrophic impairment based on Criteria 7. The Tribunal concluded that the claimant had sustained 54% WPI. After rounding up, as permitted by the Guides, the claimant met the threshold of 55%. The insurer submitted that the Tribunal made errors of law and/or fact in assigning three of the WPI ratings (5% for the left leg disfigurement, 9% for the sleep disorder, and 3% for a discretionary increase). Adjudicator Grieves dismissed the insurer’s request for reconsideration, as the Tribunal carefully reviewed each sphere of possible impairment and provided sufficient explanations for accepting or rejecting evidence. She went on to note that while the insurer may disagree with the Tribunal’s assessment of the evidence, there was no basis to interfere with the decision.

T.A.K. v. Aviva General Insurance Company (18-008232)

The insurer sought reconsideration of the Tribunal’s decision granting a special award of 35% on IRBs. The insurer argued that the Tribunal erred in finding that the insurer received the claimant’s employment file in August of 2018, his CPP file by March 12, 2018, and his tax returns by August 2018. The insurer argued that Adjudicator Neilson made significant errors of fact in determining that it received emails enclosing these documents, when no email confirmation receipts were filed by the claimant. Adjudicator Neilson noted that, upon review of correspondence in the file, that the claimant was directed to provide documents to a specific adjuster. She further noted that, although the claimant did provide emails showing that these documents were provided, they were provided to a different adjuster. Adjudicator Neilson noted section 64(2)(e) of the SABS allows delivery of documents via electronic means. She noted that several documents had already been sent to the approved adjuster by the claimant electronically. However, the emails allegedly containing the aforementioned employment documents were sent to a different adjuster. Adjudicator Neilson cited section 22(3)(a) of the Electronic Commerce Act, 2000, which determined when an email was considered under the Schedule to be delivered. As the documents were allegedly provided to a different adjuster, rather than the adjuster who was the only one that consent had been provided to release documents to, Adjudicator Neilson ruled that she had made an error of both fact and law to have found that the other adjuster consented to receive these documents or that these documents emailed to her on the claimant’s behalf were delivered by the claimant and received by the insurer. Adjudicator Neilson granted Aviva’s request for reconsideration and rescinded the previous ruling.

Z.J. v. Wawanesa Mutual Insurance Company (18-008967)

The claimant sought reconsideration of the decision of Adjudicator Maleki-Yazdi wherein she found that the claimant was not in an accident. Adjudicator Maleki-Yazdi upheld her previous decision. Adjudicator Maleki-Yazdi noted that the Tribunal reviewed all of the evidence, including the expert reports about whether the accident was staged, and that she did not err in her conclusion.

Polidori v. Motor Vehicle Accident Claims Fund (19-009160)

The insurer sought reconsideration of a decision in which the Tribunal ordered it to pay the cost of an in-home occupational therapy assessment and a special award of 40%. Vice Chair McGee denied the insurer’s request, finding that it had not established any of the grounds for reconsideration. She noted that the Tribunal’s assessment of the issues in dispute (including causation of the claimant’s injuries and the insurer’s conduct in adjusting the claim), were set out in detail in the decision. The insurer did not identify errors in the Tribunal’s analysis, but rather disagreed with the Tribunal’s assessment, which is not a basis for reconsideration.

R.L. v. Intact Insurance Company (18-005036)

The claimant sought reconsideration of a decision in which she was statute barred from disputing her claim for NEBs. The claimant argued that the original decision erred in law because: (1) it found that a capacity assessment should take place or be investigated within the appeal limitation period; (2) it found the total delay was a factor in extending the limitation period; (3) it failed to appreciate the evidence in regard to the issues of capacity, bona fide intention to appeal and the length of the delay; (4) it failed to analyze and make a ruling or give adequate reasons on the issue of prejudice, or alternatively it erred in law by concluding there was prejudice despite the insurer not making any decisions on the issue in its submissions; and (5) it failed to consider the merits of the underlying appeal. Vice Chair Johal dismissed the request for reconsideration. Vice Chair Johal noted the claimant did not specifically plead Rule 18.2 (d) in her reconsideration submissions but tried to introduce new evidence. The new evidence included additional GP clinical notes and records and a handwritten note indicating the claimant had difficulty sleeping, eating and concentrating. The claimant also submitted GP notes that indicated the claimant’s mother called the claimant’s GP who gave her the number of a hospital because she was unable to help the claimant. The claimant did not provide submissions about whether the new evidence could not have been obtained previously and that it would likely have affected the decision in the original hearing. The insurer argued the new information was improperly submitted and was available at the time of the initial hearing. Vice Chair Johal found the claimant could not introduce new evidence for the first time as part of her reconsideration because the requirement of Rule 18.2(2) was not met. Vice Chair Johal further found even if he were to allow the evidence, he did not find it would have changed the result of the original decision. In regard to whether the original decision disposed of the appeal, Vice Chair Johal agreed with the claimant’s argument and the Tribunal decisions of M.Y. and L.D. where it was held that Rule 18.1 was more expansive and encompassed the decisions that finally disposed of a single issue in dispute rather than the entire appeal application. The original decision was not an interlocutory order. It was a decision that finally disposed of the claimant’s request for NEBs. In regard to the original decision concerning the application of s.7 of the LAT Act for extension of the limitation period, the insurer argued the original decision conducted a detailed analysis of the clinical notes and records for the time period in dispute and discussed whether the issue of mental capacity had been raised or established by medical records during the limitation period. The fact that a mental capacity assessment had not been recommended or completed despite numerous medical appointments was only one factor in the original decision. Vice Chair Johal agreed with the insurer and found he would not have reached a different result of the original decision and no error had been made. The claimant submitted that she was unable to appeal due to her mental incapacity. It was found the original decision weighed the evidence and on a balance of probabilities found there was no bona fide intention to appeal within the appeal period and the evidence did not establish she was unable to appreciate risks and consequences. Vice Chair Johal found no error in the law or fact in the original decision. In terms of length of delay, Vice Chair Johal noted the Tribunal appeal application dated June 1, 2018 did not list NEBs as an issue in dispute. It was not until October 9, 2019 in the amended application that the NEB denial was disputed, which was about 35 months from the expiration of the limitation period. Vice Chair Johal determined 35 months was a significant delay and this factor was not in support of the claimant. There was no error in the result of the original decision. With respect to the merits of the appeal, Vice Chair Johal noted the original decision discussed the merit of the claimant’s appeal. Vice Chair Johal stated in his original appeal that even if he were to agree that the claimant’s case had merit, it would be the only factor that would support the claimant’s request for an extension. The original decision also discussed the justice of the case considering all factors and found there was no bona fide intention to appeal within the normal appeal period, the length of delay of 35 months and prejudice to the insurer and concluded the justice of the case did not warrant extension of the limitation period.