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.
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.
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.
The insurer requested reconsideration of the Tribunal’s decision awarding post-104 IRBs entitlement and interest. The insurer submitted that the Tribunal erred when it relied on the trial decision in Burtch v. Aviva that post-accident employment that is substantially different in nature, status, and renumeration may not be considered an appropriate alternative. The insurer noted that the decision had been overturned at the Ontario Court of Appeal and the Tribunal could not rely on it. The insurer also submitted it was an error to find the nature of the claimant’s employment at a residence for assisted living to be substantially different in nature, status, and renumeration such that it does not qualify as a reasonable alternative form of employment, and that the Tribunal erred in not considering that unpaid hours the claimant spent at the residence as work and to conclude that the claimant was incapable of working full-time. Adjudicator Victor noted the in the Burtch decision, the Court of Appeal disagreed with the application of the test based on the particular facts of that case, not the test itself. Adjudicator Victor further noted in the original decision, the Tribunal found the claimant’s current part-time job was not an appropriate alternative to her pre-accident employment at a fast-paced restaurant for a number of reasons including part-time hours, the nature of the work that was sedentary and light duties, along with her very accommodating employer. The claimant was found not to be especially successful at her part-time job and under different management, she would have been let go. Adjudicator Victor found contrary to the Burtch v. Aviva decision that the claimant did not have suitable alternative employment available and retraining would be substantial.
The insurer filed a request for reconsideration in relation to the previous ruling, which determined that s.25 CAT assessments are excluded from the $50,000.00 medical benefits limit. The insurer argued that Tribunal erred in law or fact and requested that the previous decision be set aside. The insurer argued that the Tribunal had erred in its interpretation of s.18(5) of the SABS by not interpreting this section to include the cost of CAT assessments. Vice Chair Marzinotto noted that the original decision addressed s.18(5) in its entirety, and not in a vacuum, as it should be interpreted to discern the context and intent of the subsection. Vice Chair Marzinotto dismissed the insurer’s request for reconsideration as the insurer had failed to establish that the Tribunal made an error of law such that the Tribunal would likely have reached a different result had the error not been made.
The insurer sought reconsideration of a decision in which the Tribunal found that the claimant was entitled to NEBs and a special award of 40%. Adjudicator Grieves dismissed the insurer’s request, on the basis that the Tribunal did not make any error of law or fact in rendering its decision. In doing so, she noted that reconsideration was not available to a party simply because they believe that the Tribunal should have viewed the evidence differently.
The insurer submitted a request for reconsideration arising out of a decision which found that the claimant was entitled to payment of IRBs during a period of section 33 suspension, arguing she had not provided a reasonable explanation for her non-compliance (namely that she believed the insurer could access the information). The insurer argued that it was not possible for the claimant’s explanation to be “reasonable” because it was only offered at the hearing for the first time and there was not objective evidence to corroborate it. Adjudicator Makhamra dismissed the insurer’s request for reconsideration, noting that the insurer provided no authority to support its position that the timing of the claimant’s explanation was too late to find it reasonable or that the Tribunal erred in finding the claimant’s examination to be reasonable.
The insurer sought reconsideration of the Tribunal’s decision that the claimant was an insured person as a dependent of his mother. Vice Chair Flude dismissed the reconsideration because the Tribunal’s decision had not finally disposed of the appeal. Rule 18.1 required that the insurer wait until the matters in dispute were finally disposed of. The preliminary decision did not finally determine the claimant’s entitlement to benefits.
The claimant submitted a request for reconsideration arising out of a decision which found that he was not entitled to medical benefits and post-104 week IRBs because the claimant’s psychological impairments were not a result of the accident. The claimant’s reconsideration request was made on the basis that there was fresh evidence (a new IE report from the insurer) that was not before the Tribunal when rendering its decision. The IE report found that the claimant’s psychological impairments flowed from his accident-related chronic pain. Adjudicator Grieves accepted that the new report was not available at the hearing, could not have been obtain previously by the claimant given that the Tribunal’s decision was rendered three months prior to the claimant receiving the report, and that the evidence would likely have affected the result at the hearing. As such, she granted the request for reconsideration in part, finding that the claimant was entitled to post-104 week IRBs and some of the disputed medical benefits.
This Request for Reconsideration was filed by the claimant following a decision by the Tribunal that she was statute barred from proceeding with her appeal of the insurer’s refusal to pay an IRB and the Tribunal’s decision not to extend the limitation period by way of section 7 of the LAT Act. Vice Chair Maedel concluded that the claimant was permitted to proceed with her application to dispute the denial of IRBs. Vice Chair Maedel considered the four Manuel factors and found that there was no prejudice to the insurer in a 13-business day delay in filing the appeal. Counsel for the claimant failed to ensure that the appeal was filed in a timely manner, but Vice Chair Maedel determined that this should not prejudice the claimant who maintained a bona fide intention to dispute the denial of the IRB. As a result, the case warranted an extension of the limitation period to allow the claimant the opportunity to dispute the insurer’s denial of her IRB claim.
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150 York Street, Suite 1800
Toronto, Ontario M5H 3S5
416.507.1850
© 2020 Thomas Gold Pettingill LLP