Category: Reconsideration

J.T. v. Aviva Insurance Company (18-003238)

The claimant submitted a request for reconsideration arising out of a decision which granted entitlement to some benefits, interest, and an award of 25 percent of the disputed amounts for three treatment plans unreasonably withheld by the insurer. The decision determined the cost of the withheld treatment plans and the percentage to be applied, but the calculation of the award was not completed. There was a dispute over the calculated interest and the award following the decision, and the claimant subsequently retained an accountant who calculated the award to be $10,657.03. The insurer accepted the accountant’s calculation, and made payment. The claimant request payment of the cost of the accounting report, but the insurer refused. As such, the claimant filed a Notice of Motion requesting payment of the disbursement. Vice Chair Hunter denied the motion on the basis that there was no provision for the payment of disbursements within the cost regime contained in Rule 19 of the LAT Rules, and the claimant sought reconsideration. Vice Chair Hunter denied the claimant’s request for reconsideration, noting that costs are not compensatory but are rather meant to maintain civility and order during proceedings. He further noted that there had not been a single LAT decision that awarded disbursements as part of a cost award.

Patchett v. Optimum Insurance Company (19-008902)

The claimant sought reconsideration of a LAT decision denying that she met the catastrophic impairment definition because her accident-related impairment did not result in a permanent mobility score on the Spinal Cord Independence Measure III (“SCIM”). Adjudicator Boyce dismissed the claimant’s request for reconsideration. The issue in this case was whether the claimant’s mobility impairment was temporary. Adjudicator Boyce held that the claimant’s mobility improved from requiring two crutches to a single leg crutch, and then progressed to using a cane. He held that the claimant did not meet the SCIM mobility score as her disability was not permanent, and that the legislative intent of SABS criteria 2 was to cover permanent injuries. Adjudicator Boyce noted that had the Legislature intended for the impairment to be measured by a specific moment in time and not permanent, it would have done so.

A.W.A. v Certas Home and Auto Insurance (18-007207)

The claimant sought reconsideration of a LAT decision denying the $24,000 cost of catastrophic impairment assessments. Adjudicator Gosio dismissed the claimant’s request for reconsideration. Adjudicator Gosio agreed with the claimant that the hearing adjudicator failed to consider that the OCF-18 for CAT assessments concerned both Criterion 7 and 8. Adjudicator Gosio held that irrespective of this error, he would have arrived at the same finding. Adjudicator Gosio held that the claimant failed to establish a link between his chronic pain and entitlement to pre-104 week IRBs and the need for the CAT assessments. Adjudicator Gosio held that the proposed CAT assessments were not reasonable or necessary.

R.K.K. v. Cooperators General Insurance Co (19-002834)

The claimant sought reconsideration of a decision dismissing the claimant’s claim for IRBs and medical benefits. Adjudicator McGhee allowed the reconsideration. Adjudicator McGhee found that the hearing adjudicator’s reasons did not identify key factual findings or demonstrate how the relevant legal tests applied to the facts. The hearing adjudicator failed to explain how he assigned less weight to the evidence of one expert over another, and failing to do so called into question whether the adjudicator was alert and sensitive to the matter before him. Adjudicator McGhee noted that the matter proceeded before the hearing adjudicator in a four-day teleconference hearing and included testimony by the claimant and six expert witnesses. Adjudicator McGhee held that it would be inappropriate and an unnecessary cost and delay to convene a new hearing before a different adjudicator. Instead, Adjudicator McGhee ordered a redetermination on the existing record by the original adjudicator.

Branden v. Co-operators General Insurance Company (19-008343)

The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to deduct a long-term disability settlement from IRBs; the claimant sought reconsideration of the Tribunal’s decision that a special award was not payable. Vice Chair Boyce rejected both reconsideration requests. He found no error of law relating to the Tribunal’s conclusions about “gross weekly payment for loss of income” and rejected the insurer’s arguments regarding double recovery. The claimant’s receipt of LTD benefits was not a payment “under an income continuation benefit plan”, but rather a payment to settle a legal obligation resulting from litigation. The Tribunal’s decision not to grant a special award was within its discretion. The claimant was not automatically entitled to a special award simply because she recovered IRBs in the dispute. The insurer showed that it was not being “stubborn” or “inflexible” because it continued to obtain updated IRB reports as new information was received. The insurer’s position regarding deductibility of the LTD settlement was a genuine dispute that the parties had differing views on interpretation.

Chance-Guppy v. Aviva General Insurance Company (19-004820)

The insurer requested a reconsideration of a hearing decision in which the claimant was found entitled to NEBs with interest. The insurer argued, among other things, that the LAT erred by ordering payment of NEBs beyond the 104-week mark and erred in its application of the Heath test by not requiring the claimant to present quantitative evidence detailing her pre- and post-accident activities. Vice-Chair McGee granted the request for reconsideration in part. Vice-Chair McGee found that the Heath test requires a comparison of activities and circumstances before and after the accident that is qualitative, not quantitative, and that the LAT did not err in its application of the test. Vice-Chair McGee found that that hearing adjudicator had erred with regards to the period of entitlement to NEBS, and found that the claimant was to be entitled to NEBs up until the 104-week mark, pursuant to s. 12(3)(c) of the SABS.

A.A. v. Unifund Assurance Company (18-008999)

The insurer filed a request for reconsideration of a LAT hearing decision, in which the adjudicator found that the claimant was entitled to attendant care benefits at a reduced rate and medical expenses. The insurer submitted that the adjudicator erred in making the inference that because the claimant met the threshold for catastrophic impairment, she continued to meet the test for attendant care benefits. The insurer further argued that the adjudicator failed to apply the proper “but for” test for causation. Vice Chair Maedel found that the adjudicator applied the “but for” test in relation to the attendant care benefits analysis, and had not made any errors in fact or law that would have otherwise led to a different decision on the attendant care issue. Vice Chair Maedel found that the adjudicator did make an error in fact and law when she relied on the insurer’s previous approval of travel expenses to find that the current therapy services in dispute were reasonable and necessary and caused by the accident. Previous approval of a benefit was found to be irrelevant and cannot determine causation. Each treatment plan should be evaluated on whether the treatment can be causally linked to the accident and whether the treatments is reasonable and necessary. Vice Chair Maedel found that s. 46(5) does not entitle a claimant to automatic payment of incurred benefits following a catastrophic impairment designation. A claimant must still demonstrate the treatment is causally related to the accident and is reasonable and necessary. In addition, Vice Chair Maedel found that a catastrophically impaired claimant is not entitled to medical benefits that were incurred prior to submission of an OCF-18, even when an insurer has repeatedly denied medical benefits because the non-CAT limit had been reached. The request for reconsideration was granted in part.

S.R. v Traders General Insurance Company (17-004556)

The claimant filed a request for reconsideration of a LAT hearing decision, in which the adjudicator found that the claimant was entitled to pre-104 IRBs but was not entitled to post-104 IRBs. The claimant argued that the adjudicator had made errors in fact and law, including incorrectly applying the test for IRBs. In the hearing decision, the adjudicator took into consideration post-accident volunteer and work training activities when deciding that the claimant did not meet the test for post-104 IRBs. As a preliminary issue, Adjudicator Reilly agreed with the insurer that the claimant’s Reply submissions should not be considered for the Reconsideration decision, as the Reply raised new issues or facts not raised in the hearing, the Request for Reconsideration, or the Response by the insurer. Adjudicator Reilly found that the adjudicator’s decision provided well-reasoned analysis of the submissions and medical evidence of both parties, and correctly applied the test for post-104 IRBs. The request for reconsideration was dismissed.

S.P. v. Aviva General Insurance Company (18-008876)

The claimant sought reconsideration of a LAT dispute denying her entitlement to IRBs and medical benefits. The claimant was represented by counsel at the hearing and with respect to the reconsideration application. Adjudicator Boyce noted that the claimant’s reconsideration submissions were 24 pages single spaced and made sweeping accusations that the adjudicator denied her procedural fairness, acted as an advocate for the insurer, and was biased towards her. Adjudicator Boyce was critical of the fact that the claimant made allegations in her written submissions about what happened during the 1-day in-person hearing without providing a transcript of the hearing to support her arguments. The claimant argued she was denied procedural justice to cross-examine the investigator however Adjudicator Boyce noted that the claimant did not provide any evidence that she summonsed the investigator who conducted the surveillance. Ultimately, Adjudicator Boyce dismissed all of the claimant’s grounds for reconsideration.

Z.R. v. Gore Mutual Insurance (18-000017)

The insurer sought reconsideration of the Tribunal’s decision that the claimant suffered a catastrophic impairment, and that he was entitled to NEBs. Adjudicator Hines dismissed the reconsideration. She accepted that the Tribunal ought not to have counted 3 percent WPI for medication use because the medication did not have the effect of cancelling out the claimant’s sleep issues, depression or chronic pain. The AMA Guides requires that medication mask an impairment that could not otherwise be rated in order to count 3 percent WPI for medication. Adjudicator Hines rejected the insurer’s arguments regarding 2 percent WPI for sleep disorder, 10 percent WPI for occipital neuralgia, and 29 percent WPI for mental and behavioural disorder. Adjudicator Hines also rejected the insurer’s arguments regarding NEBs, holding that the Tribunal applied the correct test and that the Tribunal provided sufficient reasons to allow the parties to understand why it arrived at its result.