Category: Reconsideration

C.E. v. Aviva General Insurance Company (18-002591)

This is a reconsideration decision. The hearing decision found that the claimant sustained minor injuries and was subject to the MIG. The claimant requested reconsideration of the hearing decision based on new evidence that was not before the Tribunal at the time of the written hearing and which, he submitted, would likely have affected the result. The claimant also submitted that the LAT erred in law by failing to request the claimant’s medical records from his treating psychiatrist. The request for reconsideration was dismissed. The claimant did not file the “new” evidence with the request for reconsideration (the records had been requested but not received by the claimant). In addition to noting the new evidence had not been filed and was therefore not available for consideration by the LAT, Adjudicator Neilson found that the claimant did not satisfy his onus to show that the psychiatrist’s records could not have reasonably been obtained before the hearing. Adjudicator Neilson found that applicants to the Tribunal are obligated to make their own case, and the Tribunal did not make an error in law by not requesting the psychiatrist’s records prior to making a hearing decision. Adjudicator Neilson held that a reconsideration is not an opportunity to re-argue a case.

N.C. v. Aviva General Insurance Company (19-004666)

The claimant sought reconsideration of the Tribunal’s decision dismissing entitlement to medical benefits. Adjudicator McGee noted that the claimant filed her reconsideration submissions nearly a month after the deadline for submissions. Vice Chair McGee did not make any findings on procedural issues for the late findings, as she dismissed the reconsideration application on its merits. With regard to the claimed medical benefits, Vice Chair McGee held that the Tribunal applied the proper “”reasonable and necessary”” test in concluding that the claimant had reached maximum medical recovery and that no further facility based treatment was warranted. Vice Chair McGee also rejected the claimant’s arguments regarding the claimed MRI being available through OHIP. She reiterated that pursuant to section 47(2), the insurer was not required to pay for the MRI because it was reasonable available through OHIP.

H.O. v. Aviva General Insurance (19-002362)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment as a result of the accident. In particular, he challenged the Tribunal’s conclusion regarding a 40 percent WPI for cauda equina-like syndrome, and argued that it should have applied. He argued that the Tribunal did not allow procedural fairness when it limited his expert’s answers on re-examination, and that the Tribunal erred in law regarding its conclusions. Vice Chair Flude rejected the reconsideration. In terms of the re-examination, he held that the claimant was improperly attempting to split its case by asking questions about matters that were not covered in direct examination. The claimant was obligated to adduce all evidence he intended to rely upon in the examination in chief. Additionally, the claimant’s expert was not entitled to expound upon answers in cross-examination where such answers were not responsive to the cross-examination. Regarding the alleged legal error, Vice Chair Flude concluded that his findings of fact and resulting legal conclusions were sound and based on the medical evidence before the Tribunal. He noted that neither the claimant’s expert nor the insurer’s expert found significant loss of bilateral function in the lower extremities. The request for reconsideration was dismissed.

N.P. v. Wawanesa Mutual Insurance Company (18-010628)

The claimant filed a request for reconsideration of Adjudicator Norris’ decision that found the claimant was entitled to a physiotherapy treatment plan but not entitled to a chiropractic treatment plan, nor a second physiotherapy treatment plan. The claimant submitted that Adjudicator Norris made a significant error of law and that he misinterpreted section 38(11). Adjudicator Norris found that the insurer’s notice in response to the physiotherapy plan that was found to be not reasonable and necessary, failed to comply with section 38(8). As a result of that failure, Adjudicator Norris determined that the claimant was entitled to the goods and services related to that treatment plan which were incurred during the period starting on the 11th business day following the submission of the treatment plan. However, there was no evidence to show that the claimant incurred any goods or services on the 11th business day or any day thereafter. Thus, the claimant was not entitled to any payment. The claimant submitted that the insurer’s failure to comply with section 38(11) entitled him to all the goods and services described in the treatment plan that related to the period starting on the 11th business day, regardless of whether the goods and services were incurred. Further, the claimant relied on the principle set out in Rizzo and Rizzo Shoes Ltd. and submitted that the phrase “described” in section 38(11) did not require the claimant to incur the goods and services. The claimant argued that different language would have been used had there been a requirement to incur the goods and services. Adjudicator Norris opined that section 38(11)(2) served as an exception to the reasonable and necessary test, but only to compel timely responses from insurers. Moreover, section 38(15) directs insurers to make timely payment to service providers for the goods and services the insurer previously agreed to pay for. The latter part of the section addresses incurred goods and services the insurer was obligated to pay for as a result of an untimely or insufficient response. Lastly, Adjudicator Norris found that the claimant’s position led to an absurd result. The result was that a potential service provider receives a financial windfall from an insurer’s failure to comply with the time constraints of the Schedule, and the insured would be left without treatment. In conclusion, Adjudicator Norris found no error of law in the decision and dismissed the claimant’s reconsideration request.

C.W. v. Jevco Insurance Company ( 18-000790)

This is a reconsideration decision of Adjudicator Shapiro. The insurer requested reconsideration of Adjudicator Shapiro’s initial decision wherein he found the claimant entitled to retroactive ACBs with interest. The facts of this case were unusual. The claimant was a pedestrian struck by a vehicle. She did not have her own insurance. The driver of the insured vehicle did not advise his insurer of the accident. The insurer first learned of the accident when the claimant initiated a tort claim two years after the accident. The claimant was catastrophically impaired as a result of the accident. The insurer took an off-coverage position in the tort claim. Therefore, for a significant period of time, the claimant did not seek attendant care benefits nor was she aware of her ability to claim accident benefits. Adjudicator Shapiro found that there was a reasonable excuse for the claimant’s delay in applying for benefits given the insurer’s coverage position. Adjudicator Shapiro held that the claimant actively investigated coverage issues and then filed her accident benefits claim as soon as the only possible insurer reversed its coverage position and acknowledged it insured the vehicle that hit her. Therefore, Adjudicator Shapiro dismissed the reconsideration application concluding that the claimant was entitled to retroactive ACBs and interest was payable. Adjudicator Shapiro also reminded the insurer that interest was compensatory and not punitive.

T.H. v. Allstate Insurance Company of Canada (19-004567)

The insurer sought reconsideration of the Tribunal’s decision to award two treatment plans. The main argument for reconsideration was that the Tribunal considered an affidavit from the claimant that the insurer did not have an opportunity to cross-examine the claimant on. Adjudicator Paluch granted the reconsideration, holding that the Tribunal violated the rules of procedural fairness. The Tribunal had erred in considering the affidavit when it had been agreed by the claimant and the insurer prior to the written hearing, that the affidavit would not be part of the evidence before the Tribunal. The adjudicator had mistakenly believed that the insurer was consenting to the inclusion of the affidavit and that the insurer had waived its right to cross-examine the claimant on it

M.L. v. The Dominion of Canada General Insurance Company (19-011699)

The claimant requested reconsideration of a preliminary issues decision in which the LAT adjudicator found that the claimant was barred from proceeding with her application for certain benefits because she failed to commence her application within two years of the insurer’s refusal to pay the benefits claimed. The claimant submitted that the LAT acted outside of its jurisdiction and made errors of law by not properly weighing evidence, failing to explain how it weighed evidence, and by misconstruing the applicant’s arguments. The request for reconsideration was dismissed.

A.M. v. Aviva Insurance Company (19-004182)

The claimant requested reconsideration of the Tribunal’s preliminary issue decision barring the claimant from disputing IRBs. Adjudicator Grant dismissed the reconsideration. The claimant submitted that the Tribunal erred in equating the OCF-10 as a request for IRBs for less than the mandated seven working days lost. The claimant submitted the OCF-10 and she did not elect to receive NEBs although the OCF-3 indicated that she suffered a complete inability to carry on a normal life. The insurer submitted that this was not sufficient grounds to change the decision. There was no evidence that the claimant was not claiming entitlement to IRBs until August 14, 2019 when the claimant sent a letter to the insurer explaining the reasons for the delay in submitting the OCF-2. Adjudicator Grant considered that the claimant was represented in 2016 and there was no reasonable explanation for the delay between the January 16, 2017 notice letter and the claimant’s failure to appeal the denial before the limitation period expired. Adjudicator Grant did not find the claimant’s delay in her letter of explanation to the insurer to be reasonable. Even though the claimant had been hospitalized, the claimant’s representative could have contacted the insurer well before the limitation period to advise of the claimant’s situation. The claimant further argued that the insurer’s January 2017 denial letter of IRB entitlement was not valid when she did not stop working until February 2017. The insurer relied upon the Court of Appeal decision Sietzema v. Economical, which held that clear and unequivocal notice given by the insurer denying benefits was sufficient to trigger the limitation period. The insurer argued that if the claimant found the denial was improper, she had the right to dispute the denial within the two year limitation period. The OCF-10 submitted by the claimant electing IRBs after the completion of the OCF-1 and OCF-3 was an indication that it was applying for IRBs and was, therefore, notifying the insurer of her intent to apply for a specified benefit.

Jones v. Aviva Insurance Canada (19-013768)

The insurer requested reconsideration of a preliminary issue hearing in which the Tribunal found that the claimant’s application for a non-earner benefit was not barred pursuant to section 56 of the SABS. Vice Chair McGee dismissed the insurer’s request for reconsideration, on the basis that Rule 18 of the LAT Rules provides that the Tribunal will only reconsider a decision that finally disposes of an appeal. Vice Chair McGee noted that the preliminary issue decision was interlocutory in nature, and held that the Tribunal cannot grant reconsideration of an interlocutory order.

R.P. v. Aviva General Insurance (18-000131)

The claimant requested reconsideration of the Tribunal’s decision denying IRBs. Specifically, the claimant alleged that the Tribunal made a significant error in fact or law by failing to fully consider medical evidence and the claimant’s testimony. The claimant requested that an Order be made cancelling the decision and that IRBs be awarded with interest. Adjudicator Létourneau dismissed the request. He noted that, upon review of the decision and hearing materials, the evidence and testimony that the claimant alleged was not considered, was in fact considered in some detail and was specifically mentioned in the original decision, and the Tribunal had compared multiple reports to one another when weighing the overall evidence to reach a conclusion. The claimant further attempted to question the credentials and conclusions of the IE physiatrist. Adjudicator Létourneau pointed out that this was an attempt to re-argue the previous case, and the claimant should have made these submissions in the original pleadings.