Category: Reconsideration

P.W. v. Wawanesa Mutual Insurance Company (18-007187)

The claimant sought reconsideration of the Tribunal’s decision which found that her injuries fell within the Minor Injury Guideline. The claimant argued that the Tribunal erred in law by creating and applying an incorrect test to decide the issues in dispute. Specifically, the claimant stated that she was not taken out of the MIG despite the presence of medical evidence supporting her claims. Adjudicator Manigat stated that the simple fact of providing medical evidence was not enough to take the claimant out of the MIG. Further, after reviewing the medical evidence, the claimant’s injuries were found to be predominately minor and her pre-existing injuries would not prevent her from achieving maximal medical recovery if she were confined to the MIG. The claimant also argued that the presence of pre-existing injuries, the fact that all disputed chiropractic treatment plans had been fully incurred, and the fact that the cost of examinations for psychological assessment had been incurred were indicative that her injuries should not be confined within the MIG. Adjudicator Manigat found that these facts did not require the conclusion that the MI did not apply nor prove that the treatment plans were reasonable and necessary. The claimant failed to establish any significant error of law or fact by the Tribunal and her request for reconsideration was dismissed.

C.M. v. Intact Insurance Company (18-008995)

This is a reconsideration decision of Adjudicator Manigat. The insurer sought reconsideration of Adjudicator Manigat’s initial decision wherein she found that the claimant was entitled to the balance of a psychological treatment plan in the amount of $887.93 plus interest. The insurer submitted that the Tribunal considered the wrong issue in dispute and did not consider the issues stated in the Case Conference Report and Order. Adjudicator Manigat referred to a transcript of the hearing wherein she restated the issues in dispute and noted that the insurer did not object to these issues, despite the fact they were different than stated in the Case Conference Order. Therefore, Adjudicator Manigat held that the issues in dispute that she considered were correct, as proven by the transcript of the hearing. However, Adjudicator Manigat agreed with the insurer that she failed to consider all of the evidence before her with respect to the treatment plan. Adjudicator Manigat reviewed the evidence and agreed that the claimant failed to provide sufficient evidence that she required the balance of the disputed treatment plan. Adjudicator Manigat therefore granted the insurer’s request for reconsideration and varied the original decision.

A.M. v. Aviva Insurance Company of Canada (18-008059)

The claimant requested reconsideration of the Tribunal’s decision denying NEBs and holding the claimant in the MIG. Adjudicator Norris denied the reconsideration. The claimant argued the insurer gave no evidence to subject the claimant to the MIG and the insurer’s reports did not provide an opinion on the application of the MIG. The insurer submitted there was no evidence of any failure to impartially assess the evidence. Adjudicator Norris indicated there was no onus on the insurer to prove the claimant suffered a minor injury; the claimant had the burden of proving his case. Adjudicator Norris reviewed the evidence including the medical records of the claimant’s treating physicians, which he determined did not show any compelling evidence that the claimant should be removed from the MIG. In regard to the NEBs claim, the claimant argued that Adjudicator Norris had wrongly found that the claimant had failed to submit a disability certificate and there was evidence in the insurer’s materials it had been submitted. The disability certificate in question that was submitted entitled the claimant to NEBs. The claimant further argued that Adjudicator Norris had wrongfully found the insurer did not pay the benefit because it did not know when the disability certificate was submitted. The insurer argued that the NEB claim was considered and the evidence was weighed in its decision. Adjudicator Norris was unable to consider the disability certificate in the initial hearing as the claimant did not submit the disability certificate as evidence. The claimant’s reconsideration submissions confirmed that the disability certificate in question was completed by a different healthcare provider than his family physician contrary to the claimant’s claims in the initial hearing. The claimant failed to provide any information on when the second disability certificate was submitted, which would trigger the insurer’s obligations under s.36(4). In the initial hearing, Adjudicator Norris found the insurer did not have to pay NEBs immediately on receipt of the disability certificate and the insurer could request an IE. It appeared the insurer did request an IE. The claimant attended the IEs and the insurer relied upon those reports when it denied NEBs entitlement. The claimant submitted three documents to support his position that his injuries were outside of the MIG. Adjudicator Norris indicated none of those documents provided any compelling evidence that his injuries were minor. The claimant’s self-reported statements were discounted due to inconsistencies.

R.K. v. Allstate Insurance (19-000502)

This is a reconsideration decision of Adjudicator Shapiro. The claimant sought reconsideration of the LAT’s dismissal of the claimant’s dispute for medical benefits. There was also a procedural issues as Adjudicator Shapiro made a finding on attendant care benefits entitlement in the first instance, despite the fact that this issue was withdrawn by the claimant. In his reconsideration decision, Adjudicator Shapiro held that while he erred in making a determination on attendant care benefits, this was not fatal to his original decision. Adjudicator Shapiro upheld his original decision on entitlement to medical benefits and amended the decision so that no order was made on attendant care benefits.

Z.J. v. Aviva Insurance Company of Canada (18-012030)

The insurer requested reconsideration of a decision in which the Tribunal found the claimant was entitled to partial payment of the cost of multidisciplinary CAT assessments and fees for the completion of the OCF-18 and OCF-19. Adjudicator Braun denied the request for reconsideration. The insurer argued that a chiropractor was not authorized to provide an opinion to a number of the conditions listed in Part 6 of the treatment plan, and in particular, mental and cognitive impairments, and that doing so invalidated the chiropractor’s certification in Part 4 that the assessments were reasonable and necessary. Adjudicator Braun found that the OCF-18 complied with s.38(3)(c). Adjudicator Braun agreed that it would be beyond a chiropractor’s scope of practice to opine on cognitive functioning. However, it was Adjudicator Braun’s view that recommending that a person with an impairment or a suspected impairment be assessed by a relevant specialist was different than offering an opinion regarding that impairment and or recommending treatment. In this case, the chiropractor only stated that it was reasonable and necessary to have a CAT assessment conducted by a team of qualified physicians and health professionals and did not offer any opinion on the claimant’s functional abilities in any of the areas listed in Part 6. The insurer’s position that some of the conditions listed in Part 6 were outside of the chiropractor’s scope, was an overly technical view , which failed to consider the OCF-18 as a whole. In this case, the OCF-18 represented an effort of a chiropractor and a neurologist from the same assessment facility who jointly made the recommendation for an assessment to determine CAT threshold. Adjudicator Braun further found that it was within the chiropractor’s scope of practice to make the statement in Part 4 although she was not authorized to treat some of the injuries listed in Part 6. In this case, the chiropractor did not offer a medical opinion or any treatment recommendations, but stated that it was reasonable and necessary for the claimant to pursue and assessment related to the injuries listed in Part 6. The insurer also argued that the certification of the chiropractor to provide an executive summary and WPI rating did not expand the scope of her practice beyond what is stated in the Chiropractor Act and the executive summary and WPI report constituted an assessment of CAT for the purposes of s.45 of the SABS that did not allow a chiropractor to perform such an assessment. Adjudicator Braun noted that executive summaries and WPI reports compiled by chiropractors was not new in cases before the Tribunal and in her view, the executive summary and WPI rating was simply a written summarization of opinions already provided and did not provide any fresh opinion. The insurer further argued the OCF-18 was a rebuttal to the insurer’s CAT IEs. The claimant OCF-18 indicated the treatment plan was to rebuttal IE multidisciplinary CAT impairment report. Adjudicator Braun found that the words “to rebut” in the OCF-18 was semantic, and even though the IE reports were conducted first, it did not render the assessments claim in this case true rebuttals. The assessments were clearly the claimant’s first and only set of assessments that applied for a CAT determination under s. 45.

Ai v. Intact Insurance Company (19-005110)

The claimant requested reconsideration of the Tribunal’s previous decision barring his LAT Application for refusal to attend IEs. The claimant alleged that Vice-Chair Farlam did not properly interpret the SABS, that the statutory notice requirements in the IE notice letters was not met, and that the IEs should have proceeded by way of paper review and that by forcing the claimant to attend an in-person, the IE amounted to a “reverse onus”. The claimant further alleged that Vice-Chair Farlam made a significant error of law for ordering him to attend in-person IEs. Vice-Chair Farlam denied the request, noting that the original decision included references to many of the claimant’s submissions, showing that all evidence was taken into account; she further noted that she had in fact not ordered the claimant to attend an IE, but rather barred him from disputing the MIG before the Tribunal due to his past failures to attend.

D.Y. v. Aviva General Insurance (18-011171)

The insurer sought reconsideration of the Tribunal’s decision awarding payment of non-earner benefits, concussion management treatment and ordering a special award. Vice Chair Trojek granted the insurer’s request for reconsideration in part. With respect to the concussion management treatment, Vice Chair Trojek noted that the Tribunal made an error of law in not considering whether the claimant had failed to comply with the SABS because she did not submit an OCF-18, as raised in the insurer’s hearing submissions. Vice Chair Trojek also set aside the Tribunal’s decision to grant a special award because it misapplied the test (stating that a special award is granted “where the conduct of the insurer has been unreasonable or wrongly motivated”) and made a factual error (regarding the medical/rehabilitation benefits paid out by the insurer), which, had it not been made, likely would have resulted in a different decision.

R.B. v. Aviva Insurance Company of Canada (18-011209)

The insurer requested reconsideration of a decision that found the claimant was not precluded from applying to the LAT for failure to attend IEs. The LAT found in its initial decision the insurer’s IE notices for attendant care and psychological assessments did not comply with the SABS because it did not provide sufficient medical and other reasons. The insurer argued that the Tribunal placed too high a burden on the insurer in detailing the medical and other reasons, and that the Tribunal failed to take into account the lack of medical records provided by the claimant to support the alleged injuries. Adjudicator Maleki-Yazdi agreed with the claimant’s submissions that no matter what information the insurer had at the time it requested an IE, it was required to comply with s.44(5)(a) of the SABS. Adjudicator Maleki-Yazdi dismissed the reconsideration request.

R.K. v. Aviva Insurance Canada (17-006866 and 17-006651)

The insurer sought reconsideration of the Tribunal’s decision regarding a special award of $1,500 on ACBs on each of two claims which were granted due to unreasonably withheld or delayed payments. The insurer agreed with the quantum of ACBs, but requested that the Tribunal cancel the $1,500 award. The special award had been granted because over two years had passed since the insurer was ordered to pay ACBs to the claimants and the insurer had not submitted any other method that would result in lower payments than would the minimum award approach advocated for. The insurer argued that the initial reconsideration decision did not order it to make any payment pending the final outcome of the quantum hearing. Vice Chair Shapiro denied the insurer’s reconsideration request, noting that an award does not require a breach of an order for payment (only that payment be unreasonably withheld or delayed) and that when an amount is settled, it is payable.

J.T. v. TD General Insurance Company (19-003389)

The claimant filed a request for reconsideration to dispute the finding that he was not entitled to interest, an award, or costs related to an approved treatment plan. The request for reconsideration was denied. Adjudicator Grant found that the LAT had not made a significant error of fact or law in the hearing decision. He agreed that there was no evidence of an agreement between the claimant and the insurer that the insurer would reimburse the claimant for documents produced, and section 33 does not require an insurer to compensate an insured for producing information reasonably required to assist the insurer in determining entitlement to a benefit. Adjudicator Grant found that there was no evidence that the insurer did not pay the approved benefit within the time limit prescribed in the SABS, and without such evidence, no interest can be payable.