Heather Trojek

The respondent insurer sought reconsideration of a Tribunal decision awarding the applicant non-earner benefits, a treatment plan for concussion management, interest, and a special award under s. 10 of O. Reg. 664.

The Vice Chair granted the reconsideration in part.

The Tribunal's award of the concussion management treatment plan was set aside because the applicant had failed to submit an OCF-18 as required by s. 38(2) of the Schedule.

The s. 10 award was also set aside, as the Tribunal had misapplied the legal test for unreasonable delay and relied on a significant factual error regarding the amount of medical benefits previously paid by the insurer.

The Tribunal's decision on non-earner benefits was upheld, but the interest calculation was varied.

The respondent insurer requested a reconsideration of a Tribunal decision which found that the applicant's injuries fell outside the Minor Injury Guideline (MIG) and that six disputed treatment plans were reasonable and necessary.

The respondent argued the Tribunal made significant errors of law by failing to consider whether the injuries were 'predominately' minor, by ruling in the applicant's favour without submissions on the reasonable and necessary test, and by failing to cite the respondent's case law.

The Vice Chair dismissed the request, finding that the Tribunal had properly weighed the medical evidence, correctly concluded the applicant sustained a mild traumatic brain injury that was not predominately minor, and was not required to explicitly cite every piece of case law considered.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied entitlement to various treatment plans and assessment costs following a motor vehicle accident.

The applicant argued the Tribunal failed to properly weigh medical evidence, ignored arguments about previously paid treatment, and failed to provide reasons for denying specific treatment plans.

The Vice Chair dismissed the request, finding that the Tribunal had properly considered and weighed the evidence, addressed the applicant's arguments, and provided sufficient reasons for denying all the treatment plans in dispute.

The applicant requested a reconsideration of a preliminary decision that suspended his right to dispute entitlement to attendant care and home modification benefits due to his failure to attend section 44 insurer examinations.

The applicant argued that his mental and physical impairments prevented him from attending non-therapeutic assessments and that the Tribunal failed to consider the Ontario Human Rights Code, section 55 of the Schedule, and the totality of his medical evidence.

The Vice Chair dismissed the request, finding that the Tribunal had properly considered the lack of medical evidence supporting accommodation, correctly balanced procedural fairness, and made no errors of law or fact.

The respondent insurer requested a reconsideration of a Tribunal decision that removed the applicant from the Minor Injury Guideline (MIG) due to chronic pain.

The respondent argued the Tribunal made significant errors of fact and law regarding the applicant's shoulder pain, participation in treatment, and functionality.

The Vice-Chair found that while the Tribunal did err in attributing the applicant's shoulder pain to the accident and in its analysis of his functionality, these errors would not have changed the ultimate decision.

The medical evidence, including reports from the respondent's own assessor, supported a finding of chronic pain in the applicant's neck and lower back that negatively affected his ability to work.

The request for reconsideration was dismissed.

The applicant was involved in a motor vehicle accident and sought statutory accident benefits.

The respondent denied certain medical and rehabilitation benefits, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the applicant sustained psychological injuries, including adjustment disorder with anxiety and major depressive disorder, which removed her from the MIG.

The Tribunal ordered the respondent to pay for a psychological assessment, psychological treatment, and a chronic pain assessment, finding them reasonable and necessary.

However, claims for further physiotherapy and a neurological assessment were dismissed as the applicant failed to prove they were reasonable and necessary.

Interest was awarded on the approved expenses.

The applicant requested a reconsideration of a Tribunal decision that denied her entitlement to a $2,260 chronic pain assessment and costs.

The applicant argued the Tribunal made significant errors of law and fact by mischaracterizing medical reports and misunderstanding the nature of the requested assessment.

The Vice Chair dismissed the request, finding the original decision was factually correct and legally sound, as there was no evidence the denied assessment had been incurred or that the Tribunal misunderstood the medical evidence.

The request for costs was also dismissed.

The applicant filed a Request for Reconsideration of a Tribunal decision that denied her entitlement to non-earner benefits (NEBs), medical benefits, and interest following a motor vehicle accident.

The applicant argued the Tribunal erred in law by failing to properly apply the legal test for NEBs and erred in fact by failing to properly consider medical evidence.

The Vice Chair found that the Tribunal correctly applied the test for NEBs as set out in the Schedule and the principles from Heath and Galdamez.

The Vice Chair also found no error in the Tribunal's weighing of the medical evidence.

The Request for Reconsideration was dismissed.

The respondent insurer requested a reconsideration of a Tribunal decision that removed the applicant from the Minor Injury Guideline (MIG) due to spinal injuries and a chronic pain disorder.

The insurer argued the Tribunal erred in fact by finding a diagnosis of chronic pain syndrome and erred in law regarding the definition of minor injury and causation.

The Vice Chair found that while the Tribunal technically erred in stating there was a specific diagnosis of chronic pain syndrome, the error was not significant enough to alter the decision, as the removal from the MIG was primarily based on objective evidence of spinal injuries.

The Tribunal also made no errors in law regarding the definition of minor injury or causation.

The request for reconsideration was dismissed.

The applicant filed a Request for Reconsideration of a Tribunal decision finding that his injuries fell within the Minor Injury Guideline (MIG).

The applicant argued the Tribunal erred in law by basing its decision solely on credibility, violated procedural fairness by not holding an oral hearing, and made errors of fact regarding his reported activities.

The Vice Chair dismissed the request, finding the Tribunal properly weighed the totality of the medical and surveillance evidence, the applicant had consented to a written hearing and had opportunities to respond to the surveillance evidence, and the Tribunal made no significant errors of fact.

The respondent insurer requested reconsideration of a motion order that dismissed its request to remove five treatment plans from the applicant's application.

The insurer argued the applicant had exhausted the $50,000 non-catastrophic limit and had not yet been determined to be catastrophically impaired.

The Vice Chair dismissed the reconsideration request, finding no significant error of law.

On her own initiative, the Vice Chair reconsidered the Tribunal's previous denial of an adjournment, ordering that the upcoming hearing be adjourned and the applicant's two files be combined to allow the catastrophic impairment issue to be determined first.

The applicant requested a reconsideration of the Tribunal's decision to deny an adjournment of a written hearing.

The adjournment was initially requested because the applicant's counsel required an unanticipated six-week medical leave.

The respondent had consented to the adjournment.

The Vice-Chair granted the reconsideration, finding that the Tribunal had relied too heavily on strict adherence to its Rules and failed to balance them with principles of natural justice and procedural fairness, especially given the respondent's consent and the unforeseen medical circumstances.

The hearing was adjourned.

The respondent insurer filed a request for reconsideration of a preliminary decision that allowed the applicant insured to proceed with her application for income replacement benefits despite failing to attend seven scheduled insurer examinations.

The insurer argued the applicant should be completely barred from proceeding due to prejudice.

The Tribunal dismissed the request for reconsideration, finding no error of law or fact in the preliminary decision.

The Tribunal upheld the original order requiring the applicant to attend rescheduled insurer examinations as a condition of proceeding with her application, noting the applicant had provided reasonable explanations for missing some of the appointments.

The respondent insurer requested a reconsideration of an interlocutory order requiring it to produce unredacted adjuster's log notes before the applicant provided particulars of her claim for an award.

The Tribunal varied the order to allow redactions for reserves and privilege, noting this was a simple correction of an administrative error that should have been addressed under Rule 17 rather than Rule 18.

However, the Tribunal dismissed the request to reverse the sequence of production, finding no error in law in requiring the insurer to produce the log notes before the applicant particulars her claim for an award.

The applicants requested a reconsideration of a preliminary motion decision that allowed the insurer's counsel to act in the LAT proceeding despite also acting in a related priority dispute, and admitted Examination Under Oath (EUO) transcripts from that priority dispute.

The Vice-Chair granted the reconsideration, finding the Tribunal erred in law.

The priority dispute created an adversarial relationship, and the insurer failed to maintain a firewall to protect confidential information, resulting in a disqualifying conflict of interest.

Furthermore, admitting the EUO transcripts circumvented the mandatory notice requirements under section 33 of the Schedule.

Counsel was removed and the transcripts were excluded.

The respondent insurer requested a reconsideration of a Tribunal decision that denied its request to stay the applicant's hearing.

The insurer argued that the hearing should be stayed pending the outcome of an appeal before the Financial Services Commission of Ontario (FSCO) regarding pre-104 week attendant care benefits, to avoid inconsistent findings.

The Vice Chair found that the Tribunal did not err in its decision, as the issues before the Tribunal (catastrophic impairment and post-104 week benefits) were distinct from the FSCO appeal, and the Tribunal properly balanced the risk of multiple proceedings against the applicant's rights.

The request for reconsideration was denied.

The insurer requested a reconsideration of a Licence Appeal Tribunal decision that found the insured catastrophically impaired under Criterion 8 (mental or behavioural disorder) of the Statutory Accident Benefits Schedule.

The insurer argued the Tribunal erred by failing to convert the psychological impairment ratings to a Whole Person Impairment (WPI) percentage, failing to consider the totality of the medical evidence, and improperly assessing the insured's credibility.

The Vice Chair dismissed the reconsideration request, holding that the Schedule does not require converting Criterion 8 impairments to a WPI percentage.

The Vice Chair further found that the Tribunal appropriately weighed the competing expert medical evidence, provided sound reasons for preferring the insured's expert over the insurer's expert, and adequately addressed the insurer's credibility concerns.

The applicant requested that a motion to exclude the respondent's reply submissions in a preliminary issue hearing be heard by telephone conference instead of in writing.

The Tribunal dismissed the request, finding that the motion involved legal rather than factual disputes, which are efficiently handled in writing.

The Tribunal also found that holding the motion separately by telephone would be less efficient and that the applicant would not suffer prejudice from a written hearing.

The applicant was injured in a motor vehicle accident and applied for statutory accident benefits.

After a case conference, the applicant withdrew her application due to scheduling conflicts and an inability to obtain necessary evidence for the hearing.

The respondent brought a motion for costs, arguing the applicant's conduct was unreasonable, frivolous, vexatious, or in bad faith.

The Tribunal dismissed the motion, finding that the applicant's conduct, including late filing of a case conference summary and withdrawing the application after an adjournment was denied, did not meet the threshold for a costs award.

The applicant was injured in a motor vehicle accident in 2008.

In 2010, the respondent insurer denied ongoing attendant care and housekeeping benefits beyond the 104-week mark unless the applicant was determined to be catastrophically impaired.

The applicant did not dispute this denial within the two-year limitation period.

In 2015, the applicant applied for and was granted a catastrophic impairment designation, and subsequently sought ongoing benefits.

The respondent denied the claims on the basis that the initial denial was not disputed in time.

The Tribunal found that the 2010 denial was clear and unequivocal, triggering the two-year limitation period.

The Tribunal rejected the applicant's arguments that the denial was invalid because she had not yet been found catastrophically impaired, and that the discoverability principle applied.

The application was dismissed as statute-barred.