Geoffrey L. Keating

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that found her injuries remained within the Minor Injury Guideline (MIG) and denied her claims for treatment plans, massage services, an award, and interest.

The applicant argued the Tribunal misapplied the test for causation, erred in its assessment of a chronic pain expert's report, and failed to provide adequate reasons.

The Vice-Chair dismissed the request, finding that the Tribunal properly weighed the evidence regarding pre-existing conditions and functional limitations.

Although the Tribunal made a minor factual error in summarizing the expert's report, the Vice-Chair concluded this error would not likely have changed the outcome, and the original decision met the required standard for sufficiency of reasons.

The applicant insurer applied to the Licence Appeal Tribunal to determine if the respondent was barred from claiming statutory accident benefits under s. 61 of the Schedule.

The respondent had applied for both accident benefits and WSIB benefits following a motor vehicle accident in the course of her employment.

The Tribunal found that the respondent failed to commence a tort action and her election to receive accident benefits was primarily for the purpose of claiming those benefits.

Consequently, the respondent did not meet the exception under s. 61(2) and was statute-barred from proceeding with her application for accident benefits.

The applicant sought entitlement to statutory accident benefits for physiotherapy, social work counselling, and a chronic pain assessment following a motor vehicle accident.

At the hearing, the applicant called no witnesses and provided no documentary evidence or submissions to support the reasonableness and necessity of the treatment plans.

The Tribunal admitted the disputed treatment plans into evidence over the respondent's objection but ultimately dismissed the application, finding the applicant failed to meet her evidentiary burden.

The applicant insurer suspended the respondent's non-earner benefits after the respondent failed to provide an updated disability certificate and attend insurer's examinations following a prior Tribunal decision granting ongoing benefits.

The respondent argued that section 281 of the Insurance Act prohibited the insurer from reducing benefits after a Tribunal decision.

The Tribunal held that section 281 does not override the insured's ongoing obligation to provide information under section 33 of the Schedule or attend examinations under section 37.

The suspension of benefits was found to be valid, and the claim for an award was dismissed.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied entitlement to physiotherapy and psychological treatment plans, interest, and an award.

The Vice-Chair found that the original adjudicator erred in law and fact by requiring a diagnosis of chronic pain syndrome and relying on maximum medical recovery and a return to modified work to deny the physiotherapy plans, without linking these factors to the legal test for reasonableness and necessity.

These errors were material and likely affected the outcome.

However, the request regarding the psychological services plan was dismissed because the applicant had not addressed the applicable hourly rate in her initial submissions.

The decision regarding physiotherapy, interest, and an award was cancelled, and a rehearing before a new adjudicator was ordered.

The applicant, who was catastrophically impaired after being struck by a vehicle as a pedestrian, sought attendant care benefits of $6,000 per month.

The adjudicator determined the applicant was entitled to attendant care benefits at a rate of $1,529.96 per month, finding that she required assistance with routine personal care and complex hygiene but did not require around-the-clock supervisory care.

However, the adjudicator held that the benefits were not payable because the applicant had not actually incurred the expenses, and the insurer had not unreasonably withheld or delayed payment to justify deeming the expenses incurred.

Claims for an award and interest were dismissed.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that found he did not sustain a catastrophic impairment.

The applicant argued that the Tribunal breached procedural fairness by preventing his student-at-law representative from fully participating and by temporarily removing the applicant from the virtual hearing room during an objection.

The Vice-Chair agreed, finding that the Law Society of Ontario By-Laws permit a student-at-law to provide legal services under supervision, even in catastrophic impairment claims.

The Vice-Chair also found that removing the applicant during the cross-examination of a key expert witness was a material breach of procedural fairness.

The reconsideration was granted, the original decision was cancelled, and a rehearing before a new adjudicator was ordered.

The applicant insurer sought a preliminary issue hearing to determine if it was required to pay statutory accident benefits to the respondent.

The respondent was injured in a motor vehicle accident while driving a transport truck and was previously found by the Workplace Safety and Insurance Appeals Tribunal to be entitled to claim benefits under the Workplace Safety and Insurance Act (WSIA).

The Tribunal found that under section 61(1) of the Statutory Accident Benefits Schedule, the insurer is not required to pay benefits because the respondent is entitled to WSIA benefits and failed to demonstrate an election to pursue a tort action under section 30 of the WSIA.

The applicant was injured in a motor vehicle accident and sought post-104-week income replacement benefits (IRBs).

The respondent denied the benefits, arguing the applicant did not suffer a complete inability to engage in any employment for which she was reasonably suited.

The Tribunal found that the applicant's physical impairments, specifically complex regional pain syndrome (CRPS) in her right arm, along with psychological impairments, prevented her from engaging in suitable employment, even on a part-time basis.

The Tribunal ordered the respondent to pay IRBs of $400 per week from September 1, 2022, plus interest.

The applicant's claim for an award under s. 10 of Regulation 664 for unreasonable withholding of benefits was dismissed.

The applicant sought retroactive housekeeping benefits following a motor vehicle accident.

The respondent argued the application was barred by res judicata and the two-year limitation period, as a previous Tribunal decision denying these benefits had been quashed by the Divisional Court on consent, but the consent order only explicitly remitted the issue of attendant care benefits.

The Tribunal found that because the prior decision was quashed in its entirety, there was no final decision on housekeeping benefits, meaning res judicata did not apply.

The Tribunal also found the limitation period was met because the original claim was filed within two years of the denial and preserved despite the quashing.

The preliminary issues were dismissed, and the matter was allowed to proceed to a hearing, with the issue of costs added.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied her claims for post-104 week income replacement benefits, a chronic pain assessment, and various medical and rehabilitation benefits.

The applicant argued that the Tribunal breached procedural fairness by admitting late-served surveillance evidence and erred in law and fact in its evaluation of the medical evidence and the legal test for benefits.

The Vice-Chair dismissed the request, finding that the Tribunal properly weighed the prejudice of the late evidence, applied the correct legal tests, and reasonably preferred the respondent's independent medical examinations over the applicant's evidence.

The reconsideration request was deemed an improper attempt to re-litigate the initial hearing.

The applicant sought statutory accident benefits following a motor vehicle accident, disputing the respondent's denial of multiple treatment and assessment plans for physiotherapy, psychological services, PRP injections, and chronic pain.

The applicant argued the denial notices were deficient under s. 38(8) of the Statutory Accident Benefits Schedule.

The Tribunal found that the respondent's denial notices complied with the Schedule, providing sufficient medical and other reasons.

Furthermore, the Tribunal determined that the disputed plans were not reasonable and necessary based on the medical evidence.

The applicant's claims for an award and interest were dismissed, and the respondent's request for costs was also denied.

The respondent insurer requested a reconsideration of a Tribunal decision granting the applicant entitlement to a chronic pain assessment.

The insurer argued the Tribunal erred by finding that only psychologists and psychiatrists could provide expert opinion evidence on chronic pain, thereby improperly discounting the evidence of its general practitioner and orthopaedic surgeon.

The Vice-Chair granted the reconsideration, finding the Tribunal erred in its treatment of the medical experts.

Upon rehearing the issue, the Vice-Chair weighed the competing medical evidence and concluded that the applicant's ongoing reports of pain and diagnosis of somatic symptom disorder provided reasonable grounds to warrant a chronic pain assessment.

The treatment plan was deemed reasonable and necessary.

The applicant sought a determination of catastrophic impairment (Criterion 8) due to a mental or behavioural disorder following a motor vehicle accident, along with payment for prescriptions and interest.

The Tribunal found that the applicant did not suffer a marked impairment in the spheres of activities of daily living, social functioning, or adaptation, noting that the applicant's expert failed to adequately account for pre-existing physical and psychological conditions.

The Tribunal preferred the respondent's experts, concluding the applicant suffered at most moderate impairments.

The claims for prescriptions and interest were also dismissed.

The applicant sought post-104-week income replacement benefits (IRBs) and various medical and rehabilitation benefits following a motor vehicle accident.

The Tribunal found the applicant did not meet the 'complete inability' test for post-104-week IRBs, relying on insurer's examinations and surveillance evidence showing her performing work activities.

The Tribunal denied claims for chiropractic services, massage therapy, and a chronic pain assessment, finding them not reasonable and necessary.

However, the Tribunal granted the applicant's claims for a psychological assessment and a driving reintegration assessment to address her vehicular anxiety, along with interest on those overdue amounts.

The applicant insurer sought repayment of $16,400 in Income Replacement Benefits (IRB) paid to the respondent after she had returned to work.

The respondent argued the repayment notices were deficient under s. 52(2) of the Schedule.

The Tribunal found the notices were compliant given the information available to the insurer at the time, as the respondent had delayed providing her return-to-work dates and pay stubs.

The Tribunal ordered the respondent to repay the $16,400 overpayment plus interest.

The applicant sought statutory accident benefits following a 2018 motor vehicle accident, claiming she sustained a catastrophic impairment.

The Licence Appeal Tribunal evaluated her impairments under Criterion 7 (Whole Person Impairment) and Criterion 8 (mental and behavioural disorders) of the Schedule.

The Tribunal rejected several of the applicant's expert ratings due to methodological flaws and inconsistencies with surveillance footage, which showed the applicant performing strenuous tasks like shovelling snow and shopping independently.

The Tribunal concluded the applicant did not meet the threshold for catastrophic impairment and dismissed her claims for attendant care, treatment plans, and a special award.

The applicant sought a non-earner benefit (NEB) following a motor vehicle accident, which the respondent insurer denied.

The applicant argued the denial notice was deficient and that she met the disability test based on psychological assessments.

The Tribunal found the denial notice compliant as it clearly referenced the independent medical assessors' conclusions.

Relying on the insurer's psychological assessment, the Tribunal concluded the applicant did not suffer a complete inability to carry on a normal life, as she continued to perform personal care, household chores, and caregiving duties.

The application for the NEB, an award, and interest was dismissed.

The applicant insurer sought repayment of an income replacement benefit in the amount of $15,428.57 paid to the respondent following a motor vehicle accident.

The insurer submitted that the payment was made in error.

The respondent consented to the repayment order.

The Licence Appeal Tribunal ordered the respondent to repay the $15,428.57 along with applicable interest pursuant to section 52(5) of the Statutory Accident Benefits Schedule.

The applicant, who sustained a catastrophic brain injury in a 1997 motor vehicle accident, applied for retroactive attendant care benefits (ACBs) in 2021.

The respondent insurer denied the retroactive claim.

The Tribunal found that the applicant was entitled to retroactive ACBs for the period after his discharge from the hospital, as well as for two weekends spent at home during his hospital stay, because the services were reasonably necessary and quantifiable.

The Tribunal also held that interest on the overdue benefits began to accrue 10 business days after the 2021 application was submitted.

Finally, the Tribunal granted a special award of $42,000 under s. 10 of Regulation 664, finding that the respondent unreasonably withheld benefits by failing to adequately inform the applicant of his potential entitlement to ACBs shortly after the accident.