Jonathan Schwartzman

The applicants were injured in a motorcycle accident and inadvertently applied for statutory accident benefits from their standard policy insurer rather than their enhanced policy insurer.

The enhanced policy insurer denied their subsequent claim, arguing the initial election was binding.

The Licence Appeal Tribunal found it had jurisdiction under section 129 of the Insurance Act to grant equitable relief.

Applying the test for relief from forfeiture, the Tribunal allowed the applicants to rescind their initial application and apply for the enhanced benefits, noting the innocent nature of the error and the consumer protection mandate of the Schedule.

The applicants were involved in a motorcycle accident and inadvertently applied for statutory accident benefits from their standard policy insurer (Economical) instead of their enhanced policy insurer (Heartland).

Heartland denied their subsequent claim, arguing the initial application to Economical was irrevocable.

The applicants sought relief from forfeiture to rescind their initial application and apply to Heartland.

The Tribunal found it had jurisdiction under section 129 of the Insurance Act to grant equitable relief.

Applying the test for relief from forfeiture, the Tribunal found the applicants made an innocent mistake, the gravity of the breach was minimal, and the disparity between the forfeited enhanced benefits and the damage caused was significant.

The Tribunal granted relief from forfeiture, allowing the applicants to rescind their application with Economical and apply to Heartland.

The respondent insurer requested a reconsideration of a preliminary decision which found that the applicant's incident constituted an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule.

The respondent argued the Tribunal erred in its consideration of the evidence, including the applicant's examination under oath and an MRI report.

The Tribunal dismissed the request, finding that the respondent was attempting to re-litigate the weight assigned to the evidence and that no errors of law or fact were made that would have resulted in a different outcome.

The applicant's request for costs was also dismissed.

The applicant sought income replacement benefits and a physiotherapy treatment plan following a motor vehicle accident.

The respondent denied the benefits, arguing the applicant's impairments were caused by a subsequent disc herniation rather than the accident.

The Tribunal found that the applicant's physical injuries from the accident were soft tissue injuries that had substantially healed before the disc herniation occurred.

The Tribunal preferred the evidence of the respondent's orthopaedic surgeon over the applicant's experts, concluding the applicant failed to prove on a balance of probabilities that his physical or psychological impairments were caused by the accident.

The application was dismissed, with no entitlement to benefits, an award, or interest.

The applicant sought statutory accident benefits after experiencing intense back and leg pain while lifting her son into his car seat and subsequently pressing the accelerator.

The respondent denied the claim, arguing the incident did not constitute an 'accident' under s. 3(1) of the Statutory Accident Benefits Schedule.

The Tribunal found that the incident met both the purpose and causation tests, as loading a vehicle and driving are ordinary uses of an automobile, and there was no intervening act breaking the chain of causation.

The Tribunal concluded the incident was an accident and directed the parties to schedule a case conference.

The applicant was rear-ended in a motor vehicle accident and subsequently applied for a determination of catastrophic impairment due to mental and behavioural disorders.

The Tribunal applied the 'but for' test for causation and found that the accident caused the applicant's psychological impairments.

Preferring the evidence of the applicant's psychologist over the respondent's psychiatrist, the Tribunal concluded the applicant suffered a marked impairment (Class 4) in three of four functional domains (Activities of Daily Living, Concentration, Persistence and Pace, and Adaptation).

The applicant was deemed catastrophically impaired.

However, claims for specific medical and rehabilitation benefits were dismissed as the applicant failed to provide the disputed treatment plans or prove they were reasonable and necessary.