OLAT 2018

The applicant suffered catastrophic injuries in a 2010 motorcycle accident and sought attendant care and housekeeping benefits.

The respondent insurer argued that the applicant's claims were subject to the definition of 'incurred expense' and the economic loss limitations for family care providers introduced in the SABS-2010 and its 2014 amendments.

The Tribunal held that because the accident occurred prior to September 1, 2010, the applicant's entitlement to and the quantum of benefits are governed by the 1996 Schedule.

The SABS-2010 definition of 'incurred expense' and its subsequent amendments limiting attendant care to the provider's economic loss do not apply retrospectively to this claim.

The applicant sought an income replacement benefit (IRB) following a motor vehicle accident, claiming an inability to perform his pre-accident employment as a factory worker.

The adjudicator dismissed the claim, finding that the applicant failed to prove what his essential pre-accident employment tasks were, which tasks he was unable to perform, and the extent of his inability.

The applicant's claim for costs was also dismissed due to a lack of evidentiary basis.

The applicant sought statutory accident benefits following a motor vehicle accident.

The insurer denied several treatment plans for chiropractic and massage therapy, as well as assessments for chronic pain and neurological issues.

The Tribunal found that the earlier treatment plans for passive care were reasonable and necessary due to the applicant's ongoing pain, but later plans were not, as passive care was no longer providing improvement.

The Tribunal also approved the chronic pain assessment due to persistent pain complaints, but denied the neurological assessment as there were no neurological deficits identified.

The applicant was injured in a rear-end motor vehicle collision and sought statutory accident benefits for chiropractic treatment and a physiatry assessment.

The respondent insurer denied the claims on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG) and the $3,500 funding limit had been exhausted.

The Tribunal found that the applicant's physical injuries, including a partial rotator cuff tear, were minor injuries under the Schedule.

The Tribunal preferred the evidence of the respondent's experts over the applicant's physiatrist, finding no compelling evidence of a pre-existing condition or psychological injury that would preclude recovery within the MIG.

The application was dismissed.

The applicant insurer sought repayment of $21,600 in income replacement benefits (IRBs) paid to the respondent, alleging she wilfully misrepresented her employment status at the time of the accident.

The insurer also sought $571.78 in cancellation fees for the respondent's failure to attend Examinations Under Oath.

The respondent, who was self-represented, did not attend the written hearing.

The Tribunal found that the insurer failed to prove on a balance of probabilities that the respondent made a wilful misrepresentation, noting that the evidence relied upon predated the accident or was otherwise insufficient.

The Tribunal also dismissed the claim for cancellation fees as the insurer provided no authority or evidence to support it.

The insurer's application was dismissed.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent denied the treatment and assessment plans on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The Tribunal found that the applicant's self-reports to his medical assessors were unreliable due to significant credibility issues raised by video surveillance and social media evidence, which showed him engaging in activities inconsistent with his reported limitations.

Consequently, the Tribunal placed minimal weight on the applicant's medical reports and concluded that he failed to prove his injuries fell outside the MIG.

The application was dismissed.

The applicant sought medical benefits for occupational therapy services and assistive devices following a motor vehicle accident.

The insurer denied the treatment plans and requested the applicant attend insurer's examinations (IEs).

The applicant refused to attend, arguing the insurer failed to provide valid medical reasons for the IEs as required by the Statutory Accident Benefits Schedule.

The Tribunal found that the insurer had provided valid medical reasons for requiring the IEs, such as the need to assess the applicant's living situation and current mattress.

Because the applicant failed to attend the scheduled IEs, section 55 of the Schedule precluded him from applying to the Tribunal for dispute resolution.

The application was dismissed in its entirety, along with claims for a special award, interest, and costs.

The applicant sought income replacement benefits (IRBs) for a one-month period during which she returned to work on modified hours following a motor vehicle accident.

The insurer had terminated IRBs based on insurer examinations concluding the applicant did not suffer a substantial inability to perform her pre-accident employment.

The Tribunal found the insurer's medical evidence more persuasive than the applicant's family doctor's records, noting the applicant had successfully returned to full-time work.

The Tribunal dismissed the claim for IRBs and interest, and denied the insurer's request for costs.

The respondent in a statutory accident benefits dispute brought a motion to exclude a letter from the case file, arguing it contained privileged case conference information and inflammatory content.

Following discussions between the parties, the respondent withdrew its motion.

The applicant sought statutory accident benefits, including non-earner benefits and payment for two treatment plans, following a motor vehicle accident.

The respondent denied the claims, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG) and the $3,500 cap had been reached.

The Tribunal found that the applicant's physical injuries were predominantly soft tissue injuries and that he failed to prove his pre-existing conditions or alleged psychological impairments took him out of the MIG.

The Tribunal rejected the applicant's psychological expert evidence as unreliable and preferred the respondent's expert evidence.

The Tribunal also found the applicant did not suffer a complete inability to carry on a normal life, dismissing the claim for non-earner benefits.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits for chiropractic treatment.

The respondent denied the treatment plan on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG) and the $3,500 limit had been exhausted.

The applicant argued that a lumbar spine spasm and chronic pain removed her from the MIG.

The Tribunal found that the applicant failed to provide compelling medical evidence of chronic pain causing functional impairment or disability.

The injuries were deemed predominantly minor, and the claim for the $4,436.75 treatment plan and interest was dismissed.

The insurer brought a motion for reconsideration of a Licence Appeal Tribunal decision which found that the insured's left shoulder SLAP tear and pre-existing lower back condition fell outside the Minor Injury Guideline (MIG).

The insurer argued the hearing adjudicator ignored medical evidence and failed to provide sufficient reasons for preferring the insured's medical experts over the insurer's experts.

The Executive Chair dismissed the request, finding that the adjudicator reasonably weighed the evidence, was not required to explicitly mention every piece of evidence, and made no significant error of fact or law.

The respondent insurer brought a motion to validate the late service of addendum medical reports.

The reports were due on January 12, 2018, but were served by email on the evening of January 15, 2018, making them two days late under the Tribunal's rules.

The adjudicator granted the motion, finding that the delay was minor, the respondent kept the applicant informed, and there was no prejudice to the applicant.

The adjudicator noted that excluding the reports would be disproportionate and unfair.

The applicant was struck by a bus in 2012, sustaining multiple fractures and subsequent psychological impairments.

She applied for a determination of catastrophic impairment under two criteria of the Statutory Accident Benefits Schedule.

The Tribunal found that the applicant did not meet the 55% whole person impairment threshold under s. 3(2)(e), as her combined physical and psychological impairments rated between 42% and 46%.

However, the Tribunal concluded that the applicant was catastrophically impaired under s. 3(2)(f), finding she suffered a marked impairment in the functional areas of social functioning and adaptation due to her accident-related mental and behavioural disorders.

A claim for the cost of a psychiatric paper review was denied.

The applicant was injured in a motor vehicle accident and sought medical benefits for chiropractic services, a gym membership, assistive devices, and psychological and neuropsychological assessments.

The insurer denied the treatment plans based on insurer's examinations finding no objective evidence of impairment.

The Licence Appeal Tribunal partially granted the application, allowing the chiropractic services for pain relief, the gym membership to improve mobility, and the psychological assessment due to diagnosed psychological conditions.

The claims for assistive devices and a neuropsychological assessment were denied for lack of supporting medical evidence.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision which found that his ATV collision was not an 'accident' under the Statutory Accident Benefits Schedule.

The Executive Chair found that the Tribunal made significant errors in applying the Adams test to determine whether the ATV was an 'automobile'.

Specifically, the Tribunal failed to adequately assess voluminous evidence regarding the ownership of the ATV and the occupier of the property at the time of the collision, which was relevant to whether the ATV required insurance under the Off-Road Vehicles Act.

The reconsideration was granted and the matter was ordered to be reheard.

The respondent insurer brought a motion seeking the production of various documents from the applicant and an adjournment of the scheduled hearing.

The applicant did not contest the obligation to produce the documents but noted no due date was set at the case conference.

The adjudicator ordered the applicant to produce the requested documents, including tax returns, ODSP file, and particulars of her claim for an award, within seven business days.

The request for an adjournment was denied to ensure timely proceedings, as the adjudicator found the respondent would not be unduly prejudiced by proceeding as scheduled.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that dismissed his claim for an income replacement benefit (IRB) following a motor vehicle accident.

The applicant argued the Tribunal erred by refusing to consider medical evidence generated more than 104 weeks after the accident.

The Executive Chair agreed that the Tribunal misinterpreted the case law and erred in excluding the post-104 week evidence, as such evidence can be relevant to determining whether the applicant suffered a substantial inability to perform essential tasks within the first 104 weeks.

However, the Executive Chair found the error was inconsequential because the post-104 week evidence did not establish the required connection between the accident and the impairments.

The request for reconsideration was denied.

The applicant sought reconsideration of a Licence Appeal Tribunal decision which found that his injuries from a motor vehicle accident fell within the Minor Injury Guideline (MIG), thereby capping his accident benefits at $3,500.

The applicant argued the Tribunal violated natural justice and erred in law by preferring the insurer's psychological report, refusing to take judicial notice of changes in the DSM regarding chronic pain, and failing to properly consider his physical functional limitations and pre-existing injuries.

The Executive Chair dismissed the request for reconsideration, finding no bias in the Tribunal's preference for the more recent psychological report and no error in requiring evidentiary proof rather than taking judicial notice of complex medical diagnoses.

The Chair also upheld the Tribunal's findings that the applicant failed to prove his physical limitations and pre-existing conditions exempted him from the MIG.

The insurer requested a reconsideration of a Licence Appeal Tribunal decision regarding an insured's entitlement to an income replacement benefit (IRB).

The insurer argued the Tribunal failed to address whether it could rely on s. 37(7) of the Statutory Accident Benefits Schedule to refuse paying the IRB after the insured failed to attend a scheduled physiatric examination.

The Executive Chair granted the reconsideration, finding the Tribunal erred by not determining the issue.

The Tribunal's order was amended to clarify that the insurer is not required to pay the IRB between the date of the missed examination and the date the insured actually attends.