OLAT 2019

The applicant sought reconsideration of a decision finding her appeal for income replacement benefits was statute-barred and denying an extension of the limitation period under section 7 of the Licence Appeal Tribunal Act.

The adjudicator upheld the finding that the limitation period had expired, as the insurer's notice of denial was valid.

However, the adjudicator found the Tribunal breached procedural fairness by deciding the section 7 extension issue based on a lack of submissions without first requesting submissions from the parties.

The reconsideration was granted in part, allowing the parties to provide written submissions on the section 7 issue.

The applicant sought medical and rehabilitation benefits following a motor vehicle accident, arguing her injuries were not predominantly minor due to chronic pain, a psychological condition, and a pre-existing condition.

The Licence Appeal Tribunal found that the applicant's physical injuries were predominantly minor (sprains, strains, whiplash).

The tribunal rejected the applicant's evidence of chronic pain syndrome and found her mild psychological condition did not inhibit useful functioning.

Furthermore, there was insufficient evidence of a pre-existing condition that would prevent maximal recovery.

Consequently, the applicant was subject to the $3,500 treatment limit, and her claims for further benefits and interest were dismissed.

The applicant was involved in a motor vehicle accident and sought medical benefits and income replacement benefits (IRBs) from the respondent insurer.

The respondent denied the benefits, arguing the injuries were pre-existing and the applicant did not meet the disability tests.

The Licence Appeal Tribunal found that, but for the accident, the applicant would not have suffered the physical and psychological impairments.

The Tribunal held that all five disputed treatment plans were reasonable and necessary.

Furthermore, the Tribunal concluded the applicant suffered a substantial inability to perform her pre-accident employment as a chef, and a complete inability to engage in any suitable employment, thereby entitling her to both pre- and post-104 week IRBs, along with interest on overdue payments.

The applicant brought a motion to exclude two medical reports obtained by the respondent insurer without providing the required notice under s. 44(5)(a) of the Statutory Accident Benefits Schedule.

The respondent admitted the failure to provide notice was a clerical error.

The adjudicator granted the motion, finding that the notice requirement is mandatory and the appropriate remedy for non-compliance is the exclusion of the reports.

The applicant also brought a motion for the adjudicator to recuse himself on the basis of a reasonable apprehension of bias, arguing that having read the excluded reports, the adjudicator could not decide the substantive issues fairly.

The adjudicator dismissed the recusal motion, holding that the applicant failed to meet the high threshold to establish bias, as adjudicators routinely rule on the admissibility of evidence without being disqualified from hearing the merits.

The applicant sought a determination of catastrophic impairment following a motor vehicle accident.

The respondent denied the designation but failed to request an insurer examination (IE) within the 10-day timeline required by section 45(3)(b) of the Schedule.

The applicant argued he was not required to attend an IE requested months later.

The Tribunal held that the Schedule does not prescribe a consequence for non-compliance with section 45 timelines.

Citing procedural fairness and the respondent's ongoing duty to adjust the claim, the Tribunal ordered the applicant to attend the IE and stayed the appeal application for four months to allow the assessment to be completed.

The applicant requested a reconsideration of a decision that found him catastrophically impaired but denied post-104 income replacement benefits, attendant care, housekeeping, and a special award.

The applicant argued the denial of these benefits was logically inconsistent with the catastrophic impairment finding.

The adjudicator dismissed the request, finding no significant errors of law or fact in the original decision.

The adjudicator held that the applicant's psychological impairments, which warranted the catastrophic designation, did not preclude him from performing his pre-accident casual work, and that the attendant care and housekeeping benefits were properly denied as they were not incurred.

The applicant sought statutory accident benefits for medical and rehabilitation treatments following a motor vehicle accident.

The insurer denied the treatment plans 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 psychological impairments and a pre-existing condition of Crohn's disease removed him from the MIG.

The Tribunal found that the applicant suffered only soft tissue injuries, failed to establish a psychological impairment, and did not provide compelling evidence that his Crohn's disease prevented maximal recovery under the MIG.

The application was dismissed.

The applicant was injured in a motor vehicle accident and sought medical benefits and the cost of examinations under the Statutory Accident Benefits Schedule.

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

The Licence Appeal Tribunal found that the applicant's physical injuries, including sprains and strains, met the definition of minor injuries.

The Tribunal preferred the respondent's psychological assessment over the applicant's, concluding that the applicant did not suffer from a psychological impairment that would remove her from the MIG.

Furthermore, the applicant failed to provide compelling evidence that any pre-existing conditions would prevent her maximal recovery within the MIG limit.

The application was dismissed.

During an in-person hearing regarding a catastrophic impairment claim, the applicant sought to admit the full neuropsychological report of Dr. Gilman, which had not been fully disclosed prior to the hearing.

The respondent objected on the basis of late disclosure and prejudice.

The Tribunal allowed the full report to be admitted, finding that its relevance and probative value outweighed any prejudice to the respondent.

The Tribunal ordered the applicant to provide the complete report to the respondent's expert and directed a case conference to address any necessary rebuttal reports.

The applicant sought death and funeral benefits after her husband died following a motor vehicle accident.

The husband was involved in a low-impact rear-end collision and was released from the hospital the same day.

Three days later, he fell, suffered a brain bleed, and subsequently died of a cardiac arrest.

The adjudicator applied the 'but for' test for causation and found that the death was caused by pre-existing medical issues and the subsequent fall, not the motor vehicle accident.

The application for benefits was dismissed.

The insurer sought reconsideration of a Tribunal decision awarding the insured attendant care benefits.

The insurer argued that the Tribunal erred in law by awarding benefits at a flat rate of $25 per hour rather than applying the mandatory maximum hourly rates set out in the Attendant Care Hourly Rate Guideline and the Form 1 Assessment of Attendant Care Needs.

The Vice-Chair agreed, finding that the Guideline rates are mandatory for services actually rendered and cannot be used merely as a calculation tool to establish a total monthly cap.

The reconsideration was granted in part, and the matter was remanded to the original adjudicator for a hearing limited to determining the proper quantum of the benefit based on the hours previously found to have been incurred.

The applicant was injured in a rear-end motor vehicle accident and sought medical and attendant care benefits from the respondent insurer.

The adjudicator denied the claim for attendant care benefits, finding the applicant failed to incur the expenses.

However, the adjudicator granted entitlement to four physiotherapy treatment plans, a psychological treatment plan, a functional impairment assessment, and a chronic pain assessment, finding them reasonable and necessary.

The adjudicator also awarded a 20% special award under Regulation 664 regarding the functional impairment assessment, concluding the insurer unreasonably withheld approval by relying on an assessor's unconvincing change of opinion.

The applicant sought reconsideration of a Tribunal decision finding his injuries fell within the Minor Injury Guideline (MIG).

Following the initial decision, the respondent conducted a psychological insurer's examination which concluded the applicant sustained a psychological impairment.

The respondent subsequently conceded the applicant was not subject to the MIG and approved the disputed treatment plans, save for a neurological assessment.

The Tribunal granted the reconsideration request, finding the psychological report constituted new evidence that would have affected the result.

The Tribunal remitted the issues of the neurological assessment and a special award back to the hearing adjudicator, while dismissing the applicant's request for costs due to procedural non-compliance.

The insurer sought reconsideration of a Tribunal decision awarding the insured attendant care benefits at a flat rate of $25 per hour.

The insurer argued that the adjudicator made a significant error of law by failing to apply the mandatory maximum hourly rates set out in the Attendant Care Hourly Rate Guideline and the Form 1 Assessment of Attendant Care Needs.

The Vice-Chair agreed, finding that the Guideline rates are mandatory for services actually rendered and cannot be used merely as a calculation tool to establish a total monthly cap.

The reconsideration was granted in part, and the matter was remanded to the original adjudicator to determine the proper quantum of benefits based on the hours previously found to have been incurred, applying the correct Guideline rates.

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

The respondent denied several 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 failed to prove their psychological and chronic pain symptoms warranted removal from the MIG.

Furthermore, the applicant failed to establish that the disputed treatment and assessment plans were reasonable and necessary, and failed to exhaust collateral benefits for ambulance services.

The application was dismissed.

The respondent insurer requested a reconsideration of a Tribunal decision awarding the applicant the costs of a chronic pain assessment and a chiropractic functional impairment assessment following a motor vehicle accident.

The insurer argued the Tribunal erred in its causation analysis, its determination of what constitutes a valid medical reason for denying a treatment plan, and its finding that an assessment was for accident benefits rather than a tort claim.

The Adjudicator found that while the Tribunal erred in determining that 'insufficient documentation' was not a valid medical reason for denial, this error would not have changed the ultimate outcome.

The Adjudicator found no other significant errors of law or fact and dismissed the request for reconsideration.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits, including medical benefits and Income Replacement Benefits (IRBs).

The insurer denied several treatment plans, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG), and stopped IRBs based on insurer examinations.

The Licence Appeal Tribunal found that the applicant's median nerve neuropathy removed him from the MIG.

The Tribunal approved one treatment plan for physiotherapy and braces but denied others for lack of supporting evidence.

The Tribunal also ordered the reinstatement of IRBs up to the two-year anniversary of the accident, finding the applicant was substantially unable to perform his pre-accident employment as a warehouse worker and driver, and awarded interest on overdue payments.

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 insurer requested a reconsideration of a Licence Appeal Tribunal decision that denied its claim for repayment of non-earner benefits paid in error to the respondent.

The original decision found that the 12-month limitation period under section 52(3) of the Statutory Accident Benefits Schedule began to run from the date of the first payment.

On reconsideration, the Vice-Chair found this interpretation to be a significant error of law.

The Vice-Chair held that section 52(3) unambiguously allows an insurer to seek repayment of benefits paid in error within the 12 months preceding the notice.

The reconsideration request was granted, and the respondent was ordered to repay $2,193.57.

The insurer's request for costs was denied.

The respondent insurer sought reconsideration of a Tribunal decision that found the applicant was entitled to income replacement benefits during a period of suspension for non-attendance at an insurer's examination.

The applicant had attended the examination but requested his wife be present, which the examiner refused.

While the applicant sought advice from his representative, the examiner left the facility.

The adjudicator found that although the original decision lacked sufficient reasons regarding the specific events, the ultimate finding was correct.

The applicant did not refuse to submit to the examination requests, and even if he did, he had a reasonable excuse.

The request for reconsideration was denied.