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Recent LAT Decisions

Helen Valentine - Beament Hebert Nicholson Recent LAT DecisionsIRB –  Applicant and Old Republic Insurance Company, Tribunal File Number: 16-000179/AABS, Dated:  October 17, 2016.

The MVA was May 21, 2015 and the IRB was terminated March 25, 2016.  The Applicant disputes the termination and files with the LAT requesting the IRB to be paid from March 25, 2016 to May 21, 2017 (the two year mark).  The family doctor’s notes, as well as the chiropractor’s notes, refer to and diagnosed shoulder pain and note back pain which the Applicant claims are the cause of her substantial inability to do her job.  The essential tasks of her job are to drive a school bus three hours per day and to conduct a fifteen minute safety check of the bus.

The Applicant commissioned a report from a physiatrist, Dr. Desouki, who reports she has difficulty doing shoulder checks while driving and with general bending, twisting, reaching, heavy lifting and maintaining prolonged positions.  She also commissioned a report from a psychologist, Dr. Mills, who diagnosed her with various psychological disorders.

The Old Republic had the Applicant attend a physiatry insurer’s examination by Dr. Williams and a psychological insurer’s examination by Dr. Salerno.  Both doctors reported that she did not meet the test of suffering a substantial inability to perform the essential tasks of her job.  Dr. Williams did not consider the CAT scans, x-rays and MRIs that were conducted after the accident and only relied on the Applicant’s description of these documents.  Dr. Salerno reported that she could return to work from a psychological perspective but for her physical limitations.

Adjudicator Chris Sewrattan placed greater weight on Dr. Desouki’s report than on Dr. Williams’ report.   Dr. Williams rendered an opinion without discussing the Applicant’s essential tasks of her job and did not consider the CAT scans, x-rays and MRIs whereas Dr. Desouki addressed the tasks and considered the reports.  Adjudicator Sewrattan also pointed out the importance of the Applicant’s inability to drive the school bus for an extended period of time over the act of driving a vehicle in general and ruled the Applicant is entitled to receive the IRB for the period from the date of termination to the full 104 weeks.

CostsJ.T. and Intact Insurance Company, Tribunal File Number:  16-000041//AABS, Dated:  November 2, 2016

The MVA was October 26, 2011 and the Applicant submitted an application to the LAT on April 12, 2016 regarding a denied Treatment and Assessment Plan (OCF-18) for psychological services.  The Case Conference was held on June 22, 2015 wherein the parties advised the adjudicator that Intact had approved the OCF-18.  However, the Applicant wanted to proceed and recover his costs, under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, for preparing his application and alleged that Intact had acted unreasonably.  A preliminary issue hearing was scheduled for July 11, 2016 on whether the Tribunal had the jurisdiction to consider the Applicant’s request for costs.  The Tribunal released its decision on August 16, 2016 that it had jurisdiction to award costs under Rule 19.1 and ordered a second hearing.

Rule 19.1 provides that costs may be requested in a proceeding where a party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith.  “In a proceeding” does not include the actions and/or behaviour of a party that occurred prior to the filing of an application.  Rule 2.17 defines “a proceeding” as the “entire process from the start of an appeal to the time a matter is finally resolved”.  This would be from when the Applicant submits the application to the Tribunal to when all issues in dispute are resolved.  The Applicant relied on correspondence exchanged between the parties from December 10, 2015 to January 26, 2016 which was before the proceeding with the Tribunal started.  Intact attempted to settle the issue of costs but the Applicant considered the attempts to be unreasonable.  This does not meet the threshold of unreasonable, frivolous, vexatious or bad faith behaviour as per Rule 19.1.  Adjudicator Sewrattan ruled the Applicant was not entitled to recover costs.

NEBD.S. and Certas Home and Auto Insurance Company, Tribunal File No.:  16-000279/AABS, Dated:  October 20, 2016

The MVA was April 16, 2014 and the Applicant submitted an Application for Accident Benefits (OCF-1) and a Disability Certificate (OCF-3) on May 9, 2014.  The doctor that completed the OCF-3, dated May 6, 2014, indicated the Applicant did not meet the test for the non-earner benefit (NEB).  The Applicant claims the act of filing the OCF-1 and the OCF-3 asserts an application for the NEB.  Certas responded that the Applicant did not submit an application for the NEB because the Statutory Accident Benefits Schedule requires that an insured person submit a completed OCF-3 confirming the insured person meets the eligibility test.  Certas claims the doctor did not check off the box that confirms the meeting of the eligibility test and was therefore not supportive and not a completed OCF-3.

The Applicant later submitted an Election of Benefits form (OCF-10) on July 17, 2014 confirming her election of the NEB.  Certas further denied the entitlement to the NEB on July 30, 2014 based on the OCF-3 signed by the doctor on May 6, 2014.  An updated OCF-3 was not provided by the Applicant but ongoing disclosure of medical evidence was provided to Certas in lieu of an updated OCF-3.

Adjudicator Cynthia Pay agreed with the Applicant and found that she should not be precluded from proceeding to a hearing on the issue of her eligibility for the NEB.  She found that despite the doctor’s statement that the Applicant did not qualify for the NEB, the overall interaction between the Applicant and the Respondent demonstrates that the Applicant made a complete application for the NEB which the Respondent acknowledged.  Adjudicator Pay further noted that the consumer protection purpose of the legislation requires an examination of the substance of the Applicant’s application for benefits.  The filing of the OCF-3 and the OCF-10 clearly demonstrated the Applicant was requesting the NEB and to find that she had not applied for the NEB based on the box checked off by the doctor would be to prioritize form over substance and violate the spirit of the legislation.  The adjudicator ruled the statutory requirements for bringing an appeal have been met and the issue was within the Tribunal’s jurisdiction and the Application to the Tribunal can proceed to a hearing.

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