Case Name: Applicant and Motor Vehicle Accident Claims Funds, 2016 CanLII 67140, Date of Decision: August 25, 2016 Adjudicator: Lori Marzinotto

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1 1 LAT CASES SUMMARY Last update cases available as of: March 8, Case Name: Applicant and Intact Insurance Company, 2016 CanLII Date of Decision: August 16, 2016 Adjudicator: Panel: Vice-Chair J.R. Richards, and Adjudicator Nicole Treksler : 2. Teleconference At the Case Conference, the parties agreed that the treatment plan in dispute had already been resolved, but were unable to agree on the issue of costs. At the hearing, the issue was whether the Claimant could recover his fees/costs, and whether the costs of the proceeding could be recovered pursuant to Rule 19.1 of the LAT Rules of Practice and Procedure. Rule 19.1 of the LAT Rules provides that a party could make a request to the Tribunal for its costs where it believes that another party in a proceeding had acted unreasonably, frivolously, vexatiously, or in bad faith. The Tribunal noted that post April 1, 2016 s.281(11) of the Insurance Act had been repealed, which was interpreted as a clear statement of the legislature s intent to limit the circumstances where the Tribunal can award costs in a proceeding. However, a repeal of s. 281(11) did not prevent parties from negotiating costs and disbursements between themselves as they settled files. As the Tribunal only had jurisdiction to award costs under Rule 19.1 where a party in a proceeding had acted unreasonably, frivolously, vexatiously or in bad faith, the Tribunal ordered that a second hearing by teleconference should take place to assess whether or not the Claimant was entitled to recover costs pursuant to Rule 19.1, and whether the insurer unreasonably withheld or delayed payment to the Applicant pursuant to s.10 of O. Reg Case Name: Applicant and Motor Vehicle Accident Claims Funds, 2016 CanLII 67140, Date of Decision: August 25, 2016 Adjudicator: Lori Marzinotto Teleconference Note: An order from the case conference stated the Claimant would testify by way of affidavit and cross examined via telephone, the Claimant did not provide an affidavit. Instead, he provided in person provided in-person evidence, which MVACF did not object to, and he was provided oral evidence and was cross-examined in person. The case conference adjudicator also presided over the hearing on consent of both parties.

2 2 : The Claimant was seeking non-earner benefits as a result of the accident. In October 2013, MVACF sent correspondence to the Claimant at his parent s home requesting he attend an Insurer s Examination. He failed to attend, and MVACF terminated his non-earner benefits. An Insurer s Examination was rescheduled, which the Claimant attended, after which non-earner benefits were reinstated. At the hearing, the Claimant s position was that benefits should be paid during the period of noncompliance as he had a reasonably explanation for his non- attendance. 3. At the hearing, the Claimant s evidence was that he had sought addiction treatment at three different treatment centers during the notice letter from MVACF was sent to him as well as receiving mail at his parents and wife s home. Once he was made aware of his notice of non-compliance in February 2014 by his lawyer, he immediately sought to reschedule the examination. The Adjudicator took issue with MVACF s failure to notify the Claimant that he had missed the insurer examination scheduled for October 2013 until February 2014 and there was no evidence presented to suggest that MVACF followed up with the Claimant prior to February MVACF did not cross examine the Claimant at the hearing. While the Adjudicator noted it would have been prudent for the Claimant to provide the insurer with an updated address, especially while he was in receipt of other accident benefits, the Adjudicator accepted that the applicant had been in several different rehabilitation treatment centres seeking addiction treatment and found his evidence credible. As he had a reasonable explanation for the original non-compliance, and there was no evidence of delay on behalf of the Claimant after he learned of the missed insurer s examination in contrast with the significant period of delay by the insurer, the Adjudicator ordered that non-earner benefits be paid during the period of original non compliance. Case Name: S.S and State Farm Mutual Automobile Insurance Company, 2016 CanLII Date of Decision: August 30, 2016 Adjudicator: Jeanie Theoharis : In Writing At issue at the Hearing was whether or not the Claimant s injuries fell out of the Minor Injuries Guideline and one treatment plan for chiropractic treatment and massage therapy with interest. The Adjudicator examined the medical records submitted, and found that the evidence, taken as a whole did not support a finding of cervical radiculopathy, and then instead accepted the diagnosis of the Claimant s family doctor, being a whiplash injury. The Adjudicator felt that the

3 3 4. Claimant s health practitioner did not present sufficient documentary evidence with supporting reasons and analysis to establish that the Claimant cervical radiculopathy, noting that they failed to conduct for example a nerve conduction test, and that the absence of further testing and supporting reasons and persuasive analysis diminish the weight of the Insurer s assessor s conclusion. Coming to the conclusion based on the Claimant s complaints of pain and not conducting further test and assessment did not satisfy, on the balance of probability, the diagnoses of cervical radiculopathy and the Adjudicator preferred the evidence of the Insurer over the evidence presented by the Claimant. The Claimant also did not provide compelling evidence that he had a pre-existing condition which would prevent him from being treated within the $3,500 dollars Guidelines limits. The Adjudicator concluded that the Claimant s injuries fell within the MIG, the Claimant was not entitled to receive the OCF-18 medical benefit and was not entitled to interest. Case Name: A. P and Aviva Canada Inc., 2016 CanLII Date of Decision: September 1, 2016 Adjudicator: Vice-Chair D. Gregory Flude In Writing : The issues in dispute where whether the Claimant suffered predominantly minor injuries, whether the Claimant was entitled to payment of income replacement benefits at rate of $ per the week for period of February 17, 2016 and May 3, 2016 and two treatment plans for medical benefits for physiotherapy and chiropractic treatment. In his analysis, Vice-Chair Flude noted the Claimant was involved in a prior motor vehicle accident 2005, in which she suffered similar cervical spine injuries, and while the Applicant s assessor referred to the treatment following those injuries as another possible factor he declined to express an opinion on the impact the earlier injuries on the Claimant s recovery, and deferred to another assessor, however, no further opinion or report was provided. On that basis, Vice-Chair Flude found the Claimant s failed to satisfy her onus to show compelling evidence that she could not achieve maximum recovery within the MIG because of preexisting condition. Similarly, on a review of medical records provided, Vice-Chair Flude found no evidence that the Claimant incurred anything other than soft tissue injuries, and insufficient evidence to support a finding of that the Claimant suffered from chronic pain syndrome. With respect to income replacement benefits Vice-Chair Flude preferred the Insurer s assessors conclusions as they provided reports on both methodology and their conclusion, which Vice-Chair Flude found was unchallenged by anything submitted by the Claimant. Vice-Chair Flude

4 4 5. found that the Claimant was able to perform the essential tasks of her employment by February 16, 2016 when the IRB payment was stopped. Case Name: K. P. and Aviva Canada Inc., 2016 CanLII Date of Decision: September 1, 2016 Adjudicator: Vice-Chair D. Gregory Flude In Writing : The issue in dispute was whether the Applicant s injuries fell within the MIG. In reviewing the medical records provided, Vice-Chair Flude noted that despite the numerous condition and symptoms in the Claimant s submissions, there was no medical evidence that tied any specific condition to the accident, or indicated any specific condition or symptoms were anything more than a soft tissue injury or conditions arising out of a normal lifestyle that was independent of the accident. Vice-Chair Flude was unable to find support for the Applicant s assertion that she had radiculopathy other lumbar region, and noted that the statement relied on by the Applicant for the assertion came from her family doctors, except for a possibility of radiculopathy indicating exam findings are equivocal for radiculopathy, and Vice-Chair Flude disagreed with its elevation to a definitive diagnosis. Vice-Chair Flude found that this interpretation was inconsistent with the totality of the family doctor s clinical notes and records. At best, Vice-Chair Flude found that the evidence relied on by the Applicant was equivocal, and was not clear whether the Applicant s assessor was asserting the limit of $3, was insufficient to achieve the goals of the treatment plan or whether she was of the opinion that she must work within that restriction. No further clarification was provided. Vice-Chair Flude found the evidence felt short of compelling. The Claimant injuries were held to fall within the MIG, and the treatment plan was not reasonable and necessary. 6. Case Name: J. H. and Intact Insurance Company, 2016 CanLll Date of Decision: September 8, 2016 Adjudicator: Cynthia Pay : In Writing The issue in dispute was whether the insurance company was required to pay for mileage expenses for the Claimant s service providers and the treatment plans under dispute. The Claimant was catastrophically impaired, and asserted that his service providers should be entitled to mileage costs, as his service providers had to travel from surrounding areas to provide him treatment as he lived in

5 5 an area where access to treatment was limited. Adjudicator Pay concluded that the SABS was clear regarding whether insurers were required to pay for mileage costs for the Claimant s service providers, and did not need to rule on whether or not the Superintendent s Guidelines were retroactively applicable, or whether or not they were binding. Adjudicator Pay accepted that the SABS provided specifically for transportation for the insured person to and from treatment sessions as well as for transportation for the insurance person aid or attendant, but made no mention of a requirement to provide transportation costs for the treatment provider. Adjudicator Pay distinguished the decision of Maude v. State Farm as that decision found that the best resources for treatment were not locally available to the Claimant. In the present case, the Tribunal had no evidence before it regarding the Claimant s living situation, availability of treatment in his community and treatment needs, which were not included in agreed statement of facts. Second, travel disputes were noted to not be in dispute, and only mileage costs were denied. Adjudicator Pay therefore held that the insurance company was not required to pay mileage expenses for service providers in the claimed treatment plan. 7. Case Name: S. L. and Certas Home and Auto Insurance Company, 2016 CanLII Date of Decision: September 13, 2016 Adjudicator: Vice-Chair D. Gregory Flude In Writing, Motion The issue was brought on a Motion by the insurer to prohibit the Claimant from bring an Application for accident benefits because she failed to attend an insurers examination under s.44 of the Schedule. The insurer sought to evoke the exclusionary provision of s.55(1) of Schedule and took the position that s.280 (2) of the Insurance Act along with s. 55 Act as complete prohibition to the Claimant applying to the Tribunal for the resolution of entitlement to accident benefits. In response, the Claimant raised the decision of Augustin v. Unifund, and took the position that the notice was defected. Vice-Chair Flude found the positon in Augustin persuasive while noting the decision in FSCO was not binding and applied the reasoning in Augustin to the facts, and found the 2011 notices failed to set out adequate medical and other reasons for the insurer examination. In his assessment, Vice-Chair Flude rejected the insurers position that the Claimant s failure to raise the issue of defective notice in the earlier proceeding prejudice it, noted the insurer had failed to establish a detrimental reliance base on the facts before the Tribunal. Vice-Chair Flude noted the Augustine decision was released November 2013, and

6 6 8. that it was opened to the insurance company, at that time, to revisit its notices and to correct the defect. No action by the Claimant prevented it from doing so. Instead, Vice-Chair Flude noted that what in fact occurred was that the Claimant abandoned its claim in 2011, the denial of those claims having occurred in 2011, and was well past limitation period for any further appeal on the denial. The insurance company ultimately was noted to have benefited from the Claimant s failure to assert this deficiency of the 2011 notices. Vice-Chair Flude found that the insurance company s position had not been changed or compromised in any way had it had always maintain that the Claimant fell within the MIG, and now that in 2016 the Claimant filed another treatment plan suggesting she did not fall within the MIG, since receiving it, and it remain open to the insurance company to serve the appropriate notice for her to attend to one of more IEs, and was exactly in the same position with respect to the treatment plan as it was in 2015 with the earlier treatment plan. The Motion was dismissed. Case Name: D.M. and RBC General Insurance Company, 2016 CanLII Date of Decision: September 30, 2016 Adjudicator: Anna Truong In Writing In dispute was whether the part of a Treatment Plan for cleaning and repairs to the Applicant s home was reasonable and necessary, and whether the Applicant was entitled to the $ cost difference for the amount submitted and approved on a Treatment Plan versus that paid for a dishwasher. Adjudicator Truong noted that there was no dispute over whether the Applicant had sustained impairments, or over the nature of those impairments, and therefore accepted the evidence that the Applicant had sustained impairments as in the reports submitted. Adjudicator Truong accepted that home modifications referenced in section 16(3)(i) of the SABS could include reasonable and necessary home repairs. Adjudicator Truong noted that the OT s comment that the housecleaning proposed would be of benefit to the Applicant but not payable because of the Applicant s lack of coverage, was beyond the assessor s expertise as a medical expert as it was a legal question. Adjudicator Truong therefore gave no weight to the OT s opinion that housecleaning was not payable due to the lack of coverage. Adjudicator Truong also equated housecleaning with housekeeping, which was specifically excluded under section 16(3)(l), and therefore found the item not payable.

7 7 9. On the other hand, Adjudicator Truong further found that a home repair could be a home modification and payable pursuant to section 16(3)(i) of the SABS, and found payable all the proposed repairs which were directly linked to the Applicant s safety and increased risk of failing as a result of her accident related impairments payable. With respect to the dishwasher expense, Adjudicator Truong found that the Treatment Plan was submitted and approved in the amount of $711.90, and the Applicant failed to provide sufficient evidence why it was reasonable and necessary to purchase a more expensive dishwasher, despite the Applicant s claim that the more expense dishwasher was more reliable, noting the Applicant failed to provide evidence to support this claim, and none of the experts stated a specific brand of dishwasher was needed. Case Name: Applicant and The Dominion of Canada General Insurance Company, 2016 CanLII Date of Decision: October 3, 2016 Adjudicator: Lori Marzinotto In Writing, Preliminary Issue The Applicant was seeking non-earner benefits from September 10, 2014 to unknown and income replacement benefits from October 24, 2014 to unknown. The Applicant took the position that she did not have to decide which benefit she was proceeding with at the hearing. The Applicant alleged that as Dominion had not sent her an election form, she did not have to make an election, but acknowledged that she was not entitled to be paid for both benefits at the same time. Dominion alleged that a form was not sent as the Applicant qualified for income replacement benefits for a short time, but because she reported nil selfemployment income, Dominion determined that $0.00 was payable. The Preliminary Issue was whether the Applicant could pursue either benefit. Adjudicator Marzinotto found that pursuant to section 35(1) of the SABS, the Applicant was entitled to notice from Dominion to elect the benefit she wished to receive. In her analysis, Adjudicator Marzinotto followed Galdamez v. Allstate, 111 O.R. (3d) 321 (C.A.) that an insured s status as an employed person did not in itself establish that the insured was ineligible for the non-earner benefit. Adjudicator Marzinotto found that initially a Notice of Election was not required as the OCF-1 indicated the Applicant was unemployed, but once the completed Disability Certificate was provided which indicated the Applicant was self-employed, the Applicant may have been eligible for either benefit and a Notice of Election should have been provided, or at minimum, Dominion should

8 8 have advised the Applicant she was eligible for one of the benefits. Adjudicator Marzinotto held the Applicant was entitled to seek both income replacement benefits and non-earner benefits in her Application, and could proceed to a hearing before the Tribunal to determine her entitlement to either benefit. 10. Case Name: M.R. and Aviva Insurance Company of Canada, 2016 CanLII Date of Decision: October 5, 2016 Adjudicator: Vice-Chair J.R. Richards Teleconference, Preliminary Issue The Insurer sent an Explanation of Benefits to the Applicant beginning two months after her OCF-1 was submitted (February 18, 2014, March 4, 2014, April 29, 2014, and May 6, 2014) advising that she was to be treated under the MIG, and therefore did not qualify for attendant care benefits. The Applicant did not apply to the Tribunal until May 6, 2016 to dispute the denial, and the issue was whether the Applicant was barred by failing to file her claim within the two-year limitation period pursuant to section 280(2) of the Insurance Act, and section 56 of the SABS. The Applicant argued, and Vice-Chair Richards agreed, that she did not claim attendant care benefits at any point prior to March 12, 2016, when she underwent an Assessment of Attendant Care Needs, and the Insurer could not deny a benefit prior to her application for that benefit. Vice-Chair Richards noted that section 42 of the SABS outlined that an application for attendant care benefits must be on a form entitled Assessment of Attendant Care Needs and prepared by an occupational therapist or registered nurse. Vice-Chair Richards found that the OCF-1 is a general form, noting that the SABS required that an insured person apply for attendant care benefits in a very specific manner and until the form was filled out and received, there were no attendant care benefits for the Insurer to deny. Vice-Chair Richards also found that the language used by the Insurer was not clear and unequivocal, following Smith v. Co-operators General Insurance, [2002] 2. S.C.R. 129, and therefore not valid for the purpose of triggering a limitation period. Although the Explanation of Benefit forms stated You do not qualify for the Attendant Care benefit as there is no coverage for this under the Minor Injury Guideline, Vice-Chair Richards found that advising someone they did not qualify for a benefit as there is no coverage was not the same as refusing to pay a benefit that had been claimed and would not be understood or appreciated by an unsophisticated person. Further, that the form neither reduced nor

9 9 stopped a benefit as required by the Insurance Act, failed to address what the Insurer would pay as required by the SABS, and the blanket term no coverage rendered the form unclear. Vice-Chair Richards found that the Applicant was not barred from bringing her claim to the Tribunal as she did not exceed the two-year limitation period set out in the Insurance Act and SABS. 11. Case Name: M.S. and Primmum Insurance Company, 2016 CanLII Date of Decision: October 14, 2016 Adjudicator: Chris Sewrattan In Writing The issue was whether the Applicant s injury was outside the definition of minor injury in the MIG, and entitled to a Treatment Plan in excess of the MIG limit. Adjudicator Sewrattan denied the Applicant s claim for his failure to put any evidence before the Tribunal. Adjudicator Sewrattan noted that at the Case Conference, the parties were given deadlines for written argument and evidence, but that the Applicant s materials were atypical as they addressed issues different from those identified in the Case Conference Adjudicator s Order, and referenced exhibits which were not attached. Primmum raised the issue of the burden of proof in its written argument, but no reply materials were received by the Applicant. Adjudicator Sewrattan gave the parties an opportunity to convince the Tribunal why the exhibits should be submitted after the deadline, and deadlines were given for these submissions, which Primmum provided, but the Applicant did not. As the Applicant failed to put any evidence before the Tribunal, his appeal was dismissed. 12. Case Name: Applicant and Old Republic Insurance Company, 2016 CanLII (Note: There is a later Reconsideration Decision by Executive Chair Lamoureux, December 2, 2016) Date of Decision: October 17, 2016 Adjudicator: Chris Sewrattan In Writing The issue was whether the Applicant was entitled to an income replacement benefit for the period of March 25, 2016 to May 21, Old Republic submitted that the accident did not materially contribute to the Applicant s alleged inability to work as the clinical notes and records of the family doctor did not indicate right shoulder pain until a visit

10 10 approximately 20 days after the accident (June 10). However, Adjudicator Sewrattan found that a review of the records, including the family doctor s and chiropractor s records made it clear that the Applicant complained of and was diagnosed with right shoulder pain and back pain prior to June 10. In his analysis, Adjudicator Sewrattan preferred the evidence of the Applicant s physiatrist and psychologist, noting that Old Republic s physiatrist opined the Applicant s ability to perform the essential tasks of her employment without discussing what those essential tasks were, and did not consider the CAT scans, X-rays, and MRIS conducted after the accident and only relied on the Applicant s description of these documents. While Adjudicator Sewrattan considered the psychological reports presented, he made his decision fundamentally on the Applicant s physical condition and accepted based on the evidence that the Applicant was substantially unable to perform the essential tasks of her employment as a school bus driver. Adjudicator Sewrattan therefore held that the Applicant was entitled to receive a weekly income replacement benefit in the amount of $ from March 25, 2016 to May 21, Case Name: D.S. and Certas Home and Auto Insurance Company, 2016 CanLII Date of Decision: October 20, 2016 Adjudicator: Cynthia Pay 14. In Writing, Preliminary Issue The issue was whether the Applicant submitted an application for nonearner benefits. The Applicant asserted that the OCF-1 and Disability Certificate comprised an application for non-earner benefits. Adjudicator Pay rejected Certas argument that without a complete Disability Certificate confirming that the insured person meets the eligibility test for non-earner benefits, the Applicant failed to meet the requirements of section 36 of the SABS, and therefore the Application should be dismissed pursuant to the Tribunal s Rules 3.4(b) and (c). Adjudicator Pay found that the overall interaction between the Applicant and Certas demonstrated that the Applicant made a complete application for the benefit which Certas acknowledged, and the Applicant should not be precluded from proceeding to a hearing on the issue of her eligibility for non-earner benefits. Case Name: B.U. and Aviva Canada Inc., 2016 CanLII Date of Decision: November 1, 2016

11 11 Adjudicator: Chloe Lester Hybrid Written submissions and oral evidence via teleconference. The Applicant advised at the commencement of the hearing that he would be recording the hearing. The parties and the Tribunal agreed to the recording as long as a copy was provided to the respondent after the hearing. The issues in dispute were whether the Applicant s injuries fell within the MIG, entitlement to attendant care benefits, and whether a total of seven Treatment Plans for medical benefits and cost of examinations were reasonable and necessary. 15. After a review of the conflicting reports, Adjudicator Lester found that many of the Applicant s physical injuries were minor in nature, and he did not suffer from any pre-existing conditions which would have prevented him from achieving maximum medical recovery within the MIG limits. While the Applicant relied on Arruda v. Western (FSCO A ) to support the proposition that chronic pain syndrome falls outside the MIG, Adjudicator Lester found that the Applicant failed to show how the diagnosis of chronic pain syndrome from one of the reports was not a sequelae of the soft tissue injuries. However, from a psychological perspective, Adjudicator Lester found that the Insurer s psychologist s findings were in contrast to the findings of many other examiners which constituted overwhelming evidence that supported the position that the Applicant suffered from a psychological impairment as a result of the accident. Therefore his injuries were not minor. Adjudicator Lester also found several of the Treatment Plans which were reasonable given the psychological impairment findings and which were in line with other approved treatment, and therefore payable. With respect to entitlement of attendant care benefits, Adjudicator Lester found that there was sufficient evidence presented that he was mostly independent with his activities of daily living or that he was functionally capable of doing them. In addition, Adjudicator Lester noted that no evidence was put forward pursuant to section 3(7)(e) and 19 of the SABS that attendant care benefits were incurred or an economic loss of a non-professional provider sustained. Case Name: J.T. and Intact Insurance Company, 2016 CanLII Date of Decision: November 2, 2016 Adjudicator: Panel: Nicole Treksler and Chris Sewrattan

12 12 Teleconference The original issue in dispute was the necessity and reasonableness of a Treatment Plan for psychological services. This issue was resolved prior to the Case Conference, however, the Applicant sought costs. In the Preliminary Issue hearing decision released August 16, 2016, it was determined that the Tribunal had jurisdiction to award costs under Rule 19.1, and even though the main issue had been resolved the Applicant could make a request for costs in writing or orally at a case conference, hearing, or any time before the decision or order was released. 16. The Tribunal Panel found that no costs were recoverable by either party as both the Applicant and Intact failed to establish that the other party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding, noting that Rule 19.1 applied to costs in a proceeding. A proceeding was defined pursuant to Rule 2.17 as the entire process from the start of an appeal to the time a matter is finally resolved, and the Tribunal found that a proceeding started once the Applicant submits an application to the Tribunal and ends once all issues in dispute between the parties are resolved. The Applicant was also not entitled to a (special) award under section 10 of O. Reg. 664 as the Insurer did not unreasonably withhold or delay payments to the Applicant after a review of the timeline and exchange of documents in the case. Case Name: D.S. and Economical Mutual Insurance Company, 2016 CanLII Date of Decision: November 2, 2016 Adjudicator: Nicole Treksler Adjudicator Anita John observing Teleconference With Interpreter and Stenographer also present The Applicant sustained a catastrophic impairment as a result of the accident, and the issue in dispute was the entitlement to caregiver benefits. At the time of the accident, the Applicant was staying home while his wife worked. He was in receipt of ODSP benefits and was responsible for caring for his two children, who struggled with serious health, behavioural, and disciplinary issues. He received help from his mother. While the Applicant was cross-examined at the hearing, it was brief as the Applicant stated that due to the accident he had memory problems and could not recall many events. The parties agreed that Adjudicator Treksler should attribute more weight to the Applicant s wife s testimony.

13 Despite the Applicant s wife s testimony at the hearing that the Applicant was responsible for 75% of the child care pre-accident, Adjudicator Treksler found her evidence to be contradictory to the Children s Aid Society records presented which showed the Applicant s wife to be the primary caregiver from a qualitative perspective. Adjudicator Treksler found that even if the Applicant had been doing all the tasks as outlined in his affidavit, she opined the wife s caregiving tasks (discipline, developing routine and structure, medical appointments) from a qualitative perspective required more effort, energy, and were significant in the children s development. However, Adjudicator Treksler rejected the Insurer s focus on the Applicant s alleged substance abuse problem and temperament as irrelevant in the determination. Adjudicator Treksler concluded that the Applicant was therefore not the primary caregiver at the time of the accident and he was not entitled to receive weekly caregiver benefits. Case Name: R.M. and Optimum Insurance Company, 2016 CanLII Date of Decision: November 8, 2016 Adjudicator: Catherine Bickley In Writing The Applicant was catastrophically injured in the accident and began receiving income replacement benefits. In March 2014 he advised the Insurer that his rate should have been $ rather than $ This was found to have an effect on his entitlement after CPP and LTD payments. The Insurer s accountant agreed with the rate, and the Insurer paid $15, to the Applicant for the difference for the period of April 3, The issue in dispute was whether interest payments were owed, and whether the Applicant was entitled to a (special) award. Adjudicator Bickley did not accept the Insurer s argument that no amount was due at the time of the Applicant s August 2008 income replacement benefit entitlement calculation as the Applicant s self-employment income was not then verified on a tax return, noting that from a review of the records available, the Insurer s accountant did have the necessary information available in August 2008 to calculate the Applicant s initial income replacement benefit entitlement on the basis of the 52 weeks prior to the accident. Adjudicator Bickley further rejected the Insurer s argument that income earned in 2008 and not reported to the CRA until 2014 fell within section 64.1 of the SABS as unreported income based on her finding that no Income Tax Return was required to be filed at that time as the Applicant s 2008 tax return was not due until the following April. Adjudicator Bickley concluded that the self-employment income

14 could not be considered income the person has failed to report contrary to the Act or legislation. Interest was therefore awarded in accordance with s. 46(2) of the SABS. Despite finding that the Applicant s 2008 self-employment income was not unreported income, Adjudicator Bickley did not find it unreasonable for the Insurer to assure itself that this income had been reported, and once it possessed the 2008 Notice of Assessment moved forward in a reasonable time to recalculate and pay the amounts owing. In addition, the cancellation of a FSCO mediation did not likely result in a significant delay in the determination of the issue and no (special) award was given. Case Name: J.W. and The Co-operators General Insurance Company, 2016 CanLII Date of Decision: November 14, 2016 Adjudicator: Vice-Chair J.R. Richards In Writing The Applicant was in receipt of income replacement benefits at a rate of $400 per week, which was stopped March 25, 2016 for his failure to attend an insurer examination. The Applicant claimed the Insurer failed to provide medical and any other reasons for the examination as required by the SABS. While Vice-Chair Richards agreed that reasons for the insurer examination to: 1) determine if the Applicant continued to meet the disability test for the income replacement benefit; and, 2) the Insurer s right to assess his ongoing entitlement to benefits; were not valid medical and other reasons as required by the SABS, the portion of the Notice which stated that the assessment was to determine the timelines for recovery and future prognosis in relation to your injuries did constitute medical reasons in this case. Vice-Chair Richards noted that prior to the Notice, the Applicant had most notably a Disability Certificate which indicated his symptoms were resolving minimally, and an OT report which spoke extensively about the Applicant s condition, including a reference to his planned visit to meet with a surgeon due to extensive damage to his left foot. Vice-Chair Richards considered it significant that the OT indicated he would wait for the results of the medical appoints and possible surgeries to see if the Applicant s self-care needs would increase, and that a return to ADL s program may need to be put on hold if further surgery was required. Vice- Chair Richards found no evidence that the Applicant presented information to the Insurer after meeting with the surgeon, or information

15 as to how long he would be in recovery if he required surgery, and noted it was clear that the Applicant would cook the opportunity to be assessed by medical professionals of his own choosing, indicating his condition had not stabilized. In this case, Vice Charis Richards found it reasonable for the Insurer to obtain an insurer examination to determine the timelines of the Applicant s recovery and future prognosis in relation to his injuries which were valid medical and other reasons. As the Notice was valid, Vice-Chair Richards held the Applicant did not comply with section 44 of the SABS, and was precluded from receiving income replacement benefits for the period of March 25, 2016 to July 7, 2016 for failing to attend the insurer s examination. Case Name: J.W. and Echelon General Insurance Company, 2016 CanLII Date of Decision: November 21, 2016 Adjudicator: Vice-Chair D. Gregory Flude Hybrid Teleconference with submissions In Writing The issue in dispute was entitlement to income replacement benefits. From a physical perspective, Vice-Chair Flude found that the Applicant s left wrist injury was the cause of his inability to return to work, but on a review of the evidence, his left wrist pain had resolved. To the extent that the Applicant still reported pain in the left wrist, Vice-Chair Flude found that he did not leave any of his various post-accident jobs because of difficulties with his wrist, and what pain he did have arising out of the accident was manageable in the workplace. From a psychological perspective, the Applicant had a history of depression and Vice-Chair Flude preferred the diagnoses of the psychologists who had a long-term relationship with the Applicant, which Vice-Chair Flude opined provided greater insight into the Applicant s condition than the most thorough single examination. Relying on these opinions, Vice-Chair Flude found that the Applicant suffered from chronic post-traumatic stress disorder and severe adjustment reaction with depressed mood, and that the severity of his current condition was materially related to the accident, and was not capable of working. 20. Although the parties did not submit any evidence relating to employment for which the Applicant might be reasonably suited by education, training, or experience, Vice-Chair Flude accepted evidence of the Applicant s unsuccessful attempts to return to the beauty industry or find a position in general retail as demonstrating that she was completely unable to engage in any employment pursuant to s. 6(2)(b) of the SABS.

16 16 Case Name: M.M. and Northbridge Personal Insurance Corporation, 2016 CanLII Date of Decision: November 29, 2016 Adjudicator: Lan An 21. In Writing, Preliminary Issue The issue was whether the Applicant was in compliance with the Tribunal s Case Conference Order and disclosure Rules 9 and 10 of the LAT Rules of Practice and Procedure. The Insurer raised a preliminary issue in its hearing submissions that four sets of documents should be excluded from the hearing as the Tribunal made an order at the Case Conference that the parties were not permitted to submit new documentation following the Case Conference. Adjudicator An reviewed the Tribunal s Case Conference Order and found no mention of the limits of the documents to be used at the hearing to documents disclosed at or before the Case Conference. Adjudicator An found that the Applicant was also compliant with Rule 9, but not Rule 10 of the LAT Rules of Practice and Procedure which required that experts reports be served by the party bringing the application at least 30 days before the hearing. Despite this, Adjudicator An found that Rule 3.1 allowed the Rules to be liberally interpreted and applied, and to be varied by the Tribunal to facilitate a fair, open and accessible process to allow effective participation by all the parties. In this case, Adjudicator An found the expert report was relevant, necessary, and would assist the Tribunal and parties to come to a resolution, and therefore was admissible. Adjudicator An cured any prejudice to the Insurer by allowing a further 30 days to review the report and make submissions and submit material as necessary. Case Name: D. J. and Aviva Insurance Canada, 2016 CanLII Date of Decision: November 29, 2016 Adjudicator: Jeanie Theoharis In Writing The issue in dispute was whether the Applicant s injuries fell outside the MIG, along with reasonableness and necessity of several treatment plans. Adjudicator Theoharis accepted that the Applicant had psychological impairments as a result of the accident relying on the Applicant s social worker s report and evidence, which noted complaints of apparent psychological symptoms and issues, specifically symptoms of depressions, cognitive issues and anxiety symptoms. She found these psychological problems were reflected in the family doctor s clinical notes and records, and in the Insurer s psychologist s objective findings, and

17 therefore inconsistent the Insurer s psychologist s conclusions of no psychological impairment as a result of the accident. Adjudicator Theoharis therefore found that the Applicant s injuries were outside of the MIG. Adjudicator Theoharis also found that none of the five treatment plans in dispute were reasonable and necessary as they were requests for facility based treatment for musculoskeletal injuries, and accepted the Insurer s assessors conclusions that the plans were not reasonable and necessary as the Applicant had reached maximal recovery for her sprain/strain-type injuries. Adjudicator Theoharis further rejected the Applicant s submission with respect to her physical assessments that the Insurer s male assessors opinions should be disregarded on the basis of her cultural tendency as a woman to mistrust and not openly convey and identify health issues to male practitioners whom she was meeting for 1-2 hours, noting that this issue had not been raised before by the Applicant or her lawyer at the time of the assessments, and female-only assessors had not been requested. Of the cost of examinations in dispute, Adjudicator Theoharis found only the social work assessment and disability assessment were reasonable and necessary as the Applicant had sustained psychological impairments and the treatment of those impairments continued and had not yet been rectified by the treatment undertaken. The orthopaedic assessment was not reasonable and necessary as the Applicant s injuries had been successfully treated pursuant to the MIG. Case Name: L.W. and The Co-operators General Insurance Company, 2016 CanLII Date of Decision: December 1, 2016 Adjudicator: Chris Sewrattan In Writing The issue in dispute was whether six treatment plans were reasonable and necessary after the Applicant was involved in a rear-end collision with a bus on November 29, 2013, and a further rear-end collision on June 19, Adjudicator Sewrattan did not accept the Insurer s position that the Applicant s injury was minor and lacked objective evidence. Adjudicator Sewrattan accepted the progress note of the Applicant s chiropractor who found that the Applicant had radicular nerve pain around the thoracic spine and was experiencing a regression in her rehabilitation with decreased chiropractic care, acupuncture, and massage therapy.

18 18 Based on the Applicant s chiropractor s clinical notes, progress note, and two MRIs, Adjudicator Sewrattan found the Applicant suffered a chronic impairment to her thoracic spine. Adjudicator Sewrattan found that the Applicant s chiropractor s diagnosis of radicular nerve pain was uncontested on the evidence. The treatment plans were therefore found to be reasonable and necessary for relieving the Applicant s pain, and therefore improving her function. Adjudicator Sewrattan also noted that surveillance and Facebook images had been entered into evidence, which when taken at the highest weight it could carry showed that the Applicant was able to perform movements that may not align with the pain she described to her chiropractor. However, Adjudicator Sewrattan accepted the Applicant s countersubmission that the surveillance and Facebook images could not capture the sensation of pain that the Applicant felt when performing the movements, and found that it did not diminish the credibility of the Applicant or her argument. 23. Case Name: and Old Republic Insurance Company, 2016 CanLII Reconsideration Decision Date of Decision: December 2, 2016 Adjudicator: Linda P. Lamoureux, Executive Chair 24. Unknown The Insurer sought a reconsideration of the Tribunal s decision in Applicant and Old Republic Insurance Company, October 17, 2016 entitling the Applicant to receive a weekly income replacement benefit in the amount of $ from March 25, 2016 to May 21, Executive Chair Lamoureux found was that reinstatement of income replacement benefits to the end-date set by the adjudicator was more accurately deemed to be an ongoing benefit, and fettered the insurer s ability to adjust the Applicant s file, for example if she returned to work before May 21, Executive Chair Lamoureux therefore granted the Insurer s request for reconsideration and found that the Tribunal made an error in law in awarding the Applicant income replacement benefits up to a specific date into the future, and varied the Order to have the benefit payable and ongoing until no longer owing in accordance with the applicable provisions of the Statutory Accident Benefits Schedule. Case Name: M.M. and Wawanesa Mutual Insurance Company, 2016 CanLII Date of Decision: December 6, 2016 Adjudicator: Anna Truong In Writing

19 19 The issue in dispute was whether the Applicant sustained predominantly minor injuries under the SABS, and if not, entitlement to a neuropsychological assessment and chiropractic treatment plan. 25. Adjudicator Truong noted that while the Applicant s treating psychologist recommended the Applicant undergo a neuropsychological assessment, the assessor did not state that the Applicant s symptoms prevented her from recovering under the MIG, and did not indicate that her neurosymptommatology fell outside the MIG. Further, the Applicant s family physician s records did not indicate the Applicant sustained anything other than minor injuries as a result of the accident. Adjudicator Truong also found that the family doctor s records submitted did not document a pre-existing condition that prevented the Applicant from achieving maximal recovery under the MIG. Adjudicator Truong concluded that the Applicant sustained predominantly minor injuries as a result of the accident. Case Name: TD General Insurance Company and A.B., 2016 CanLII Date of Decision: December 7, 2016 Adjudicator: Avvy Go In Writing The issue was the overpayment of income replacement benefits from February 20, 2014 to May 22, 2014 inclusive on the basis that the insured had returned to work. The Tribunal received submissions from the Insurer only, despite attempts to contact the insured, and proceeded only on the Insurer s submissions. Adjudicator Go did not accept the witnessed but unsworn statement of a HR manager with no direct knowledge of the insured s work history as reliable, and therefore did not find that the insured returned to work on February 20, However, Adjudicator Go did accept an OCF-3 in which the insured reported that he had returned to work, despite the same OCF- 3 also noting ongoing issues faced by the insured including a complete inability to carry on a normal life and suffering from a substantial inability to perform housekeeping and home maintenance services for an estimated period of 9 to 12 weeks. Adjudicator Go found the OCF-3 more reliable as it was prepared by a health professional as part of the ongoing assessment of the insured s eligibility for benefits. Adjudicator Go also found that despite sending the first notices of the overpayment to the insured at a wrong mailing address, this address was the same one used on the OCF-3 and it was up to the insured to inform their Insurer of an address change. In addition, the insured s lawyer was

20 copied on all the notices, and did not notify the Insurer of the address change until more than 12 months had passed from the first notice, but did not explain why they had not advised sooner about the error with the insured s address, after which point the Insurer began writing to the insured at the new address. Based on the evidence, Adjudicator Go accepted that the Insurer provided the requisite notice under section 52 of the SABS. As a result, Adjudicator Go found that the insured returned to work on May 1, 2014, and should repay the income replacement benefit he received between May 1, 2014 to May 22, 2014 inclusive, with interest. Case Name: N.C. and RBC General Insurance Company, 2016 CanLII Date of Decision: December 7, 2016 Adjudicator: Chris Sewrattan In Writing The issues in dispute were the entitlement to income replacement benefits, whether he was entitled to claim a weekly business loss amount, as well as whether the Applicant s injuries fell under the MIG, and entitlement to two treatment plans. The accident occurred on August 10, 2015, and the Applicant underwent an MRI on November 19, 2015 which revealed a small amount of fluid in the distal radialulnar joint suggesting carpal tunnel syndrome. The Applicant attended a further assessment with a neurologist since the commencement of the LAT Application which found possible crush syndrome with ulnar neuropathy below the elbow, and since the release of the neurologist report the Insurer had approved an assessment beyond the MIG. Adjudicator Sewrattan noted that the Insurer s submissions were grammatically confusing regarding its MIG position, but concluded that based on the medical evidence the Applicant was entitled to treatment beyond the MIG. Adjudicator Sewrattan rejected the Insurer s position that entitlement to the Treatment Plans should be based on the information available to the insurer at the time the plans were submitted, and found that on a balance of probabilities based on the evidence presented that the treatment plans were reasonable and necessary. The parties agreed that the Applicant was entitled to an income replacement benefit from January 2016 and ongoing but disagreed on the amount. Multiple accounting reports were submitted by both parties and Adjudicator Sewrattan accepted one of the Applicant s accountant s

21 Case Name: Date of Decision: December 9, 2016 Adjudicator: Ruth Gottfried In Writing reports which were based on the Applicant s invoices and accounting books which was found to be more convincing than the others. Adjudicator Sewrattan rejected the Applicant s claim for business loss from January 2016 and ongoing and agreed with the Insurer s position that one may post a business loss only while they are operating a business pursuant to section 4(4) of the SABS and section 9(2) of the Income Tax Act. N.E. and Waterloo Regional Municipalities Insurance Pool, 2016 CanLII The issues in dispute was whether the Applicant s injuries fell within the MIG, entitlement to several treatment plans, and variation of the income replacement benefit amount. The Applicant was riding his bicycle on September 17, 2015 when he collided with a transit bus turning directly in front of him. He was taken by paramedics to the hospital, but no hospital records were submitted into evidence. On October 6, 2915 he attended an urgent care facility with complaints of back pain. An MRI of the thoracic spine was obtained on March 9, No doctor commented on the MRI, but the Applicant s legal representative gave an opinion as to the findings. However, Adjudicator Gottfried gave no weight to the legal representative s opinion, noting instead that medical expert opinion or evidence would have been of assistance. Adjudicator Gottfried noted that of the evidence submitted, clinical notes and records of the Applicant s chiropractor were brief, sometimes cryptic, and often illegible and described acute sprain and strain injuries to the thoracic and lumbar spine, with resolved arm injuries. Adjudicator Gottfried further found no medical evidence was provided to support the Applicant s position that his injuries had gone from acute to sub-acute and that he now suffered from chronic pain. Adjudicator Gottfried further rejected the Applicant s position that the OCF document system was the only way for claimants to effectively communicate with the insurer, and that even with a lack of funding to obtain assessments to speak to the Insurer s assessors, Adjudicator Gottfried found other evidence could be submitted to support a variety of claims, not limited to clinical notes and records from treating physicians, consultation reports from medical referrals, employers records, government documentation,