Print

 

 Volume. 8 Issue. 3 – January 17, 2024


This week the Tribunal considers, in ‘No Election No Problem‘, whether the applicant is barred from proceeding due to the failure to provide an OCF10 Election of Benefits, as well as whether the matter was appropriate to extend limitation under the LAT Act.

In ‘Approvals Determine Limits, Not the Incurred‘ the Tribunal considers whether an award is appropriate in a medical limits case.



Winter Virtual Training Courses

Secure your seat for inHEALTH’s 2024 Winter Virtual Training Sessions. 

  • BI Fundamentals: January 29th – February 2nd, 2024
  • SABS Expedited: February 26th – March 1st, 2024

*Eligible Participants receive 9 Substantive – CPD hours upon course completion

Course details & register here +



LAT Act Invoked

No Election No Problem – In 22-009078 v Economical, the Tribunal considered whether the Applicant Ahmed was barred from proceeding to a hearing for the non-earner benefit in dispute because the applicant failed to file an OCF-10 to confirm an election of benefits, in addition to the fact that Ahmed failed to file their dispute within the two-year limitation period. Economical also contended that Ahmed was equally barred from proceeding to a hearing for a psychological assessment, given the failure to dispute their denial within the two-year limitation period.

Following submission of her application for benefits, Ahmed was advised that she was not eligible for income replacement benefit (“IRB”) based on the information that was provided. She was further requested to provide a disability certificate (“OCF-3”) for the respondent to determine whether she would be eligible for the non-earner benefit (“NEB”). Following receipt of the OCF3, Economical arranged an insurer’s examination (IE) that determined Ahmed was not entitled to NEB. Subsequently, Ahmed filed an application with the Tribunal, seeking entitlement to both IRB and NEB.

Economical countered that Ahmed had failed to submit an OCF-10 election form and that she cannot claim both IRB and NEB. Following review of the evidentiary record, the Tribunal found there to be no evidence that Economical provided Ahmed with notice as per the requirements of section 35(1), wherein they were obliged to provide notice for the need for the OCF10. Further, there was no evidence that Economical had ever in fact provided Ahmed with the OCF10, nor advised as to the need to provide an OCF10. While Ahmed had ultimately withdrawn the claim for IRB, she was nevertheless not barred from pursuing the claim for NEB in the absence of the OCF10.

Turning next to the contention that Ahmed was time barred from proceeding with the claim for NEB and the psychological assessment, the Tribunal found for a fact that the filing for NEB was two days late, the psychological assessment 23 days late. Therefore, the Tribunal considered whether the case was appropriate to extend limitation by way of s.7 of the LAT Act. The four factors (the Manuel factors) were then discussed in turn.

The Tribunal accepted that Ahmed had a bona fide intention to appeal prior to the limitation date as the evidence shows that she requested documents from the respondent and facilities for the purpose of disputing the denials at the Tribunal within the limitation period. They found the length of delay to be minor. There was determined to be prejudice to both parties, and as to the merits, neither party addressed the same.

Ultimately, the Tribunal accepted that Ahmed “met her onus to demonstrate that the limitation period for commencing her application should be extended because the delay is so minor that there is no prejudice. As such, I am exercising my discretion under section 7 of the LAT Act to extend the limitation period and allow her to proceed with her application before the Tribunal.”



Approvals Determine Limits, Not the Incurred

No Award in Limits Case – In 21-009116 v TD Insurance, the Applicant Correia, injured in a January 2016 MVA, sought entitlement to an OCF18 totalling $2018 for a psychological assessment. Denied by TD in June 2021, on the basis that an approval of the same would exceed the available limits of $50,000. It was indicated that there had been approvals of $49,562.99, with payments to date of $38,812.92.

In October 2021, Correia confirmed that he would no longer seek treatment for the previously approved yet not incurred items, and as a result, TD immediately approved the request for the psychological assessment. However, Correia opted to proceed to hearing with respect to the claim for an award.

The Tribunal did not agree with Corriea that it was the obligation of TD to confirm how much had actually been incurred, agreeing with the Tribunal in P.K. v. Coseco Insurance that an Applicant was in a better position than the respondent to know how much of the policy limit for medical and rehabilitation benefits had been expended as the applicant was the one consuming the services. The Tribunal further did not agree that there were sufficient funds available prior to the ultimate approval, as the available calculations prior to same would not allow for the approval given the approvals to that date.

Finally, the Tribunal did “not agree with the applicant’s argument that it was unnecessary for him to confirm that he no longer wished to utilize the remaining amounts from previously approved treatment plans before the respondent could approve the denied treatment plan. The applicant has not directed me to any authority to support that the respondent is required to approve treatment plans in excess of the policy limits. Further, pursuant to s. 18(3) of the Schedule, the respondent is not required to pay for medical and rehabilitation benefits in excess of the policy limits.” Accordingly, Correia was not entitled to an award as requested.



Access inHEALTH’s research resources through Live Chat and receive your OAR. Get It now!

 

Archive of LAT Updates

June 4, 2025: MIG Escape Justifies CAT Assessments

CAT, MIG

June 2, 2025: Late Onset (Two Years) Shoulder Pain Remains in MIG

MIG

May 28, 2025: CRA Records not Necessarily Determinative Absent Corroborating Documentation

IRB

May 26, 2025: Insomnia a Pre-Existing Condition

MIG

May 16, 2025: First Year of Self Employment Results in $Nil IRB Despite Demonstrated Earnings

IRB

May 12, 2025: Res Judicata Not Waived For New MIG Hearing

MIG

April 30, 2025: Tribunal Confirms Four Class 4 Marked Impairments

CAT

April 28, 2025: MIG Not Conceded Despite Approved CAT Assessments

MIG

April 23, 2025: Court Reverses Tribunal’s Unreasonable Adjournment Refusal

Adjournment, CAT, Divisional Court

April 21, 2025: MIG Escape on Fractured Tooth 15 Months Later

MIG

April 16, 2025: Deficient Notice Renders NEB Payable

NEB

April 14, 2025: MIG Valid Medical Reason

MIG

April 9, 2025: Bus Travelling Over Elevated Manhole Cover Satisfies “Collision”

Definition Accident

April 7, 2025: Four OCF 18’s Payable Despite MIG Hold

MIG

March 26, 2025: Post 104 IRB Ongoing for Non-CAT

CAT, IRB

March 24, 2025: 30% Award for Failure to Review CNRs Overturned on Reconsideration

MIG

March 19, 2025: Yes to CAT, No to Post 104 IRB

CAT, IRB

March 17, 2025: Imaging Report Alone Insufficient to Establish Causation

MIG

March 12, 2025: Tribunal Rules Again on Matter Referred Back by the Court

Definition Accident, Divisional Court

March 10, 2025: Res Judicata Waived on New Evidence

MIG

March 5, 2025: No Criterion 8 CAT as Physical Pain the Limiting Factor

CAT

March 3, 2025: Cause of Shoulder Tear Degenerative or MVA Related?

MIG

February 26, 2025: NEB Payable to 104 Week Mark Due to Technical Breaches

NEB

February 24, 2025: Doctor Not Required to Provide Diagnosis

MIG

February 19, 2025: Court Sets Aside Tribunal S.32 Notice Decision

Breaking News, Div Court, Limitation Period

February 12, 2025: Post 104 IRB Despite Employment & No CAT As Only Two Marked Impairments

CAT, IRB

February 10, 2025: GP Evidence Preferred over IE Regarding Concussion

MIG

February 5, 2025: No Election Required Despite Endorsement of IRB & NEB

Procedure, SABS

January 27, 2025: CNR’s + Imaging Determinative of Complete Shoulder Tear

MIG

January 22, 2025: Court of Appeal Upholds Divisional Court Decision

Divisional Court, NEB, Reconsideration

January 20, 2025: GP’s Diagnosis of “Head Injury” Prevails

MIG

January 15, 2025: Tribunal Accepts Neither Expert in Awarding Pre But Not Post 104 IRB

IRB

January 13, 2025: A Brain Contusion is Not Enough for a Concussion Diagnosis

MIG

January 9, 2025: Court Awards $69K in Costs for Apparent Miscarriage of Justice

Divisional Court,Costs

January 6, 2025: Corroborative Evidence Not Necessarily Required in Psych Diagnoses

MIG

December 18, 2024: Applicant Successful in CAT Case Where Respondent’s Expert Unavailable

CAT

December 16, 2024: Applicants Lose on Flawed Interpretation of the Schedule

MIG

December 11, 2024: Court Sends Paraplegic Matter Back to Tribunal re “Accident”

Definition Accident, Divisional Court, Reconsiderations

December 9, 2024: Pre-Existing Conditions MIG Escapes?

MIG

December 4, 2024: Court Remits $770K Award Worthy Matter Back to Tribunal

Award, Divisional Court, IRB

December 2, 2024: GP Questionnaire Does Not Trigger MIG Escape on Pre Existing

MIG

November 27, 2024: Court Remits $200K Award Worthy Matters Back to Tribunal

Award, Divisional Court, IRB

November 25, 2024: Pre-Screen Not Psychological Diagnosis

MIG

November 20, 2024: IE Not Reasonable or Necessary – No to CAT & IRB

CAT, IRB, Procedure

November 18, 2024: No Evidence Pre-Existing Conditions Prevent MMR

MIG

November 13, 2024: Applicant’s Explanation for Delayed Application Found Reasonable

Procedure

November 11, 2024: GP Concussion Diagnosis Accepted as Legitimate

MIG

November 6, 2024: Court Remits “Unsafe” Decision Back for Rehearing

CAT

November 4, 2024: Submissions Do Not = Evidence

MIG