Volume. 3 Issue. 45 – December 18, 2019

The LAT Act – No Jurisdiction or Obligation?

Limitation at the LAT has been a matter of contention ever since we were first introduced to the LAT Act in the North Blenheim reconsideration December 2017. This past September, in 18-001196 v Certas, the Tribunal ruled it does not have jurisdiction to extend the limitation period under the LAT Act. Although the Certas decision was raised in an unrelated October 2019 Divisional Court appeal, the Court declined to intervene until the matter at hand was finally disposed of.

In 19-001096 v Aviva, a matter just published yesterday, the Adjudicator, who also heard the Certas decision, relied on her own finding to confirm that the Tribunal does not the jurisdiction to extend the limitation period.

Once again, to quote the Adjudicator:

“Insurance Act used to have a section that imposed a limitation period for accident benefit claims that was repealed when the dispute resolution process was transferred to the Tribunal. If the Legislature had intended to give the Tribunal the discretion to extend the limitation period for appealing a denial of accident benefits, the limitation period in s.281.1 (1) of the Insurance Act would not have been repealed, but would have been amended to state that it was subject to the discretion of the Tribunal in accordance with the LAT Act.”

This view was not shared in the case that follows, where the Vice-Chair found on reconsideration that it is clear that the Tribunal not only has the jurisdiction but is also “under an obligation” to point out the LAT Act.

Entitled to Finality – In 17-002799 v Gore Mutual, (unreported decision submitted by Danielle Lecours at Camporese Sullivan Di Gregorio), the Vice-Chair found on reconsideration that it is “clear that the LAT is under an obligation to point out [the LAT Act] and to give parties the opportunity to make submissions”.

The Applicant argued that a “mere 5 month delay” should work in their favour, however the Vice-Chair, citing Manuel v Registrar, noted the logical consequence would be that “a relatively short delay would always result in an extension, undermining the very purpose of appeal periods”. In terms of prejudice, it was found that the Respondent was “entitled to finality in its dealings…(and) the concept of justice must also incorporate the public interest in the finality of proceedings”. The LAT Act was only appropriate for “special circumstances…not a catch-all where an extension is granted automatically because it may deny a litigant the right to a hearing”.

Costly Flawed Assessment Procedures

In the following 3 cases, the Tribunal considers the importance of clinical records for an IE, an inappropriate rationale for requesting a psychological assessment and whether the Applicant’s psychological assessment was worth the $2,000 sought.

IE Absent Notes Given Little Weight – In 18-008445 v Aviva, the Tribunal found that “the lack of disclosure of clinical notes from the assessment is concerning regarding the reliability of the report”. The IE specifically stated that a second practitioner was present to assist with note taking, however upon request, it was stated that there were no additional notes other than the IE assessment report.

The Tribunal agreed with the Applicant that “the reliability of the report comes into question because the applicant has no way of verifying the testing used during the assessment or the accuracy of the report”. Further, “in the absence of the notes and the time gap between the assessment and the report I cannot rely on the accuracy [of] the information contained in the report”.

Begging the Question – In 18-003866 v The Personal, a psychological pre-screen report was found less persuasive than the IE report “because it was conducted for the purposes of bolstering a claim for a psychological assessment”. The pre-screen indicated, “the purpose of this report is to explain and provide evidence to show why [the applicant] will require a psychological assessment and counselling.”

The Tribunal found that “this shows the assessor predetermined the applicant will require psychological intervention, which is contrary to the purpose of a psychological assessment which is to determine the extent of the applicant’s psychological injuries and the appropriate treatment, if required.”

Not Worth $2,000 – In 18-011027 v Aviva, the Tribunal accepted the Respondent’s argument that the Applicant needed to prove that a partially approved treatment plan for a psychological assessment was worth the $2,000 claimed. While we have reported upon this previously, we have also noted that not all adjudicators accept this argument. In this case at hand, the Tribunal noted that “the treatment plan is not particularized, so it is difficult to discern what is necessary for the testing in order to determine whether the cost for same is reasonable”.

The Respondent relied upon their IE assessor’s estimate as to the time required for the proposed assessment. The position thus taken “was based on reasonable time and monetary estimations, which [the Applicant] was required to rebut. In this case, [the Applicant] did not provide evidence to justify entitlement to the amount in dispute, so I find the remaining unapproved portion is not reasonable and necessary”.

Degrees of LATitude

Psych Impairment Still Within the MIG – In 18-007561 v Security National, the Tribunal accepted that the Applicant suffers from a psychological impairment, however this was found to be “on the less severe spectrum.”, and the injuries were found to be within the MIG. This was based upon no apparent impact on functional abilities as well as the lack of relevant reporting to the family doctor. As a result, “the psychological impairment, therefore, does not override the fact that the applicant’s injuries are predominantly minor in nature”.

Removed From, Yet Remains Within, the MIG? – In 18-005595 v Aviva, the Tribunal preferred the evidence of the Applicant’s assessor, finding that the Applicant suffered from a psychological impairment which removed her from the MIG. However, the Applicant did not provide any medical evidence that “she sustained physical injuries in the accident which would remove her from the MIG”. Therefore, given the failure “to show that she suffered physical injuries that are not considered to be minor”, the Applicant was not entitled to 2 physiotherapy Treatment Plans.

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