Volume. 4 Issue. 31 – August 12, 2020
In this week’s LAT inFORMER, we examine three recently released “own Reconsiderations”, one where the finding of an “accident” was upheld, and two where there were multiple reversals including an award.
One of the significant changes to reconsiderations implemented on February 7, 2019 was that reconsiderations can be heard by the adjudicator who decided the original matter.
What are the odds of success in “own recons”? With 2 of the 3 reconsideration requests reviewed this week being successful, we review the impact of this change on reconsideration outcomes.
A total of 81 “own Reconsiderations” have been released with a markedly different success rate, as opposed to the success rate of reconsiderations heard by another Tribunal member.
In Trending – The Odds of Success in “Own Recons”
Doubling Down – The Vice-Chair, hearing her own Reconsideration, in 19-004361 v Aviva, essentially doubles down on an earlier finding that an Applicant falling whilst walking towards a (Lyft) vehicle was involved in an accident. In a more detailed decision, it was once again determined that there were two direct causes, the weather conditions (snow/ice) as well as the distance the Applicant needed to travel to get to the vehicle.
The weather conditions were confirmed as one cause of the accident, however, were not found to constitute an intervening cause. Further, “the Lyft vehicle contributed (to) the applicant’s injuries because the car stopped less than half-way up the driveway.”
The Vice-Chair does admit to an earlier error, wherein it had been noted that the vehicle could not pull more than halfway up the driveway, as there had been “no strong evidence as to why the Lyft vehicle stopped where it did.” However, this did not “change my decision that the position that the Lyft car stopped on the driveway was a direct cause of the accident.” Despite this however, the Vice-Chair appears then to make the case that in fact the vehicle actually could have pulled further up the driveway, which was what the Applicant had “expected” it to have done.
The reasoning of the Vice Chair leads one to query whether this would have been considered an “accident” if the Lyft driver in fact could not have gotten further up the driveway, or if the Applicant fell immediately upon stepping onto the driveway proximate to where the vehicle could have stopped.
No NEB Deductible Period? – In a curious line of reasoning, the Tribunal in 18-006820 v Aviva, firstly allowed the introduction of a new piece of evidence despite the fact that the “correspondence does not meet the first two parts of the new evidence admissibility test.” The Rules require 1) there is evidence that was not before the Tribunal when rendering its decision; 2) could not have been obtained previously by the party now seeking to introduce it, and; 3) would likely have affected the result.” Despite this explicit requirement, “I am waiving the requirements of the first two parts of the test on my own initiative pursuant to Rule 3.1 of the Rules to ensure a substantively fair process and result”.
The document in question, a response to the claim for NEB, impacted both the period for which NEB was required to be paid, as well as the decision to award a delay due to what had appeared to be a significant delay in responding. It confirmed that they had responded on October 25 2016, not March 2017 as originally thought. As a result, the Tribunal cancelled an award of 25% on the NEB, as an award was not indicated solely on the basis that the Respondent “got it wrong”.
The Tribunal also found that they had erred in terms of when the Applicant had in fact submitted a completed application. Finding now that the correct date was the October 25, 2016 date, this replaced the earlier date of September 22, 2016. The Tribunal disagreed with the Respondent that the earliest date upon which the Applicant could be entitled to payment of NEBs would be at the conclusion of the mandatory 26-week waiting period. The fact that the Respondent had not complied with s.36(4) triggered the mandatory language of “shall” pay. The suggestion that the 26 week waiting period applies “would render its obligations in s. 36(4), and resulting repercussions in s. 36(6), meaningless.”
The Tribunal has consistently found that non-compliance by an insurer cannot oblige them to pay anything that they are otherwise required to pay under the Schedule. However, at least one adjudicator now appears to interpret this differently. It is also presumed that this matter was adjudicated as per the applicable transitional rules, else the 26 week waiting period would have been a non issue for this September 2016 accident. Further, it remains to be seen whether the LAT Rules intend that one can override the two preconditions for “new evidence” solely based upon material relevance. The case below suggests that this particular decision will be seen as an outlier.
Pain is Not Enough– In 18-009182 v Aviva, the Tribunal, in direct counterpoint to the foregoing decision, refused to allow for the introduction of new email evidence by the Applicant, as they failed to provide any submissions on why this email evidence could not have been obtained prior to the hearing. The evidence in question could have been previously obtained and provided and the Reconsideration process “is not an opportunity to correct any evidentiary gaps noted from the original decision.”
Considering then the Respondent’s request for reconsideration, the Tribunal conceded an earlier error, and as a result now found that three previously awarded Treatment Plans were not reasonable and necessary. Originally, the Tribunal had found that as the Applicant suffered from pain, she was entitled to seek chiropractic treatment for same. The resultant failure to consider whether there was evidence that treatment was producing a positive result, was “inconsistent with other Tribunal case law.” Finding now that the goal of pain reduction was not being met, the error was “significant enough that I would likely have reached a different conclusion.”
Related LAT inFORMER issues or other publications:
LAT Rule Changes Effective February 7, 2019
Justice Delayed…
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