Volume. 5 Issue. 3 – January 20, 2021
In this week’s edition of the LAT inFORMER, we highlight three novel cases.
1. Explanation accepted for a 6 year delay in applying for benefits
2. A new car was found reasonable rehab, plus an award
3. Slipping on ice whilst in the process of exiting a vehicle not ‘ordinary’ use
In case you missed it read our latest blog: LAT – Inconsistency & The Price Paid!
6 Year Delay Reasonable
Get Out of Jail Card – In R.C.v Co-operators (19-012539), the Tribunal considered the case of R.C., injured in an April 2013 accident, who did not apply for benefits until August 2019. Complicating matters was the fact that within two weeks of the accident R.C. was incarcerated, and over the ensuing four years was in and out of provincial institutions, until he was finally released in November 2017. Further, R.C. struggles with drug addiction and mental health illness and primarily lived on the streets when he was out of prison. The Respondent took the position that R.C. had failed to make his application in accordance with the requirements of s.32 the Schedule and had not provided a reasonable explanation for the delay as per s.34.
The Tribunal found that R.C. had in fact met his onus to present a reasonable explanation under s.34 to account for the six-and-a-half-year delay. It was accepted that R.C.’s “transient” circumstances, being “no fixed address, no support system, an addiction supported by theft, significant mental illness, periods of incarceration followed by periods of homelessness, his alleged physical injuries from the accident—would have resulted in a genuine inability to pursue a benefits claim in the days, months and, seemingly, years following the accident.”
Following his eventual 2017 release from prison, he “would have simply and quite reasonably been focused on his survival, as he was seemingly living on the streets…(and) the need to ensure basic survival is a reasonable explanation for not notifying [the Respondent] of the accident.”
12k Towards New Car ‘Entirely’ Reasonable
New Car Purchase Awarded – In Halstead v Aviva (19-013941), the Tribunal considered a claim for $12,341.56 towards the purchase of a new vehicle. Halstead, who sustained a gluteal tear in her left hip amongst her injuries, required a new vehicle in order to continue working, which consisted of her having to make over 100 deliveries 2 days per week of a newspaper she produced. Her smaller vehicle resulted in unnecessary strain on her hips while driving and made it more difficult and painful for her to get in and out of when making deliveries, and the lower trunk caused her to strain her back when removing deliveries.
In its denial, a proper medical reason was not provided, and a proposed IE was never secured. Further, it was not until three years later that for the first time causation was argued, with the Tribunal finding in the absence of any medical evidence suggesting the hip condition was not accident related, this to be an “impotent defence.” The Tribunal found that Halstead’s handling of her post-accident situation and her claim was “entirely reasonable.” The OT reports in support of the claim were “very thorough and measured in what would constitute a reasonable and necessary expense to aid in the applicant’s recovery and job performance.” The claim was allowed as the shift to a larger vehicle served to provide “relief from her accident-related pain and an unimpeded ability to perform her job”.
The Tribunal also found that the Respondent exhibited “excessive, imprudent, stubborn, inflexible, unyielding or immoderate adjusting conduct that should attract an award.” The combination of “improper denial, the failure to schedule an IE, the subsequent delay and unyielding position that compounded payment to be unreasonable, unsupported” was “worthy of deterrence. Accordingly, I find a ~10% award in the amount of $1,200.00 is appropriate”.
Exiting a Vehicle Not “Ordinary”?
Exiting a Vehicle Not “Ordinary”? – Until now, it has generally been settled law at the Tribunal (see 17-008078 v Intact and 19-012037 v Economical) that the act of slipping on ice while exiting or entering a vehicle will not be seen as an intervening act. However, in Mahoney v Co-Operators (19-007708), the Tribunal found, “The applicant’s ordinary and regular use of her automobile ended once she started to exit it.” Mahoney who curiously submitted no evidence at the hearing, contended that “while stepping out of her car, she put her purse on her arm and was in the process of closing the door when she slid on ice and suffered a compound fracture of her ankle.”
The Tribunal agreed with the Respondent that “the issue here is whether the applicant’s vehicle was a direct cause of the applicant’s injuries.” The Tribunal found, “the fact that she was transported to an icy parking lot in her automobile and slipped on the ice upon exiting the vehicle does not make the incident part of the ordinary course of the use or operation of the automobile…the applicant’s alleged injuries were not a consequence directly caused by the use or operation of the automobile but were caused by a later intervening cause, specifically that she slipped on ice on the ground.”
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