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 Volume. 5 Issue. 54- December 15, 2021



This week’s edition features two must read cases, the first case involves the applicability of discoverability further to Tomec regarding an IRB claim, initiated well over 4 years post accident. Does this mean IRB claims are inherently ‘open ended’?

In the second case, the Tribunal references and penalizes behaviour that attracted a 35% award against the insurer.


 

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IRB Entitlement Now Open Ended Courtesy of Tomec?

Tomec and IRB DiscoverabilityYes Again – We have earlier reported upon issues involving considerations of the “discoverability” principle and claims for IRB. Once again, the Tribunal in Pena v Allstate (20-007893) wrestled with this concept.

Pena, injured in an August 5, 2014 accident returned to work August 7, 2014. Following receipt of his application for benefits, Allstate issued an explanation of benefits (EOB), indicating that Pena was not entitled to receive an income replacement benefit because he had returned to work during the seven-day waiting period. Subsequently, Pena submitted an OCF3, indicating there to be no disability from employment, Allstate issuing a further denial upholding the original denial based both upon the OCF3 as well as the employer’s confirmation of a return to full duties September 27, 2014.

Pena continued to work until March 13, 2019, and on June 4, 2019 submitted an OCF3 indicating both a substantial inability to perform his employment tasks as well as a complete inability to carry on a normal life. In response, Allstate issued an EOB denying IRB as the claim was statute barred for being made outside the two-year limitation period. Allstate submitted that the Court of Appeal decision in Tomec cannot be analogized to a claim for income replacement benefits, and further that “in line with Bonilla v. Preszler the limitation period in s. 56 of the Schedule is triggered by a single event, the refusal to pay an income replacement benefit claimed…”.

The Tribunal however agreed with a statement made in an earlier decision, M.L. v Unifund (19-009999), “that the question of whether the discoverability principle applies to income replacement benefit claims remains unsettled…”. This, despite the adjudicator in the case cited upholding limitation given that “there is no indication that the Tomec court overturned its decision in Bonilla, where it declined to import the discoverability rule to income replacement benefits…”. Regarding Bonilla, the Tribunal opined that “it is not clear that the court would have found discoverability inapplicable in circumstances where a quantum of income replacement benefits is claimed for the first time.”

Considering the case at hand, the Tribunal was “persuaded by Pena’s submission that he had not claimed an income replacement benefit before June 2019 because he was working and was therefore statutorily barred from claiming the benefit. He had not discovered his claim.” Further, a “plain reading of s. 56 is that the limitation period begins with an insurer’s refusal to pay “an amount claimed”. It is impossible to refuse to pay nothing when nothing is claimed.” Therefore, the initial September 5, 2014 denial was said to be invalid, “because it was premature. It did not deny an existing claim.”

The Tribunal then considered the applicability of s.7 of the LAT Act in the event they were wrong about the applicability of the discoverability principle. Interestingly, the Tribunal found that the circumstances of the case weighed in favour of exercising the discretion to extend limitation. Pena “demonstrated diligence” in having pursued his claim three months following his March 2019 work cessation. Additionally, while he had continued to work for 4.5 years post accident, the Tribunal was “prepared to accept that the applicant’s employment during this period was marked by considerable difficulty and a gradual deterioration in his condition.”

Once again, one is left to ponder whether “the Tribunal appears to suggest in fact that claims for IRB are inherently “open ended”, despite the SABS stipulating that eligibility is only found in scenarios wherein a “substantial inability” is determined within 104 weeks after the accident.”



35% Award on IRB Withheld for One Year

35% Award on $22,000 IRB Payment – The Tribunal awarded a significant 35% award in Foucade v Coachman (19-005660),finding Coachman unreasonably withheld IRB for one year, until reinstating with a $22,000 lump sum payment.

The Tribunal found that IRB was unreasonably withheld or delayed based solely upon the report of an IE and in the process “ignoring pertinent medical information and not re-assessing the decision promptly once in receipt of further medical information.” The Tribunal found that there was “no reason provided by the adjuster or the respondent as to why an IE for the IRBs was required”, and that at the time of the IE “the respondent had enough information to continue to pay IRBs without the need for an IE…(and) acted in a manner that was inflexible and stubborn when it came to the findings of the IE.” Further, “the papering of a termination of IRBs by obtaining a favourable IE report is not protection against an award when the respondent relies only on that report while closing its mind to the other medical information available that should be used to affect its decision to determine entitlement of IRBs.”

Coachman was found to have relied upon the IE, “despite there being credible information in the file that shows that the applicant’s family doctor, chiropractor and orthopaedic surgeon are telling the applicant that he cannot go back to his physically demanding job…”. Coachman also acted unreasonably by relying upon the IE “without reading it critically to ensure that the premise and the conclusions were logical” This was in context of the IE assessor making “findings that in my view are problematic and nonsensical based on the information available.”



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Archive of LAT Updates

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

MIG

December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

MIG

November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

MIG

November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

MIG

November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

MIG

November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

MIG

October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

MIG

October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

Div Court

October 16, 2023: Injuries Not Static - MIG Determined Again

MIG

October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

MIG

September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

CAT

September 25, 2023: Chronic Pain Distinct from Recurring Pain

MIG

September 20, 2023: Expert Opinion Not Required for IRB Entitlement

IRB

September 18, 2023: Inconsistency Argument Not Accepted

MIG

September 13, 2023: IRB Payment Delayed Four Years – 20% Award

Award, IRB

September 11, 2023: MIG Determined Absent Applicants Written Submissions

MIG

August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

CAT

August 28, 2023: Knee Injury from MVA Caused Slip and Fall & ACL Tear?

MIG

August 23, 2023: WSIB Placement Qualifies for IRB

IRB

August 21, 2023: Absence of Applicant’s Medicals A Difference Maker

MIG

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