Print

 

 Volume. 6 Issue. 3 – January 26, 2022


First up this week, the Tribunal in a Motion decision regarding IE attendance, admits to institutional scheduling delays at the LAT, that result in delays spanning months if not years. Additionally, it was confirmed that case conferences were presently not available until late summer 2022 at the earliest.

The second case involved the Tribunal setting an award aside, finding that the “shall pay” provisions of s.38(11) allowed for sufficient deterrent, with an award on top potentially seen as “excessive”.


 

Advance your best case with an Outcome Analysis Report!

Request OAR



Tribunal Scheduling Delays Months if not Years

Institutional Delays of the LAT Problematic  In McCormick v Allstate (21-001362), the insurer sought a dismissal of the action, or in the alternative a stay of the current proceedings, given that McCormick failed to attend four IEs regarding post 104 IRB. The Tribunal determined that a stay of the proceedings for 120 days was appropriate, to allow for McCormick attending a vocational assessment, kinesiology assessment (functional abilities evaluation), and the orthopaedic assessment. However the Tribunal was not persuaded that the fourth IE, a psychiatric examination was “reasonably necessary” pursuant to s. 44(1) of the Schedule.

The Tribunal found that McCormick had not placed his psychiatric or mental health at issue and there was no evidence of a related diagnosis by a mental health professional. Noting that there were references to potential such issues, the Tribunal indicated same to be “otherwise trivial incidents related to his emotional state that bear no causal relation to McCormick’s accident-related injuries.” Noting the need for “the most appropriate and least intrusive means of assessing, the “lack of a reasonable nexus”, in context of wider COVID related restrictions results in the “inherent prejudice” of an IE having not been overcome.

The Tribunal also referenced the FSRA June 2020 guidelines regarding SABS claims during COVID. This was noted to have placed an obligation on Allstate to “otherwise ensure that an in-person assessment is reasonably required and that all necessary preventative measures are in place to prevent the spread of Covid-19 during assessments.”

McCormick had proposed a “stepwise process”, with the 2nd of three IE’s only being scheduled after the 1st was completed only if additional medical evidence was required. The Tribunal however noted that this could lead to extensive delays, noting that COVID had already created extensive months-long delays in scheduling and obtaining IE reports. These delays, “would likely be compounded by institutional scheduling delays at the Tribunal, resulting in a delay that spanned months, if not years.” Further in this regard, it was confirmed that the Tribunal was “not currently scheduling any case conferences until late summer of 2022 at the earliest.”



Shall Pay” and Award Now Mutually Exclusive?

Award Rescinded – Aviva sought reconsideration of the Tribunal’s decision in Viran v Aviva (19-008488), in which Viran was granted two medical benefits, in addition to an award. Upholding the two medical benefits, the Tribunal however set the award aside.

In the original decision, the Tribunal had confirmed that “The intention of an award is to discourage improper action on behalf of an insurer, action that must be clearly established to have caused undue hardship, shown to be in violation of the intent of the Schedule as consumer protection legislation, and put the insurer in an unfair position of advantage over an insured, more than would be considered fair in such a proceeding.”

Upon reconsideration, the Tribunal was “persuaded by Aviva’s argument that s. 38(11) already has a punitive measure that does not need to be overlapped by an award.” The “shall pay” consequences inhabit the entire space of discouraging an insurer from failing to respond to an OCF-18 that it receives. I agree that the s. 38(11) consequences serve as an appropriately punitive result based on Aviva’s non-compliance.”

As a result “a penalty awarded on top of a penalty could be reasonably construed as excessive.” An award “must not be viewed as an opportunity for retributive action against an insurer, but as an assurance that an insured’s rights will be maintained as a result of an insurer’s failure to respond in accordance with the Schedule.”



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

 

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

Contact Sales

416.364.6688

Contact Support

Contact Us

InHealth

11 Allstate Parkway Suite 203
Markham, Ontario
L3R 9T8

Follow Us On