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”.
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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.”
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