Volume. 8 Issue. 41 – November 27, 2024
This week’s edition features a significant matter referred to the Divisional Court with respect to awards on considerably late payments that were made before the hearing. The Court considers whether the Applicant was entitled to an award with respect to payment of just under $62K in medical benefits almost five years post MVA, and IRB of almost $136K more than 3.5 years post termination. The court rules as well on whether the Tribunal demonstrated procedural fairness in the rendering of the decision.
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Court Remits $200K Award Worthy Matters Back to Tribunal
Award to Follow $200K in Delayed Payments? – Injured in a June 2018 MVA, the Applicant Vivekanantham, in Vivekanantham v Certas, was paid IRB from June 2018 through to termination of benefits in May 2019. At the same time, Certas took the position that her impairment was a “minor injury,” subject to the Minor Injury Guidelines (“MIG”). Vivekanantham further sought a CAT determination, which Certas also denied. At a September case conference, Certas indicated that it was agreeable to remove her from the MIG, with her entitlement to medical and rehabilitation benefits increased to $65,000.00. Then, on the second day of the hearing before the LAT, Certas’ adjuster, while he was being cross-examined, agreed to pay a further $61,702.19 of treatment plans that had previously been denied and were in dispute (up to that time the insurer had paid $3,297.81 of medical rehabilitation benefits). Finally, in February, 2023, Certas reinstated the IRBs, and paid the arrears of IRBs plus interest in the amount of $135, 958.84.
At the hearing where the matter of a CAT determination was the main remaining issue, Vivekanantham requested a special award. On October 24, 2023, Adjudicator Driesel found that Vivekanantham had not sustained a catastrophic impairment . The Adjudicator also denied Vivekanantham’s request for a special award. Vivekanantham applied for reconsideration of the Hearing Decision, and on March 7, 2024, Vice-Chair Logan denied that request. As a result, Vivekanantham seeks to appeal and judicially review both the Hearing Decision and the Reconsideration Decision. She argues that:
(1) The LAT erred in law when it declined to consider her request for a special award,
(2) That she was denied procedural fairness when the LAT considered the evidence of Dr. Sivasubramanian in spite of the fact that he refused to attend the hearing and be subject to cross-examination, and
(3) That the LAT’s reasons for finding that she was not catastrophically impaired do not satisfy the hallmarks of reasonableness.
Ultimately, the court found that “the LAT erred in law when it failed to consider whether it should make a special award under s.10 of Regulation 664 and that the LAT breached procedural fairness when it admitted and relied on the report of Dr. Sivasubramanian in spite of the fact that he refused to attend the hearing and be cross-examined. As a result, I would set aside both the Hearing Decision and the Reconsideration Decision and order that the application be referred back to the LAT for a hearing in front of a differently constituted tribunal.”
Discretion Regarding Special Award
Vivekanantham claimed a s.10 award in respect of two benefits: the insurer’s delay in paying the IRBs and its delay in removing her from the MIG, which delayed the payment of approximately $62,000 worth of benefits. It was noted that Certas made the decision to reinstate IRBs in January of 2023 (over three and a half years after the benefits were terminated). According to Vivekanantham, the only explanation given for the decision to reinstate benefits was that it was done in consultation with counsel. In addition, Certas removed Vivekanantham from the MIG on September 22, 2022 (four years after the accident). According to Vivekanantham, the evidence suggests that the only reason for the removal was “the advice of counsel.” The adjuster only agreed to pay approximately $62,000.00 worth of benefits arising from that removal in March of 2023 (almost five years after the accident).
Basis for Award
The court noted that while the MIG and IRBs were not issues the Adjudicator was required to determine, there was never any agreement that Certas could avoid a special award by acting unilaterally to reinstate the benefits when it did. To the contrary, Vivekanantham had made it clear that the delay in paying these benefits was going to form the basis for a request under s. 10. However, at the hearing, the Tribunal found that “As I have found that the applicant is not entitled to any of the benefits claimed, there is no basis for an award.” The reconsideration confirmed that “the Tribunal found that the applicant was not entitled to attendant care benefits, and the issues of MIG and IRB were not before the Tribunal at the hearing. The applicant submits she made arguments about the section 10 award at the hearing. This means that the Tribunal heard the applicant’s arguments and made its decision that there was no basis for an award. I find the applicant is attempting to re-argue her case, which is not grounds for reconsideration.”
The court noted that the LAT clearly stated that its reason for refusing to make a s. 10 award was because the Appellant was “not entitled to any of the benefits claimed.” This finding directly engages the meaning of s. 10, which provides that the LAT “may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award”. This raises the question of whether a person who has settled their claim for a benefit is “entitled” to that benefit “at the time of the award.” In this case the LAT decided that the answer to this question was “no.”
Tribunal Jurisprudence
The court noted that other LAT decisions have considered this question, with the reasoning therein to serve as a starting point of my correctness analysis. Reference was made to 17-006757 v. Aviva in which the LAT dealt with the question of whether it had “jurisdiction to make a ‘special award’ order when the substantive issues in dispute related to the benefits sought by the applicant have been resolved at the time of the hearing”. In the referenced case, it was found “unlikely that the legislature intended to deny consumers the protection of s. 10 by allowing the insurer to unilaterally dispense with its enforcement by virtue of delaying the settlement of the main claims until after a proceeding has been commenced. This would amount to an absurd result where a “special award” is only granted in circumstances where there are ongoing accident benefit issues in dispute. The literal meaning of a few words in s. 10 should not run counter to both the consumer protection mandate, and the goal of providing accident benefits to injured persons in a timely manner. This would be unreasonable, inequitable and defeat the purpose of the statute. Fairness and not the guise of linguistic reform must always take primacy.”
Applying the Case Law
Following this line of reasoning, the court found that “it would be patently unfair that an insurer be allowed to circumvent the mandatory requirements of s. 10 through a non-contextual interpretation in situations where they have unreasonably withheld or delayed payments to then settle the benefits in dispute, perhaps on the eve of a hearing or at the case conference. It offends all sense of fairness and is not in keeping with the policy objective that accident victims promptly receive the benefits to which they are entitled under the Act to avoid injustice or hardship. If the legislature had intended such a significant automatic result, it would have certainly said so.” The court also referenced similar findings of the Tribunal, Ross v. Aviva and JM v. Certas, the latter which stood for the proposition that as ‘insurer that unreasonably withholds or delays payments and waits to pay the benefits after an application is initiated at LAT may risk an award.” Whereas in this matter, the LAT submitted that this was not a settled question in the LAT jurisprudence, the court found that each case offered could easily be differentiated on its facts, and as a result the within matter was “the only case where the LAT has determined that it had no jurisdiction to make a s. 10 award in relation to benefits that were in dispute at the time the insured initiated their LAT application and that were subsequently settled by the insurer before the LAT made its determinations on the application.”
“Entitled”
The court concluded that “(t)he key words that are relevant to this determination are “entitled at the time of the award.” As the Court of Appeal found in Stegenga at para. 44, “‘entitlement’ is a term of wide meaning, referring to ‘a right to do or receive something.’” In this case the Appellant had a right to receive the SABS that the insurer agreed to pay her prior to and during the course of the hearing before the LAT. The fact that those benefits may have been paid by the insurer does not detract from the fact that at the time of the award the insured had a right to receive those benefits. Therefore, the court found that “that the LAT erred when it found that it did not have jurisdiction to make a special award in this case.”
LAT Breached Procedural Fairness
At the hearing, Certas relied on the opinion of Dr. Sivasubramanian, a psychiatrist. He gave an opinion that the Appellant suffered from a moderate impairment in Activities of daily living, social functioning, and Adaptation to work and work-like settings and a mild impairment in Concentration, persistence, and pace. However, Dr. Sivasubramanian was served with a summons, which he acknowledged receiving, but refused to attend the hearing to give evidence. He also failed to file an acknowledgment of expert’s duty form, which is required by rule 10.2(b) of the LAT rules. The Appellant brought a motion before the LAT to exclude Dr. Sivasubramanian’s evidence. Her request was denied with the LAT stating that “the Divisional Court had directed the LAT to “let things in, review them and give them weight.” The LAT did not provide particulars of the decision referred to, nor was this court provided with any authority to support his proposition. The LAT went on to find that Dr. Sivasubramanian’s failure to file an acknowledgment of expert’s duty form showed a total disregard of the LAT’s process. The LAT stated that it would be a matter that it would consider when deciding what weight to give to his opinion. The LAT also said that it would take the expert’s failure to appear into account when deciding what weight to give to the disputed aspects of his report and would tell the Appellant how he dealt with it.”
In the original hearing, the court found that the “LAT relied on Dr. Sivasubramanian’s report to find that the Appellant suffered from only a moderate impairment in the sphere of Activities of Daily Living. Given this, the Appellant could not satisfy the test for a catastrophic impairment. At no point did the LAT consider what weight to give to Dr. Sivasubramanian’s evidence, given his failure to file an acknowledgment of expert’s duty form or his failure to appear and be cross-examined.” In the reconsideration, the “LAT expressed no concern about how the LAT dealt with Dr. Sivasubramanian’s evidence…the Tribunal set out its reasons for giving more weight to Dr. Sivasubramanian’s report, noting the inconsistency in Dr. Parekh’s report in light of the applicant’s level of functioning” and “[t]he Tribunal preferred Dr. Sivasubramanian’s opinion because it found it was more consistent with the evidence of the applicant’s ability to function.”
Jurisprudence Revisited
The court referenced Shahin v. Intact, where the central issue before the Divisional Court was whether Ms. Shahin was denied procedural fairness by the LAT when it relied on the report of Intact’s expert who had testified in chief at her accident benefits hearing, but never attended to be cross-examined. The court had found that “while there was other substantial evidence to support its conclusions, the expert’s evidence “infected the Tribunal’s conclusions on the central issues governing its decision”. Further, once it became clear that the expert would not attend for cross-examination and the LAT determined it would not order him to do so, it should have “struck his report from the record”.
Infected Reasoning
For the within matter, that court held that “(o)nce it was clear that Dr. Sivasubramanian was not going to appear at the hearing to be cross-examined, the LAT should have refused to admit his report. The LAT promised to take steps to mitigate the unfairness occasioned by admitting his report, but then did not do so. As was the case in Shahin above, Dr. Sivasubramanian’s report “infected’ the LAT’s reasoning and conclusions regarding all aspects of the issue of whether the Appellant was catastrophically impaired. As a result, the “decision of the LAT must be set aside on the basis of a denial of procedural fairness.”
Disposition
Accordingly, “(t)he Hearing Decision and the Reconsideration Decision are set aside. The matter is referred back to the LAT for a new hearing in front of a differently constituted tribunal to be conducted in accordance with the findings in these reasons. As agreed by the parties, the Appellant is entitled to her costs of this proceeding, fixed in the amount of $7500, all inclusive.”
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