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Volume. 4 Issue. 20 – May 20, 2020

No Entitlement to Incurred Expenses Despite Non-Compliance

No Price for Non-Compliance – In 18-010628 v Wawanesa, the Applicant was seeking entitlement to two pool based therapy programs, one somewhat shorter in duration than the other. Dealing with the 1st plan from October 2016, the Tribunal agreed with the Applicant that the Respondent has yet to provide a clear and unequivocal denial of same. However, the Tribunal disagreed regarding the ultimate price of non-compliance. The Tribunal noted rather than being entitled to all of the goods and services contemplated, the Applicant was only entitled to those that were incurred beginning the 11th business day following submission of the plan. The Applicant, having incurred services on six dates prior to the 11th day, was entitled to payment for none of those dates. There had been no services incurred after the 11th day.

The Tribunal also agreed with the Applicant that the Respondent had not referred to the MIG in denying the 2nd (shorter) plan. This however merely disentitled the Respondent from relying upon the MIG, which they had not, rather contending the plan was not reasonable and necessary. Awarding the 2nd shorter plan, the Tribunal was “mindful that the applicant has a history of inconsistent participation in treatment and has previously reported insignificant improvement from it. I find it practical for the applicant to engage in a preliminary course of treatment to determine whether the treatment goals will be reasonably met. As a result, I find a longer course of treatment, as proposed in the October 17, 2016 plan, is not reasonable and necessary.”

I Can Return to Work but No Starsky and Hutch

Employability Virtually Non Existent – In 18-007610 v CUMIS, the Tribunal considered the IRB claim for an Applicant, struck as a pedestrian by an SUV in November 2016. IRB had been stopped by the Respondent based upon two IE’s in July 2018. The Respondent relied significantly upon the Applicant’s own admission that he was able to complete his pre-accident employment duties as a security guard. The Tribunal however placed little weight on these comments as he also placed significant limits on his ability to return to work. Further, in November 2017 there was an ODSP application submitted on the Applicant’s behalf, with “severe or complete limitations on most occasions” regarding “Attention span is sustainable and appropriate to task”. In February 2018, ODSP determined him to be “a person with a disability”.

Dealing with post-104 entitlement, the Applicant’s assessors found that “his potential for employability is now virtually non-existent… the applicant must be considered to be unemployable to any vocation… transferable skills are quite limited based on his academic achievement, and cognitive performances.” The Tribunal, noting that the Applicant’s assessors “present a convincing account of the applicant’s current employment capacity”, therefore found “the applicant is completely unable to engage in employment or self-employment for which he is reasonably suited.”

Mistaken Election Maintained

Election in Error Remains Final – In 18-006631 v Aviva, the Applicant, injured in a July 2017 MVA, submitted both an OCF-1 and an OCF-3, the former indicating he was not employed, the latter that in fact he was employed on the date of loss. Given same, the Respondent, as per s.35, found that as the Applicant may have been eligible for either of IRB or NEB, requested that an Election be made as between the two benefits. The OCF-3 submitted indicated that the Applicant had worked 26 of the previous 52 weeks, and the EI records confirmed payment of same had ceased December 30, 2016.

Following receipt of the Applicant’s election for IRB, the Respondent sent an EOB confirming no entitlement to IRB based upon the EI statements and requested an OCF-2 to further determine entitlement. In a preliminary issue hearing the Tribunal considers whether the Applicant can re-elect to receive NEB if he fails to meet the criteria for IRB which was initially elected. The Applicant, conceding that he does not qualify for IRB’s submitted that “the request for an election from the applicant and the Election are invalid because he did not qualify for IRBs and, therefore, he should have the right to re-elect the benefit for which he is eligible.” The Tribunal however found as a fact that the Applicant may have qualified for IRB or NEB, and that any such election is final, absent a CAT determination. Concluding, “An error or mistaken choice by the applicant when making an election as a basis for re-election is not contemplated in the Schedule.”

Costs Awards – Sufficient Deterrence?

In 3 cases, the Respondent sought and was awarded costs as a result of the opposing counsel causing a delay in the hearing ranging from an hour to half a day, and a disrespect of the Tribunal’s process.

Costs of a Half Day Hearing – In 18-007677 v Certas, addressing the Respondent’s request for costs, the Tribunal found for a fact that counsel for the Applicant “made submissions regarding a date of loss and issues that were clearly no longer dispute, on claims arising from an accident which had already been settled”. This “attempt to relitigate settled claims was unreasonable and frivolous conduct that wasted time and resources. This resulted in an unnecessary use of resources for the Tribunal as well as the respondent by having to address submissions not actually in dispute.”

Despite opportunities, Applicant’s counsel “provided no clarification, leaving the insurer and, ultimately, me to resolve the confusion he created.” As a result, the Tribunal decided to grant costs of $500, representing “relief for a half day of a written hearing to offset addressing issues that would not have had to be dealt with…”

Costs Awarded and Deferred – In 18-003871 v Aviva, the Respondent sought and was awarded costs as a result of Applicant having communicated directly with a witness prior to his having testified, “a clear breach of my direction to him not to do so and was unreasonable when considered in the context of this hearing.” Costs were awarded in the sum of $150, as the breach resulted in an approximate one hour delay in the proceeding.

The Respondent also sought costs for alleged conduct by the Applicant at case conference. As the adjudicator for the hearing did not preside over same. It was determined that “that would require the parties and/or their counsel to testify, that cross-examination would be likely, and that the same would be inappropriate in the context of this hearing where counsel are the advocates for the parties.“If the Respondent wished to pursue same, a motion with supporting documentary evidence would need be brought within ten days of the decision.

The Cost(s) of Disrespect – In 18-011207 v Pembridge, the Respondent sought costs in the amount of $1,000 as against the Applicant. Finding the amount disproportional, the Tribunal instead awarded $200, as a result of incorrectly added issues and late service of hearing materials. Finding ultimately there to have been little prejudice, the Tribunal also found that had counsel for the Respondent addressed the resultant issues differently, much of the additional administrative time spent by both the parties and the Tribunal could have been avoided. Nevertheless, the behaviour of Applicant’s counsel was “disrespectful of the Tribunal’s process, is unreasonable”, with the $200 award “considerable enough to discourage similar behaviour in future proceedings.”

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