The Licence Appeal Tribunal

Insights from Licence Appeal Tribunal Decisions on Statutory Accident Benefit Issues

The Licence Appeal Tribunal has, as of October 12, 2016, issued nine decisions since it assumed jurisdiction to resolve statutory accident benefit disputes six months ago. Although the sample size is small these decisions may provide some insights regarding future proceedings.

In Thompson v. Intact Insurance, File No. 16-000041/AABS, the Tribunal concluded that it had jurisdiction under Rule 19.1, to award an Applicant costs for preparing an application in respect of an issue that was resolved prior to the case conference being held, provided the applicant could establish that the insurer had acted “unreasonably, frivolously, vexatiously or in bad faith”. Unfortunately, the Tribunal did not provide any guidance on the entitlement criteria but ordered a second hearing by teleconference to address the substantive issue.

In Applicant v. The Motor Vehicle Accident Claims Fund, File No. 16-0000058/AABS, the issue was entitlement to income replacement benefits during a period of non compliance regarding attendance at an insurer’s examination. The Applicant claimed that he had not received notice of the examination as he had been in a rehabilitation treatment facility to address addiction issues. Although the Tribunal noted that it would have been prudent to provide the insurer with an updated address, his explanation for his non attendance was accepted as reasonable pursuant to Section 37(8)(ii) and he was entitled to receive the IRBs that had been withheld.

In Shabbir v. State Farm Mutual Automobile Insurance Company, File No. 16-000084/AABS the Tribunal denied a treatment plan for therapy on the basis that the Applicant’s had only sustained a minor injury. The decision was based on a factual determination that the Applicant had not suffered a cervical radiculopathy, which even the insurer acknowledged would have brought the Applicant out of the Minor Injury criteria. The Applicant relied upon the opinion of a chiropractor who had completed the treatment plan, while the insurer had the benefit of a Section 44 assessment report from its medical specialist. Ultimately, the Tribunal ruled that the Applicant’s health practitioners had not presented sufficient documentary evidence, supporting reasons and analysis to establish that the Applicant had sustained cervical radiculopathy, noting that the chiropractor’s conclusion was based on the Applicant’s complaints of pain and without specific testing or assessments to support his diagnosis.

In A.P. v. Aviva, File no.16-000045/AABS, the Applicant was denied therapy on the basis that the Applicant had suffered predominantly minor injuries, with no compelling evidence of a pre-existing medical condition preventing the Applicant from recovering within the minor injury treatment cost limits. In addition, the Tribunal denied the Applicant’s claim for income replacement benefits.

Similar to Shabbir, this decision was based on the absence of supporting medical documentation and analysis.

The IRB claim was premised on a Disability Certificate completed by the family doctor wherein he had “ticked the box” to say that the Applicant was incapable of performing her employment duties. In contrast, the insurer had the benefit of a Section 44 assessment by an orthopaedic surgeon which, provided details regarding both methodology and conclusions in contrast to the family doctor’s ticking a box.

K.P. v. Aviva, Tribunal File No. 16-000046/AABS, involved a denial of entitlement to physiotherapy, again on the basis that the Applicant had suffered predominantly a minor injury. The Applicant submitted various documents suggesting that she suffered from a number of conditions and symptoms but without supporting affidavits. More importantly, the Tribunal noted that there was no medical evidence that either tied any specific condition to the accident or that any specific condition was anything more than a soft tissue injury, arising out of a normal lifestyle that arose independent of the accident. Essentially, the Tribunal concluded that there was no evidence to connect the symptoms to the accident and accordingly no evidence of causation.

In J.H. v. Intact Insurance Company, Tribunal File No. 16-000009/AABS, the Tribunal concluded that the insurer was not required to pay mileage expenses to the Applicant’s service providers. This solely related to the mileage expenses as the insurer was agreeable to paying for the travel time of the treatment providers.

S.L. v. Certas Home and Auto Insurance Company, Tribunal File No. 16 000213/AABS, involved a motion brought by the insurer to prohibit an Applicant from bringing an application for benefits because she had failed to attend an insurer’s examination. The dispute centred on the insurer’s failure to provide proper notice of an examination and in particular to provide “the medical and any other reasons for the examination”. While the insurer’s notice identified the purpose for the IE, it failed to provide its explanation of any of the medical grounds that the insurer was relying upon.

D.M. v. RBC, File No. 16-000080/AABS involved a dispute regarding a partially approved Treatment Plan and in particular whether specific disputed items were actually housekeeping and home maintenance expenses (for which there was no coverage) or rehabilitation expenses. The results were mixed. What was encouraging was the acceptance that home repairs could be considered as home modification and rehabilitation expenses provided that a rehabilitative purpose could be established under Section 16. On this basis, repairs to a basement step, installation of hand rail and repairs to loose floor tiles, were deemed payable.

Finally in Applicant v. Dominion, File No. 16-000063/AAABS, the Tribunal concluded that the Applicant was entitled to proceed to a Hearing to determine her entitlement to either non earner benefits or income replacement benefits without her having to elect between them before the hearing as a result of a failure by Dominion to give notice of the election option.

So what, if anything, can we glean from this limited sample of Licence Appeal Tribunal decisions?

  1. Seven of the nine decisions were based on written hearings while only two were, argued by teleconference.
  2. Throughout the decisions there was regular reference to prior decisions by the Financial Services Commission which the Tribunal was guided by. Precedent still matters.
  3. An absence of appropriate medical support as regards to diagnosis or causation may be fatal. More than a Disability Certificate or Treatment Plan will be required. In the absence of more detailed medical reports from treatment providers or medical specialists, applicants may be at a disadvantage when confronted with Section 44 reports commissioned by insurers. However a significant financial imbalance exists between accident victims and insurers. The costs to obtain more detailed medical records and reports are prohibitive in circumstances these costs could outweigh the value of the treatment plans in dispute, and where entitlement to cost, even if successful, is limited to circumstances where the insurer has acted unreasonably, frivolously, vexatiously or in bad faith. While the Statutory Accident Benefit regime may give a right to an accident victim to challenge the wrongful denial of a benefit, where the cost of pursuing such a remedy is prohibitive, this raises significant issues as to access to justice that have yet to be addressed.

Marinus Lamers

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