MIG Update – August 14, 2023
Tribunal Cancels MIG Decision – Orders Rehearing
This week’s case, an insurer initiated reconsideration where several errors of fact and law were cited by the insurer on a MIG escape. Heard by a different adjudicator, the Tribunal, after conducting a review of the evidentiary record, including a review of the submissions and evidence originally tendered, canceled the decision and ordered a rehearing of all the issues.
The LAT released Performance Stats up to mid-year 7 which is current through to the end of September 2022. Together with the LAT’s last update we can now provide a comparison of year over year, with projections through to the end of year 7 in this annual update. What difference did a year make?
Factor: Errors in Fact or Law
In an initial decision dated January 2023, the Tribunal determined that Ayat Al-Nakeeb as a result of the July 27, 2017 accident suffered chronic pain and that they were not bound by the MIG limit. The Tribunal further indicated Al-Nakeeb was entitled to the two Treatment Plans both in the amount of $2,600.00 that were found reasonable and necessary and the fees for the completion of the OCF 3’s in dispute.
Aviva initiated the Reconsideration in Al-Nakeeb v. Aviva General Insurance Company (20-010473), requesting that the determination be varied such that the MIG applies and that Al-Nakeeb is not entitled to the disputed plans. There was as well a prior hearing and an unsuccessful attempt by Al-Nakeeb to access the non-cat limits under Tribunal number 18-007560 v. Aviva released in July 2019, where many of the same arguments and evidence was tendered.
Aviva cites two grounds for in their request:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made
The numerous errors listed by Aviva, were the misinterpretation of surveillance evidence; placing weight on an ultrasound finding of a shoulder tear which was contradicted by other medical evidence; causation; credibility and res judicata given the earlier decision 18-007560 v. Aviva, raised for the first time in the reconsideration.
Al-Nakeeb argued to the contrary and that this was an attempt by Aviva to re-litigate the matter. Further that the Tribunal is not bound by the previous decision in 18-007560 and the arguments related to res judicata and issue estoppel were not part of Aviva’s original hearing submissions, only raised in the reconsideration request.
The Tribunal after reviewing the evidentiary record including a review of the submissions and evidence originally tendered concluded that errors of fact or law were made to the extent it canceled the decision and ordered a re-hearing of the issues in dispute.
If you Have Read This Far…
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