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 Volume. 6 Issue. 31 – August 10, 2022



In this week’s first case, the Tribunal considers whether an insurer is able to deduct LTD from ongoing IRB, despite the carrier having denied entitlement to same.

Next up, the Tribunal reverses an earlier decision that had awarded two years of NEB based upon procedural non-compliance, finding for a fact that procedural obligations were not triggered against the insurer, and that it was the Applicant who failed to comply. While the original decision confirmed that the Applicant had complied with a s.33 request, the Tribunal now confirmed there to be no evidence that any of the requested documents had been provided.


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Insurer Able to Deduct LTD Not Received From IRB


LTD Not Received Deductible from IRB
– In 20-007407 v Allstate, the Applicant McBeth contended that Allstate was not entitled to deduct LTD benefits from his IRB entitlement, as the LTD carrier refused to honour his claim.

Allstate however argued that McBeth’s LTD claim was denied solely upon technical/procedural grounds, and that given same he ought to be deemed as never having applied for the LTD benefits. This is to be understood in context of the Schedule allowing for the deduction of “other income replacement assistance” that includes benefits available “but is not being received by the person and for which the person has not made an application.”

The carrier had denied the LTD claim given that McBeth did not make an application until September 25, 2019, whereas the application was due no later than June 22, 2019, being 90 days after the elimination period or waiting period of four months.

Under The circumstances, the Tribunal found that McBeth “must be diligent in pursuing a claim under a collateral benefits LTD policy. If the applicant fails to apply for collateral benefits, or if the applicant misses the limitation period within which to apply for the collateral benefit, in my view, that is akin to failing to apply for the benefit at all as required by the Schedule and the respondent insurer is entitled to deduct the LTD as if the applicant is receiving the benefit.”

Concluding, Allstate “is entitled to a deduction of the LTD benefits which the applicant otherwise may be entitled, and a deduction or a deemed offset should be applied in relation to the amount of LTD benefits the applicant could have received had he exercised his entitlement to them in accordance with the collateral benefits policy.”



Tribunal Reverses Decision Regarding Two Years NEB Entitlement

Two NEB Entitlement Reversed – In somewhat of a curious set of circumstances, the Tribunal reversed course upon reconsideration of 19-010985 v Aviva, wherein they originally found that the Applicant Mahhamoud had complied with Aviva’s multiple requests under s.33 of the Schedule. Subsequent to which Aviva advised of their position on entitlement to NEB, requesting an IE being. However, the Tribunal found Aviva’s correspondence “failed to meet the requirements of s. 36(4)(b), and, ultimately, held that the applicant was entitled to NEBs due to the respondent’s breach of its obligations under the Schedule.” Entitlement was awarded for the entirety of the available 104 weeks, from February 5, 2018 through to December 11, 2019.

The Tribunal however now agreed with Aviva “that I erred in fact by incorrectly finding that the applicant had complied with the s. 33 request once she had provided her family physician CNRs to the respondent on December 18, 2018. Indeed, there was no evidence before me that she provided any of the additional information requested.” The Tribunal opined that this was “a reasonable error to make given the contents of the respondent’s December 28, 2018”, same being the aforementioned non-compliant letter regarding NEB. As a result of this error of fact, the Tribunal had accepted that s.36(5) was thusly triggered, resulting in Mahhamoud being awarded NEB through to the 104 week mark.

Concluding, as there was no evidence of compliance with Aviva’s s.33 request, neither s.36(5) or 36(6) were triggered. Further, it had been the position of Mahhamoud that he was entitled to NEB solely based upon procedural considerations. Having failed to provide any evidence or submissions at first instance regarding substantive entitlement, Mahhamoud was therefore not entitled to NEB on the merits either.



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Archive of LAT Updates

March 27, 2024: Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal

Limitation Period, Reconsideration, Supreme Court

March 25, 2024: Expert’s Conclusory Statement Insufficient on Pre-existing Condition

MIG

March 20, 2024: Non-Compliance by Both Parties Impacts IRB and Medical Claims

IRB

March 18, 2024: No Weight Afforded to Handwritten Illegible CNR’s

MIG

March 13, 2024: Denials Deficient and Pain Relief Validates Treatment Plans

Treatment Plans

March 11, 2024: “Radicular Irritation” & MRI Findings Not MVA Related

MIG

March 6, 2024: Tribunal Upholds Decision Excluding Improperly Secured IEs From the Evidence

Evidence, IE, Reconsideration

March 4, 2024: Concussion and Chronic Pain Diagnoses Require Expertise

MIG

February 28, 2024: Prior Health Concerns Complicate Claim for CAT

CAT

February 26, 2024: Unchallenged Virtual Chronic Pain Assessment Accepted

MIG

February 21, 2024: Consent by Parties for Adjournment Not Determinative

Adjournment, Procedure

February 14, 2024: Tribunal Does Not Accept the CAT Findings of Either Party

CAT

February 12, 2024: MIG Escape on Concussion Diagnosis Despite Resolution of Symptoms

MIG

February 7, 2024: Financial Hardship Not A Defense for Repayment Responsibility

IRB

February 5, 2024: CT Scan of Wrist Fracture Contradicts Medical Opinion

MIG

January 29, 2024: Concussion Despite No Head Injury?

MIG

January 24, 2024: One Assessment Process Produces Two Discrete Reports

CAT, Productions

January 22, 2024: Defective Notices Do Not Trigger Limitation

MIG

January 17, 2024: Election Not Required, LAT Act Invoked & Limits Exhausted?

Award, Limitation Period

January 15, 2024: Chronic Pain Diagnosis Contradicted by Self-Reports

MIG

January 10, 2024: NEB Reinstated After Six Years Generates Award

Award, NEB

January 8, 2024: Undisputed Psychological Diagnosis Prevails

MIG

January 3, 2024: Significant & Competing Price of Non-Compliance for Both Parties

Non-Compliance

December 20, 2023 (Throwback Edition): Statutory Relief Within Tribunal’s Jurisdiction

Jurisdiction

December 18, 2023: ‘Incident’ of Viewing Video Not Use and Operation

MIG

December 13, 2023 (Throwback Edition): Employed Applicant Remains Entitled to Post 104 IRB

IRB

December 11, 2023: Chronic Pain Diagnosis In Absence of Physical Exam?

MIG

December 6, 2023: Four Marked Impairments for 2010 MVA

CAT

December 4, 2023: No Adverse Inference Drawn Despite Lack of pre MVA CNRs

MIG

November 29, 2023 (THROWBACK EDITION): 18 Month Delayed Notice Reasonable, However 7 Month Delay is Not

Limitation Period

November 27, 2023: Confirmed High Bar to Escape MIG on Pre-Existing

MIG

November 22, 2023: Multiple IEs Excluded From Evidence

IE, Evidence

November 20, 2023: Radiculopathy Complaint Requires a Diagnosis

MIG

November 15, 2023: Court Applies Tomec & CAT Decision Varied

CAT, Limitation Period

November 13, 2023: Insurer Expert Conclusion Inconsistent with Findings

MIG

November 8, 2023: Maximum Award in Excess of $60K on CAT Case

CAT

November 6, 2023: Medical Evidence Overrides Legal Referrals

MIG

November 1, 2023: Eighteen Month Delayed Notice Reasonable However Seven Month Delay is Not

Limitation Period

October 30, 2023: Which MVA Exacerbated Injuries?

MIG

October 25, 2023: Application Seeking CAT Determination an Abuse of Process

CAT

October 23, 2023: Functional Disability Despite 50 Hour Work Week

MIG

October 18, 2023: Statutory Relief Renders Equitable Remedy Moot

Div Court

October 16, 2023: Injuries Not Static - MIG Determined Again

MIG

October 11, 2023: CERB is Income However Not “Gross Employment Income”

IRB

October 4, 2023: Employed Applicant Remains Entitled to Post 104 IRB

IRB

October 2, 2023: ‘IE’ Does Not Establish Causation

MIG

September 27, 2023: Post June 1 CAT Criterion 8 Satisfied

CAT

September 25, 2023: Chronic Pain Distinct from Recurring Pain

MIG

September 20, 2023: Expert Opinion Not Required for IRB Entitlement

IRB

September 18, 2023: Inconsistency Argument Not Accepted

MIG

September 13, 2023: IRB Payment Delayed Four Years – 20% Award

Award, IRB

September 11, 2023: MIG Determined Absent Applicants Written Submissions

MIG

August 30, 2023: Pain Determinative in Successful Post June 1 CAT Case

CAT

August 28, 2023: Knee Injury from MVA Caused Slip and Fall & ACL Tear?

MIG

August 23, 2023: WSIB Placement Qualifies for IRB

IRB

August 21, 2023: Absence of Applicant’s Medicals A Difference Maker

MIG

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