McCague Borlack is thrilled to announce that James M. Brown, a partner from our Ottawa
Office, successfully argued two of the first accident benefits
decisions before the Licencing Appeal Tribunal (“LAT”)
that help shed some light on this new process.
In Anne Pollex and Aviva Canada, the applicant was
injured in a motor vehicle accident on March 19, 2015. In dispute
were outstanding Treatment and Assessment Plans
(“OCF-18”) that were denied as a result of the Minor
Injury Guideline (“MIG”) and the denial of income
replacement benefits (“IRBs”). After a mixed written
and teleconference hearing, the Adjudicator ruled in the
insurer's favour on both issues.
Similarly, in Krysta Pollex and Aviva Canada, the
applicant was injured in the same motor vehicle accident as the
above decision. In dispute in that case was a further OCF-18
payable for physiotherapy treatment that was denied based on the
MIG. Following a purely written hearing, the Adjudicator once again
found in the insurer's favour.
Both decisions demonstrate strict scrutiny by the Adjudicator of
all the evidence filed by the claimants, and suggest that the LAT
will be strictly holding claimants to their burden of proof.
For example, if a claimant is seeking to establish that they do
not fall within the MIG, they will have to clearly establish why
the diagnosed injuries do not fall within those categories.
Similarly, these decisions confirm that a claimant cannot simply
make reference to pre-existing conditions in order to escape from
the MIG, but must establish that the pre-existing conditions
actually prevent maximal recovery.
The decisions also indicate that the evidence should explain any
discrepancies contained within it, as it appears that the LAT will
be unwilling to gloss over any evidentiary shortcomings, especially
in circumstances where that evidence is purely documentary.
Realistically, claimants proceeding to a hearing before the LAT
will have to have their cases prepared at the time they commence
their proceeding because it appears that there will be little
sympathy for insufficient evidence.
Additionally, it should be noted that the Adjudicator did apply
the Divisional Court decision in Scarlett v Belair
Insurance when rendering his decision, which suggests that
appellate case law will continue to have some role to play before
the LAT. Furthermore, some of the comments made by the Adjudicator
with respect to prior decisions of the Financial Services
Commission of Ontario suggest that these older decisions, while not
binding, will still maintain some persuasive value, where
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