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September 2016

No Nonsense LAT — MB at the forefront!

Case Studies: Anne Pollex and Aviva Canada | Krysta Pollex and Aviva Canada

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. appears that there will be little sympathy for insufficient evidence.

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 applicable.


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