The Tribunal found that the Applicant’s injuries remained confined within the MIG and the denial letters and notices were in accordance with s.38(8) and s.44(5) of the SABS.
The Tribunal allowed the late submissions of the Applicant (submitted late approximately one week) as the Adjudicator found the prejudice to the Respondent to be minimal as Definity was still able to provide the Tribunal its submissions addressing the Applicant’s submissions and evidence.
The Adjudicator agreed with Definity’s submissions that the disclosure of the new CNRs of Dr. Shasha was highly prejudicial and would amount to a trial by ambush. The records were improperly served with the Applicant’s hearing submissions contrary to the Case Conference Report and Order production disclosure deadline. The Adjudicator struck the records from the evidentiary record.
The Adjudicator barred the Applicant from proceeding with the issue relating to income replacement benefits and the OCF-18 submitted on May 16, 2022 for physiotherapy. The Applicant was noted as failing to dispute the denials for these issues and extend the deadline to file an application. Pursuant to s.56 of the SABS, the Applicant had two years from the date of the denial to apply to the LAT. The Adjudicator stated that pursuant to Court of Appeal decision of Sietzema v Economical, the limitation period is triggered once proper notice of denial is provided regardless of the correctness of the insurer’s reasons for denial. The Adjudicator stated that the onus is on the Applicant to establish reasonable grounds for an extension pursuant to s.7 of the SABS but the Applicant failed to meet his onus. The Adjudicator stated that the insurer’s denial letter of these issues served as a clear and unequivocal notice of its denial.
In regards to the MIG, the Adjudicator found that the Applicant had not demonstrated that he suffered from chronic pain with a functional impairment nor had he demonstrated he suffered from chronic pain under the AMA Guides that warrants removal from the MIG. The Adjudicator stated that the CNRs of Dr. Shasha do not reveal a diagnosis of chronic pain nor do they suggest objective findings of chronic pain. The Adjudicator preferred the findings of the s.44 Insurer Examinations.
As it relates to Section 38(8) and notice provisions under s.44(5), the Adjudicator addressed the OCF-18 for physiotherapy treatment. The Applicant submitted that the IE of Dr. Nikneshan was not reasonable and necessary so the denials were void and could not be relied upon. The Adjudicator found that the IE was properly scheduled and made in good faith to address the Applicant’s reported symptomology. The insurer’s requests for Insurer Examinations were found to be reasonable and not excessive. The Adjudicator found that the denials were clear and contained medical and other reasons and were more than sufficient reasons in accordance with s.38(3) of the SABS. The Adjudicator had the same conclusions in regards to the OCF-18 for a psychological assessment.
In regards to the s.10 award, the Adjudicator agreed with Definity’s submissions that the Applicant failed to provide particulars of his award claim pursuant to the deadline prescribed by the Case Conference Report and Order. The Tribunal found that Definity did not withhold or delay benefits as such was not liable to pay an award. The Adjudicator found that as no benefits were owing, no interest was owing. The Application was dismissed.
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