The LAT has issued its first decision on its reconsideration powers. On October 17, 2016, the LAT issued a decision claiming to award future IRB. The disputed order was:
“The Applicant is entitled to receive a weekly income replacement benefit in the amount of $292.46 from March 25, 2016 to May 21, 2017.”
The rub here is that May 21, 2017 is the 104 week mark, and this order is providing for future benefits. What is an Insurer to do?
A number of enabling tribunal statutes have an option for “Reconsideration”. While not novel, it is something that is unusual for professionals dealing with accident benefits cases.
The rules for Reconsideration are set out in Rule 18.2 of the LAT Rules of Practice and Procedure. The party asks the Executive Chair to reconsider a decision when one or more the following criteria are met:
- The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
- The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.
- The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
- There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
Here, Linda Lamoureux found that the LAT made an error in law. She doesn’t say what the error was, or if it was “significant”. The substituted order indicates that IRB is payable, “…ongoing until no longer owing in accordance with the applicable provisions of the Statutory Accident Benefits Schedule.”
While the old DPRC dealt with variation of an order (Rules 61-63), the new LAT Rules are almost silent. In fact, the only mention of variation of a LAT order is in Rule 18.4, which deals with reconsideration. Which brings up an interesting point. Section 281(1) reads:
281. (1) After the Licence Appeal Tribunal issues a decision, the insurer shall not reduce benefits to the insured person on the basis of an alleged change of circumstances, alleged new evidence or an alleged error except as provided under this section.
(2) The insurer may reduce benefits if,
(a) the insured person agrees;
(b) the insurer is authorized to do so as a result of a successful appeal of the Licence Appeal Tribunal’s decision; or
(c) the insurer is authorized to do so by the Licence Appeal Tribunal.
Is an insurer stuck with "ongoing benefits" until they appeal? Does 281(1)(c) give the insurer the right to apply to the LAT for a reduction? Obviously and Insurer and their counsel would have to make timely decisions about the right course, with reconsideration one of the tools available to them.