In Nagesu v Traders General Insurance Company, the applicant was involved in a motor vehicle accident on June 12, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule. All substantive benefits disputed in the initial LAT Application and added at the two Case Conferences were resolved prior to the hearing. The hearing proceeded solely on the applicant’s claim for interest and an award under section 10 of Regulation 664 for unreasonably withheld or delayed payment of a benefit. ZTGH’s very own Rebecca Brown Greer represented the respondent in this matter.
During opening submissions, the applicant indicated that he intended to claim interest and a special award on additional issues beyond what was outlined in the LAT Application and Case Conference Reports. This was the first time the respondent was provided formal notice regarding the applicant’s intention to make these claims. The applicant pointed to an email sent to the respondent which set out the particulars of his special award and interest claim, arguing that this was sufficient notice. Adjudicator Reilly held that the applicant was in default of Rule 15.2 of the LAT Rules in advancing these claims, in that he had failed to bring a motion to add these issues prior to the hearing. She stated that the applicant can only add new issues by bringing a motion with proper notice. She held that to allow the addition of the issues at the hearing would prejudiced the respondent, in that they were caught by surprise with no opportunity or notice to properly respond. Adjudicator Reilly held that the applicant was barred from raising the additional claims at the hearing.
The applicant then requested that the adjudicator recuse herself from the hearing due to bias. No case law or facts were advanced to support this request. Adjudicator Reilly held that a decision that is not favourable to a party does not support an allegation of bias, and refused to recuse herself.
With respect to the substantive issues, Adjudicator Reilly found that the applicant was not entitled to interest and an award under section 10. She accepted the respondent’s argument that the applicant’s own actions were the cause of the delay in making payments. Specifically, the delay was caused by the applicant’s failure to attend IEs, and the need for the respondent to bring a motion to compel his attendance, as well as the applicant’s delay in providing relevant medical documents. In making her decision, she explicitly confirmed a number of longstanding principles with respect to adjudicating a special award claim, including that the insurer has an ongoing obligation to adjust a claim, the insurer is not held to a standard of perfection, and even where an insurer relies on a medical report that is determined to be incorrect it does not amount to conduct that breaches the threshold for a special award.
