Category: Interest

Nijjar v. Pembridge Insurance Company (19-011065)

The claimant disputed his entitlement to IRBs for an 18 month period and interest on medical benefits that had been resolved. Adjudicator Lake dismissed the claim for IRBs. She placed little weight on a “Physical Description of Job” sheet and a job description attached to an employer’s confirmation form that indicated a physically demanding job, because of contradictory findings. For example, the claimant had reported during IEs that his job was not heavy but required extended standing. The Adjudicator was unable to clearly determine the claimant’s job title or duties, and as such was unable to determine which job duties he was unable to perform. Interest was awarded on the two medical benefits from the date they were incurred. She dismissed the argument that interest should not be payable until the date that the claimant submitted requested medical records from his family doctor.

S.M. v. Mutual Insurance Company (18-008474)

The claimant sought reconsideration of the LAT’s denial of retroactive ACBs and the decision regarding the amount of ACBs that were found payable. The accident occurred prior to September 1, 2010. Interpretation of the transitional provisions in the 2010 SABS and 1996 SABS was an issue in dispute, including interpretation of provisions relating to interest and the applicability of the requirement for benefits to be incurred before they are payable. The request for reconsideration was denied. Adjudicator Johal found that there was no error in law in the determination that there is no strict bar against filing an application for retroactive attendant care benefits, but the burden is on the claimant to “explain the urgency, impossibility or impracticability of compliance with s. 42(5) of the Schedule.” Adjudicator Johal found that there was no error in law in determining that the “incurred” definition applied to this claim, even though the accident occurred before September 1, 2010. Adjudicator Johal held that “rights are based on what is set out in the Insurance Act and regulations at the time of a claim rather than the date of the accident.” Adjudicator Johal found that there was no error in law in the finding that the applicable interest rate was 1%, in accordance with the 2010 SABS.

S.V. v. Aviva Insurance Company (19-005032)

The insurer initially denied a treatment plan based on the MIG, but did not respond to it for three weeks. The insurer later acknowledged that the denial was late and offered to pay for all incurred treatment, but did not provide an explanation for the delay. The claimant sought interest on the incurred treatment and a special award for the delay. Adjudicator Hines awarded interest from 10 days after it was submitted to the insurer. She also granted a special award of 25 percent because the insurer continued to deny payment of the disputed treatment even after it acknowledged that it had failed to respond within 10 business days. Adjudicator Hines rejected the insurer’s argument that treatment had to be incurred for a special award to be granted.

M.H. and T.H. v. Economical Insurance Company (19-004735)

The claimants were the mother and father of a child who died in a motor vehicle accident. They sought, and were paid, death and funeral benefits by the insurer. They disputed entitlement to interest and a special award. Vice Chair Farlam concluded that the claimants were not entitled to interest. The insurer requested a completed OCF-4, copies of the birth and death certificate, and documentation related to dependency. The OCF-4 was returned without supporting documentation. The supporting documentation was provided four months later, and the insurer paid the benefits within the next week. Vice Chair Farlam held that the benefits were not payable until the supporting documentation had been provided, and was therefore not overdue. The special award claim was also dismissed.

S.V. v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought reconsideration of the Tribunal’s decision regarding certain denied ACBs for feeding, bathroom cleaning, and basic supervisory care. She also sought interest on ACBs from the retroactive date of the Form 1, rather than the date the Form 1 was submitted. Adjudicator Parish granted the reconsideration in relation to the quantum payable for feeding, but denied all other aspects of the reconsideration. The error was based on the Tribunal using 90 minutes as opposed to 150 minutes per day for meal preparation. The denial of other aspects of the Form 1 was unchanged as the Tribunal did not make an error in fact or law. The Tribunal also noted that re-integration into the community was not “basic supervisory care” under the Form 1. Finally, the Tribunal re-iterated that interest was not payable prior to submission of the Form 1 because the insurer would not have been aware of the claimant’s need for attendant care prior to the Form 1.

Applicant v. Aviva General Insurance (19-007805)

The claimant sought payment of medical benefits and the cost of an assessment, which the insurer agreed to pay by the time of the hearing. The claimant then sought interest on the cost of the assessment. The claimant argued that an OCF-18 for an assessment and invoices were submitted to the insurer on March 28, 2018 via HCAI and was owed interest in the amount of approximately $500.00. The insurer disagreed and submitted that it did not receive the OCF-18 until later in response to its letter to the claimant and the Tribunal that it would pay for the benefits in dispute provided the treatment facility submitted an OCF-18 on HCAI. Adjudicator Flude dismissed the claim for interest on the basis that the claimant failed to provide evidence to satisfy his onus of establishing entitlement to outstanding interest and the insurer had paid the outstanding amount of the invoice within the limits set in the Schedule.

Applicant v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought a catastrophic impairment determination, entitlement to attendant care benefits, and the cost of various assessments. The claimant suffered from chronic pain, had not worked in the 10 years since the accident, and had been diagnosed with major depressive disorder. Pain prevented the claimant’s participation in home-based activities, and she rarely left the house. Adjudicator Parish found that the claimant suffered a Class 4 marked impairment in activities of daily living (no other spheres of function were found to be Class 4). In terms of the WPI, Adjudicator Parish would have assigned 40 percent for the psychological impairment and 7 percent for physical impairment, meaning that the claimant did not have a 55 percent WPI. Adjudicator Parish awarded retroactive ACBs of $507.03 per month for assistance with meal preparation. She rejected the claims for grooming (the claimant was capable of independent hair care), bathroom cleaning (which was found to be housekeeping, not attendant care); and basic supervisory care (the Form 1 category was for emergency assistance, but the claimant did not lack the capacity to respond to an emergency; emotional care was not an appropriate attendant care service). Adjudicator Parish also awarded the cost of an OT situational assessment related to the catastrophic impairment application. She also awarded the cost of the in-home assessment to complete the Form 1. Adjudicator Parish also held that the claimant was not required to meet the strict “incurred” definition for payment of ACBs, because the accident occurred in 2009. Interest was awarded on ACBs, but only from the date the Form 1s were submitted.

G.W. v. Coachman Insurance Company (16-003306)

The insurer sought reconsideration of the adjudicator’s decision regarding entitlement to ACBs, interest, and a special award. The claimant sought reconsideration of the adjudicator’s finding of an end date for IRBs and ACBs, and the formula used to calculate the quantum of the special award. Vice-Chair Marzinotto partially granted both the insurer’s and the claimant’s requests. She held that the amount payable for ACBs based on a finding of unreasonably withholding benefits under s. 3(8) of the SABS was limited to the economic loss incurred by the claimant’s wife, which was less than the Form 1 amount. Vice-Chair Marzinotto found that the arbitrator did not err in finding an end date for IRBs and ACBs at the 104-week mark as the hearing took place in the pre-104 week period and there was no evidence submitted on post-104-week entitlement. Vice-Chair Marzinotto held that the formula for calculating the maximum amount available for a Special Award is: 50 percent x (benefits that were unreasonably withheld or delayed + SABS interest on these benefits calculated under the Schedule + compound interest calculated according to s.10 O. Reg.664).

Maeghan Easson v. Aviva Insurance Canada (18-011969)

The claimant sought an order reinstating payment of IRBs. The insurer argued that the claimant failed to provide relevant documents which had been requested under section 33. Adjudicator Go held that the insurer’s request for employment information and medical records were reasonable, and that the claimant failed to provide any explanation as to why it took a number of months to produce the requested records. Adjudicator Go concluded that IRBs were not unreasonably withheld, and that no interest or a special award were warranted.

D.M. v. Aviva General Insurance Company (18-003850)

The claimant sought entitlement to three medical benefits. The insurer approved the treatment plans shortly after written submissions were due. Adjudicator Norris held that interest was also payable on the treatment plans from the date of the LAT application onwards.

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