Viran v. Aviva General Insurance Company (19-008488)

The insurer filed a request for reconsideration following a decision in which the Tribunal found that the claimant was entitled to various medical benefits and a special award. Adjudicator Grant granted the insurer’s request for reconsideration in part, and the order for a special award was set aside. Adjudicator Grant was persuaded by the insurer’s argument that section 38(11) already had a punitive measure that did not need to be overlapped by an award. He agreed that by failing to properly deny the OCF-18, the “shall pay” consequences discourage an insurer from failing to respond to an OCF-18 that it receives, and serves as an appropriately punitive result. In doing so, Adjudicator Grant noted that the threshold for an award was high for a reason, and that a penalty on top of a penalty could be reasonably construed as excessive.

Foster v. Aviva General Insurance Company (19-014657)

The claimant sought reconsideration of the Tribunal’s decision that the CERB / CRB was deductible from IRBs. The insurer agreed with the claimant that the Tribunal’s decision was an error. Vice Chair Boyce granted the reconsideration and held that CERB / CRB was not deductible from IRBs because it was not “gross employment income” or “other remuneration from employment”, and was not analogous to “salary, wages and other remuneration from employment”.

Morris v. Aviva General Insurance (19-002717)

The insurer filed a request for reconsideration after the Tribunal previously decided that, among other things, the claimant was entitled to two OCF-18s, plus interest as a result of the insurer’s failure to comply with section 38 of the SABS. The insurer argued that the Tribunal had referred to case law not submitted by either party, denied the insurer the right to issue a proper denial notice, and misapplied section 38(11). On reconsideration, Adjudicator Lake noted that, while case law that was not submitted by either party was cited (MFZ v. Aviva), it was in terms of comparison towards the purpose of statutory interpretation. In relation to the allegation that the previous decision denied the insurer the opportunity to issue compliant denial notices, Adjudicator Lake noted that the insurer’s position fell afoul of the SABS consumer protection mandate and that it was unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would strip the Tribunal of its jurisdiction to resolve accident benefit matters. Lastly, Adjudicator Lake addressed the insurer’s position that she erred in misapplying section 38. Adjudicator Lake noted that in her previous decision she was silent on whether the OCF-18s were required to be incurred prior to payment. While her silence on the issue did not amount to an error of law, Adjudicator Lake conceded that she should have been clearer regarding the interpretation of section 38 in that the OCF-18s were to be paid within 30 days of an invoice being submitted. Adjudicator Lake granted the request for reconsideration in part, finding that the claimant was entitled to the OCF-18s plus interest following submission of an invoice for services rendered.

Amiri and Mireskandari v. The Co-operators (20-003296)

The claimants were out for a walk with their spouses when a member of their group, a close relative, was struck by a motor vehicle in a pedestrian accident. The claimants, who were uninsured, applied for accident benefits under the driver’s policy, claiming emotional shock and psychological distress. Adjudicator Norris had previously ruled that the claimants did not meet the definition of an “insured person” in section 3(1) of the SABS, and therefore had no entitlement to accident benefits under the driver’s policy. The claimants requested Reconsideration of the decision. The claimants alleged that Adjudicator Norris erred in fact or law by failing to recognize the broad, consumer-protecting threshold of section 3(1). Adjudicator Norris disagreed, noting that while protections did exist, the claimants had no relation to the named insured (driver) as required by law to claim benefits, and as unfortunate as the event may have been, they were not entitled to claim accident benefits from the insured driver. The request for reconsideration was denied.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

N.M. v. Aviva General Insurance (18-008710 and 18-008717)

The claimant requested reconsideration of the Tribunal’s decision which found she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark. The claimant submitted that the Tribunal made a significant error of fact and law when it ordered NEBs payable only up to the two-year mark by using the wrong version of the SABS. Although the accident occurred on March 28, 2017, the insurance policy was entered into on April 7, 2016 (therefore prior to June 1, 2016 and after September 1, 2010). The claimant submitted new information in the form of a policy slip confirming same. Adjudicator Paluch granted the claimant’s reconsideration request, finding that the error of fact was significant such that a different decision would have been reached by allowing ongoing payments of NEBs in accordance with the applicable SABS, and concluded that the claimant she was entitled to NEBs in the amount of $185.00 per week up to the two-year mark and $320.00 per week thereafter and ongoing.

P.M. v. Aviva General Insurance (19-002717)

The insurer requested reconsideration of a decision that awarded the claimant two treatment plans as a result of the insurer’s non-compliance with sections 38(8) and 38(9). The insurer submitted that the Adjudicator erred in law by vitiating its right to “cure” its deficient notices regarding the treatment plans submitted under section 38(11) even after the Tribunal rendered a decision. The insurer argued that its liability for payment of goods and services under a treatment plan as a result of its failure to comply with sections 38(8) and 38(9) ends upon delivery of a compliant denial notice pursuant to section 38(11), and not as a result of a decision of the Tribunal. Adjudicator Lake disagreed and stated that it was well settled that the Schedule must be read generously with any limitations construed narrowly. In this context, Adjudicator Lake considered it unlikely that the legislature would have intended to bring a dispute over benefits between the parties to a conclusion by relying upon the insurer to determine when, and if, it would provide a denial notice that complied with sections 38(8) and 38(9). Adjudicator Lake stated that this position would amount to an absurd, unreasonable, and inequitable result and would also strip the Tribunal of its jurisdiction to resolve accident benefit matters. As a result, Adjudicator Lake found no error of law in finding that the insurer’s opportunity to cure its defective denial notices ended upon the issuance of the decision.

Catic v. Aviva General Insurance (19-005572)

The claimant requested reconsideration of a decision in which the Tribunal found that the claimant was not entitled to the cost of a psychological assessment because it was not reasonable and necessary, despite the insurer’s denial not complying with section 38. The claimant argued that the applicable consequences set out in section 38(11) required the insurer to pay for all assessments and examinations described in the treatment plan starting on the 11th business day and ending on the day the insurer gives a notice described in section 38(8). Further, the claimant argued that evidence of services being incurred was not required, as stated in P.M. v. Aviva General Insurance, where the adjudicator held that s. 38(11)2 does not include a requirement for any services to be “incurred.” The section only states “that relate to.” Adjudicator Grant set aside the Tribunal’s decision and held that the claimant was entitled to the disputed psychological assessment even though it had not been incurred prior to the insurer delivering a section 38 compliant denial.

Kosiner v. Economical Insurance Company (19-007787)

This is a reconsideration decision. The claimant was self-represented. He attended the case conference and settled his file with Economical, which was confirmed in writing. Over one year later, the claimant filed a Notice of Motion to set aside the settlement and raised issue with the fact that Economical would not renew his insurance policy. In the original decision, the adjudicator held that the settlement was binding, that the Tribunal did not have jurisdiction to decide matters related to the renewal of the insurance policy, and dismissed the claimant’s appeal. The adjudicator also noted that the claimant had not returned the settlement funds. On reconsideration, the adjudicator dismissed the claimant’s reconsideration applicating noting that there was no basis to set aside the original decision.

P.P. v. Wawanesa Mutual Insurance Company (18-000957)

The claimant sought reconsideration of the Tribunal’s decision that he did not suffer a catastrophic impairment and that he was not entitled to IRBs. With regard to the catastrophic impairment, he argued that the Tribunal erred in not counting 3 percent WPI for medication and 18 percent WPI for a potential future operation. Adjudicator Flude rejected both grounds of reconsideration. As to the medications, the Tribunal reiterated that not all medications used by the claimant were related to the accident, and that the addition of 3 percent WPI was not for the possible future impact of extended drug use – it was for the manner in which the drugs may mask the person’s true impairment at the time of the assessment. As to the 18 percent for future surgery, the Adjudicator Flude found that the SABS and the AMA Guides did not allow for the counting of a potential future procedure. The person must be assessed at the time he or she is before the Tribunal. Finally, regarding the denial of IRBs, Adjudicator Flude found no error in the conclusion that the claimant failed to prove that he was self-employed at the time of the accident.