O’Brien v. Intact Insurance Company (20-003729)

The claimant’s father was fatally injured in an automobile accident which led the claimant to develop psychological injuries and claim benefits pursuant to the SABs. A section 44 examination concluded that the proposed psychological treatment sought by the claimant was reasonable and necessary; however an incorrect fax number was used to send correspondence approving treatment. The claimant applied for an award pursuant to s. 10 of O. Reg 664 due to the insurer’s error. Adjudicator Norris found that the claimant was not entitled to an award as the insurer’s behaviour did not amount to unreasonable withholding or the delay of the payment. Adjudicator Norris emphasized that insurers are not to be held to the standard of perfection, and mistakes are not errors that warrant the grant of an award.

Shweihat v. Aviva Insurance Company of Canada (20-001897)

The Tribunal determined that the claimant was not entitled to an award under s. 10 of O. Reg 664. The claimant had argued that the insurer’s denial of a treatment plan was unreasonable as it had relied on an insurer examination that was contrary to the available medical records. Vice-Chair Marzinotto found that the medical evidence included in the report was consistent with the claimant’s records and that it was therefore reasonable for the insurer to rely on the report. There is a high threshold for entitlement to an award under O. Reg. 664. The claimant failed to demonstrate that the insurer had either unreasonably withheld or delayed the payment of a benefit to which he was entitled.

Keshavarz v. Aviva General Insurance (20-001377)

The claimant sought a special award from the insurer relating to the denial and subsequent approval of a psychological assessment prior to a LAT hearing. Adjudicator Hines determined that the insurer unreasonably withheld and delayed payment of a treatment plan for the psychological assessment. As a result, she determined that a special award of 25 percent of the treatment plan was appropriate. The Tribunal considered the length of the delay, the blameworthiness of the insurer’s conduct, the vulnerability of the insured person, the harm or potential harm directed at the insured person, the need for deterrence, and any advantage wrongfully gained by the insurer from the misconduct. The Adjudicator found the length of the delay the most aggravating factor as the insurer had denied the treatment plan without any rationale and did not approve the benefit for almost two years from the date it was submitted. Further, the Adjudicator found that the claimant was particularly vulnerable as she was a minor when the treatment plan was initially denied. An insurer ought to use extra care when handling treatment plans for minors and be clear with its rationale for denial. The Adjudicator reduced the quantum of the special award because the claimant failed to demonstrate that she had been prejudiced by the insurer’s conduct, and because the insurer approved the treatment plan eight months before the hearing.

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.

Gupta v. TD Insurance Meloche Monnex (19-010353)

The claimant applied to the LAT seeking entitlement to the cost of examinations, post-104 IRBs, ACBs, and a special award. The claimant was involved in a motor vehicle accident in 2016. Her injuries were found to include post-concussion syndrome and chronic pain. She received long-term disability benefits until 2020 (when she received an advance buyout of her long-term disability benefits) and CPP Disability benefits from 2017 to 2020. Adjudicator Grant did not find the s. 44 post-104 IRB reports compelling, as the opinions were provided individually and there was no consideration of the combined impact of the claimant’s impairments on her ability to return to work. Adjudicator Grant found that the claimant was entitled to post-104 IRBs and a neuropsychological cognitive assessment. She was not entitled to a language pathology assessment. The claimant did not have the financial means to pay for attendant care services. As such, Adjudicator Grant found that the claimant had failed to prove that she incurred any ACBs, and she was not entitled to payment of ACBs. Finally, Adjudicator Grant found that the insurer’s failure to provide s. 44 assessors with all the clinical notes and records of the claimant did not meet the threshold for granting an award, and the claim for a special award was dismissed.

Foucade v. Coachman Insurance Company (19-005660)

The claimant sought entitlement to IRBs, which the insurer denied based on the findings of IEs. By the time of the hearing, IRBs were no longer an issue in dispute, as the insurer later reinstated IRBs and made a lump sum payment representing the amount withheld. The issue of a special award remained. The claimant submitted that the insurer ignored pertinent medical information and relied on flawed IEs for over one year prior to paying the IRBs, and requested a maximum award of 50%. The insurer submitted that it relied on the opinions of its IE assessors, but later re-considered its decision based on updated medical information. Adjudicator Chakravarti found that the insurer acted unreasonably in delaying payment of IRBs, and therefore an award was warranted. Although the insurer’s adjusting was not expected to be perfect, the insurer was expected to consider all of the medical evidence. Adjudicator Chakravarti emphasized that the papering of a termination of IRBs by obtaining a favourable IE report was not a protection against an award when an insurer relies only on that report while closing its mind to the other medical information available. That said, Adjudicator Chakravarti did not agree that the insurer’s unreasonableness rose to the level where the full 50% should be awarded, and found that an award of 35% was warranted.

Sandola v. Travelers Insurance (20-000648)

The claimant sought entitlement to various medical and rehabilitation benefits. At the case conference, the parties resolved the claimant’s claim for all past, present, and future medical and rehabilitation benefits for $848.51, which was the remaining amount of benefits available under the claimant’s policy limits. The only issue that remained in dispute was the claim for a special award. Adjudicator Lake found that the insurer’s denial of a proposed orthopaedic assessment on the basis that an orthopaedic IE had already been completed was not a valid medical or other reason, and resulted in a delay in payment for the assessment. She disagreed with the claimant’s submissions that an award of 50% was warranted, given the limited evidence to suggest that the insurer’s conduct rose to the level of being excessive, imprudent, stubborn, inflexible, or unyielding. She instead granted a nominal award of 5% as a reminder that section 25 assessments are not duplications of section 44 assessments. In determining the quantum of the award, Adjudicator Lake agreed with the insurer that she was only able to award a lump sum on the $848.51 remaining under the policy limits (as opposed to the full amount of treatment plans originally in dispute). As a result, the claimant was entitled to an award in the amount of $42.43.

H.L. (By Her Litigation Guardian) v. Economical Insurance Company (20-002966)

The claimant was involved in an accident in 2014. The insurer determined that she was catastrophically impaired in 2018. The claimant received attendant care services from a hired attendant care services provider for the period of July 2014 to March 2020. Due to the COVID pandemic, after March 2020 the claimant’s family decided to have the claimant monitored by her son rather than a paid attendant care services provider. Until the fall of 2020, the insurer took the position that the claimant was barred by the limitation period from receiving payment for ACBs. In September 2020, following the reversal of its legal position following the Court of Appeal’s reasons in Tomec v Economical, the insurer paid the amount of ACBs incurred from July 2014 to March 2020, plus interest. The amount incurred and paid was less than the maximum amount of $6,000.00 per month available to catastrophically impaired persons. The claimant applied to the LAT seeking entitlement to ACBs in the amount of $6,000 per month from May 2016 to date. The argued that additional amounts for ACBs up to $6,000 should be deemed incurred to date or until March 2020, if the claimant’s son was found not to have suffered an economic loss. Adjudicator Farlam found that there was no basis for finding that the insurer unreasonably withheld or delayed payment of ACBs and declined to deem that ACBs had been incurred, pursuant to section 3(8) of the SABS. The claimant failed to demonstrate that her son suffered any economic loss in providing alleged attendant care services. Adjudicator Farlam also held that the insurer did not act unreasonably by denying ACBs based on the limitation period, prior to the release of Tomec v. Economical. Once the decision was released, the insurer paid the claimant the incurred ACBs plus interest.

Kyrylenko v. Aviva Insurance Canada (2021 ONSC 4929)

The claimant appealed the Tribunal’s decision that he was not entitled to payment for benefits related to two treatment plans that the insurer had failed to respond to within 10 business days. Despite the language of section 38(11), the Tribunal considered whether the medical benefits were reasonable and necessary, and whether the MIG applied and barred entitlement to the claimed in-home assessment. The Divisional Court granted the appeal and held that the insurer was liable for all amounts on the treatment plans related to the 11th business day onwards until the treatment plan was properly denied. The Tribunal erred in considering the “”reasonable and necessary”” test for the entitlement when section 38(11) applied, and the Tribunal erred in considering the prohibition on in-home assessments under section 25(2) for MIG claims, given that section 38(11) required payment. The Court ordered the insurer to pay the treatment amounts that relate to the period after the 11th business day following submission of the treatment plan. The Court returned to matter to the Tribunal for a decision on the claim for a special award.

Lo v. Allstate Insurance Company of Canada (20-003717)

The claimant sought entitlement to a special award in relation to a physiotherapy treatment plan, arguing that the insurer had “ample evidence as to the existence of the impairments she suffered.” The claimant further submitted that the refusal was unreasonable and caused a substantial delay in the claimant’s ability to access treatment that was recommended by her treating physicians and the IE examiners. The insurer submitted that the claimant never provided compelling medical evidence to support her claim for physical therapy, and her submissions provided no evidence that the insurer had acted in bad faith and unreasonably withheld benefits. Adjudicator Norris agreed with the insurer and stated that the insurer had insufficient evidence to support the claim for physiotherapy, and it was reasonable for the insurer to seek an IE to determine the claimant’s medical status.