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.

Malitskiy v. Unica Insurance Inc. (2021 ONSC 4603)

The claimant appealed the LAT reconsideration in which the Tribunal held that he was only entitled to ACBs calculated by using the Form 1 hourly rate multiplied by the time received for each service (rather than the full Form 1 amount of $6,000), and the Tribunal’s decision that the claimant was not entitled to a special award. The Divisional Court dismissed the appeal. It held that the quantum of ACBs payable was properly determined using the hourly rates set out in the FSCO Guidelines and the Form 1, and that the insurer was not required to pay for attendant care services in excess of those hourly rates. The Court also held that the Tribunal’s reconsideration applied the proper principles of law (as described in Plowright v Wellington). A special award could not be granted simply because the insurer had made the wrong adjusting decision.

Aslivo v. Aviva Insurance Canada (19-004717)

The claimant applied to the LAT seeking a special award and entitlement to interest on two lump sum payments of IRBs made by the insurer. The insurer sought repayment of an overpayment of IRBs. Vice Chair Flude began the analysis by stating: “While the Schedule has been characterized as consumer protection legislation and should be given a broad and liberal interpretation, it is important to bear in mind that the obligations of the parties are mutual. No level of broad and liberal interpretation can save a consumer who simply refuses to cooperate with an insurer.” With regards to the first lump sum payment of IRBs, Vice-Chair Flude separated the issues into two distinct periods. In the first period, leading up to an IRB response letter / s. 33 request, the insurer was not in compliance with its obligations under the SABS to respond to the IRB application within 10 days. In the second period (after making the request for documents), the insurer was in compliance with the SABS. Vice-Chair Flude found that the insurer was liable to pay interest during the period it was in non-compliance with the SABS. The insurer was not liable to pay interest on the lump sum amount for the period starting when the reasonable s. 33 requests were made until the s. 33 requests were complied with (at which time the insurer paid the lump sum amount). The second lump sum payment was made for a period during which the claimant’s entitlement to IRBs had been terminated based on IE assessments. The lump sum back payment was made after the claimant was re-assessed and it was determined that her condition had deteriorated such that she met the test for IRBs. Adjudicator Flude found that although the insurer had not acted unreasonably when terminating the benefit for a period, interest was payable on the lump sum back payment. The situation was found to be analogous to a claimant being successful in an application for an IRB to the Tribunal. Adjudicator Flude found that the insurer was entitled to repayment of an overpayment of IRBs for a specific period, as claimed. The claimant was not entitled to a special award.

Cargnelli v. Aviva Insurance Company (20-001892)

The claimant applied disputed his entitlement to NEBs, two medical benefits, interest, and a special award. Adjudicator Boyce dismissed the NEBs claim, awarded the two medical benefits plus interest, and awarded a 10 percent special award with respect to the medical benefits. With respect to NEBs, Adjudicator Boyce noted that while according to Heath a total disability is not required, the NEB test is a stringent one. Aviva relied on its IE reports and the claimant’s self-reporting. Adjudicator Boyce noted that the claimant reported that he had resumed self-care tasks and basic housekeeping activities, mowed his lawn, attended social events, and could drive his vehicle and motorcycle. Adjudicator Boyce found that the claimant’s pain did not practically prevent him from engaging in his most valued pre-accident activities. As for the medical benefits, Adjudicator Boyce found that both disputed treatment plans were reasonable and necessary to help him reduce pain and improve his recovery and that pain reduction is a legitimate goal for treatment. As for the special award, Adjudicator Boyce agreed with the claimant’s submissions that it was difficult to reconcile Aviva’s denial of medical benefits during the same period it had paid a NEBs.

Dankha v. Aviva Insurance Company (19-009569)

The claimant applied to the LAT seeking removal from the MIG, entitlement to three treatment plans, and a special award. Prior to the LAT hearing, the insurer removed the claimant from the MIG and approved all the treatment plans, so the only issue at the hearing was whether the claimant was entitled to a special award. Vice-Chair Boyce found that the claimant failed to produce compelling medical evidence to support the reasonableness of the OCF-18s when they were submitted, failed to produce relevant clinical notes and records until the eve of the hearing, and delayed the completion of a s. 44 examination by failing to attend on the initially scheduled date. Vice-Chair Boyce found that there was no evidence that the insurer unreasonably withheld or delayed the payment of benefits to the claimant. The claimant was not entitled to a special award.

Manikam v. Aviva Insurance Canada (19-006126)

The claimant sought entitlement to a special award following payment of NEBs after the Case Conference. The insurer admitted that there was a two month initial delay of payment of NEBs. There was also a failure to provide IE reports within 10 days of receipt. A seven month delay in providing the IEs was due to oversight, thought the claimant received NEBs during this period. Adjudicator Ferguson denied the claim for a special award. The insurer rectified the errors as soon as it became aware of them and paid interest as required by the SABS. Regarding late service of the IE reports, the claimant continued to receive NEBs so there was no delay or withholding of NEBs during that period.