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.

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.

Almayahi v. The Co-Operators General Insurance Company (20-001166)

The claimant sought entitlement to two chiropractic treatment plans and a special award. Adjudicator Grant found that the claimant was entitled to payment for the costs of both treatment plans on the basis that the medical documentation supported his reports of consistent and ongoing pain since the accident, and that the goals of pain reduction, increased range of motion, and return to activities of normal living were reasonable and necessary. Adjudicator Grant further found that the claimant was entitled to a special award in the amount of $470.74, representing 10 percent of the total amount payable on the treatment plans. He determined that the insurer unreasonably withheld treatment by failing to acknowledge or consider new medical records from the claimant’s family physician and chronic pain treatment providers which challenged the conclusions of its IE assessor.

J.T. v. Aviva Insurance Company (18-003238)

The claimant submitted a request for reconsideration arising out of a decision which granted entitlement to some benefits, interest, and an award of 25 percent of the disputed amounts for three treatment plans unreasonably withheld by the insurer. The decision determined the cost of the withheld treatment plans and the percentage to be applied, but the calculation of the award was not completed. There was a dispute over the calculated interest and the award following the decision, and the claimant subsequently retained an accountant who calculated the award to be $10,657.03. The insurer accepted the accountant’s calculation, and made payment. The claimant request payment of the cost of the accounting report, but the insurer refused. As such, the claimant filed a Notice of Motion requesting payment of the disbursement. Vice Chair Hunter denied the motion on the basis that there was no provision for the payment of disbursements within the cost regime contained in Rule 19 of the LAT Rules, and the claimant sought reconsideration. Vice Chair Hunter denied the claimant’s request for reconsideration, noting that costs are not compensatory but are rather meant to maintain civility and order during proceedings. He further noted that there had not been a single LAT decision that awarded disbursements as part of a cost award.

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

The claimant sought entitlement to physical treatment and various assessments, as well as a special award. Adjudicator Grant determined that the claimant was entitled to the disputed physical treatment plan, finding that the claimant’s pre and post-accident visit history with her family doctor was indicative of significant and ongoing accident-related pain complaints and noting that pain relief, even as the lone goal of treatment, was a legitimate and sometimes reasonable and necessary goal. He further found that chronic pain assessment payable in light of the insurer’s non-compliance with section 38(8). The insurer failed to respond to the treatment plan, even at the time of the hearing, and Adjudicator Grant advised that the door was now closed to the option of curing the defective notice. Adjudicator Grant also granted a special award in the amount of $300.00, finding that the insurer failed to meet its obligation to continue to adjust its file as new medical evidence became available that clearly contradicted its IE assessor’s finding and was also in non-compliance with section 38 of the Schedule.

Kargol v. Aviva General Insurance (19-011590)

The claimant sought entitlement to pre- and post-104 week IRBs and a special award. Adjudicator Grant awarded IRBs from the date of loss and ongoing, holding that the claimant met both disability tests. The claimant had worked two jobs in the year before the accident. The first was as a sheet metal fabricator. The second was as a purchaser, processing manager, and shop helper. He quit his job two days before the accident according to a psychological report, though the claimant denied that during the hearing and said he was laid off because of downsizing. The claimant attempts to return to one of the jobs after the accident, but stopped after one week and had not returned to work any time before the LAT hearing. Adjudicator Grant accepted the opinions of the claimant’s orthopaedic surgeon and chronic pain expert that the accident related injuries prevented the claimant from engaging in the essential tasks of his pre-accident jobs, and prevented him from working in any similar jobs requiring physical labour. Adjudicator Grant awarded a special award of 10 percent on IRBs because the insurer had not shown any consideration of the claimant’s expert reports in the two years after receiving the reports and the LAT hearing.

D.C. v. Allstate Canada (19-005260)

The claimant sought entitlement to post-104 week IRBs, ACBs, and various medical benefits, as well as a special award. Vice-Chair McGee dismissed the application on the basis that the claimant had not established that the accident was the cause of the impairment giving rise to the claim. She found that the claimant sustained soft tissue injuries in the accident, from which he recovered, and that his ongoing impairments were related to a later slip and fall incident in which he injured his groin. In short, the accident was not a “but for” cause of any physical or psychological impairment. As the claimant had not established entitlement to the benefits claimed in the application, there was no basis for a special award.

Branden v. Co-operators General Insurance Company (19-008343)

The insurer sought reconsideration of the Tribunal’s decision that it was not entitled to deduct a long-term disability settlement from IRBs; the claimant sought reconsideration of the Tribunal’s decision that a special award was not payable. Vice Chair Boyce rejected both reconsideration requests. He found no error of law relating to the Tribunal’s conclusions about “gross weekly payment for loss of income” and rejected the insurer’s arguments regarding double recovery. The claimant’s receipt of LTD benefits was not a payment “under an income continuation benefit plan”, but rather a payment to settle a legal obligation resulting from litigation. The Tribunal’s decision not to grant a special award was within its discretion. The claimant was not automatically entitled to a special award simply because she recovered IRBs in the dispute. The insurer showed that it was not being “stubborn” or “inflexible” because it continued to obtain updated IRB reports as new information was received. The insurer’s position regarding deductibility of the LTD settlement was a genuine dispute that the parties had differing views on interpretation.

Jamon v. The Co-operators (19-006256)

The claimant sought entitlement to IRBs and various medical/rehabilitation benefits, including an attendant care assessment and functional abilities assessment. With respect to IRBs, Adjudicator Parish found that the claimant had proven on a balance of probabilities that she was substantially unable to perform the essential tasks of her pre-accident employment as a supervisor at Dairy Queen, emphasizing the claimant’s ongoing post-concussion symptoms, which were not addressed in the insurer’s IE reports. Adjudicator Parish further found that the attendant care assessment was reasonable and necessary because of the claimant’s self-reported difficulty with performing her personal care tasks, and that the functional abilities assessment was reasonable and necessary as it could have assisted with the determination of ongoing entitlement to IRBs. In light of her findings, Adjudicator Parish also granted a 25 percent special award on the attendant care and functional abilities assessment due to the insurer’s failure to investigate the claimant’s concussive symptoms.

Seepersaud v. Allstate Insurance (20-000400)

The claimant sought a special award due to the insurer’s unreasonable delay in paying his IRB. Vice Chair Boyce found that the evidence demonstrated that the insurer withheld and delayed the payment of the claimant’s IRB claim for over one year of his eligibility, despite having all of the documentation reasonably required to initiate and calculate the claim. The insurer failed to communicate with its insured for several months after its section 33 requests were satisfied, did not acknowledge receipt of the documentation, and did not calculate or pay the IRBs. Vice Chair Boyce rejected the insurer’s submission that this was a situation where the insurer simply “got it wrong”, but rather found that this was a situation where the insurer “simply dropped the ball”. As such, he granted a special award representing 25 percent of the total benefits payable due to the insurer’s unreasonable withholding and delay of the payment of the claimant’s IRB.