Category: Special Award

T.A.K. v. Aviva General Insurance Company (18-008232)

The claimant sought entitlement to IRBs, ACBs, and a special award. The claim for IRBs only concerned the weekly quantum. Adjudicator Neilson held that the insurer was entitled to deduct CPP Disability Benefits, and entitled to deduct income reported on the claimant’s tax returns which the claimant could not provide documentation for. She was critical of the claimant’s lack of disclosure of his income, particularly given that he had filed his taxes after the date of loss. After the claimant turned 65, even though an IRB was not actively being paid, the insurer was entitled to reduce the weekly IRB in accordance with the SABS. Adjudicator Neilson held that the formula applied whether an IRB was being paid, or was later found to be payable. She issued a special award of 35 percent based on the insurer’s improper deduction of 100 percent of post-accident income rather than 70 percent. Adjudicator Neilson dismissed the claims for ACBs, holding that many of the claimant’s reported care needs arose from conditions unrelated to the accident (such as a strokes and post-accident falls). She was critical of the claimant’s assessors and treatment providers for not addressing causation.

J.P. v. Aviva General Insurance Company (18-007398)

The claimant sought entitlement to various medical/rehabilitation benefits, interest on the payment of overdue benefits, and a special award. In this amended decision, Adjudicator Punyarthi preferred the claimant’s evidence over the insurer’s, finding that it persuasively demonstrated the claimant was entitled to the disputed benefits. Adjudicator Punyarthi further found that the claimant was entitled to a special award since the insurer provided reasons for denial to the claimant that were not consistent with its actual reasons for denial, and failed to consider medical treatment records on file when deciding to deny the claimant’s requests for treatment. By engaging in this conduct, Adjudicator Punyarthi found that the insurer unreasonably delayed or withheld payments to the claimant; as such, the insurer was ordered to pay an award to the claimant of 50 percent of the denied benefits (and interest) at issue. Adjudicator Punyarthi noted that the insurer’s omissions were a significant breach of its obligations to the claimant and that an award at the maximum 50 percent was thus warranted.

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

The claimant sought entitlement to 8 treatment plans, the cost of completion of two OCF-3s, and a special award. Adjudicator Lake found that the claimant was entitled to the majority of the treatment plans in dispute. She was not entitled to the cost of the two OCF-3s that were not requested by the insurer. She was entitled to the psychological portion only of a treatment plan for a multidisciplinary chronic pain program. Temporary pain reduction was found to be a legitimate goal for proposed acupuncture treatment. Adjudicator Lake denied entitlement to proposed treatment that was the same as treatment which had previously been approved by the insurer but not incurred by the claimant. A functional abilities assessment was found reasonable and necessary based on evidence the claimant was having difficulty with some personal care tasks. A special award of 25 percent of the disputed amount of three treatment plans was awarded to the claimant based on a finding that the insurer failed to consider all of the information available to it when making claims decisions.

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).

M.P. v. Aviva General Insurance Canada (18-006624)

The claimant initially sought entitlement to various medical benefits and IRBs. The insurer approved the benefits before the hearing. The claimant still sought a special award. Adjudicator Fricot held that a special award of $1,500 was payable. She reasoned that once an IE confirming that the claimant’s injuries fell outside the MIG had been received, the insurer should have reconsidered its denial of an OT assessment, OT services, a psychological assessment, and chiropractic services.

Applicant v. Portage La Prairie Mutual Insurance Company (18-001837)

The claimant sought entitlement to NEBs and a special award. Adjudicator Grieves awarded NEBs from the date of termination onwards. She noted that the claimant suffered ongoing cognitive impairments in multiple domains. Consistent with Heath v. Economical, the claimant was prevented from engaging in the pre-accident activities that were most important to him. Adjudicator Grieves also granted a special award of 40 percent. She found that the insurer failed to consider new information as it became available, and used its IEs to “paper” the denial.

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.

C.D. v. Aviva General Insurance (17-005825)

The Tribunal had awarded the claimant all claimed medical benefits in her application, and a 25 percent special award. The insurer sought reconsideration, arguing that it had paid amounts to the clinics for the medical benefits, so that any payments to the claimant was double recovery. The insurer also argued that the special award was granted on insufficient evidence. Adjudicator Ferguson dismissed the reconsideration request. He held that the Tribunal’s decision did not require the insurer to pay more than the full amount of the treatment plans in dispute. Regarding the special award, the adjudicator rejected the insurer’s argument that there was insufficient evidence to support same, and that the Tribunal had carefully considered the evidence before it.

Applicant v. Toronto Transit Commission (17-009121)

The claimant sought entitlement to NEBs, ACBs, medical benefits, and a special award. Adjudicator Boyce denied entitlement to NEBs and ACBs, but awarded two medical benefits for physiotherapy and chiropractic therapy. With regard to NEBs, the adjudicator noted that the claimant’s grades increased after the accident, she did not require assistance with personal care more than two months after the accident, and she continued to maintain a social life. With regard to personal care, the claimant received some assistance from her mother in the first few weeks after the accident, but did not require long-term care. Further, the claimant’s mother did not suffer an economic loss as a result of providing care. The claimant also failed to provide a Form 1 before such services had ceased. Finally, the adjudicator agreed that pain relief was a valid goal and that further treatment was reasonable and necessary. A special award of $1,000 was granted because the insurer had delayed payment of earlier benefits and was not transparent with the claimant regarding her claim.

A.S. v. Aviva Canada Inc. (18-001273)

The claimant sought entitlement to a special award. The insurer had requested an OCF-10 Election based on the Disability Certificate supporting both IRBs and NEBs. The claimant argued that it was unnecessary, but later submitted an Election. The insurer agreed to pay IRBs from the date of the Disability Certificate. The claimant argued that she should receive IRBs back to one-week post-accident. The insurer ultimately did pay IRBs back to that date. The claimant still pursued a special award. Adjudicator Punyarthi held that it was not unreasonable for the insurer to request an Election and that the SABS did not require an insurer to pay a specific benefit before submission of a Disability Certificate. A special award was not payable.