Category: Special Award

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.

Applicant v. Aviva Canada Inc. (17-005825)

The claimant sought entitlement to various medical benefits and a special award. Adjudicator Létourneau concluded that all of the proposed treatments were reasonable and necessary for the claimant’s injuries. The family physician had diagnosed chronic pain and recommended ongoing physical therapy. The claimant also demonstrated psychological impairments that required ongoing treatment. The IE reports did not directly contradict the recommendations in the treatment plans. Adjudicator Létourneau also issued a special award of 25 percent against the insurer. He concluded that once the claimant had provided the outstanding clinical notes and records of all treatment providers in his Case Conference summary, the insurer had sufficient information to determine that the denied medical benefits were reasonable and necessary. The insurer’s delay in not approving the denied benefits was unreasonable.

Applicant v. Motor Vehicle Accident Claims Fund (17-001681)

The claimant suffered a catastrophic impairment following a motorcycle accident which caused a traumatic brain injury. He sought entitlement to NEBs, ACBs, a rehab support worker, home modifications, and a special award. The Fund denied his entitlement to the claimed benefits. It also argued that the claimant did not have a valid licence and was not entitled to NEBs, and that no attendant care services had been incurred. Regarding the exclusion, Adjudicator Hines concluded that it did not apply because the claimant did have a valid driver’s licence (G1) even though it was not the proper licence for operating a motorcycle. She awarded NEBs, concluding that the claimant’s life had changed significantly following the accident. Even though the claimant was receiving ODSP for various disabilities before the accident, the brain injury resulted in significant changes in the claimant’s independent functionality. ACBs were also awarded at the rate of $6,000 per month. Adjudicator Hines concluded that 24 hour care was reasonable based on the claimant’s brain injury and the need for constant supervision. She also held the ACBs to be deemed incurred up to the date of the hearing because the Fund had failed to consider its IEs with a critical eye to ensure that they were medically sound and unbiased. Rehab support worker services were awarded because it was reasonable to teach the claimant skills and strategies to reintegrate into the community. Home modifications were not awarded because the majority of recommended modifications were for someone with severe physical disability rather than a brain injury. Finally, Adjudicator Hines granted a special award in relation to ACBs and the rehab support worker. She concluded that the denials were unreasonable and that the Fund did not critically consider its own IE reports. The Fund also failed to follow the recommendations of its own independent adjustors.

C.M. v. Aviva General Insurance (17-005910)

The claimant sought entitlement to an additional seven months of IRBs and entitlement to a special award for IRBs that were paid at a lower rate than mandated by the SABS. Adjudicator Grant concluded that no further IRBs were payable for the disputed period because the medical evidence did not suggest an inability to continue in his pre-accident employment. In terms of the past IRBs, Adjudicator Grant concluded that although the insurer had corrected the weekly amount and paid with interest, the deduction of EI was unreasonable and the insurer did not correct the error until the LAT application was filed. An award of 50 percent was granted.

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