Category: Special Award

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.

Applicant v. Desjardins General Insurance Group (17-005974)

The claimant sought entitlement to seven treatment plans and a special award. Adjudicator Purdy granted all the claims. She concluded that the medical evidence showed a compression fracture was directly caused by the accident, and that the proposed treatment was appropriate for addressing the injury. She was critical of the IE assessor focusing on standard healing times rather than the claimant’s reports of pain. A special award of 50 percent was granted because the insurer had sufficient evidence regarding the injuries and need for treatment, including the opinions of some of the IE assessors.

G.V. v. Northbridge General Insurance (16-001698)

The insurer sought reconsideration of the Tribunal’s decision to issue a special award on medical benefits after the insurer removed the claimant from the MIG. Associate Chair Batty allowed granted the reconsideration and cancelled the special award. He held that the insurer’s approval of benefits in advance of a hearing was insufficient to warrant a special award; the claimant still had to prove entitlement to the special award. The claimant’s late submission of medical evidence supported the insurer’s late approval of benefits. Further, the Tribunal had granted the special award without providing the insurer with an opportunity to respond, contrary to procedural fairness.

Applicant v. Aviva General Insurance (17-005010)

The insurer denied the claimant’s entitlement to certain attendant care benefits. The claimant disputed the insurer’s denial and argued that the payments were unreasonably withheld or delayed. With respect to the period of time from when the first Form 1 was provided by the claimant to the time when the claimant started to incur attendant care services, Adjudicator Norris held that no attendant care benefit was payable because the claimant did not incur any attendant care expenses during that time. There was no delay in the insurer’s advice that it would pay any expenses incurred (subject to the limit outlined in the Form 1) from the time it received the Form 1. With respect to the period of time from when the claimant began to incur attendant care expenses to the two-year limit for non-catastrophic claims (during which time the insurer paid for all of the attendant care expenses incurred by the claimant), Adjudicator Norris found that the benefits paid accorded with the claimant’s needs and declined to deem any additional attendant care benefits incurred. Lastly, Adjudicator Norris found that the insurer unreasonably withheld payment of attendant care benefits for a period where it had agreed to pay attendant care benefits. The insurer did not deny there was a delay in payment and there was no apparent reason for its failure to pay the invoices in a timely manner. A special award of 25 percent was made.

Applicant v. Aviva Insurance Canada (17-006757)

The insurer approved and paid NEBs and medical benefits shortly before a hearing. The claimant argued that he was still entitled to a special award. The insurer argued that the Tribunal had no jurisdiction to make the award since all benefits had been paid. Adjudicator Paluch agreed with the claimant that the Tribunal had jurisdiction to issue a special award even if no benefits remained in dispute. He concluded that the insurer had been unreasonably slow in responding to the claims for NEBs and medical benefits, and that a special award was warranted. He considered seven factors (blameworthiness of the insurer; vulnerability of the claimant; harm or potential harm directed at the claimant; need for deterrence; advantage wrongfully gained by the insurer from the misconduct; any other penalties imposed on the insurer; the overall length in delay) in concluding that an award of 40 percent was appropriate.

Applicant v Coachman Insurance Company (17-004906)

The self-employed claimant and insurer disagreed about the quantum of IRBs; the claimant also sought interest on medical benefits approved shortly before the hearing, and a special award. Adjudicator Victor held that it was reasonable to base IRB calculations on the year prior’s gross business income as contemplated in s.4(3) of the SABS, and as such the claimant was entitled to IRBs based on the two income tax returns he provided within the stipulated timeframe. Adjudicator Victor held that requests for further and supporting information were excessive and that the claimant was only required to prove his self-employment income in accordance with the SABS. The claimant went further than required by providing an accounting report. There was a small period of non-compliance by the claimant for which the insurer was entitled to withhold IRB payments. Adjudicator Victor also held that an insurer being incorrect about the claimant not having proved the quantum of IRBs was not enough to grant a special award. Interest was awarded on the approved medical benefits.

Applicant v. Coachman Insurance Company (16-003306)

The claimant sought entitlement to removal from the MIG, IRBs, ACBs, medical benefits, and special award. He argued that he sustained a fractured sternum, a concussion, and major depressive disorder as a result of the accident. Despite an IE assessor concluding that the fractured sternum was related to the accident, the insurer concluded otherwise based on the related CT scan being performed a month after the accident in a foreign country. Adjudicator Gosio concluded that the claimant did suffer a fractured sternum, a concussion, and psychological impairments from the accident. He removed the claimant from the MIG and awarded some of the claimed medical benefits. He awarded IRBs based on the claimant being unable to perform his employment as a realtor primarily due to psychological issues. Surveillance of the claimant being physically functional did not persuade Adjudicator Gosio that the claimant was untruthful or that he was able to return to his employment. Adjudicator Gosio also awarded fifteen months of ACBs and held that the insurer had unreasonably withheld payment. Services were deemed incurred in accordance with section 3(8). Finally, Adjudicator Gosio issued a special award against the insurer in relation to ACBs due to the manner in which it denied ACBs and mislead the claimant on the IE physician’s opinion.

M.C. v. Aviva Insurance Company of Canada (17-002614)

The claimant sought entitlement to treatment outside of the MIG, attendant care benefits, six treatment plans, and a special award. Adjudicator Truong found that the claimant was entitled to treatment outside of the MIG, the cost of an attendant care assessment and assistive devices, interest, and a special award. Adjudicator Truong found that the claimant was not entitled to attendant care or the cost of the remaining treatment plans. She noted that the claimant had not incurred any attendant care services following the accident. Adjudicator Truong held that the MIG did not apply to the applicant’s impairments pursuant to section 38(11) because the insurer had failed to respond within 10 days. Adjudicator Truong found that the attendant care assessment was payable for the same reason. The treatment plan had been denied on HCAI, but no denial letter was sent by the insurer. Adjudicator Truong also held that the applicant was entitled to the special award largely due to the insurer’s continued denial of the cost of the attendant care assessment despite its failure to provide a denial letter. Adjudicator Truong stated that once the insurer became aware it had breached section 38(8) with respect to providing notice, it should have immediately provided notice and/or paid the benefit.

J.G. v. Travelers Canada (17-001630)

Prior to the written hearing, the respondent agreed to remove the claimant from the MIG and pay any invoices for incurred treatment. The claimant decided to proceed with the hearing and sought entitlement to a special award, costs, and interest on overdue payments. Adjudicator Sharma held that the claimant was entitled to the claimed interest only.