Category: Special Award

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.

F.A. v Aviva Insurance Company (17-003364)

The applicant sought various medical benefits, as well as an award pursuant to section 10 of O. Reg 664. Adjudicator Truong held that the applicant was entitled to the balance of the treatment plan for a total body assessment and documentation, but was not entitled to medical benefits for physiotherapy. The adjudicator held that the diagnoses listed in the physiotherapy treatment plan were not accident related. The adjudicator also held that the applicant was entitled to an award in the amount of 50 percent of the amount payable plus interest due to: Aviva’s handling of the first treatment plan; Aviva specifically refusing to pay the fees for a progress report it approved; and not providing an updated notice with medical reasons for denying the total body assessment. Aviva had partially approved a treatment plan for documentation and two physiotherapy sessions, and further costs for a progress report as long as a copy would be provided to Aviva. The progress report was provided to Aviva, however, Aviva argued that the report was completed in contemplation of the second treatment plan in dispute. Adjudicator Truong held that it logically follows that a progress report would contemplate further treatment, and the approval letter was ambiguous about what a progress report should include. The adjudicator resolved the ambiguity in favour of the applicant. With respect to the total body assessment, Aviva argued that it was for the purpose of completing the treatment plan, and was subject to the $200 limit per the FSCO Guideline for the completion of an OCF-18. Adjudicator Truong held that no medical reasons were given for denying the total body assessment, thus Aviva was in non-compliance with subsection 38(8) and the assessment was payable pursuant to subsection 38(11).

F.A. v. Aviva General Insurance (17-006302)

Seven days prior to an in-person hearing, the claimant brought a motion requesting an Order to add a special award to the issues in dispute and an Order for leave to examine the insurer’s claims adjuster. Adjudicator Maedel granted both requests.

F.H. v. Certas Direct Insurance Company (17-003735)

The claimant sought entitlement to treatment outside of the MIG, five treatment plans, and a special award. Adjudicator Sewrattan found that the claimant suffered from Chronic Post Traumatic Pain Syndrome and was entitled to treatment outside of the MIG. Adjudicator Sewrattan preferred the claimant’s expert report over the insurer’s, as the insurer’s report failed to address the claimant’s pre-existing carpal tunnel syndrome and the issue of chronic pain.  Adjudicator Sewrattan found that all of the treatment plans in dispute were reasonable and necessary. Adjudicator Sewrattan held that the claimant was not entitled to a special award as the insurer had not acted unreasonably.

Applicant v. Certas Direct Insurance Company (17-001627)

The claimant sought entitlement to 15 treatment plans, non-earner and attendant care benefits. The insurer paid the non-earner and attendant care benefits for two years, before stopping both with IE reports. The insurer, in its written submissions, reversed its position on medical benefits, and ultimately approved the disputed treatment plans. However, Adjudicator Susan Sapin determined the withholding of the treatment amounted to a special award and awarded five percent of the disputed quantum, plus special award interest. On review of the medical documentation, as well as an analysis of the claimant’s pre- and post-MVA lifestyle, along with finding favour in the claimant’s subjective reports, it was held that the claimant suffered a complete inability to carry on a normal life and was therefore entitled to ongoing NEBs. As it pertained to the claim for attendant care benefits, Adjudicator Sapin determined that the claimant was entitled to a reduced Form 1 quantum, as the claimant failed to demonstrate proof of incurred expense necessary to claim the full amount. Although the insurer sought to quash the claimant’s ongoing attendant care benefits as premature, Adjudicator Sapin held that the claimant needed to dispute the denial of attendant care within the 104 week period, or else forfeit the claim beyond the 104 week due to a possible limitations deadline. On review, it was determined the claimant was entitled to an increased quantum beyond the 104 week cut-off; however, the claimant would first need to apply for, and be designated, catastrophically impaired. Interest on all payable benefits was also awarded.

P.K. v. Unica Insurance Inc. (17-005397)

The insurer sought an order for a number of documents (which the claimant undertook to provide during the Case Conference) and the particulars of the special award claim. Adjudicator Ferguson granted the insurer’s motion, and ordered the claimant to produce the requested documentation within seven days, and to provide the particulars of the special award claim.

R.W.J. v. Aviva Insurance (17-001866)

The claimant sought entitlement to a special award. During the course of the medical management of the matter, the claimant required medical marijuana. The insurer requested that the claim be submitted via an OCF-18. However, Adjudicator Brian Norris noted that under section 38 a treatment plan is not needed if the drug is prescribed by a regulated health practitioner, as was the case here. Adjudicator Norris reviewed the correspondence between the claimant and the insurer and determined that although wrong to request a treatment plan, the insurer did not act unreasonably to delay a claim as there was other reasons needed for the treatment plan; namely, to determine the appropriate date of loss being claimed as the claimant was involved in multiple MVAs. As a result, no special award was provided.

Applicant v. RBC Insurance Company (16-002047)

The claimant sought entitlement to a number of medical treatment plans. The insurer asserted a MIG position. On review of the medical reports and evidence, Adjudicator Sandeep Johal concluded the claimant provided compelling evidence that the injuries sustained warranted removal from the MIG. The treatment plans were also considered reasonable and necessary. However, despite the claimant seeking a special award, Adjudicator Johal noted no evidence was tendered by the claimant to demonstrate the unreasonable withholding of benefits; the special award claim was dismissed.